United States District Court, W.D. North Carolina, Asheville Division
FRANK D. WHITNEY, Chief District Judge.
THIS MATTER is before the Court on initial review of Dron Deshawn Hines's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, ECF No. 1. See Rules Governing Section 2254 Cases, Rule 4, 28 U.S.C.A. foll. § 2254.
Petitioner was convicted by a Buncombe County, North Carolina jury of one or more drug offenses. Pet. 1, ECF No. 1. Judgment was entered on July 3, 2014, and Petitioner was sentenced to an active prison term of 10 to 21 months. Pet., supra, at 1. Petitioner did not seek direct review by the North Carolina appellate courts or file a motion for appropriate relief (MAR) with the state superior court in Buncombe County. Pet., supra, at 3-4. Instead, he has filed a habeas petition in this Court pursuant to § 2254.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a petitioner must exhaust his available state remedies before he may pursue habeas relief in federal district court. 28 U.S.C. § 2254(b)(1)(A). To meet the exhaustion requirement, a petitioner must provide the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented through a habeas petition in federal court. O'Sullivan v. Boerckel , 526 U.S. 838, 845 (1999).
Petitioner concedes that he did not seek direct review of his conviction(s) and sentence by the North Carolina appellate courts. Pet. 3, ECF No. 1. He also has not sought post-conviction relief by way of an MAR in Buncombe County superior court. Pet., supra, at 4. Consequently, the Court finds that Petitioner has failed to fully exhaust his state remedies. The Court will dismiss this habeas petition without prejudice to re-filing upon proper exhaustion.
The Court takes no position as to what, if any, procedural avenues may yet be available to Petitioner in the Court of Appeals or Supreme Court of North Carolina. The Court notes, however, that North Carolina's statutory Motion for Appropriate Relief process may be available to Petitioner. See N.C. Gen Stat. § 15A-1411 et seq.
Petitioner is forewarned that a § 2254 petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court must be filed within one year of the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through ...