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 he should be resentenced because of the
defendant's wrongful actions. 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 and state court records online indicate that 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 No.
CR10000196-01. McCormick was also charged with a felony
offense of perjury in July 2016 in No. CR16000416-00. He
pleaded nolo contendere to that charge in January 2017 and
was sentenced to five years in prison. McCormick has filed
two habeas corpus petitions in the circuit court, both of
which are currently pending, No. CL17000082-00 and No.
filed this § 1983 action in January 2018, naming Judge
Vanover as the defendant. Liberally construing his sparse
allegations, McCormick contends that the judge exceeded the
sentencing guidelines, caused him to be wrongfully charged
with perjury, did not provide counsel for his appeal, and
violated confidentiality rules by sending copies of his
mental health evaluation to three parties. As relief in this
lawsuit, McCormick seeks only to be resentenced.
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
stated, McCormick claims that the judge's actions caused
him to be unfairly sentenced and seeks, as relief, only
resentencing. Because McCormick is clearly contesting the
length of his confinement in the Virginia prison system, his
claims are not cognizable under § 1983. Id.
Rather, the appropriate federal cause of action in which to
pursue such relief 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
the courts of the state in which the 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
utilize those remedies. Slayton v. Smith, 404 U.S.
53, 54 (1971).
stated, McCormick 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 his § 2254 petition without prejudice to allow
him to pursue his claims first in state court. I will also
deny McCormick's motion seeking appointment of counsel in
the pending state court proceeding, because that motion
should be directed to the state court.
separate Final Order will be entered herewith.
 Rule 4 of the Rules Governing Section
2254 Cases authorizes summary dismissal of a habeas corpus
action if it is clear that the petitioner is ...