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