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  • Richard Lamar Fenstermacher v. Donald R. Guillory, 19 F.3d 1428, 4th Cir. (1994)

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    The document is a court case regarding a petitioner's appeal of the dismissal of his 28 U.S.C. Sec. 2254 petition. The district court had dismissed the petition for failing to exhaust state remedies, but the appeals court found that based on the petitioner's undisputed allegations, it appeared he had exhausted state remedies. The appeals court vacated the district court's order dismissing the petition and remanded the case for further proceedings, instructing the district court to order a response from the respondent to confirm or refute the petitioner's exhaustion allegations.

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    Filed: 1994-04-07 Precedential Status: Non-Precedential Citations: 19 F.3d 1428 Docket: 93-7342

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    The document is a court case regarding a petitioner's appeal of the dismissal of his 28 U.S.C. Sec. 2254 petition. The district court had dismissed the petition for failing to exhaust state remedies, but the appeals court found that based on the petitioner's undisputed allegations, it appeared he had exhausted state remedies. The appeals court vacated the district court's order dismissing the petition and remanded the case for further proceedings, instructing the district court to order a response from the respondent to confirm or refute the petitioner's exhaustion allegations.

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    13 views2 pages

    Richard Lamar Fenstermacher v. Donald R. Guillory, 19 F.3d 1428, 4th Cir. (1994)

    Uploaded by

    Scribd Government Docs
    The document is a court case regarding a petitioner's appeal of the dismissal of his 28 U.S.C. Sec. 2254 petition. The district court had dismissed the petition for failing to exhaust state remedies, but the appeals court found that based on the petitioner's undisputed allegations, it appeared he had exhausted state remedies. The appeals court vacated the district court's order dismissing the petition and remanded the case for further proceedings, instructing the district court to order a response from the respondent to confirm or refute the petitioner's exhaustion allegations.

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    of 2

    19 F.

    3d 1428

    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.
    Richard Lamar FENSTERMACHER, Petitioner-Appellant,
    v.
    Donald R. GUILLORY, Respondent-Appellee.
    No. 93-7342.

    United States Court of Appeals, Fourth Circuit.


    Submitted March 22, 1994.
    Decided April 7, 1994.

    Appeal from the United States District Court for the Western District of
    Virginia, at Roanoke. James C. Turk, District Judge. (CA-93-905-R)
    Richard Lamar Fenstermacher, appellant pro se.
    W.D.Va.
    VACATED AND REMANDED.
    Before PHILLIPS and LUTTIG, Circuit Judges, and BUTZNER, Senior
    Circuit Judge.
    OPINION
    PER CURIAM:

    Appellant appeals from the district court's order dismissing his 28 U.S.C. Sec.
    2254 (1988), petition for failing to exhaust state remedies. We vacate this order
    and remand.

    In his Sec. 2254 petition, Appellant alleged that he filed a petition for writ of

    habeas corpus in the Rockingham County Circuit Court, raising the same issues
    he presented in his Sec. 2254 petition. Appellant alleged that his petition was
    denied and that his appeal to the Virginia Supreme Court was denied. The
    district court dismissed the petition prior to ordering the Respondent to answer;
    thus, Appellant's allegations are undisputed in the record before us, and it
    appears that Appellant had exhausted his state remedies. See Va.Code Ann.
    Sec. 8.01-654 (Michie 1992); Va.Code Ann. Sec. 17-97 (Michie 1988).
    Respondent's answer and attachments should either confirm or refute
    Appellant's allegations.
    3

    Because it does not "plainly appear[ ] from the face of the petition ... that
    [Appellant] is not entitled to relief in the district court," we find that the district
    court erred in dismissing Appellant's Sec. 2254 petition. See Rule 4, Rules
    Governing Section 2254 Cases. We therefore grant a certificate of probable
    cause to appeal, vacate the district court order, and remand for further
    proceedings. 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.

    VACATED AND REMANDED.

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