Jalal v. Commonwealth of Virginia, No. 3:2015cv00352 - Document 5 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 8/10/2015. A copy of the Memorandum Opinion was mailed to the Petitioner. (sbea, )
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Jalal v. Commonwealth of Virginia Doc. 5 ° ^ Bi I II IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA AUG I I 2015 Richmond Division CLERK, U.S. DISTRICT GuURl RICHtviOND. VA RASHID ABDUL JALAL, Petitioner V. CivilNo.3:I5CV352 COMMONWEALTH OF VIRGINIA, 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). "As a general rule, in the absence of'exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent,' Bowen v. Johnston, 306 U.S. 19,27 (1939), courts 'require[ ] exhaustion of alternative remedies before a prisoner can seek federal habeas relief.'" Timms v. Johns, 627 F.3d 525, 530-31 (4th Cir. 2010) (alteration in original) (parallel citation omitted) (quoting Boiimediene v. Bush, 553 U.S. 723, 793 (2008)). Exhaustion is accomplished by presenting the claims to the Supreme Court of Virginia for review either on direct appeal or in a collateral proceeding. Conversely, "federal courts should abstain from the exercise of [habeas] jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state court or by other state procedures available to the petitioner." Dickerson v. Louisiana, 816 F.2d 220, 225 (5th Cir. 1987) (citations omitted); Durkin v. Davis, 538 F.2d 1037, 1041 (4th Cir. 1976) (internal quotation marks omitted) ("Until the State has been accorded a fair opportunity by any available procedure to Dockets.Justia.com consider the issue and afford a remedy if relief is warranted, federal courts in habeas proceedings by state [inmates] should stay their hand."). Petitioner stated that he raised only his first two claims for relief in a pro se petition in the Circuit Court for the City of Fredericksburg, Virginia (§ 2254 Pet. 6-8), and that he has not raised his third claim in state court (id at 9). Petitioner failed to indicate whether he filed an appeal or any other challenge to his state conviction in the Supreme Court of Virginia. Instead, he indicated that he "appealed] to Fredericksburg Circuit Court only." (Id at 5.) Thus, the record failed to indicate that Petitioner has properly exhausted his state court remedies with respect to his three claims. Accordingly, by Memorandum Order entered on July 2, 2015, the Court directed Petitioner to show cause, within eleven (11) days of date of entry hereof, as to why his § 2254 Petition should not be dismissed for lack of exhaustion. Petitioner has responded. Instead of explaining that he has exhausted his state court remedies, he states "[m]y only excuse is my lack of knowledge and do to the limited time I was striving to accomplish my task to the best of my capacity and ability" and that he "had no knowledge of the correct process." (Resp. 1, ECF No. 4.) Petitioner fails to demonstrate he has exhausted his state remedies. Moreover, the issues here may be resolved by collateral appeal. Petitioner fails to demonstrate any exceptional circumstances warrant the consideration of his habeas petition at this lime. Accordingly, Petitioner's § 2254 Petition and the action will be DISMISSED WITHOUT PREJUDICE because he has failed to demonstrate that he has exhausted available state remedies or demonstrate that exceptional circumstances warrant consideration of his petition at this juncture. An appeal may not be taken from the final order in a § 2254 proceeding unless a judge issues a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(A). A COA 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. McDcmiel, 529 U.S. 473,484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). Jalal fails to satisfy this standard. Accordingly, a certificate of appealability will be DENIED. An appropriate Order shall issue. Isl - - R Spencer ; J. S. District Judge Richmond, Virgmia
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