Brown-El v. Newton, No. 3:2013cv00633 - Document 3 (E.D. Va. 2013)
Court Description: MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 9/30/13. Copy sent: Yes(tdai, ) (Main Document 3 replaced on 9/30/2013) (tdai, ).
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division TINA BROWN-EL, Petitioner, Civil Action No. 3:13CV633-HEH JEFFREY NEWTON, Respondent. MEMORANDUM OPINION (Dismissing Without Prejudice 28 U.S.C. § 2254 Petition) Tina Brown-El, proceeding pro se, filed a petition pursuant to 28 U.S.C. § 2254 ("§ 2254 Petition")- In her § 2254 Petition, Brown-El seeks to challenge her conviction in the "Hopewell General District Traffic Court" for "failure to appear." (§ 2254 Pet. 1.) A letter attached to Brown-El's § 2254 Petition indicates she was scheduled to appear in court for the above charge on September 3, 2013. (Id. Ex. A.) Brown-El indicates that she has not pursued an appeal or any post-conviction remedies in state court with respect to the above conviction. (Id. at 3-13.) "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 Boumediene v. Bush, 553 U.S. 723, 793 (2008)). In this regard, "[i]n the case of those detained by states, principles of federalism and comity generally require the exhaustion of available state court remedies before [the federal courts] conduct habeas review of the detention." Id. at 531 n.5 (citing Boumediene, 553 U.S. at 793). Thus, "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, 224 (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 consider the issue and afford a remedy if relief is warranted, federal courts in habeas proceedings by state [inmates] should stay their hand."). Here, the issues raised by Brown-El may be resolved either by direct or collateral appeal. Brown-El fails to demonstrate that any exceptional circumstances warrant the consideration of his habeas petition at this time. Accordingly, Brown-El's § 2254 Petition and the action will be dismissed without prejudice because Brown-El has failed to exhaust available state remedies or demonstrate that exceptional circumstances warrant consideration of his petition at this juncture. See Williams v. Simmons, No. 3:10CV709- HEH, 2011 WL 2493752, at *1-2 (E.D. Va. June 22, 2011) (dismissing without prejudice similar habeas petition by pretrial detainee). 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 orthat the issues presented were 'adequate to deserve encouragement toproceed further.'" Slack v. McDaniel, 529 U.S. 473,484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 &n.4 (1983)). No law or evidence suggests that Brown-El is entitled to further consideration in this matter. A COA will therefore be denied. Anappropriate Order shall accompany this Memorandum Opinion. Akfl * Date: >cfr. 3a)2oll Richmond, Virginia /s/ HENRY E.HUDSON UNITED STATES DISTRICT JUDGE
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