Simmons v. Virginia Department Of Corrections
MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr. on 5/25/2017. Copy to Pro Se Petitioner. (jsmi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
EMANUEL C. SIMMONS,
Civil Action No. 3:17CV268
VIRGINIA DEPARTMENT OF CORRECTIONS,
Petitioner, a Virginia inmate proceedingpro se, submitted a letter in which he indicated
that he "come[s] to this Court to petition for a writ of actual innocence that is non-biological."
(ECF No. 1.) Given the content of this document, the Court determined that it was appropriate to
give Petitioner the opportunity to pursue this action as a petition for a writ of habeas corpus
under 28 U.S.C. § 2254. See Rivenbark v. Virginia, 305 F. App'x 144, 145 (4th Cir. 2008).
Accordingly, by Memorandum Order entered on April 19, 2017, the Court directed Petitioner to
complete and return the forms for filing a 28 U.S.C. § 2254 petition within twenty (20) days of
the date of entry thereof The Court also indicated that, in the alternative. Petitionercould move
to withdraw the action. The Court warned that if Petitioner failed to take any action within that
time, the Court would dismiss the action without prejudice.
More than twenty (20) days have expired since the entry of the April 19, 2017
Memorandum Order and Petitioner has failed to respond.
Accordingly, the action will be
DISMISSED WITHOUT PREJUDICE. To the extent necessary, a certificate of appealability
will be DENIED.
An appropriate Order shall accompany this Memorandum Opinion.
ibney.fe / y
United States Distrii
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