Hardy v. Clarke, No. 3:2013cv00747 - Document 41 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 01/15/2014. Copy mailed to pro se plaintiff.(tjoh, )
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Hardy v. Clarke Doc. 41 R JHt I6 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA CLERK. U.S DISTRICT PQi :rT RICHMOND v\ " Richmond Division KEYON SANTE HARDY, Petitioner, Civil Action No. v. 3:13CV747 HAROLD CLARKE, Respondent. MEMORANDUM OPINION Keyon Sante Hardy, a Virginia inmate proceeding pro se, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter Amended § 2254 Petition § 2254 the Petition, proper custody. is currently proceeding Hardy's 22). In his failed to receive ("§ 2254 Petition," ECF No. Hardy contends credit on against that his he has sentence for time spent in Specifically, Hardy asserts entitlement to relief upon the following grounds:1 Claim 1 "Denial of equal protection . . . [and] process . . . Code 53.1-187 states I nevertheless receive credit for time if the due shall court that imposed the sentence fails to provide for the credit authorized by this section. I have the waiver of extradition that show I waived extradition on 10/27/10 and not 4/11/11. I have been denied access to the courts." (§ 2254 Pet. 6.) Claim 2 "The dates of 4/26/10-8/4/10 10/9/12-10/23/12 are missing. 1 Where capitalization possible, and the punctuation and 8/3/10-9/17/11 Code 53.1-187 Court corrects in quotations the and [Virginia] the from spacing, Hardy's submissions. Dockets.Justia.com knows and placed a hold on me on 9/2/10. I waived extradition on 10/27/10. They won't give me the credit. It's not on my jail credit sheet. I was released on 9/17/11 not 8/22/11 or 4/14/11. I was not released on 8/22/11. I have the violation report from [the probation office] that states my proof." (Id. at 7-8.) Claim 3 "Why won't [Virginia] uphold the plea agreement from 10/27/10 or give me a cop[y] of it? If they produce the plea agreement from 10/27/10, this plea proves my claim that they agreed to give me the credit and even if they say it doesn't exist, I have attached the missing link waiver of extradition form." (Id. at 9.) Claim 4 "I was over sentenced by Judge Padrick. Judge Padrick revoked my original sentence and sentenced me to 2 years 10 months. I have less time than that. They did not compute my time correctly and they won't uphold the agreement from 10/27/10 or give a cop[y] of the agreement." (Id. at 11.) Respondent has moved to dismiss on the grounds that failed to exhaust claims lack merit. his state court remedies As explained below, and that Hardy Hardy's given the inadequacy of the current briefing, the Motion to Dismiss will be denied. I. EXHAUSTION AND PROCEDURAL DEFAULT The exhaustion requirement "xis rooted in considerations of federal-state comity,'" reflected the adequate in state federalism.'" Va. 2005) n. 10 and federal remedies Slavek v. in the habeas will Hinkle, Congressional statutes Abest 359 F. (quoting Preiser v. Rodriguez, (1973)). "that serve Supp. the determination exhaustion policies 2d 473, 411 U.S. 475, 479 of of (E.D. 491-92 & The purpose of the exhaustion requirement is "to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' Connor, 404 omitted). U.S. 275 (1971) (internal Exhaustion has two aspects. utilize all federal habeas available 838, 844-48 habeas 270, federal rights." relief. (1999) . petitioner remedies state See quotation First, before 0'Sullivan v. marks a petitioner must he can apply Boerckel, 526 for U.S. For its part Congress has declared that a "shall available remedies Picard v. in not the be deemed of courts to State . the have exhausted . . if the he has the right under the law of the State to raise, by any available procedure, the question presented." The have second aspect offered address the Baldwin v. the of state courts 541 omitted). "To claims advanced 27, (1995)) provide each appropriate state court with powers discretionary 29 (2004) U.S. petitioner at must 365-66). the State present review), " 'both controlling legal principles' to to on federal (quoting with the 'fairly present' (including a Fair a habeas. Duncan v. (additional internal quotation state thereby court to the federal nature of the claim." 513 petitioner "'opportunity'" adequate 'opportunity,' the prisoner must of requires an U.S. Henry, 513 U.S. 364, 365 marks exhaustion constitutional Reese, 28 U.S.C. § 2254(c). Id. presentation the operative necessary his claim in supreme court alerting that (quoting Duncan, demands facts that and a the associated with each claim" to the state courts. 