Larry D. Spears v. Michael McWeeny Judge

60 F.3d 824, 1995 U.S. App. LEXIS 24912, 1995 WL 379748

Opinion

60 F.3d 824
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Larry D. SPEARS, Plaintiff-Appellant,
v.
Michael McWEENY, Judge, Defendant-Appellee.

No. 95-6397.

United States Court of Appeals, Fourth Circuit.

Submitted May 18, 1995
Decided June 27, 1995

Larry D. Spears, Appellant Pro Se.

Before NIEMEYER and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

Appellant seeks to appeal the district court's order dismissing without prejudice his 28 U.S.C. Sec. 2254 (1988) petition.* Our review of the record and the district court's opinion discloses that this appeal is without merit. Appellant seeks a sentence reduction but before such relief could be granted, he must exhaust available state remedies. See Todd v. Baskerville, 712 F.2d 70, 73 (4th Cir.1983). The record fails to reveal such exhaustion. Accordingly, we affirm on the reasoning of the district court. Spears v. McWeeny, No. CA-95-217-R (W.D.Va. Mar. 9, 1995). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

* Although Appellant filed this action on a form provided for 42 U.S.C. Sec. 1983 (1988) complaints, because the Appellant requested "[s]entence [r]eduction," the district court properly construed the complaint as a petition pursuant to Sec. 2254. See Todd v. Baskerville, 712 F.2d 70, 72 (4th Cir.1983). To the extent that Appellant sought monetary damages, the court properly denied the claim because Appellant failed to demonstrate that his conviction has been invalidated. See Heck v. Humphrey, 62 U.S.L.W. 4594 (1994)