Martin v. State of VA et al

Filing 5

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 09/04/2014. (kab)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
CURTIS N. MARTIN,
Petitioner,
v.
STATE OF VA, et al.,
Respondents.

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Civil Action No. 7:14cv00445
MEMORANDUM OPINION
By: Norman K. Moon
United States District Judge

Petitioner Curtis N. Martin, 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
Appomattox County Circuit Court. I find that Martin 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 October 26, 2012, the Appomattox County Circuit Court convicted Martin of
possessing or transporting a firearm as a violent felon, in violation of Virginia Code § 18.2308.2. The court sentenced Martin to 5 years incarceration. According to his petition, and
confirmed by state court records found online, Martin has not appealed his criminal conviction or
filed a 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 a 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 Martin has yet to pursue his instant claims in the Supreme Court
of Virginia. Accordingly, I find that Martin’s petition is unexhausted.
III.
Based on the foregoing, I will dismiss Martin’s habeas petition, without prejudice, as
unexhausted.
ENTER: This 4th day of September, 2014.

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