2004) (quoting Baker 2000) ) . in Longworth v. Ozmint, v. 220 F.3d 437, F.3d 276, 448 (4th Cir. 289 (4th with a "state's with the petitioner. (4th Cir. chosen Mallory v. procedural Smith, 27 F.3d scheme" 991, distinct 134 provides its lies 994, 995 1994). but related limit on the scope of habeas review is the doctrine of procedural default." Pruett, Cir. The burden of proving that a claim has been exhausted accordance "A Corcoran, 377 F.3d 615, 619 (4th Cir. 1998). that "[i]f a state court clearly dismissal of procedural rule, independent and a habeas and adequate This claim procedural ground Breard v. doctrine and expressly bases petitioner's that federal rule on a state provides for the dismissal, an the habeas petitioner has procedurally defaulted his federal habeas claim." Id. A (citing Coleman v. federal when he habeas or she Thompson, petitioner "fails to also exhaust 501 U.S. 722, procedurally available 731-32 (1991)). defaults state claims remedies and 'the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find 501 the U.S. claims procedurally at n.l). 735 Under barred.'" these Id. (quoting circumstances, Coleman, even though the claim has not been fairly presented to the Supreme Court of Virginia, the exhaustion requirement is "technically met." Hedrick v. True, 443 F.3d 342, v. Netherland, 518 U.S. The of burden 152, 364 (4th Cir. 161-62 pleading 2006) (citing Gray that a (1996)). and proving procedurally defaulted rests with the state. State Prison, Absent a 591 F.3d 707, showing of 716 cause (4th Cir. and is Jones v. Sussex I 2010) prejudice claim (citing cases). or a fundamental miscarriage of justice, this Court cannot review the merits of a defaulted claim. See Harris v. Reed, 489 U.S. 255, 262 (1989). Respondent correctly notes that Hardy has failed to satisfy the exhaustion requirement because, inter alia, Hardy has failed to present any of his claims to the Supreme Court of Virginia. Respondent, however, fails to address why requirement has not been "technically met." at 364 (citing Gray, 518 U.S. at 161-62). the exhaustion Hedrick, Here, 443 F.3d a number of Virginia procedural rules would appear to preclude the Virginia Courts from considering e.g., Va. Code Ann. § 8.01-654(B)(2) 727 S.E.2d 650, the § 8.01-654 (A) (2) (West 2014); 651 merits of claims. See, (West 2014); Va. Code Ann. Booker v. (Va. 2012). Hardy's Dir. Accordingly, of Dep't of Corr., the Court declines to dismiss Hardy's claims for lack of exhaustion. II. Respondent avoids, MERITS ANALYSIS rather than addresses, the merits of City of Hardy's claims.2 On April 26, Virginia Beach of 2010, imprisonment (Va. Cir. absconded for Carolina. Corrections Circuit Ct. from May Virginia Adult to 2010). and a Probation ("Probation the I or Hardy, No. Thereafter, committed Memorandum and of a Schedule Commonwealth v. 6, Court sentenced Hardy to three years possession of According Court Circuit ("Circuit Court") controlled substance. 1 the new Memorandum"), II CR09-1214, at Hardy apparently offenses from Parole Schedule the North Department District filed in with 23 the to of the Circuit Court on May 5, 2011: On August 30, 2010, Hardy was arrested in Currituck County, North Carolina, on the charges of Conspiracy to Obtain Controlled Substance by Fraud/Forgery(x2), Trafficking, Opium or Heroin, and Felony Conspiracy. On April 11, 2011, in Currituck County Superior Court in North Carolina, Hardy was convicted of one count of Conspiracy to Obtain Controlled Substances by Fraud/Forgery. [The remaining charges were dismissed.] Hardy was extradited from North Carolina to Virginia on April 14, 2011. Hardy is currently in the Virginia Beach City Jail. 2 Respondent fails to even acknowledge that Hardy has a fourth claim. Furthermore, although a recitation of Hardy's criminal proceedings is necessary for any analysis of Hardy's claims, Respondent provides no such recitation for the Court. Respondent simply had the Circuit Court's record Rather, forwarded to the Court and left the Court to task of distilling the pertinent facts from that record. Probation Memorandum at (Va. Cir. Ct. By the Hardy, No. CR09-1214 entered on March 13, 2013, the Court revoked suspended sentence and imposed the unserved portion of Hardy's Hardy, Commonwealth v. filed May 5, 2011). Order Hardy's 1, No. original