Tabb v. Morrisey et al

Filing 19

MEMORANDUM OPINION. See Opinion for complete details. Signed by District Judge Robert E. Payne on 09/12/2017. Copy mailed to Petitioner as directed.(ccol, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ~I Richmond Division TODD TABB, Petitioner, G IL [E Sl:P I 2 20ll Civil Action No. 3:16CV995 HAROLD CLARKE, Respondent. MEMORANDUM OPINION Todd Tabb, a Virginia inmate proceeding pro se, brings this petition pursuant to 28 U.S.C. 7) § 2254 ("§ 2254 Petition," ECF challenging his conviction in the Circuit Court for the County of Charles City, Virginia ("Circuit Court"). has moved to dismiss, his state court Respondent arguing that Tabb has failed to exhaust remedies as to all of his claims. For the reasons stated below, the Motion to Dismiss (ECF No. 15) will be granted, I~ CLERK. U.S. DiSTM1CT COURT RICHMOND. VA v. No. In\ and Tabb's § 2254 Petition will be dismissed without prejudice to Tabb's right to refile once he has exhausted his state court remedies. A. On March 15, malicious wounding. 2016, PROCEDURAL HISTORY a jury convicted Tabb of one count of (Br. Supp. Mot. Dismiss 1 1 ECF No. 17; see § 2254 Pet. 1.) 1 The Circuit Court entered final judgment on June 17, 2016 and sentenced Tabb to five years of incarceration. (Br. Supp. Mot. Dismiss 1.) Tabb did not appeal. (Id.; 2254 § Pet. 2.) The Court received Tabb's December 21, 2016. (ECF No. 1.) January the initial 19, 2017, Court standardized form for filing a 1.) On Petition, March in which assistance Petition, 9, of 2017, Tabb Tabb directed § the (§ indicates Petition on By Memorandum Order entered on to he Pet. did claims 5-8.) not complete the (ECF No. 2, at received various 2254 that Tabb 2254 petition. Court raises counsel. 2254 § Tabb's 2254 § of ineffective In his exhaust his § 2254 state remedies because he was unable to obtain a state habeas form 2 and because he was unaware of his state remedies until he filed the instant § 2254 Petition. II. Before a (Id. at 5, 7, 9-10.) EXHAUSTION AND PROCEDURAL DEFAULT state prisoner can bring federal district court, a § 2254 petition the prisoner must first have "exhausted the remedies available in the courts of the State." § 2254(b) (1) (A). 28 u.s.c. State exhaustion "'is rooted in considerations 1 § in The Court utilizes the pagination assigned 2254 Petition by the CM/ECF docketing system. 2 to Tabb's Respondent attached a blank state habeas corpus form to his Brief in Support of the Motion to Dismiss for Tabb's use. {Br. Supp. Mot. Dismiss Ex. 1, ECF No. 17-1.) 2 of federal-state comity'" and in Congressional determination via federal habeas laws "that exhaustion of adequate state remedies will 'best Hinkle, serve 359 F. the Supp. policies 2d 473, of 479 federalism.'" (E.D. Va. Slavek v. (quoting 2005) Freiser v. Rodriguez, 411 U.S. 475, 491-92 & n. 10 (1973)). The purpose of the exhaustion requirement is "to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' 270, 275 (1971) federal rights." Picard v. Connor, {internal quotation marks omitted). has two aspects. 404 U.S. Exhaustion First, a petitioner must utilize all available state remedies before he can apply for See O'Sullivan v. Boerckel, 526 U.S. federal 838, habeas 844-48 {1999). relief. As to whether a petitioner has used all available state remedies, the statute notes that a habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, § the question presented. " 28 u.s.c. 2254 (c). The have second aspect of offered address the Baldwin v. the state exhaustion requires courts constitutional Reese, Henry, 513 U.S. marks omitted) . 541 364, U.S. 365 "To an claims 27, (1995)) provide adequate petitioner to '''opportunity'" to advanced on 29 {2004) federal (quoting habeas. Duncan v. (additional internal quotation the 3 a State with the necessary 'opportunity, ' the prisoner must each appropriate state with discretionary powers of court 'fairly present' (including a review), state thereby court to the federal nature of the claim." 513 U.S. petitioner at 365-66). must present controlling legal 2004) Cir. 2000)). exhausted scheme" (quoting Baker v. in burden accordance lies with the Corcoran, of proving with a that (quoting Duncan, that facts and a the each claim'" to 377 F.3d 437, 448 (4th 220 F.3d 276, 289 (4th that has been a "state's claim chosen Mallory v. the petitioner. court alerting operative Ozmint, supreme demands associated with Longworth v. The Id. presentation "'both principles' the state courts. Cir. Fair his claim in procedural Smith, 27 F. 3d 991, 994-95 (4th Cir. 1994). In Virginia, to exhaust state remedies, a "petitioner must present the same factual and legal claims raised in the instant petition to the Supreme Court of Virginia either by way of direct appeal, appeal from petition." 584, 587 654 (A) {1) follow, (ii) a a state habeas corpus petition, or (iii) circuit Sparrow v. (E.D. Va. is court's Dir., 2006); {West 2017). it denial Dep' t see of also of Corr. , Va. a state 4 39 Code F. Ann. an habeas Supp. § 2d 8.01- "Whichever route the inmate chooses to clear that his [federal habeas] (i) a [the inmate] ultimately must present claims to the Supreme Court of Virginia and receive a ruling from that court before a federal district court 4 can consider them." WL 2566954, added) Banks v. at *2 (E.D. Va. Johnson, June 26, No. 3:07CV746-HEH, 2008) 2008 (second alteration (quoting Graham v. Ray, No. 7:05cv00265, 2005 WL 1035496, at *2 (W.D. Va. May 3, 2005)); see also Sparrow, 439 F. Supp. 2d at 587. Here, the claims raised by Tabb have not been raised before the Supreme Court of Virginia. Tabb may still file a petition for a writ of habeas corpus raising his present claims with the state court . (requiring See Va. that a Code Ann. state habeas § 8. 01-654 (A} (2) petition be (West filed within years of final judgment where no appeal is pursued). to demonstrate that consideration of any exceptional his habeas circumstances petition at this 2017) two Tabb fails warrant time. In the sum, Tabb's claims are clearly unexhausted. III. CONCLUSION For the foregoing reasons, (ECF No. dismissed exhausted 15) Respondent's Motion to Dismiss Tabb's will be granted. without his prejudice. state court Tabb § may remedies. 2254 Petition will be refile A once he has certificate of appealability will be denied. 3 3 An appeal may not be taken from the final order in a 2254 proceeding unless a judge issues a certificate of A COA wi 11 appealability ("COA"). 28 U.S.C. § 2 2 5 3 (c) ( 1 ) (a) . not issue unless a prisoner makes "a substantial showing of the 28 u.s.c. § 2253 (c) (2). denial of a constitutional right." § 5 The Clerk is directed to send a copy of this Memorandum Opinion to Tabb and counsel of record. It is so ORDERED. /s/ f U? Robert E. Payne Senior United States District Judge Richmond, Virginia Date: ~(J. 1 i.ot1 This requirement is satisfied only when "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further."' Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Tabb fails to meet this standard. Accordingly, the Court will deny a certificate of appealability. 6

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