JAMES R. SPENCER, Senior District Judge.
Christopher Todd Landeck, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 1) challenging his conviction in the Circuit Court of the City of Richmond, Virginia ("Circuit Court"). On November 19, 2014, the Magistrate Judge issued a Report and Recommendation. There being no objections, the Report and Recommendation will be ACCEPTED and ADOPTED.
The Magistrate Judge made the following findings and recommendations:
On September 9, 2013, Landeck filed a petition for a writ of habeas corpus in the Circuit Court.
On February 7, 2014, the Court received Landeck's § 2254 Petition. In his § 2254 Petition, Landeck argues entitlement to relief based upon the following grounds:
Landeck acknowledges that "[t]his is a `protective petition' . . . which petitioner submits now, during the pendency of his post-conviction habeas in the Commonwealth of Virginia, to preserve his ability to seek subsequent review in this Court." ((Id. at 2 (citation omitted).) Landeck asks the Court to stay and hold in abeyance the § 2254 Petition pending the resolution of his state habeas petition "in an effort to preserve petitioner's right to federal habeas review following exhaustion of state post-conviction (habeas) remedies." (Id. at 8 n.3.) For the reasons stated below, it is RECOMMENDED that the Court DENY Landeck's request to stay and DISMISS the action WITHOUT PREJUDICE.
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). State exhaustion "`is rooted in considerations of federal-state comity,'" and in Congressional determination via federal habeas laws "that exhaustion of adequate state remedies will `best serve the policies of federalism.'" Slavek v. Hinkle, 359 F.Supp.2d 473, 479 (E.D. Va. 2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 & n. 10 (1973)). The purpose of the exhaustion requirement is "to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation marks omitted). Exhaustion has two aspects. First, a petitioner must utilize all available state remedies before he can apply for federal habeas relief. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-48 (1999). As to whether a petitioner has used all available state remedies, the statute notes that a habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).
The second aspect of exhaustion requires a petitioner to have offered the state courts an adequate `opportunity' to address the constitutional claims advanced on federal habeas. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)) (additional internal quotation marks omitted). "To provide the State with the necessary `opportunity,' the prisoner must `fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Id (quoting Duncan, 513 U.S. at 365-66). Fair presentation demands that a petitioner must present "`both the operative facts and the controlling legal principles' associated with each claim" to the state courts. Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (quoting Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)). The burden of proving that a claim has been exhausted in accordance with a "state's chosen procedural scheme" lies with the petitioner. Mallory v. Smith, 27 F.3d 991, 994-95 (4th Cir. 1994).
In Virginia, to exhaust state remedies, a "petitioner must present the same factual and legal claims raised in the instant petition to the Supreme Court of Virginia either by way of (i) a direct appeal, (ii) a state habeas corpus petition, or (iii) an appeal from a circuit court's denial of a state habeas petition." Sparrow v. Dir., Dept of Corr., 439 F.Supp.2d 584, 587 (ED. Va. 2006); see also V a. Code Ann. § 8.01-654(A)(1) (West 2014). "`Whichever route the inmate chooses to follow, it is clear that [the inmate] ultimately must present his [federal habeas] claims to the Supreme Court of Virginia and receive a ruling from that court before a federal district court can consider them.'" Banks v. Johnson, No. 3:07CV746-HEH, 2008 WL 2566954, at *2 (E.D. Va. June 26, 2008) (second alteration added) (quoting Graham v. Ray, No. 7:05cv00265, 2005 WL 1035496, at *2 (W.D. Va. May 3, 2005)); see also Sparrow, 439 F. Supp. 2d at 587.
The United States Supreme Court has approved the use of a "stay-andabeyance" procedure in the case of certain "mixed" federal habeas corpus petitions, i.e., those petitions that contain both exhausted and unexhausted claims. Rhines v. Weber, 544 U.S. 269, 274-76 (2005). However, "granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts," which is "only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. at 277. 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, 2008 WL 2566954, at *2); cf. Jackson v. Roe, 425 F.3d 654, 659-61 (9th Cir. 2005) ("Rhines applies to stays of mixed petitions. . . ."); 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.")
