Shanklin v. Peyton ( 1968 )

OPINION AND JUDGMENT

DALTON, Chief Judge.

This case comes before the court upon a petition for a writ of habeas corpus by Leonard Edward Shanklin, a state prisoner, pursuant to the provisions of 28 U.S.C. § 2241 and is filed in forma pauperis. The case was ordered transferred to this court from the United States District Court for the Eastern District of Virginia on February 23, 1968.

Petitioner is currently being detained pursuant to a judgment of the Circuit Court of Bland County rendered on October 31, 1962, wherein he was convicted of robbery by force and sentenced to forty years in prison.

No appeal was taken. However, petitioner later sought state habeas corpus relief and obtained a plenary hearing in the Circuit Court of Bland County on August 25, 1966. The court denied petitioner any habeas relief but granted him a belated appeal from his trial conviction which was subsequently taken and on December 4, 1967, writ of error was denied. However, petitioner failed to pursue in the State Court habeas corpus proceeding, thus denying the Supreme Court of Appeals of Virginia any opportunity to hear his claims as to allegations 18(b) and 18(c). Therefore, petitioner has failed to exhaust his state remedies.

This court will defer passing on petitioner’s allegations until he has given the state’s highest court a chance to consider his petition. Thompson v. Peyton, 290 F.Supp. 210 (W.D.Va.1968); Snead v. Peyton, 280 F.Supp. 211 (W.D.Va. 1968).

It is therefore adjudged and ordered that the petition for habeas corpus be dismissed without prejudice to file a writ of error in the Supreme Court of Appeals of Virginia, if petitioner is so advised.

The Clerk is directed to send a copy of this opinion and judgment to the petitioner and to the respondent.