Garland v. Warden, No. 7:2018cv00322 - Document 32 (W.D. Va. 2019)
Court Description: MEMORANDUM OPINION. Signed by Senior Judge Jackson L. Kiser on 9/11/2019. (tvt)
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CLERK' :A OFFICE u,s.nlsm COURT T> VILLE,VA FILED IN THE UNITED STATES DISTRICT COURT FOR TH E W ESTERN DISTRICT OF VIRGINIA R O AN O K E D IVISIO N sEP 1l 2919 2U Bz . DLEY.CL RK DEPUTYCLERK TIM OTHY L.GARLAND , Petitioner, CA SE N O .7:18CV 00322 V. M EM OM ND U M O PIN ION W AR DEN , By: H on.Jackson L .K iser Senior U nited States D istrictJudge R espondent. PetitionerTim othy L.Garland,aVirginiainm ateproceeding pro K ,filed thispetition for . am ' itofhabeascorpus,ptlrsuantto28U.S.C.j2254,challengingadisciplinaryproceedingthat resulted in a loss ofearned good-conducttime and a sizeable restitution order.The petition is presently before m e on therespondent's motion to dism iss,Garland'sresponsethereto,and his motion for an evidentiary hearing.For the reasons setforth below,I will sllm marily dism iss Garland'spetitionwithoutprejudicetoallow him toptlrsuehispendingstatecourthabeasaction and dism isstheparties'm otionsasmoot. 1. GarlandisinthecustodyoftheVirginiaDepartmentofCorrections($tVDOC''),servinga lifesentenceimposedin 1985.On August14,2015,atDillwynCorrectionalCenter(.&Di11wyn''), GarlandwasservedwithaDisciplinaryOffenseReport((çDOR''),charginghim withbeingtmder the influence oftmprescribed drugs.According to the DOR,on August2,2015,officers found Garland v. Warden Doc. 32 Garland in the Day Room area,slumped in a chairand unresponsive.(Resp'tExhibits 20-22, EECF No.20-21).In the medicaltmit,Garland kept going in and out ofconsoiousness and seem ed to be'Ghallucinatingy''becausehe said,ç&Hewanted everyoneto see''and çt'ro bring usal1 together.''(Ld.. aat22.)A staff member ajked Garland if he had iGtaken,smoked or drgujlzk Dockets.Justia.com anything,''and Garland said he was ûthaving a <bad reaction,'butwould not say whathe was reacting to.''(Id.)He wastransported to the hospitalfortests.During a search of Garland's clotlting,intherightjean pocket,an offcerfound Gdonefoldedwhitepapersealedwithtapethat contained agreen andbrown substanceinside.''(ld.)W hen an investigatorinterviewedGarland on August 4, 2015, he (tadmitted he smoked spice.'' (Id.) The DOR concluded, Glfhe Investigation Offce reviewed a11 of the observations presented, as well as Rapid Eye, and determinedthattheoffender'sactionswereconsistentwith aperson who wasundertheinfluence ofsometypeofunauthorizedsubstanceordrug.''(Id.)Garlanddeniestakingtmprescribeddrugs and blnmeshissym ptom son August2,2015,on afallthatcaused him aconcussion. Thedisciplinaryhearingwasscheduled forAugust20,2015.tLd.aat20.)Garlandalleges thathe wasnotprovided with form storequestwitnes'sesand doctunentary evidence untilAugust 19,2015.He claim sthathereturned theform thatday,seeking tttoxicology resultsoftlrine and blood tests,and video tape.''(Pet.Ex.A (ECF No.24-1j).On August21,2015,the hearing officer denied Garland's requested evidence,because he had notreturned the form within 48 hoursbeforethescheduled hearing. Ultimately,itappears from documents in the record thatthe hearing was conducted on February4,2016.(SeePet.Ex.C (ECFNo.1j.)ThehemingofficerfotmdGarland guilty ofthe charged offense because the reporting officer'sdescription ofGarland's actions was consistent with thoseofaperson tmdertheinfluenceofadrugorotherunknown substance.