Benjamin Forrest Carter v. Virginia Department of Corrections Director

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-6858
BENJAMIN FORREST CARTER,
Petitioner - Appellant,
v.
VIRGINIA DEPARTMENT OF CORRECTIONS DIRECTOR,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, Senior District Judge. (1:22-cv-00036-LO-JFA)
Submitted: January 26, 2024 Decided: February 9, 2024
Before QUATTLEBAUM and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Vacated and remanded by unpublished per curiam opinion.
Benjamin Forrest Carter, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Benjamin Forrest Carter appeals the district court’s orders dismissing without
prejudice his 28 U.S.C. § 2254 petition for failure to exhaust state court remedies and
denying his Fed. R. Civ. P. 59(e) motion. In his § 2254 petition, Carter presented exhausted
and unexhausted claims. The Supreme Court has “held that ‘mixed’ habeas petitions—
containing both exhausted and unexhausted claims—cannot be adjudicated.” Jones v.
Bock, 549 U.S. 199, 221 (2007) (citing Rose v. Lundy, 455 U.S. 509, 522 (1982)). “[A
district] court presented with a mixed habeas petition ‘should allow the petitioner to delete
the unexhausted claims and to proceed with the exhausted claims’” Id. at 222 (quoting
Rhines v. Weber, 544 U.S. 269, 278 (2005)).
After Respondent moved to dismiss the § 2254 petition, Carter filed a declaration
waiving the unexhausted ineffective assistance of counsel claims so that his exhausted
claims could proceed. However, the court appears to have misconstrued Carter’s filing,
finding that it indicated he did not want to waive his unexhausted claims. In light of
Carter’s pro se status and his repeated assertions that he wished to proceed only on the
exhausted claims, we vacate the district court’s orders and remand for further proceedings
on the exhausted claims. We deny a certificate of appealability as unnecessary. See
Harbison v. Bell, 556 U.S. 180, 183 (2009).
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
VACATED AND REMANDED

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