Murray v. Dillman

Filing 4

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 12/3/2013. (kab)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
KENNETH MURRAY,
Petitioner,
v.
JEFFREY DILLMAN,
Respondent.

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Civil Action No. 7:13cv00477
MEMORANDUM OPINION
By: Norman K. Moon
United States District Judge

Petitioner Kenneth Murray, a Virginia inmate proceeding pro se, filed this petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in the Halifax
County Circuit Court. I find that Murray did not fully exhaust his state court remedies before
filing this federal habeas petition and, therefore, I will dismiss this action without prejudice.
I.
On May 14, 2009, after a jury trial in the Halifax County Circuit Court, the court
convicted Murray of second degree murder and sentenced him to 30 years incarceration. Murray
appealed to the Court of Appeals of Virginia and the Supreme Court of Virginia, arguing that he
acted in self-defense. The Supreme Court of Virginia refused his appeal on September 23, 2011.
Murray did not file a petition for writ of certiorari to the Supreme Court of the United States.
Murray filed a petition for writ of habeas corpus in the Halifax County Circuit Court on October
19, 2012, arguing that counsel provided ineffective assistance. The circuit court dismissed
Murray’s habeas petition on March 14, 2013. Murray indicates, and state court online records
confirm, that he did not file a habeas petition in the Supreme Court of Virginia. In his instant
habeas petition, Murray argues that counsel provided ineffective assistance.

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 that Murray has yet to pursue his instant claims in the Supreme Court
of Virginia. Accordingly, I find that Murray’s petition is unexhausted.1
III.
Based on the foregoing, I will dismiss Murray’s habeas petition, without prejudice, as
unexhausted.
ENTER: This 3rd day of December, 2013.

1

Moreover, it appears that, absent grounds to equitably toll the statute of limitations, Murray’s § 2254
petition is also untimely filed.