United States District Court, W.D. Virginia, Roanoke Division
GLEN E. CONRAD SENIOR UNITED STATES DISTRICT JUDGE.
William Arnold, a Virginia inmate proceeding pro se,
filed this petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254, challenging his confinement under a
state court criminal judgment. Upon review of the record, the
court concludes that the petition must be summarily dismissed
without prejudice to allow Arnold to fully exhaust state
September 5, 2017, the Pittsylvania County Circuit Court
sentenced Arnold to ten years of imprisonment following a
conviction for taking indecent liberties with a minor. His
direct state appeals, which were unsuccessful, concluded when
the Supreme Court of Virginia refused his petition for appeal
on December 3, 2018.
filed this § 2254 petition on September 30, 2019. He
alleges that he is in custody in violation of the
Constitution because (1) false evidence was used to convict
him, (2) an investigator failed to disclose exculpatory
evidence, (3) his appellate counsel provided ineffective
assistance, and (4) Arnold is actually innocent. Arnold
states that he has not filed any other court actions or
petitions related to his conviction, and state court records
online do not reflect that he has filed any petition for a
writ of habeas corpus in the circuit court or in the Supreme
Court of Virginia.
28 U.S.C. § 2254(b), a federal court cannot
grant a habeas petition unless petitioner has
exhausted the remedies available in the courts of the state
in which he was convicted. The exhaustion requirement is
satisfied by seeking review of the claims in the highest
state court with jurisdiction to consider them. See
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In
Virginia, “[c]laims raising ineffective assistance of
counsel must be asserted in a habeas corpus proceeding and
are not cognizable on direct appeal.” Lenz v.
Commonwealth, 544 S.E.2d 299, 304 (Va. 2001). To exhaust
his state court remedies on such claims, Arnold can file a
state habeas petition in the circuit court where he
was convicted, with an appeal of an adverse decision to the
Supreme Court of Virginia. Va. Code Ann. §
8.01-654(a)(1); id. § 17.1-406(B). In the
alternative, he can file a state habeas petition directly
with the Supreme Court of Virginia. § 8.01-654(a)(1).
Whichever route he follows, he must ultimately present his
claims to the Supreme Court of Virginia and receive a ruling
before a federal district court could grant relief under
§ 2254 on an ineffective assistance claim. If a §
2254 petitioner has not presented his habeas claims
to the state courts and could still do so, a federal court
should dismiss his petition without prejudice. Slayton v.
Smith, 404 U.S. 53, 54 (1971).
may have presented Claims (1) and (2), and possibly Claim
(4), in the direct appeal proceedings, which might satisfy
the exhaustion requirement in § 2254(b) as to those
claims. Claim (3), alleging ineffective assistance of
counsel, could not have been raised on direct appeal.
Lenz, 544 S.E.2d at 304. Arnold admits that other
than the direct appeals, he has not filed any state court
habeas petition. As described above, he could still
do so if he acts promptly. See Va. Code Ann. §
8.01-654(A)(2) (providing that a habeas petition
attacking a criminal conviction or sentence shall be filed
within one year of the final disposition of the direct appeal
in state court). Thus, Arnold has not satisfied the
exhaustion requirement under § 2254(b) as to his
ineffective assistance claim.
a district court must dismiss without prejudice a
habeas petition containing a mix of both unexhausted
and exhausted claims. Rose v. Lundy, 455 U.S. 509,
522 (1982). The court finds it appropriate to do so in this
case. Dismissal of the petition without prejudice leaves
Arnold "with the choice of returning to state court to
exhaust his claims or of amending or resubmitting the habeas
petition to present only exhausted claims to the district
court." Id. at 510. Arnold is advised,
however, that in most cases, a state inmate, only
has one chance to prosecute a federal habeas corpus
petition. If Arnold pursues only his exhausted claims in
a § 2254 petition now, and waits to fde his ineffective
assistance claims in a second § 2254 petition at some
later time, the later petition will likely be summarily
dismissed under 28 U.S.C. § 2254(h) as successive. He is
also advised that he has a limited time to file a § 2254
petition, see 28 U.S.C. § 2244(d)(1), although
that federal time clock will stop running while properly
filed habeas corpus proceedings are proceeding in state
court. See 28 U.S.C. § 2244(d)(2). At the conclusion of
state habeas proceedings, if Arnold is dissatisfied
with the result, he may then raise all of his habeas
claims in this court in a new § 2254 petition that will
not be considered successive under § 2254(h).
reasons stated, the court will dismiss this mixed petition
without prejudice. An appropriate order will enter this day.
The Clerk is directed to send copies of this ...