three-year CR09-1214, at 1 sentence. (Va. Cir. Ct. Commonwealth Mar. 13, 2013). v. The Circuit Court further ordered that Hardy "shall be given credit for time spent in confinement while code § 53.1-187." Although his Id.3 inartfully pled, belief that he Virginia awaiting trial pursuant to each of Hardy's claims evinces failed to receive proper credit against his sentence for time he spent in custody. Nevertheless, Respondent fails to address the merits of this contention and instead obtusely advances frivolous arguments. For example, Respondent suggests that Hardy's claims "would not affect the lawfulness of his immediate custody. . . . [and] do not lie in habeas" and he should pursue his claims under 42 U.S.C. § 1983. (Mem. Hardy's Supp. Mot. claims seek to Dismiss 4.) This is simply wrong. challenge the duration of his confinement. The Supreme Court "has held that a prisoner in state custody cannot use a § 1983 confinement. action He to must challenge seek 3 The Court declines, record to confinement. ascertain the the federal fact habeas or duration corpus in the first instance, dates Hardy relief of his . . . to scour the allegedly spent in instead." Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (internal citations and quotation marks omitted). Respondent forth in 28 dismiss then merely U.S.C. because Respondent, indicates § that fails to provides the the 2254 (d) (1) - (2) Hardy however, recites executed Hardy's entirely unsatisfactory. and asks satisfy absolutely Virginia properly standard of the that Correction sentence. Respondent's The to Motion to standard. analysis of set Court that no Department review Dismiss has argument (ECF No. is 26) will be denied. III. Hardy Motion to Appoint OUTSTANDING MOTIONS AND FURTHER PROCEEDINGS has filed Supplement Counsel for Motion to a the Writ of the for Record 36), (ECF No. Supplement Nevertheless, Motion (ECF No. Amended Complaint Petition a Discovery (ECF No. a Motion 37) (ECF 31), No. a 30), Motion for Leave to a to File an and a Memorandum in Support of Habeas Corpus Record (ECF (ECF No. No. 31) 39). will for the reasons set forth below, Hardy's be granted. Hardy's remaining motions will be denied. The in parties must this litigation. substantiate Respondent his must begin shoulder Hardy claims file to an must for relief adequate 8 their responsibilities clearly in a response articulate single to and document. those claims. Accordingly, within thirty (30) days of the date of entry hereof: 1. Hardy is directed to file a Brief in Support of his § 2254 Petition ("§ 2254 Brief"); 2. The § 2254 Brief shall set forth each of Hardy's grounds for relief in a separate paragraph. For each ground for relief, Hardy must clearly set forth the facts that support that ground for relief; and, 3. For any ground where Hardy demands credit against his Virginia Beach sentence for time spent in confinement, Hardy must: (a) Clearly identify the period of time for which he seeks credit; (b) Identify where he was confined and on what charge during the period(s) of time for which he seeks credit; and, (c) Explain why he believes he is entitled to time against the Virginia Beach Sentence for that period of confinement. Hardy must direct the Court to any documents position for 3(a) through (c) above. with the requirements set dismissal of the action. The Court's relief will be Hardy's No. 37) Nos. Motion forth See Fed. consideration R. Civ. Leave will be denied. to File will P. Hardy's limited solely to the for support his Failure to strictly comply below of that result in the 41(b). grounds for habeas forthcoming § 2254 Brief. an Amended Complaint Hardy's motions seeking discovery (ECF (ECF 30, 40) will be denied without prejudice. Respondent shall file his Answer Dismiss, the petition within thirty his § new 2254 Brief. Respondent, to, or a new Motion to (30) days after Hardy serves inter alia, shall provide, with supporting documentation, a complete accounting of the execution of Hardy's Virginia Beach Sentence. The interests of justice do not warrant the appointment of counsel. See 18 U.S.C. § 3006A(a)(2)(B). Accordingly, the Motion to Appoint Counsel (ECF No. 36) will be denied. The Clerk is directed to send a copy of the Memorandum Opinion to Hardy and counsel for Respondent. It is so ORDERED. /s/ /LZ/° Robert E. Payne Senior United States District Judge Richmond, Virginia Date: January J$~, 2015 10
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