v. Pearson

Filing 3

MEMORANDUM OPINION. Signed by Senior Judge Norman K. Moon on 4/23/2020. (Opinion mailed to Pro Se Party via US Mail)(slt)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
MANNEH VAY,
Petitioner,
v.
EDDIE PEARSON, Warden,
Respondent.

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Civil Action No. 7:20cv00175
MEMORANDUM OPINION
By: Norman K. Moon
Senior United States District Judge

Manneh Vay, a Virginia inmate proceeding pro se, filed a petition for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2254, challenging his confinement under a state court criminal
judgment. From a review of the petition and relevant state court records, the court concludes that
the petition should be dismissed without prejudice to allow Vay to complete exhaustion of his
state court remedies.
Vay’s petition before this court attempts to raise three claims. It is unclear from the
documents attached to his petition whether two of those claims (which he titles as claims of
“Manifest Injustice” and “Ends of Justice”) were raised on direct appeal before the Supreme
Court of Virginia. That court refused his petition for appeal by an order dated October 25, 2017.
(Dkt. No. 1, at 79.) If they were raised on appeal to that court, then they may have been properly
exhausted.
His other claim is an ineffective assistance of counsel claim. In Virginia, “[c]laims
raising ineffective assistance of counsel must be asserted in a habeas corpus proceeding and are
not cognizable on direct appeal.” Lenz v. Commonwealth, 544 S.E.2d 299, 304 (Va. 2001). Vay
currently has a petition for habeas corpus pending in the court of his conviction, the Circuit
Court for the City of Charlottesville. Based on the documents he has submitted, his ineffective

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assistance of counsel claim was raised in that court, and it remains pending before that court. It
is therefore not yet exhausted.
A federal court may not grant a § 2254 habeas petition unless the petitioner exhausted the
remedies available in the courts of the state in which petitioner was convicted. 28 U.S.C.
§ 2254(b); Preiser v. Rodriguez, 411 U.S. 475, 477 (1973). The exhaustion requirement is
satisfied by seeking review of a claim in the highest state court with jurisdiction to consider the
claim. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Where, as here, a petitioner files in
federal court while he still has available state court proceedings in which to litigate his habeas
claims, the federal court should dismiss the petition without prejudice to allow him to finish
exhausting those state court remedies. See Slayton v. Smith, 404 U.S. 53, 54 (1971). Likewise, a
district court generally should dismiss without prejudice a habeas petition containing a mix of
both unexhausted and exhausted claims. Rose v. Lundy, 455 U.S. 509, 522 (1982).
Because Vay’s state habeas petition remains pending, the court finds a dismissal without
prejudice appropriate in this case. Vay is further advised that, in order for his ineffective
assistance of counsel claim to be fully exhausted so as to allow this court to consider it on the
merits under § 2254, the circuit court must first rule on his habeas petition and, if the ruling is
adverse to Vay, he must appeal that ruling to the Supreme Court of Virginia and receive a ruling
from that court. Slayton, 404 U.S. at 54; Rose, 455 U.S. at 522. If Vay is dissatisfied with the
result of his completed state habeas proceedings, he may then raise all of his habeas claims in
this court in a new § 2254 petition that will not be considered successive under § 2254(h).1

1

Vay is advised that his time to file his federal habeas petition is limited. See 28 U.S.C. § 2244(d). The
federal time clock stops running, though, while properly filed habeas corpus proceedings are proceeding in state
court. See 28 U.S.C. § 2244(d)(2).

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To summarize, because Vay has not yet exhausted his state court remedies as to all of his
claims, the court will dismiss his petition without prejudice. An appropriate order will be
entered.
23rd
ENTER: This ___day of April, 2020.

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