RODERICK C. YOUNG, Magistrate Judge.
Leroy J. Kelly, a Virginia state prisoner proceeding pro se, brings this petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition," ECF No. 10) challenging his convictions in the Circuit Court for the County of Stafford, Virginia (hereinafter, "Circuit Court") for robbery and use of a firearm in the commission of a robbery. Kelly has previously filed a § 2254 petition in this Court challenging his convictions in the Circuit Court. The matter is before the Court on Kelly's Response to the Court's Memorandum Order directing Kelly to show good cause for his failure to exhaust his state court remedies. For the reasons that follow, Kelly's § 2254 Petition will be DISMISSED WITHOUT PREJUDICE for lack of exhaustion.
Prior to his arrest in North Carolina, Kelly was involved in approximately fifty-three (53) robberies. See Kelly v. Va. Dep't of Corr., No. 3:15CV243, 2016 WL 4702476, *2 (E.D. Va. Sept. 6, 2016) (citation omitted). On March 24, 1998, Kelly pled guilty in the United States District Court for the Western District of Virginia to one count of conspiracy to commit and to attempt to commit armed robbery, and two counts of use of a firearm during a crime of violence. See id. (citation omitted). On January 7, 1999, the court sentenced Kelly to 312 months of incarceration. See Kelly v. Va. Dep't of Corr., No. 3:15CV243 (ECF No. 1-3, at 25.) Kelly is currently serving his federal sentence and is incarcerated in USP Allenwood.
On August 3, 1998, Kelly was charged in the Circuit Court with robbery, use of a firearm during the commission of a robbery, possession of a firearm after having been convicted of a felony, and shooting into an occupied building. Kelly, 2016 WL 4702476, *3 (citation omitted). On May 22, 2000, the Circuit Court arraigned Kelly on his then pending state charges. See id. at *4 (citation omitted). Kelly initially pled not guilty and requested a bench trial, but on the day of trial agreed to plead guilty to the robbery charge and the use of the firearm in the commission of the robbery charge in exchange for the prosecution's agreement to dismiss the remaining charges. See id. at *3-4 (citation omitted). Kelly attempted to withdraw his guilty plea several times thereafter. See id. at *4-5. The Circuit Court refused to permit Kelly to withdraw his guilty plea and sentenced Kelly to an active prison term of ten years. Id. at *5 (citation omitted).
Kelly did not appeal. See id. at *6-7.
In 2015, Kelly filed his first § 2254 petition challenging his Stafford County convictions in this Court. See id. at *1. By Memorandum Opinion and Order entered September 6, 2016, this Court granted in part, and denied in part, Kelly's § 2254 petition. See id. *1-7. In his first § 2254 petition, Kelly raised a number of claims including challenges to his guilty plea and ineffective assistance of counsel. The Court granted relief for his claim that counsel failed to file a direct appeal in the form of granting Kelly a delayed appeal of the criminal judgments to the Court of Appeals of Virginia. Id. at *7. The Court dismissed all of his other claims including his attempts to challenge his convictions and challenges to his guilty pleas. Id.
On September 21, 2016, the Court of Appeals of Virginia granted Kelly a belated appeal and appointed counsel to represent him. (ECF No. 1-1, at 2.) In his Petition for Appeal, Kelly argued that the Circuit Court erred when it denied his motion to withdraw his guilty plea. (ECF No. 20-3, at 10.) On May 5, 2017, the Court of Appeals of Virginia denied Kelly's Petition for Appeal. (ECF No. 20-4, at 1.) On May 8, 2017, Kelly noted an appeal to the Supreme Court of Virginia. (ECF No. 20-5, at 1.) As discussed below, counsel for Kelly did not file a petition for appeal and thus, no appeal was pursued in the Supreme Court of Virginia.
On November 23, 2016, prior to the litigation of his belated appeal, this Court received a second 28 U.S.C. § 2254 Petition from Kelly challenging the same Stafford County convictions. By Memorandum Order entered on February 9, 2017, the Court explained the following:
(ECF No. 6, at 2-3.) Kelly indicated that he wanted to delete the improper claims and, on April 10, 2017, he submitted the § 2254 Petition that is currently before the Court. (ECF No. 10.)
In his § 2254 Petition, Kelly argues entitlement to relief based upon the following claims:
Respondent moves to dismiss on the ground that Kelly's claims are procedurally defaulted and barred from review here and, in the alternative, that they lack merit.
Because it appeared that no petition for appeal for his belated appeal was ever filed in the Supreme Court of Virginia, by Memorandum Order entered on January 11, 2018, the Court directed Respondent to file a further response detailing the status of Kelly's direct appeal in the Supreme Court of Virginia. The Court also directed Respondent to identify what, if any, impact the apparent lack of appeal may have had on Respondent's arguments in the Motion to Dismiss and to identify the appropriate procedure for the resolution of the instant § 2254 Petition at this juncture.
In his supplemental response, Respondent explained as follows:
(Resp. 2-3, ECF No. 24 (paragraph numbers omitted).)
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). 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, within the meaning of this section, 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. "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." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365-66 (1995)). Fair presentation demands that "both the operative facts and the controlling legal principles" must be presented to the state court. 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).
"A distinct but related limit on the scope of federal habeas review is the doctrine of procedural default." Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). This doctrine provides that "[i]f a state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim." Id. (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). A federal habeas petitioner also procedurally defaults claims when the "petitioner fails to exhaust available state 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 the claims procedurally barred.'" Id. (quoting Coleman, 501 U.S. at 735 n. 1).
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., Dep't of Corr., 439 F.Supp.2d 584, 587 (E.D. Va. 2006); see also Va. Code Ann. § 8.01-654(A)(1) (West 2018). "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.
Kelly has not properly presented his three claims to the Supreme Court of Virginia. In his Response Showing Good Cause, Kelly again admits that he "has not presented [his] particular claim(s) to the state." (Resp. Showing Good Cause 1, ECF No. 27.) Nevertheless, in a lengthy discussion, he once again complains that the exhaustion requirement should be excused because there has been an inordinate delay between the time in which his conviction was final and now. Kelly fails to demonstrate good cause to excuse the exhaustion requirement. As Respondent aptly notes, Kelly has remedies available to him in state court if Kelly acts with diligence, and Respondent will not oppose Kelly's pursuit of those remedies. Kelly fails to offer a persuasive reason why he should not be required to exhaust his claims.
Because Kelly's three claims are unexhausted and he also has remedies available in state court, the § 2254 Petition (ECF No. 10) will be DENIED WITHOUT PREJUDICE. The action will be DISMISSED. Kelly may re-file his habeas petition after he has exhausted his state court remedies for all of his claims. A certificate of appealability will be DENIED.
The Clerk is DIRECTED to send a copy of this Memorandum Order to Kelly and counsel for Respondent.
It is so ORDERED.
