Germany v. Commonwealth of Virginia

Filing 6

OPINION. Signed by Judge James P. Jones on 9/12/2014. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
HAKEEM JAMAR GERMANY,
Petitioner,
v.
COMMONWEALTH OF VIRGINIA,
Respondent.

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Case No. 7:14CV00450
OPINION
By: James P. Jones
United States District Judge

Hakeem Jamar Germany, Pro Se Petitioner.
The petitioner, Hakeem Jamar Germany, a Virginia inmate proceeding pro
se, filed a petition which the court construed and docketed as arising under 28
U.S.C. § 2254, challenging his confinement. The court directed Germany to file a
proper § 2254 petition if he wished to proceed with the action under that statute,
and he has now done so. After review of the petition, I find it appropriate to
summarily dismiss the petition without prejudice, because Germany has not
exhausted available state court remedies as required.1
Germany initially faced a charge of first degree murder and several related
firearms charges. In June 2014, pursuant to a written plea agreement, he pleaded
guilty or no contest in the Circuit Court for the City of Roanoke to an amended
1

Under Rule 4 of the Rules Governing § 2254 Cases, the court may summarily
dismiss a § 2254 petition “[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court.”

charge of involuntary manslaughter, discharge of a firearm in a public place, and
shooting from an occupied vehicle. The court sentenced Germany to a total of
twenty-five years in prison, suspended after he has served seven years.
Germany petitioned this court for habeas corpus relief in August 2014.
Initially, he alleged that his trial counsel provided ineffective assistance during the
plea negotiations. In his amended petition under § 2254, he also asserts that he
asked his attorney to appeal, but the attorney failed to do so. Germany states that
he has not presented his current claims to the state courts in habeas corpus
proceedings. Online court records verify that Germany did not appeal and has not
pursued habeas relief in the state courts.
Under 28 U.S.C. § 2254(b)(1)(A), 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. See O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999) (finding exhaustion requires seeking review of habeas claims in highest
state court before bringing § 2254 petition in federal court).

Germany’s

submissions do not indicate that he has presented his claims of ineffective
assistance to any state court. Although his opportunity to file a direct appeal has
expired, Germany could file a habeas corpus petition in the circuit court where he
was sentenced, with a subsequent appeal to the Supreme Court of Virginia, or he
could file a habeas petition directly in the Supreme Court of Virginia. See Va.
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Code Ann. § 8.01-654. In habeas corpus proceedings in the state court, he could
also seek a belated direct appeal based on his allegations of ineffective assistance
in that regard.
Because Germany has available state court remedies, I must dismiss his
§ 2254 petition without prejudice.2 See Slayton v. Smith, 404 U.S. 53, 54 (1971).
A separate Final Order will be entered herewith.
DATED: September 12, 2014
/s/ James P. Jones
United States District Judge

2

Germany is advised that dismissal of this petition without prejudice leaves him
free to file a new § 2254 petition here, if warranted, after he has exhausted his state court
remedies and has received a ruling on his claims from the Supreme Court of Virginia.
But see 28 U.S.C. § 2244(d) (setting time limits for filing a § 2254 petition).
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