McCain v. Commonwealth of Virginia

Filing 3

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 6/7/2017. (slt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
JOSEPH D. MCCAIN,
Petitioner,
v.
COMMONWEALTH OF VIRGINIA,
Respondent.

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Civil Action No. 7:17cv00179
MEMORANDUM OPINION
By: Norman K. Moon
United States District Judge

Petitioner Joseph D. McCain, a Virginia inmate proceeding pro se, filed this petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. Having reviewed the petition and state court
online records, I conclude that McCain has not fully exhausted his state court remedies before
filing this federal habeas petition and, therefore, will dismiss his petition without prejudice.
McCain challenges his 2017 convictions in the Danville Circuit Court. McCain appealed
to the Court of Appeals of Virginia on April 5, 2017. While his direct appeal was pending, on
April 24, 2017, McCain filed a petition for writ of habeas corpus in this court. Since McCain
filed this action, the Court of Appeals of Virginia dismissed McCain’s appeal on May 2, 2017
and McCain’s petition for rehearing is currently pending in that court. McCain indicates in his
petition, and online state court records confirm, that McCain has not presented his claims in
either an appeal or a habeas petition to the Supreme Court of Virginia.
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. Preiser v. Rodriguez,
411 U.S. 475 (1973). 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 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 § 8.01-654.

In this case, it is clear that McCain has not finished exhausting his state court remedies before
filing this action and, therefore, I will dismiss his habeas petition without prejudice.
7th
ENTER: This _____ day of June, 2017.

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