Doss v. Correctional Department Unit 24

OPINION and JUDGMENT

DALTON, District Judge.

James R. Doss, Jr., an inmate in custody of the Commonwealth of Virginia, has filed pursuant to 28 U.S.C. § 2254 a petition for a writ of habeas corpus in which he attacks his conviction for attempted robbery in the Circuit Court for the City of Roanoke on April 16, 1973. He appealed his conviction to the Virginia Supreme Court, which by order dated January 22, 1974 denied a writ of error and affirmed the judgment below. Jurisdiction vests in this court under 28 U.S.C. § 2241.

Petitioner asserts four grounds for relief: 1) ineffective assistance of counsel; 2) failure to advise petitioner of his rights upon arrest; 3) failure to be placed in a line-up; 4) cruel and unusual punishment because of lack of medication and medical treatment.

Petitioner has failed to present his claim of ineffective assistance of counsel to the Virginia state courts as 28 U.S.C. § 2254(c) requires. This claim must therefore be dismissed. This court, however, has carefully reviewed the transcript of petitioner’s trial and finds no evidence of ineffective assistance of counsel.

Petitioner’s second claim must also be dismissed.¹ Even assuming that petitioner was not given his Miranda warning upon arrest, the prosecution introduced at trial no statement made by petitioner.

Petitioner’s third claim also has no merit. A person has no right to be placed in a line-up.

Petitioner’s final claim relates not to his conviction but to the conditions of confinement. It, therefore, may not be considered under 28 U.S.C. § 2254. This court, however, has treated this claim as one arising under 42 U.S. C. § 1983. This court has jurisdiction under 28 U.S.C. § 1343. Based on the affidavits submitted on this claim, this court is convinced that James Doss, Jr. has not been denied medication or medical treatment. The record indicates that he has repeatedly seen a doctor for various ailments. On those occasions he was given prescriptions that were filled and dispensed to Mr. Doss.

For the above reasons, this court dismisses this complaint. The petitioner is advised that he may appeal this decision to the United States Court of Appeals for the Fourth Circuit by filing with this district court a notice of appeal within thirty (30) days from the date of this judgment.

1 . This claim, though not presented to the Virginia courts, nevertheless may be maintained here, since presentation of this claim to the state court would be futile in view of Parrigan v. Slayton, 215 Va. 27, 205 S.E.2d 680 (1974), and its progeny.