Gilstrap v. Godwin, 74-2166
| Decision Date | 29 May 1975 |
| Docket Number | No. 74-2166,74-2166 |
| Parties | Lee Mansell GILSTRAP, Sr., Appellant, v. Mills GODWIN, Governor, Commonwealth of Virginia, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Theodore S. Worozbyt, Atlanta, Ga. (Worozbyt & Beskin, Atlanta, Ga., Thomas S. Hatz, Thomas L. Barney, Thomas S. Hatz and Associates, Richmond, Va., on brief), for appellant.
Robert E. Shepherd, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen. of Virginia, on brief), for appellee.
Before CRAVEN, BUTZNER and WIDENER, Circuit Judges.
Lee Mansell Gilstrap, a Georgia prisoner under indictment in Virginia, appeals from the district court's denial of habeas corpus relief for failure to exhaust state remedies. We affirm the judgment of the district court without reaching the merits of Gilstrap's claim that he was denied a speedy trial.
In the fall of 1972, Gilstrap was indicted in both Georgia and Virginia for various crimes in connection with the distribution of barbituates and amphetamines. Between December 5, 1972, and January 17, 1973, he was tried and convicted in Georgia on four indictments and received a total sentence of eight years. In late January 1973, Georgia notified Virginia that extradition, which Virginia had initiated in December 1972, would have to follow the Interstate Agreement on Detainers Act. Georgia repeated its notification in May 1973.
In March 1974, Gilstrap's case was put on the inactive docket in the Circuit Court of the City of Chesapeake, Virginia. However, in June 1974, his eight-year sentence was reduced to two years. Virginia then recommenced extradition, which Gilstrap has resisted. He also promptly moved the Circuit Court to dismiss his indictment on the ground that he was denied his right to a speedy trial. On denial of his motion, he filed this petition for a writ of habeas corpus in the district court.
Although Gilstrap has not yet been convicted on the Virginia indictment, he is currently in custody under the Virginia detainer, and his application for the writ is not premature. Nevertheless, he must first exhaust his state remedies. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 488-89, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973); Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); Kane v. Virginia, 419 F.2d 1369, 1373 (4th Cir. 1970). By the terms of the statute, he must seek relief from the Virginia Supreme Court unless review there is unavailable or ineffective to protect his rights. 28 U.S.C. § 2254; Ham v. North Carolina, 471 F.2d 406 (4th Cir. 1973).
Gilstrap contends that he has exhausted his state remedies by his motion to dismiss the indictment. With its denial, he says, he can do no more because the Virginia Supreme Court will not review an interlocutory order denying a pretrial motion to dismiss an indictment. Sturgill v....
To continue reading
Request your trial
-
United States ex rel. Davis v. Camden County Jail
...Braden v. 30th Judicial Circuit Court of Kentucky, supra; Scranton v. New York, 532 F.2d 292 (2nd Cir. 1976). But see Gilstrap v. Godwin, 517 F.2d 52 (4th Cir. 1975); U. S. v. Singerman, 369 F.Supp. 641 (S.D.N.Y.1973); Ex parte Lyon, 58 F.Supp. 746 ...
-
Durkin v. Davis
...afford a remedy if relief is warranted, federal courts in habeas proceedings by state prisoners should stay their hand. Gilstrap v. Godwin (4th Cir. 1975) 517 F.2d 52, 53. This was forcefully declared in Picard v. Connor (1971) 404 U.S. 270 at 275-6, 92 S.Ct. 509, 512, 30 L.Ed.2d 438, where......
-
Lauderdale-El v. Ind. Parole Bd.
...(denying certificate of appealability where habeas petition was dismissed without prejudice for failure to exhaust); Gilstrap v. Godwin , 517 F.2d 52 (4th Cir. 1975) (affirming dismissal for failure to exhaust); Mendoza v. Thaler , 485 F. App'x 721 (5th Cir. 2012) (vacating dismissal withou......
-
Campbell v. Leeke, Civ. A. No. 80-2195-8.
...Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Grace v. Butter-worth, 635 F.2d 1 (1st Cir. 1980); Gilstrap v. Godwin, 517 F.2d 52 (4th Cir. 1975); James v. Copinger, 428 F.2d 235 (4th Cir. 1970). "Although petitioner presented his ... claim to the South Carolina circui......