Thompson v. Peyton

OPINION and JUDGMENT DALTON, Chief Judge. This case comes before the court upon a petition for a writ of habeas corpus, filed in forma pauperis by a State prisoner pursuant to the provisions of 28 U.S.C. § 2254. Petitioner is currently serving a term of twenty years in the Virginia State Penitentiary, pursuant to a conviction of murder in the Circuit Court of Amherst County on October 29, 1945. At his trial petitioner was represented by counsel. Petitioner did not file a timely writ of error to the Supreme Court of Appeals of Virginia. A habeas corpus hearing was conducted by the state court in Amherst County on September 13, 1967, as a result of a petition by the prisoner. At his hearing petitioner was represented by court appointed counsel and was afforded an opportunity to present testimony in his own behalf. The writ was denied by an order entered October 9, 1967. No appeal was taken from this decision. Petitioner now seeks a writ of habeas corpus from this court, alleging that he was denied certain constitutional rights. There is no need to enumerate petitioner’s allegations since it is clear that he has failed to exhaust his state remedies. By failing to appeal the decision after his plenary hearing in the state courts, petitioner has denied the Supreme Court of Appeals of Virginia the opportunity to rule on petitioner’s allegations. This court will not consider petitioner’s writ of habeas corpus until such time as petitioner has sought and been denied relief in the courts of the Commonwealth. Thomas v. Common [211] wealth of Va., 357 F.2d 87, 90 (4th Cir. 1966). It is hereby adjudged and ordered that the petition for habeas corpus be, and the same is hereby dismissed without prejudice to file a writ of error in the Supreme Court of Appeals of Virginia.