Cruz v. Dillman

Filing 19

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 6/19/2017. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
SHERRY LEE CRUZ,
Petitioner,
v.
JEFFERY DILLMAN,
Respondent.

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CASE NO. 7:16CV00436
MEMORANDUM OPINION
By: Norman K. Moon
United States District Judge

Sherry Lee Cruz, a Virginia inmate proceeding pro se, filed this petition for a writ of
habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of her confinement on a
judgment by the Winchester City Circuit Court. Respondent filed a motion to dismiss Cruz’s
§ 2254 petition, and Cruz responded, making the matter ripe for disposition. After review of the
record, I conclude that Cruz has not fully exhausted her state court remedies before filing this
federal habeas petition and, therefore, will dismiss her petition without prejudice.
In 2014, a Winchester City Circuit Court jury convicted Cruz of first degree murder,
arson of an occupied dwelling, and four counts of felony child abuse and neglect. The circuit
court sentenced her to thirty-two active years of incarceration. Cruz appealed her convictions,
but the Court of Appeals and the Supreme Court of Virginia denied her petitions.
On March 7, 2016, Cruz filed a timely petition for a writ of habeas corpus in the
Winchester City Circuit Court, but the case is still active, pending a final order.
On June 29, 2016, Cruz filed a petition for a writ of habeas corpus in the federal district
court, which I denied without prejudice because Cruz had not fully exhausted her state court
remedies prior to filing her federal petition.
On September 19, 2016, Cruz filed the current petition.

“[A] federal court may not grant a writ of habeas corpus to a petitioner in state custody
unless the petitioner has first exhausted his state remedies by presenting his claims to the highest
state court.”

Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir. 2000) (citing 28 U.S.C.

§ 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)). 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 must ultimately present her claims to the
Virginia Supreme Court and receive a ruling from that court before a federal district court may
consider he claims. See Va. Code § 8.01-654. Once again, Cruz has not finished exhausting her
state court remedies before filing this action and, therefore, I will dismiss her habeas petition
without prejudice.
ENTER: This _____ day of June, 2017.
19th

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