(L1t) Garland's penalty was30 daysofdisciplinary segregation,lossof 120 daysof&ISGT,''and an orderforhim to pay restimtion in the nmotmt of $6,963. These findings and penalties were apparently approvèd afteran institutionalreview on February 8,2016.1Atsom epointafterthe disciplinary hearing,Garland wastransferred to Sussex IStatePrison. In January of 2017,the Sussex County Circuit Coul'treceived a letter from Garland, aslcing aboutthestatusofahabeascorpuspetition hehad senttothe courtin thefallof2016.By letterdated January 25,2017,the clerk ofthe CircuitCourtadvised Garland thatthe courthad received paperwork from him in 'Septem berof2016,buthad notyetreceived the $34 fling fee oracopy ofthe pleading to beserved on theAttorney General(GtAG'').Garland responded by mailing theCircuitCourthisapplication to proceedLq formapauperis.By letterdated February 23,2017,the clerk dvised Garland thatthe incomplete financialinformation he had offered in supportofhisapplication demonstratedthathedidnotqualifytoproceediq fol'mapauperis.On M arch 9,2017,the CircuitCourtmailed Garland a copy ofits orderdenying hisapplication to proceed j. q forma pauperis.The accompanying letter again advised him thatifhe wanted to proceed with hishabeascase,heneeded to pay the$34 filing fee and to providethe courtwith a copy ofthe petition to be served on theAG.Thecopy ofGarland'spetitioh forawritofhabeas corpusin the CircuitCourtrecord isstnmped asreceived on April4,2017.CircuitCourtrecords show thispetition asisstillpending and hasnotbeen decided on themerits. On M arch 30,2017, Garland signed and dated a N otice of Appealfrom the Circuit Court'sorderdenyinghisapplication toproceedLqformapauperis.Hemailedthisnoticetothe CourtofAppealsofVirginia,which issuedan order,statingthatitdidnothavejurisdictionover the appeal,and transferring the appealto the Suprem eCourtofVirginia.On April26,2017,the Supreme CourtofVirginiaissued an ordergranting Garland untilJune 8,2017,to filehisappeal. 1 lt is unclear from the DOR form whether the institutionalreview approved the $6,963 restim tion amount, see Pet.Ex.C. M oreover, another copy of the sam e DOR fol' m states that the disciplinary hearing occurred on August26,2017,and thiscopy doesnotinclude any restitution amount, seePet.Ex.C,(ECFNo.1q. On June 5,2017,hefiled hispetition forappeal,asking the Supreme CourtofVirginiatoreverse the CircuitCourt'sorderdenying hisapplication to proceed tq forma pauperiswith hishabeas copuspetitioh.InNovemberof2017,Garland alsofiledatdmotionforaprohibitoryinjunctionr'' seeking a courtorderto cease the gnrnishment ofhisprison wages toward satisfaction of the restim tion im posed on him in February of 2015.On January 11,2017,the Suprem e Courtof Virginia decided thatno reversible en'orhad been committed and refused Garland'spetition for appealofthe CircuitCourt'sdenialofj. q forma nauperis.The Courtalso denied hisseparate motionforaprohibitoryinjunctionwithoutfurthercomment. Garland filedhisj2254petition,unsigned,with acoverletterdatedJune 15,2018.2The courtrequired him to subm itasigned copy ofhispetition,which hedid.Liberally constnzedj3his petition asserts that he was not provided the tsRight to Request W itness and Docum entary Evidence''form in tim e to requestsuch evidence forthe disciplinary hearing,in violation ofhis due processrights.The respondenthas filed am otion to dism iss,arguing thatGarland'shabeas claim sareuntim ely sled and procedurally defaulted.Garland has responded,m aking the m atter ripefordisposition.4 2 Garland originally filed hisaction in the United StatesD istrictCourtforthe Eastern Districtof Virginia. lt was transferred here because the prison that imposed the disciplinary conviction under challenge islocated in thisdistrict. ' . 3 The court's order requiring Garland to submit a signed petition also instructed him that the amended petition would take the place of his previous filings. Garland's amended petition,however, clearly incorporates exhibits and inform ation from his initialpetition. Because he is proceeding pro K ,1 . haveliberally construedbothofhissubmissions(ECFNos.1and71,jointly,asconstitutinghisj2254 petition. 