United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge.
MATTER is before the Court upon initial review of
Petitioner Ferrante Vermond Perry's pro se Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
(Doc. No. 1). Also before the Court is Petitioner's
Application to Proceed in District Court without Prepaying
Fees or Costs. (Doc. No. 2.)
is a prisoner of the State of North Carolina who was
convicted in Mecklenburg County Superior Court of possession
of cocaine and attaining the status of habitual felon. (Pet.
1, Doc. No. 1.) He was sentenced to a minimum term of 48
months and a maximum term of 72 months in prison. (Pet. 1.)
Judgment was entered on May 8, 2017. (Pet. 1.) For the
reasons that follow, the Petition shall be dismissed without
2(c)(5) of the Rules Governing Section 2254 Cases in the
United States District Courts requires that a Petition for
Writ of Habeas Corpus be “signed under penalty of
perjury by the petitioner or by a person authorized to sign
it for the petitioner under 28 U.S.C. § 2242.” The
instant habeas Petition is missing a signature page.
Consequently, it is unsigned, and, therefore, not properly
FAILURE TO EXHAUST STATE REMEDIES
the Antiterrorism and Effective Death Penalty Act of 1986
(“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). That is, he 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). Furthermore, in
order to exhaust his claims, the prisoner must present them
to all appropriate state courts, including the highest
appellate court established to review such claims. See
to Petitioner, he has filed a direct appeal of the May 8,
2017 judgment, but his appeal is still before the North
Carolina Court of Appeals. (Pet. 2, 5.) Because his direct
appeal remains pending, Petitioner has not exhausted his
state court remedies. He may yet seek discretionary review in
the North Carolina Supreme Court if the Court of Appeals
issues a decision that is not in his favor. Indeed, he must
seek review in the higher court in order to exhaust any
claims raised on appeal that he intends to also raise in a
federal habeas petition. See O'Sullivan v.
Boerckel, 526 U.S. at 845. Accordingly, the instant
habeas Petition shall be dismissed without prejudice so that
Petitioner may exhaust his constitutional claims.
STATUTE OF LIMITATIONS
is forewarned that AEDPA provides a statute of limitations
for § 2254 petitions filed by state prisoners.
See 28 U.S.C. § 2244(d)(1). The petition 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 the