United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
matter now comes before the court on respondent's motion
for summary judgment (DE 5) pursuant to Federal Rule of Civil
Procedure 56(a). Petitioner did not respond to
respondent's motion. In this posture, the issues raised
are ripe for adjudication. For the following reasons, the
court grants respondent's motion for summary judgment and
dismisses this action without prejudice.
March 15, 2013, in the Wake County Superior Court, petitioner
was convicted following a jury trial of first-degree rape.
State v. Keane, 235 N.C.App. 656, 764 S.E.2d 700, at
*5 (Aug. 19, 2014). Petitioner then was sentenced to a term
of 384-470 months imprisonment. Id. Petitioner
subsequently appealed his conviction and sentence to the
North Carolina Court of Appeals. Id. On August 19,
2014, the court of appeals entered an order finding no error.
Id. at *9. The North Carolina Supreme Court
subsequently denied petitioner's petition for
discretionary review. State v. Keane, 368 N.C. 296,
776 S.E.2d 192 (2015). On November 15, 2016, petitioner filed
a pro se motion for appropriate relief
(“MAR”) in the Wake County Superior Court raising
the same issues he raises in this action. (Pet. ¶ 11).
Petitioner's MAR remains pending. (Id.)
November 18, 2016, petitioner, through counsel, filed this
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner alleged the following claims: (1)
ineffective assistance of counsel for conceding
petitioner's factual guilt without petitioner's
consent; (2) ineffective assistance of counsel for not acting
in a timely manner to finalize plea negotiations resulting in
the withdrawal of the plea offer; (3) ineffective assistance
of counsel for failing to present evidence or argument at the
sentencing hearing; (4) the 32 year sentence was excessive in
violation of the Eighth Amendment to the United States
Constitution; and (5) given the totality of the circumstances
there was a breakdown of the adversary system in violation of
the Due Process Clause of the Fourteenth Amendment to the
United States Constitution. On December 16, 2016, respondent
filed a motion to dismiss, arguing that petitioner failed to
exhaust his state court remedies prior to filing this action.
Petitioner did not respond to the motion.
Motion for Summary Judgment
Standard of Review
judgment is appropriate when there exists no genuine issue of
material fact, and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); Anderson v.
Liberty Lobby, 477 U.S. 242, 247 (1986). The party
seeking summary judgment bears the burden of initially coming
forward and demonstrating an absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Once the moving party has met its burden,
the nonmoving party then must affirmatively demonstrate that
there exists a genuine issue of material fact requiring
trial. Matsushita Elec. Industrial Co. Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). There is no issue
for trial unless there is sufficient evidence favoring the
non-moving party for a jury to return a verdict for that
party. Anderson, 477 U.S. at 250.
contends this action should be dismissed because petitioner
failed to exhaust his state court remedies. Absent a valid
excuse, a state prisoner must exhaust his remedies in state
court before seeking federal habeas corpus relief.
See 28 U.S.C. § 2254(b)(1)(A). To exhaust his
available state court remedies, a petitioner must
“fairly present to the state court both the operative
facts and the controlling legal principles' associated
with each claim.” Longworth v. Ozmint, 377
F.3d 437, 448 (4th Cir. 2004) (internal quotation omitted).
This exhaustion requirement compels a habeas petitioner to
“invok[e] one complete round of the State's
established appellate review process.”
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). Here, petitioner did not raise the instant claims on
direct review and, thus, has not invoked one complete round
of the State's established appellate review process for
his claims. Petitioner, however, did recently raise the
instant claims in a MAR, which remains pending. As such,
petitioner's claims are not exhausted. See
O'Sullivan, 526 U.S. at 845.
court next determines whether this action should be stayed
pending the exhaustion of petitioner's state court
remedies. The United States Supreme Court has recognized
limited circumstances in which a district court may stay a
habeas petition to allow a petitioner the opportunity to
exhaust his state court remedies for his claims. See
Rhines v. Weber, 544 U.S. 269, 277 (2005). In
Rhines, the court stated:
Because granting a stay effectively excuses a
petitioner's failure to present his claims first to the
state courts, stay and abeyance is only appropriate when the
district court determines there was good cause for the
petitioner's failure to exhaust his claims first in state
court. Moreover, even if a petitioner had good cause for that
failure, the district court would abuse its ...