Powell v. Aylor
Filing
5
OPINION. Signed by Judge James P. Jones on 12/10/2014. (tvt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
SHEILA RENEE POWELL,
Petitioner,
v.
AYLOR, SUPERINTENDENT,
Respondent.
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Case No. 7:14CV00666
OPINION
By: James P. Jones
United States District Judge
Sheila Renee Powell, Pro Se Petitioner
Sheila Renee Powell, a Virginia inmate proceeding pro se, filed this petition
for a writ of habeas corpus in the United States District Court for the Eastern
District of Virginia under 28 U.S.C. § 2241. Because Powell is challenging the
validity of her confinement under a judgment issued by a state court within this
district, the Eastern District construed her petition as one arising under 28 U.S.C.
§ 2254, and transferred the case to this court.
Upon review of the record, I
conclude that the petition must be summarily dismissed without prejudice for
failure to exhaust state court remedies.
Under 28 U.S.C. § 2254(b), a federal court cannot grant a habeas petition
unless the petitioner has exhausted the remedies available in the courts of the state
in which she was convicted. The exhaustion requirement is satisfied by seeking
review of the claims in the state court system, through direct appeal or habeas
corpus proceedings, and ultimately presenting the claims to the highest state court
with jurisdiction to consider them. See O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999).
Powell is challenging the April 2014 judgment of the Greene County Circuit
Court under which she stands convicted of two counts of embezzlement and
sentenced to ten years in prison, with all but two years and eleven months
suspended. In her § 2254 petition, Powell alleges that her trial attorney was
ineffective in various respects, before and after her guilty plea and related to her
attempt to obtain release on bond.
Claims that counsel provided ineffective assistance in a Virginia criminal
case must be asserted in a habeas corpus proceeding and are not cognizable on
direct appeal. See Lenz v. Commonwealth, 544 S.E. 2d 299, 304 (Va. 2001).
Powell offers no indication that she has filed a state court habeas corpus petition
presenting her ineffective assistance claims to the Virginia courts, as required for
exhaustion under § 2254(b). Until she has given the Supreme Court of Virginia an
opportunity to address these claims, she has not exhausted her state court remedies.
Moreover, court records available online indicate that Powell currently has a direct
appeal pending in the Court of Appeals of Virginia, Case Number 1059-14-2, and
that her petition for appeal was received on September 8, 2014. If Powell prevails
on appeal, her claims of ineffective assistance may be mooted.
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Thus, the petition and publically available information about her court
proceedings indicate that Powell has available state court remedies that she has not
yet exhausted, namely, her pending direct appeal, a subsequent appeal to the
Supreme Court of Virginia, and a state court habeas corpus proceeding, if
warranted. Therefore, I must dismiss her § 2254 petition without prejudice for
failure to exhaust state court remedies.
See Slayton v. Smith, 404 U.S. 53, 54
(1971) (finding that § 2254 habeas petition must be dismissed without prejudice if
petitioner has not presented his claims to the appropriate state court and could still
do so).
A separate Final Order will be entered herewith.
DATED: December 10, 2014
/s/ James P. Jones
United States District Judge
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