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Morton v. Perry

United States District Court, M.D. North Carolina

May 19, 2017

ASKIA J. MORTON, Petitioner,
v.
FRANK L. PERRY, Respondent.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. Patrick Auld United States Magistrate Judge.

         Petitioner, a prisoner of the State of North Carolina, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket Entry 1.) On March 12, 2015, Petitioner pled guilty in the Superior Court of Person County to felony sale and delivery of marijuana, felony conspiracy to sell and deliver marijuana, and felony sex offender on child premises in cases 12 CRS 1751 and 14 CRS 5217, respectively. (See Docket Entry 1, ¶¶ 1-2, 4-6; see also Docket Entry 10-2 (plea transcript); Docket Entry 10-3 (judgment and commitment forms).) The trial court sentenced Petitioner, in accordance with the plea agreement, to three consecutive terms of 20 to 33 months' imprisonment. (See Docket Entry 1, ¶ 3; see also Docket Entries 10-2, 10-3.) Petitioner did not pursue a direct appeal. (See Docket Entry 1, ¶¶ 8, 9.)[1]

         Petitioner subsequently filed a pro se “Motion to Run Concurrent Sentences” (Docket Entry 10-4 (capitalization omitted)); however, so far as the record reflects, the state trial court did not rule on that motion. Thereafter, Petitioner filed a pro se motion for appropriate relief (“MAR”) (see Docket Entry 1, ¶ 9; Docket Entry 10-5), which the trial court summarily denied (see Docket Entry 1, ¶ 9(c), (g)(3); Docket Entry 10-6). The North Carolina Court of Appeals then rejected Petitioner's certiorari petition. (See Docket Entry 1, ¶ 9(h); Docket Entry 10-7 (certiorari petition); Docket Entry 10-9 (order denying certiorari).)[2]

         Petitioner next submitted his instant Petition to this Court. (Docket Entry 1.) Respondent moved for summary judgment both on statute of limitation grounds and on the merits (Docket Entries 9, 10), but Petitioner did not respond (see Docket Entries dated Oct. 31, 2016, to the present), despite notice from the Clerk of Court pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th cir. 1975) (Docket Entry 11). For the reasons that follow, the Court should grant Respondent's instant Motion.[3]

         I. Grounds for Relief

         Petitioner raises two grounds for relief in his Petition: (1) “[t]he sentencing in the plea of [c]onspiracy to sales/delivery of a schedule VI substance is inaccurate in comparison of the statue [sic] versus plea agreement” (see Docket Entry 1 at 5); and (2) “it was [i]neffective [a]ssistance of [c]ounsel for [Petitioner's] attorney to not discover the sentencing error in the State's plea which caused an inaccurate sentence to be served” (id. at 6).

         II. Habeas Standards

         The Court “shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Further, “[b]efore [the] [C]ourt may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to [this] [C]ourt in a habeas petition. The exhaustion doctrine . . . is now codified at 28 U.S.C. § 2254(b)(1).” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see also 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to have waived the exhaustion requirement . . . unless the State, through counsel, expressly waives the requirement.”).

         III. Discussion

         Ground One

         In Ground One, Petitioner contends that the trial court erred by issuing a 20 to 33 month sentence for Petitioner's guilty plea to felony conspiracy to sell and deliver marijuana. (See Docket Entry 1 at 5.) More specifically, Petitioner asserts that “[t]he statue [sic] for [c]onspiracy states upon conviction that the offense of [c]onspiracy is to be one sentencing class lower than [the] felony committed.” (Id. (citing N.C. Gen. Stat. § 14-2.4(a)).) Thus, Plaintiff argues that, because he also pled guilty to felony sale and delivery of marijuana, a Class H felony, the trial court should have issued a sentence on the conspiracy count corresponding to a Class I felony. (Id.) According to Petitioner, “[t]he maximum presumptive range of sentencing for a [p]rior [r]ecord [l]evel of 18 points at Class I is 8-10 months, not the 20-30 [sic] months given at sentencing.” (Id.) Ground One fails on its merits.

         As an initial matter, Respondent asserts that Petitioner “did not raise [in his MAR] the specific claim of sentencing error that he raises in his Ground for Relief (1).” (See Docket Entry 10 at 4.) In order to exhaust his state court remedies, a petitioner must allow “the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights . . . [by] fairly present[ing] his claim in each appropriate state court, thereby alerting that court to the federal nature of the claim.” Jones v. Sussex I State Prison, 591 F.3d 707, 712 (4th Cir. 2010) (internal quotation marks and ellipses omitted) (quoting Baldwin v. Reese, 541 U.S. 27, 29 (2004)). He also “must raise his claim before every available state court, including those courts . . . whose review is discretionary.” Id. at 713 (citing O'Sullivan, 526 U.S. at 847).

         Petitioner raised two claims in his MAR regarding improper sentencing, but the MAR claims differ materially from Ground One of the Petition. (Compare Docket Entry 10-5 at 3-4, 12, with Docket Entry 1 at 5.) In the MAR, Petitioner alleged that (1) the state trial court issued an improper sentence, not because of the operation of N.C. Gen. Stat. § 14-2.4(a) as alleged in Ground One here (see Docket Entry 1 at 5), but because the sentence failed to correspond to the quantity of marijuana at issue and, thus, constituted an aggravated sentence without the required corresponding judicial and/or jury fact-finding (see Docket Entry 10-5 at 3, 12); and (2) the state failed to file an information concerning Petitioner's prior convictions before his guilty plea and, thus, the state trial court lacked jurisdiction to impose an enhanced sentence (see id. at 4, 12). Thus, Respondent correctly argues that Petitioner did not raise the substance of Ground One in the state courts, which means he did not exhaust his state court remedies as required by 28 U.S.C. § 2254(b)(1)(A).

         Respondent further argues that, if Petitioner returned to the state courts to exhaust this claim through another MAR, he would face mandatory imposition of the procedural bar. (Docket Entry 10 at 4 (citing N.C. Gen. Stat. § 15A-1419(a)(1) and (b), and Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998)).) Where, as here, a habeas petitioner would find his unexhausted claim subject to a mandatory procedural bar if he returned to state court for exhaustion, a federal procedural bar to habeas review arises. Breard, 134 F.3d at 619 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)). In light of that procedural bar, Petitioner must demonstrate either cause and prejudice for his ...


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