Susan Benson Schwarzkopf, Appellant, v. the Commonwealth of Virginia, Appellee, 803 F.2d 1181 (4th Cir. 1986)

Susan B. Schwarzkopf appeals the district court's dismissal of her habeas corpus petition for failure to exhaust state remedies. For the reasons given herein, we dismiss the appeal. However, we emphasize that Schwarzkopf may file a petition for state relief and, if denied state relief, may then file another federal petition for habeas corpus relief.

Schwarzkopf's petition challenges the validity of her conviction for grand larceny in a Virginia court. In an order filed August 24, 1985, the district court conditionally dismissed the petition with instructions to Schwarzkopf to submit facts demonstrating that she had exhausted state remedies. In an order filed September 10, 1985, the court denied Schwarzkopf's request for appointment of counsel and reiterated the instruction to exhaust state remedies. On October 1, 1985, the court dismissed the petition without prejudice, noting that Schwarzkopf had not responded to the order of September 10, 1985.

On appeal, Schwarzkopf indicates that she never received the order of September 10, 1985. She does not indicate that she has exhausted state remedies.

The district court's order of October 1, 1985 is not a decision on the merits of Schwarzkopf's appeal. It is, rather, a decision declining to review the merits until Schwarzkopf has raised her claim in state court and has been denied relief by the highest state court with jurisdiction to consider the claim.

Schwarzkopf may file a petition on a state habeas corpus petition form in the Virginia state court system. Such a petition may be filed in the trial court, with appeal of the trial court's ruling taken to the Virginia Supreme Court, Va.Code Secs. 8.01-654, 17-116.05:1(B); or the petition may be filed directly in the Virginia Supreme Court, Va.Code Sec. 17-97. In short, Schwarzkopf's federal constitutional claim cannot be reveiwed by a federal court until the claim has been presented to the Virginia Supreme Court either on appeal or directly by petition for habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475 (1973). Once the claim has been so presented, and if relief has been denied, Schwarzkopf may file another petition in federal court.

Because the dispositive issue recently has been authoritatively decided, we dispense with oral argument, deny a certificate of probable cause to appeal, deny appointment of counsel, and dismiss the appeal.

DISMISSED