United States District Court, W.D. Virginia, Roanoke Division
October 8, 2014
MARQUISE A. GRANT, Petitioner,
NORMAN K. MOON, District Judge.
Petitioner Marquise A. Grant, a Virginia inmate proceeding pro se , filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2005 convictions in the Circuit Court for the City of Martinsville. Grant argues that the court abused its discretion by imposing a "lengthy sentence." I conclude that Grant did not fully exhaust his state court remedies before filing this federal habeas petition and, therefore, I will dismiss this action without prejudice.
On December 12, 2005, the Circuit Court for the City of Martinsville convicted Grant of using a firearm in committing a felony, in violation of Virginia Code § 18.2-53.1, and second degree murder, in violation of Va. Code 18.2-32. The Circuit Court sentenced Grant to forty-three years incarceration, with thirty years suspended. According to his petition, and confirmed by state court records found online, Grant has not appealed or filed a habeas petition concerning either of these convictions in any state court. Grant did, however, file a "motion to amend sentence order" in the Circuit Court, which the court denied on July 7, 2014.
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 a 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 Grant has yet to pursue his instant claim in the Supreme Court of Virginia. Accordingly, I conclude that Grant's petition is unexhausted.
Based on the foregoing, I will dismiss Grant's habeas petition, without prejudice, as unexhausted.