John Dunn, Appellant, v. Commonwealth of Virginia, Appellee, 357 F.2d 491 (4th Cir. 1966)

After being convicted of disorderly conduct and fined $10 in a Richmond, Virginia, police court, appellant had a trial de novo in the Hustings Court Part 2 of Richmond. There the fine was increased to $25, which was promptly paid. Later the appellant had a retrial in the Hustings Court, and he still has a pending petition for another retrial. Throughout those proceedings he was represented by counsel retained by him. Before the state court disposed of his second motion for retrial, he brought an action in the United States District Court for the following relief: an order requiring the Commonwealth of Virginia to return the fine paid by him; a declaration that he has been denied due process of law; a declaration that the fine paid by him was excessive and violative of his rights under the Eighth Amendment.

The District Court dismissed on the ground that it had no jurisdiction to grant the relief sought in the complaint. The District Court also stated that, even if the complaint were treated as a collateral attack on the criminal proceeding, it must be dismissed because appellant has not exhausted available state remedies.

We affirm.