Evollous v. Commonwealth of Virginia
Filing
5
OPINION. Signed by Judge James P. Jones on 2/5/2018. (tvt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
)
)
)
)
)
)
)
)
)
)
RICHARD EVOLLOUS,
Petitioner,
v.
COMMONWEALTH OF VIRGINIA,
Respondent.
Case No. 7:17CV00565
OPINION
By: James P. Jones
United States District Judge
Richard Evollous, Pro Se Petitioner.
Richard Evollous, a Virginia inmate proceeding pro se, has filed a Petition
for a Writ of Habeas Corpus, challenging the validity of his confinement under an
order of the Pittsylvania County Circuit Court. Upon review of his submissions, I
conclude that the petition must be summarily dismissed without prejudice for
failure to exhaust available state court remedies.
State court records online indicate that Evollous pleaded guilty in October
2017 in the Pittsylvania County Circuit Court to one count of strangulation and
was sentenced by that court on January 16, 2018, to four years in prison, with all
but ten months of the sentence suspended. He has not filed a direct appeal of that
conviction and sentence to the Court of Appeals of Virginia and has no pending
habeas corpus petition in the circuit court or in the Supreme Court of Virginia.
The United States District Court for the Eastern District of Virginia received
Evollous’s petition in mid-December 2017, and construed and docketed it as a
habeas petition under 28 U.S.C. § 2254. The petition was then transferred to this
court, because Pittsylvania County is located within the Western District. The
petition was received and docketed in this court on December 20, 2017, before
Evollous was sentenced in the state court. The heading on Evollous’s petition, is
Pittsylvania County Circuit Court. The pleading indicates that Evollous has filed
no previous habeas corpus petition. It appears to assert a speedy trial claim and a
claim of ineffective assistance by trial counsel, but states no factual support for any
of these claims.
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 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 still has available state court proceedings where he can litigate
his habeas claims in the state courts, a federal court should dismiss his § 2254
petition without prejudice to allow him to exhaust those state court remedies. See
Slayton v. Smith, 404 U.S. 53, 54 (1971).
‐2‐
Evollous indicates that he has not filed any prior habeas corpus proceedings
in the state courts. Indeed, from the heading on the petition, he may have intended
the present petition for the state court and accidently mailed it to the federal court
instead. If he pursues a habeas petition in the circuit court and relief is denied by
that court, Evollous may then file a habeas appeal to the Supreme Court of
Virginia. See Va. Code Ann. §§ 8.01-654(A)(1), 17.1-406(B). Because these state
court remedies remain available to Evollous,1 he has not yet fulfilled the
exhaustion requirement in § 2254(b). For this reason, I must dismiss his § 2254
petition without prejudice to allow him to exhaust state court remedies.2
A separate Final Order will be entered herewith.
DATED: February 5, 2018
/s/ James P. Jones
United States District Judge
1
Evollous may also be eligible to pursue a direct appeal from the circuit court’s
judgment to the Court of Appeals of Virginia as to his speedy trial claim. See Virginia
Code § 8.01-675.3 (providing criminal defendant 30 days from date of judgment to file
notice of appeal).
2
Also included with Evollous’s petition is a pleading titled “Motion for Relief
from a Order or Judgment” under Fed. R. Civ. P. 60(b) purportedly addressed to “the
Circuit Court for the Town of Chatham,” and a cover letter and habeas petition addressed
to that same alleged court. From his submissions, I find Evollous’s litigation intentions
to be unclear, but I am satisfied that he has not exhausted available state court remedies
as to any possible habeas corpus claim that he may have.
‐3‐
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?