Kimble v. Wilson

Filing 5

OPINION. Signed by Judge James P. Jones on 4/13/2017. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
EUGENE JUNIOR KIMBLE,
Petitioner,
v.
THOMAS J. WILSON, IV,
Respondent.

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Case No. 7:17CV00057
OPINION
By: James P. Jones
United States District Judge

Eugene Junior Kimble, Pro Se Petitioner.
Petitioner Eugene Junior Kimble, a Virginia inmate proceeding pro se, has
filed a civil action,1 challenging the validity of his confinement under a probation
revocation order. After review of the record, I construe Kimble’s pleading as a
Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. I find that it must be
summarily dismissed without prejudice for failure to exhaust available state court
remedies.
Kimble’s petition and state court records online indicate that by order dated
August 22, 2016, Judge Thomas J. Wilson, IV, of the Circuit Court for
1

Kimble submitted his pleading on a form designed to assist inmates in filing
civil rights actions under 42 U.S.C. § 1983. Because the relief Kimble seeks is not
available under § 1983, however, Kimble’s pleading is appropriately considered instead
as a habeas corpus petition under 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S.
475, 500 (1973) (holding that inmate’s challenge to fact or duration of detention must be
presented in habeas corpus proceeding, not § 1983 action).

Rockingham County, revoked Kimble’s probation and imposed previously
suspended prison sentences to be followed by another term of probation. The
petition filed in this court names Judge Wilson as the respondent and contends that
during the revocation proceeding, Kimble did not receive appropriate
representation, the judge did not consider sentencing guidelines or allow adequate
time for negotiations, and Kimble did not receive proper representation for his
appeal and had to withdraw it. As relief, Kimble seeks to have “[his] sentence
properly modified and Mr. Wilson be held accountable for abuse of authority.”
Pet. 2, ECF No. 1.
Under 28 U.S.C. § 2254(b), a federal court cannot grant a habeas petition
unless petitioner has exhausted the remedies available in the courts of the state in
which he was convicted. Ultimately, exhaustion requires the petitioner to present
his claims to the highest state court with jurisdiction to consider them and receive a
ruling. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). If a § 2254
petitioner has not presented his habeas claims to the state courts and could still do
so, a federal court should dismiss his petition without prejudice. See Slayton v.
Smith, 404 U.S. 53, 54 (1971).
Kimble indicates on the face of his petition that the only court action he has
filed involving his August 2016 probation revocation complaints is a Petition for a
Writ of Mandamus, filed in the Supreme Court of Virginia against Judge Wilson.
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Online court records indicate that the Supreme Court refused Kimble’s mandamus
petition by order dated March 8, 2016, and that he has filed no state court action
seeking habeas corpus relief regarding his revocation proceedings.

As such,

Kimble has not yet exhausted available state court remedies as required under
§ 2254(b). Namely, he may file a habeas corpus petition in the Supreme Court of
Virginia, or in the circuit court where he was convicted, with a subsequent appeal
to the Supreme Court of Virginia. See Va. Code Ann. §§ 8.01-654(A)(1), 17.1406(B). Therefore, I must dismiss his § 2254 petition without prejudice for failure
to exhaust state court remedies. 2
A separate Final Order will be entered herewith.
DATED: April 13, 2017
/s/ James P. Jones
United States District Judge

2

Under Rule 4(b) of the Rules Governing § 2254 Cases, I 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.”
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