4 Garland hasalso moved foran evidentiary hearing to allow him to prove thathe wasnotunder the iniuence ofdrugs on August2,2015,as charged. Because Iherein determ ine thatthe petition m ust be dismissed withoutprejudice on proceduralgrounds,1willdismiss hismotion foran evidentiary hearing on his substantiveclaim sasmoot. II. QCEAIIfederalcourtmay notgrantawritofhabeascorpusto apetitionerin state custody tmlessthepetitionerhasfirstexhausted hisstaterem ediesby p'resenting hisclaim sto thehighest state court.''Bakerv.Corcoran,220 F.3d 276,288 (4th Cir.2000).5Absenta valid excuse,a state prisonerttm usthave fairly presented to the state courtsthe substance ofhisfederalhabeas corpusclaim.''Anderson v.Harless,459 U.S.4,6 (1982).Ultimately,exhaustion requiresthe petitionertopresenthisclaimsto'thehigheststatecourtwithjurisdiction to considerthem and receiveanlling.O'Sullivan v.Boerckel,526U.S.838,845(1999).A petitionerhastheburden to prove thathe exhausted state courtremediesasto each ofhisfederalhabeasclaim s.Breard v. Prtzett,134 F.3d 615,619 (4th Cir.1998).lfa j2254 petitionerstillhasavailable state court proceedingsinwhichhecan litigatehishabeasclaims,afederalcoul'tshould dismisshisj2254 petition withoutprejudice to allow him to exhaustthose state courtremedies.See Slayton v. Smith,404U.S.53,54 (1971). The evidence in the records indicatesthatGarland has notyetexhausted available state courtremediesregarding hisdueprocessclaimsasrequired tmderj2254(19.Although hehas filed a state habeaspetition in the CircuitCourt,he hasnotyetcom pleted the required stepsto havehisclaimsadjudicatedthere.TheCircuitCourtclerk hasadvisedGarlandrepeatedly thatto proceed with hishabeas action,heneedsto pay the $34 filing fee.Garland hasnotyetdone so. Thus, he has not yet offered the Circuit Cotu't an adequate opportunity to address the constitm ionalclaim sadvanced in hisfederalhabeaspetition,and those claims are stillpending. Garland'spetition forappealtothe Suprem eCotu. tofVirginiaaddressed only theCircuitCourt's 5 Ihave omitted citationls),internalquotation marks,and/oralterationshereand elsewhere in thisopinion,unlessothem isenoted. denialofhisapplication toproceedLqformapauperis.Thus,GarlandhasnotSifairlypresentedto thestatecourtsthesubstanceofhisfederalhabeascorpusclaimgsj.''Anderson,459U.S.at6. Because Garland's habeas action is still pending in the Circuit Court, he retains the opportunity to pay the sling fee and proceed with the case to receive thatcourt'sruling on the meritsofhisclaims.6M oreover, once the CircuitCourtaddressesthe claim sin hispetition,ifhe isdissatisfied with the decision,hem ay then plzrsuean appealto the Suprem eCoul. tofVirginia. SeeVa.CodeAnn.jj8.01-654(A)(1),17.1-406(B). Because the state courtshave notyethad a fullopporttmity to address Garland'shabeas claim son them erits,and statecotlrthabeascorpusand habeas appealrem ediesrem ain available to him,he has notyet fulslled the exhaustion requirementin 28 U.S.C.j2254(19.For this reason,lmustdismisshisj2254petition withoutprejudiceto allow him to exhauststatecourt rem edies.Slag on,404 U .S.at54.An appropriateorderwillentertllisday. Potentialtiming problem s could prevent,or m ake difficult,Garland's later filing bf a timely j2254 petition forwritofhabeas corpusafterhe has exhausted available state court remediesonthemeritsofhisclaims.Thus,intheinterestsofjusticeandjudicialeconomy,1will permitGarland to m oveto reopen thishabeasaction and file an am ended habeascorpus'petition underj2254within60dAysaftertheconclusionofthelateststatecourtproceeding. The Clerk isdirectedto send copiesofthismemorandum opinion and accompanying orderto petitioner and to counselofrecord forthe respondent. 6 Habeaspetitionsfiledunderj2254 aresubjecttoaone-yearperiod oflimitation.28U.S.C. j2244(d)(1). Therespondent'smotion to dismissarguesthatGarland'sfederalpetition isuntimely filed because the state courtpetition was apparently filed on April 4,2017, m ore than one year after the conclusion of the disciplinary proceedings in February 2016. Because itappears that Garland can still proceed with his CircuitCourtfiling if he paysthe required Gling fee,however,Ifind itappropriate to summarily dismissthefederalpetitionwithoutprejudiceasunexhausted,to allow him toproceedwiththe statecourtaction.Therefore,Iwilldismisstherespondent'smotion withoutprejudiceasmoot. 5 . Ex-l-sm m this$t-6 dayof- ,2019. J SEN O R UN ITED STA TES D ISTRICT JU DG E
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