Williams v. Clarke

Filing 4

MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr on 4/11/2017. Copy mailed to Pro Se Petitioner. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

PERCELL WASHINGTON WILLIAMS,
Petitioner

V.

Civil No. 3:17CV98

HAROLD W. CLARKE,
Petitioner.

MEMORANDUM OPINION

Petitioner, a Virginia inmate proceeding pro se, filed a 28 U.S.C. § 2254 petition (§ 2254

Petition," ECF No. 1). Before a state prisoner can bring a § 2254 petition in federal district

court, the prisoner must first have "exhausted the remedies available in the courts of the State."
28 U.S.C. § 2254(b)(1)(A). Exhaustion is accomplished by presenting the claims to the Supreme

Court of Virginia for review either on direct appeal or in a collateral proceeding. Petitioner
states that he has filed neither an appeal nor any other challenge to his state conviction to the
Supreme Court of Virginia {see § 2254 Pet.

8-10), nor previously raised the claims within his

§ 2254 Petition to the Virginia courts. {Id. at 5-11 (as paginated by CM/ECF).) Thus, the record
fails to indicate that Petitioner has properly exhausted his state court remedies with respect to his
claims.

By Memorandum Order entered on March 3, 2017, the Court directed Petitioner within
eleven (11) days of the date of entry thereof to show cause why the present § 2254 Petition
should not be dismissed without prejudice for lack of exhaustion. The Court warned Petitioner
that the failure to comply with the Court's directive would result in summary dismissal of the
action. .

More than eleven (11) days have elapsed since the entry of the March 3, 2017
Memorandum Order and Petitioner has not responded.

Accordingly, the action will be

DISMISSED WITHOUT PREJUDICE.

An appeal may not be taken from the final order in a § 2254 proceeding unless a judge
issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability
will not issue unless a prisoner makes "a substantial showing of the denial of a constitutional

right." 28 U.S.C. § 2253(c)(2). 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)). No law or evidence suggests that Petitioner is entitled to
further consideration in this matter. A certificate of appealability will be DENIED.

An appropriate Order shall accompanythis Memorandum Opinion.

M Or ^
John A. Gibney, Jr. /
Date:

Richmond, Virginia

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