Donald W. Beckett v. Manfred Holland, Warden, West Virginia State Penitentiary

835 F.2d 873, 1987 U.S. App. LEXIS 15360, 1987 WL 24511

Opinion

835 F.2d 873
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Donald W. BECKETT, Petitioner-Appellant,
v.
Manfred HOLLAND, Warden, West Virginia State Penitentiary,
Respondent-Appellee.

No. 87-6559.

United States Court of Appeals, Fourth Circuit.

Submitted Oct. 29, 1987.
Decided Nov. 24, 1987.

Donald W. Beckett, appellant pro se.

Gayle Denise Holder, Office of the Attorney General of West Virginia, for appellee.

Before DONALD RUSSELL, MURNAGHAN, and SPROUSE, Circuit Judges.

PER CURIAM:

Donald W. Beckett, a West Virginia inmate, seeks to appeal the district court's dismissal of his habeas corpus petition, without prejudice, for failure to exhaust state remedies. 28 U.S.C. Sec. 2254(b), (c). The district court found that Beckett's presentation of his claims to the West Virginia Supreme Court by means of a habeas petition filed directly in that court did not satisfy the exhaustion requirement because the West Virginia Supreme Court's refusal to issue the writ was without prejudice to Beckett's right to pursue similar relief in the trial court. See Rule 14(b), W.Va.R.App.P. We agree with the district court's analysis. See Leftwich v. Coiner, 424 F.2d 157 (4th Cir.1970); McDaniel v. Holland, 631 F.Supp. 1544 (S.D.W.Va.1986).

Beckett argued in the district court, and renews the argument on appeal, that he has filed a habeas petition in the trial court raising the grounds asserted in his federal habeas petition. Exhaustion requires, however, not only that he seek habeas relief in the trial court, but also that he appeal any denial of habeas relief to the state's high court.

Finding no error in the district court's determination of nonexhaustion, we deny a certificate of probable cause to appeal. We dispense with oral argument because the dispositive issues recently have been decided authoritatively.

DISMISSED.