Mullins v. Buchanan County Circuit Court

Filing 2

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 07/14/2011. (kab)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
DAVID MULLINS, JR.,
Petitioner,

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v.
BUCHANAN COUNTY CIRCUIT COURT,
Respondent.

Civil Action No. 7:11-cv-00332
MEMORANDUM OPINION
By: Norman K. Moon
United States District Judge

Petitioner David Mullins, Jr., a Virginia inmate proceeding pro se, filed this petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions in the Buchanan
County Circuit Court. The court finds that Mullins has failed to exhaust his state court remedies
before filing this federal habeas petition and, therefore, dismisses his petition without prejudice.
I.
After pleading guilty in the Buchanan County Circuit Court, the court convicted Mullins
of several drug-related charges. Mullins concedes, and state court online records confirm, that
he has not pursued a direct appeal or a state habeas petition in any state court.
II.
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 the 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 § 8.01654. In this case, it is clear from the face of his petition that Mullins has yet to pursue his claims

in the Supreme Court of Virginia.

Accordingly, the court finds that Mullins’ petition is

unexhausted.
III.
Based on the foregoing, the court dismisses Mullins’ instant habeas petition, without
prejudice, as unexhausted.
The Clerk is directed to send a certified copy of this Memorandum Opinion and
accompanying Order to the petitioner.
ENTER: This 14th day of July, 2011.