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Brown v. Unnamed

United States District Court, Fourth Circuit

January 9, 2014

DWAYNE BROWN, Petitioner,
v.
UNNAMED, Respondent.

MEMORANDUM OPINION

NORMAN K. MOON, District Judge.

Petitioner Dwayne Brown, a Virginia inmate proceeding pro se , filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in the Roanoke City Circuit Court. I find that Brown did not fully exhaust his state court remedies before filing this federal habeas petition and, therefore, I will dismiss this action without prejudice.

I.

On June 27, 2013, the Roanoke City Circuit Court convicted Brown of possessing a firearm as a violent felon, in violation of Va. Code 18.2-308.2, and sentenced him to 5 years incarceration. Brown appealed and the Court of Appeals of Virginia denied his appeal on December 19, 2013. Brown has not appealed to the Supreme Court of Virginia or filed a petition for writ of certiorari to the Supreme Court of the United States. Brown also has not filed a habeas petition in any state court yet. Brown filed his first habeas petition in this court on November 27, 2013, and argues that counsel provided ineffective assistance.[1]

II.

A federal court cannot grant a habeas petition unless the petitioner has exhausted the remedies available in the courts of the state in which he was convicted. Preiser v. Rodriguez , 411 U.S. 475 (1973). If the petitioner has failed to exhaust state court remedies, the federal court must dismiss the petition. Slayton v. Smith , 404 U.S. 53 (1971). In Virginia, a non-death row felon ultimately must present his claims to the Supreme Court of Virginia and receive a ruling from that court, before a federal district court may consider his claims. See Va. Code § 8.01-654. In this case, it is clear that Brown has yet to pursue his instant claims in the Supreme Court of Virginia. Accordingly, I find that Brown's petition is unexhausted.

III.

Based on the foregoing, I will dismiss Brown's habeas petition, without prejudice, as unexhausted.


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