United States District Court, W.D. Virginia, Roanoke Division
Dean McCormick, Pro Se Plaintiff.
P. Jones, United States District Judge.
Jimmy Dean McCormick, a Virginia inmate proceeding pro se,
has filed a civil rights action under 42 U.S.C. § 1983,
alleging that his sentence is unreasonable and his attorney
abandoned him on appeal. After review of the record, I
conclude 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
available state court remedies.
Complaint, its attachments, and state court records online
indicate that in 2016, Judge Vanover of the Dickenson County
Circuit Court revoked McCormick's probation in July 2016
and ultimately sentenced him to sixteen years in prison in
Case No. CR10000196-01. McCormick was also charged with a
felony offense of perjury in July 2016 in Case No.
CR16000416-00. He pleaded guilty to that charge in January
2017 and was sentenced to five years in prison. His attorney
of record in both cases was Melanie B. Menefee. A notice of
appeal was filed in Case No. CR10000196-01, and the
electronic record was submitted to the Court of Appeals of
Virginia, Record No. 1821-16-3; because no Petition of Appeal
was filed, the appeal was dismissed by order dated June 26,
2017. See Compl. Attach. 8, ECF No. 1-1. Proceeding
pro se, McCormick has filed two habeas corpus petitions in
the circuit court that are currently pending, Case No.
CL17000082-00 and Case No. CL17000260-00, naming as
respondents Menefee and Dickenson County Court, respectively.
also filed this § 1983 action naming Menafee and
Dickenson County Court as defendants. Liberally construing
his sparse allegations, he contends: (1) At a court
proceeding in January 2017, Menafee promised to consult with
McCormick about his appeal, but failed to do so, and the
appeal was dismissed because paperwork was never filed; and
(2) Judge Vanover unreasonably sentenced McCormick to sixteen
years, although the sentencing McCormick's Complaint
misspells Ms. Menefee's first name as "Melaine,
" but the court has used the spelling of her name used
in state court documents attached to his pleading. guidelines
called for six months or less. As relief in this lawsuit,
McCormick seeks reconsideration of his sentence.
1983 of Title 42 creates a cause of action against any person
who, acting under color of state law, abridges a right
arising under the Constitution or laws of the United
States." Cooper v. Sheehan, 735 F.3d 153, 158
(4th Cir. 2013). When an inmate seeks to challenge the fact
or duration of his detention based on federal constitutional
grounds, however, a civil rights complaint under § 1983
is not the proper legal remedy. Preiser v.
Rodriguez, 411 U.S. 475, 489 (1973). An inmate may raise
such challenges only by filing a petition for a writ of
habeas corpus, after first exhausting available state court
remedies. Id.; see also 28 U.S.C. § 2254(b)
(regarding exhaustion requirement).
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, 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, 411 U.S. at
claims that the judge imposed an improper sentence after
revoking his probation, and his attorney abandoned his appeal
of that sentence. Based on these alleged wrongdoings,
McCormick seeks reconsideration of his sentence. Because he
is clearly contesting the length of his confinement in the
Virginia prison system, his claims are not cognizable under
§ 1983. Id. at 500. Rather, the appropriate
federal cause of action in which to pursue such claims is a
habeas corpus petition under 28 U.S.C. § 2254.
Id. Therefore, I conclude that McCormick's
pleading is appropriately construed as a Petition for a Writ
of Habeas Corpus under § 2254.
federal court cannot grant habeas relief under § 2254
unless the petitioner has exhausted the remedies available in
state court. 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 utilize those remedies. Slayton v. Smith, 404
U.S. 53, 54 (1971).
presently has habeas corpus proceedings in progress in the
Dickenson County Circuit Court. If he is unsatisfied with
that court's rulings, he may appeal those rulings to the
Supreme Court of Virginia. See Va. Code Ann.
§§ 8.01-654(A)(1), 17.1-406(B). Because McCormick
clearly has not yet exhausted available state court remedies,
I conclude that I must summarily dismiss the petition without
prejudice to allow him to pursue his claims first in state
separate Final Order will ...