Brown v. Unknown

Filing 2

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 1/9/2014. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
DWAYNE BROWN,
Petitioner,
v.
UNNAMED,
Respondent.

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Civil Action No. 7:13cv00567
MEMORANDUM OPINION
By: Norman K. Moon
United States District Judge

Petitioner Dwayne Brown, 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 Roanoke City
Circuit Court. I find that Brown 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 June 27, 2013, the Roanoke City Circuit Court convicted Brown of possessing a
firearm as a violent felon, in violation of Va. Code 18.2-308.2, and sentenced him to 5 years
incarceration. Brown appealed and the Court of Appeals of Virginia denied his appeal on
December 19, 2013. Brown has not appealed to the Supreme Court of Virginia or filed a petition
for writ of certiorari to the Supreme Court of the United States.
habeas petition in any state court yet.

Brown also has not filed a

Brown filed his first habeas petition in this court on

November 27, 2013, and argues that counsel provided ineffective assistance. 1
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
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The court received Brown’s petition on December 5, 2013; however, prisoners are entitled to the benefit
of the prison mailbox rule which states that a prisoner’s pleading is deemed filed at the time of delivery to the proper
prison authorities for forwarding to the clerk of court. Houston v. Lack, 487 U.S. 266, 270-71 (1988).

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 Brown has yet to pursue his instant claims in the Supreme Court
of Virginia. Accordingly, I find that Brown’s petition is unexhausted.
III.
Based on the foregoing, I will dismiss Brown’s habeas petition, without prejudice, as
unexhausted.
ENTER: This 9th day of January, 2014.

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