Judson Warren White v. William Duncil, Acting Warden

887 F.2d 1082, 1989 U.S. App. LEXIS 15142, 1989 WL 117842

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 5, 1989
• Docket: 89-6546
• Status: Unpublished

Opinion

887 F.2d 1082
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Judson Warren WHITE, Petitioner-Appellant,
v.
William DUNCIL, Acting Warden, Respondent-Appellee.

No. 89-6546.

United States Court of Appeals, Fourth Circuit.

Submitted: April 24, 1989.
Decided: Oct. 5, 1989.

Judson Warren White, appellant pro se.

Thomas J. Gillooly (Office of the Attorney General of West Virginia), for appellee.

Before WIDENER, MURNAGHAN and WILKINSON, Circuit Judges.

PER CURIAM:

Judson W. White, a West Virginia inmate, seeks to appeal the district court's dismissal of his 28 U.S.C. Sec. 2254 habeas corpus petition, without prejudice, for failure to exhaust state remedies. The district court found that White'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 White'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 analysis. See Leftwich v. Coiner, 424 F.2d 157 (4th Cir.1970); McDaniel v. Holland, 631 F.Supp. 1544 (S.D.W.Va.1986).

White argues on appeal that he subsequently 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. Respondent's motions to supplement the record are granted.

DISMISSED.