Nevertheless, several courts have concluded that Pace v. Guglielmo, 544 U.S. 408 (2005) extended the Rhines rationale beyond mixed petitions. See Heleva v. Brooks, 581 F.3d 187, 191-92 (3d Cir. 2009);
First, the claims Landeck raises in his § 2254 Petition are entirely different than the claims he presented to the Court of Appeals of Virginia and the Supreme Court of Virginia on direct appea1.
Although "stay and abeyance should be available only in limited circumstances," Rhines, 544 U.S. at 277, the Supreme Court concluded:
Id. at 278. Under the first factor, the Court must determine whether "there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. at 277. The Supreme Court's limited comments on what constitutes good cause to warrant stay and abeyance do not indicate that the standard is meant to be inordinately demanding. See Pace, 544 U.S. at 416 (observing that a "petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute `good cause' for him to file in federal court" (citing Rhines, 544 U.S. at 278)); Rhines, 544 U.S. at 279 (Stevens, J., concurring) (internal quotation marks and citation omitted) (concluding "good cause for failing to exhaust state remedies more promptly is not intended to impose the sort of strict and inflexible requirement that would trap the unwary pro se prisoner"). The Court need not address the second two factors in the instant action because Landeck fails to demonstrate good cause for his failure to exhaust.
In support of his argument requesting stay and abeyance, Landeck notes that the Supreme Court of Virginia dismissed his direct appeal on September 13, 2012, and he filed his state habeas petition on September 9, 2013. (§ 2254 Pet. 10-11.) Landeck concludes that "petitioner will potentially have only four (04) days from the date" of the Supreme Court of Virginia's judgment on his petition for appeal to file his § 2254 petition. (Id. at 11.)
First, Landeck provides no explanation for why he waited nearly a year after the Supreme Court of Virginia dismissed his direct appeal to file a state habeas petition in the Circuit Court. Moreover, Landeck's belief that he only has four days after the Supreme Court of Virginia rules on his petition for appeal to file a federal habeas is misplaced. Based on the current record, Landeck's conviction became final on December 12, 2012, when the time to file a writ of certiorari expired. See Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002) ("[T]he one-year limitation period begins running when direct review of the state conviction is completed or when the time for seeking direct review has expired...." (citing 28 U.S.C. § 2244(d)(1)(A))); Sup. Ct. R. 13(1) (requiring that a petition for certiorari should be filed within ninety days of entry of judgment by the state court of last resort or of the order denying discretionary review). Thus, Landeck would have one year from December 12, 2012, in which to file his federal petition. The limitations period ran for 270 days prior to the filing of his state petition on September 9, 2013. The Court observes that Landeck would have at least 95 days in which to file his federal petition after the Supreme Court of Virginia's resolution of his state petition for appeal.
(Nov. 19, 2014 Report and Recommendation (alterations and omissions in original).) The Court advised Landeck that he could file objections within fourteen (14) days after the entry of the Report and Recommendation. Landeck has not responded.
"The magistrate makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with this court." Estrada v. Witkowski, 816 F.Supp. 408, 410 (D.S.C. 1993) (citing Mathews v. Weber, 423 U.S. 261, 270-71 (1976)). This Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). "The filing of objections to a magistrate's report enables the district judge to focus attention on those issues—factual and legal—that are at the heart of the parties' dispute." Thomas v. Arn, 474 U.S. 140, 147 (1985). In the absence of a specific written objection, this Court may adopt a magistrate judge's recommendation without conducting a de novo review. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 316 (4th Cir. 2005).
There being no objections, the Report and Recommendation will be ACCEPTED and ADOPTED. Respondent's Motion to Dismiss (ECF No. 6) will be GRANTED. The Court will DENY Landeck's request to stay and abey the instant action until his state court remedies are exhausted. The Court will DISMISS WITHOUT PREJUDICE Landeck's claims. The Court will DENY WITHOUT PREJUDICE Landeck's § 2254 Petition (ECF No. 1) and DISMISS the action WITHOUT PREJUDICE. The Court will DENY AS MOOT the Motion to Merge or Consolidate Cases (ECF No. 10) and the Motion to Amend (ECF No. 13). The Court will DENY a certificate of appealability.
An appropriate Order will accompany this Memorandum Opinion.
Landeck, 722 S.E.2d at 645.
28 U.S.C. § 2244(d).
