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, )
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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