Lugaro v. Clarke

Filing 13

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 7/1/2019. Copy to Lugaro as directed. (jsmi, )

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

Richmond Division

JESSE D. LUGARO,

Petitioner,
V.

Civil Action No. 3:19CV288

HAROLD W. CLARKE,

Respondent.
MEMORANDUM OPINION

Jesse D. Lugaro, a Virginia inmate proceeding pro se, filed
a 28 U.S.C. § 2254 petition (§ 2254 Petition," ECF No. 1).

By

Memorandum Order entered on May 8, 2019, the Court directed service

of the § 2254 Petition on Respondent, Harold. W. Clarke.

In his

Motion to Dismiss, Clarke indicates that the § 2254 Petition should
be dismissed because Lugaro has not exhausted his state remedies
with respect to one claim.

In response, Lugaro filed a MOTION TO

WITHDRAW

PREJUDICE

PETITION

WITHOUT

and

"asks

this

court

for

permission to withdraw my petition in relation to the above-styled
case" . . . "without prejudice to the petitioner's ability to refile after the resolution of the belated direct appeal in the state
court."

(Mot. Withdraw 1, ECF No. 12 (citations omitted.)

Before a state prisoner can bring a § 2254 petition in federal
district

court,

remedies

available

§ 2254(b)(1)(A).

the

prisoner

in

the

must

courts

first
of

the

have

"exhausted

State."

28

the

U.S.C.

Exhaustion is accomplished by presenting the

claims to the Supreme Court of Virginia for review either on direct
appeal or in a collateral proceeding.

This Court has previously

concluded that "where a petitioner has failed to exhaust state
court

remedies for

all of

his claims,

the

federal

court must

dismiss the petition without prejudice because the use of the stay
and abeyance procedure for certain mixed federal habeas petitions
is

inapplicable."

Payne

v.

Johnson,

No.

3:07CV614,

2008

WL

3843447, at *1 (E.D. Va. Aug. 15, 2008) {some internal quotation
marks omitted) (quoting Banks v. Johnson, No. 3:07CV746-HEH, 2008
WL 2566954, at *2 (E.D. Va. June 26, 2008)); see also Rasberry v.

Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (citation omitted)

("Once a district court determines that a habeas petition contains
only unexhausted claims, it need not inquire further as to the
petitioner's intentions.

Instead, it may simply dismiss the habeas

petition for failure to exhaust.")

Both parties agree that Lugaro has not exhausted his state
remedies with respect to all of his claims. Accordingly, the MOTION
TO WITHDRAW PETITION WITHOUT PREJUDICE (ECF NO. 12) and the MOTION

TO DISMISS (ECF No. 8) will be granted and the action will be

dismissed without prejudice.

Petitioner may file a § 2254 petition

in this Court after he has exhausted his remedies in state court.

A certificate of appealability will be denied.
The Clerk is directed to send a copy of the Memorandum Opinion
to Lugaro and counsel of record.

/s/

Date:

A

/

.

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'

Richmonaf, Virginia

Robert E. Payne

Senior United States District Judge