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Keane v. Herring

United States District Court, E.D. North Carolina, Western Division

April 3, 2017

WILLIAM SCOTT KEANE, Petitioner,
v.
JOHN HERRING, Respondent.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         The 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.

         STATEMENT OF CASE

         On 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.)

         On 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.

         DISCUSSION

         A. Motion for Summary Judgment

         1. Standard of Review

         Summary 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.

         2. Analysis

         Respondent 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.

         The 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 ...

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