United States District Court, W.D. Virginia, Roanoke Division
GLEN E. CONRAD, CHIEF UNITED STATES DISTRICT JUDGE
Jerome Hairston, a Virginia inmate proceeding pro se, filed
this civil action under 42 U.S.C. § 1983, followed by
three amendments, contending that he was wrongfully convicted
and seeking to have the conviction stricken. Upon review of
the record, the court concludes that the complaint must be
construed as a petition for a writ of habeas corpus under 28
U.S.C. § 2254 and summarily dismissed without prejudice
for failure to exhaust state court remedies.
and a codefendant were charged in Danville Circuit Court with
grand larceny involving a vehicle. The codefendant pleaded
guilty and testified at a bench trial that Hairston had told
him to steal the vehicle (a different version of events than
the codefendant had told police earlier). The judge found
Hairston guilty of second degree grand larceny and, in June
2016, sentenced him to a term of eight years in prison.
Hairston's appeal is still pending.
district court is not constrained by a litigant's style
of pleading and may liberally construe a civil rights
complaint as a habeas petition under § 2254.
Hamlin v. Warren, 664 F.2d 29, 30 (4th Cir. 1981).
To determine whether an action is properly considered a
habeas corpus petition requiring exhaustion of state court
remedies pursuant to § 2254(b), rather than a civil
rights complaint under § 1983, a court must consider
whether the "core" of the litigant's claim
concerns the fact and/or duration of the litigant's
confinement. Preiser v. Rodriguez, 411 U.S. 475
(1973); Todd v. Baskerville, 712 F.2d 70 (4th Cir.
claims allege that his trial was unfair because: the judge
changed the charge without notice, so Hairston had no chance
to prepare and present evidence to dispute it; the prosecutor
did not inform defense counsel that the codefendant had
accepted a plea bargain for a lesser sentence in exchange for
testifying against Hairston; the codefendant lied under oath;
Hairston is actually innocent of the charge; and his
court-appointed criminal defense attorney has refused to file
for a "writ of innocence." (Amend. Pet., at 5, ECF
No. 6.) Because the complaint thus contests the fact and
length of Hairston's confinement in the Virginia prison
system, his claims are not cognizable under § 1983, and
his sole remedy at this time is to bring a habeas
petition under 28 U.S.C. § 2254. Preiser,
supra. Therefore, the court concludes that
Hairston's claims are appropriately construed as a
petition for a writ of habeas corpus under §
that a newly construed § 2254 petition meets the
threshold requirements for such habeas actions, the
court can address petitioner's claims on the merits.
Haines v. Kerner, 404 U.S. 519 (1972). Under 28
U.S.C. § 2254(b), however, a federal court cannot grant
a habeas petition unless the petitioner has
exhausted the remedies available in the courts of the state
in which petitioner was convicted. O'Sullivan v.
Boerckel 526 U.S. 838, 842 (1999). If the petitioner
clearly has available state court remedies remaining, the
federal court must dismiss the § 2254 petition without
prejudice to allow him to avail himself of those remedies.
Slayton v. Smith, 404 U.S. 53(1971).
clear from Hairston's submissions that his direct appeal
proceedings are now in progress in the Virginia courts. Thus,
he has not yet exhausted his available direct appeal
remedies. Moreover, nothing in the record indicates that he
has presented his current claims about the alleged unfairness
of his trial and the alleged failings of his attorney to the
Supreme Court of Virginia as required for exhaustion of state
court remedies under § 2254(b). If his appeal is
unsuccessful, Hairston may then pursue state court habeas
corpus proceedings on these claims, if warranted.
Specifically, he may file a habeas corpus petition in the
circuit court where he was convicted, with a subsequent
appeal to the Supreme Court of Virginia, or he may file a
state habeas corpus petition directly in the Supreme Court of
Virginia. See Va. Code Ann. §§
8.01-654(A)(1), 17.1-406(B). Because Hairston clearly has not
exhausted available state court remedies at this time, this
court may not grant relief and must summarily dismiss the
petition without prejudice to allow him to pursue his claims
first in state court. Slayton, supra. An
appropriate order will enter this day.
Clerk is directed to send copies of this memorandum opinion
and accompanying order to plaintiff.
 Rule 4 of the Rules Governing §
2254 cases authorizes this court to summarily dismiss a
habeas corpus action if it is clear from the face of the
pleading that petitioner is not entitled to relief.
 State court records online indicate
that the Court of Appeals of Virginia refused Hairston's
appeal in February 2017, and his subsequent appeal to the
Supreme Court of Virginia is still pending.
 In addition to having the conviction
expunged, Hairston seeks reimbursement for "lost wages
and legal fees and pain and suffering." (Pet. 2, ECF No.
1.) Because success on any claim for damages caused by his
allegedly wrongful conviction would necessarily imply the
invalidity of that conviction, Hairston is barred from
pursuing any such claim, absent proof that the conviction has
been otherwise invalidated or set aside. See Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994). Because