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
/
.
f 6^(
'
Richmonaf, Virginia
Robert E. Payne
Senior United States District Judge
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