United States District Court, W.D. North Carolina, Asheville Division
D. Whitney Jr. Chief United States District Judge
MATTER is before the Court upon initial review of
Petitioner Terrance Javarr Ross's pro se Petition for
Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254.
(Doc. No. 1). Also before the Court are Petitioner's
Motion for Leave to Conduct Discovery (Doc. No. 5), Motion
for Appointment of Counsel (Doc. No. 6), Amended Motion for
Leave to Conduct Discovery (Doc. No. 7), and Motion for Leave
to Compel Discovery (Doc. No. 8).
is a prisoner of the State of North Carolina who, on August
5, 2014, entered an Alford plea of guilty in
Cleveland County Superior Court, to two counts of possession
of a firearm by a convicted felon. See State v.
Ross, 794 S.E.2d 289, 290 ( N.C. 2016). In accordance
with Petitioner's plea agreement with the State, the
trial court consolidated the convictions for sentencing and
sentenced Petitioner to 24-29 months in prison, to run at the
expiration of any sentence being served. See id.
entered a notice of appeal the same day he entered his guilty
plea. Id. at 291. Ten days later, on August 15,
2014, he filed a pro se motion for appropriate relief
(“MAR”) in the trial court, arguing that the
court lacked personal and subject matter jurisdiction over
the case. Id. In an order filed August 20, 2014, the
trial court denied Petitioner's MAR. Id. On
February 27, 2015, Petitioner filed a petition for writ of
certiorari in the North Carolina Court of Appeals, seeking
review of the trial court's denial of his MAR.
unpublished opinion entered on August 4, 2015, the state
court of appeals dismissed Petitioner's direct appeal
because he had no right of appeal from the trial court's
acceptance of his guilty plea. State v. Ross, 776
S.E.2d 897, 2015 WL 4620517 ( N.C. Ct. App. 2015),
rev'd on other grounds, 794 S.E.2d 289 ( N.C.
2016). Although neither party had briefed the issue, the
court allowed Petitioner's petition for writ of
certiorari to review the question of whether he entered his
guilty plea voluntarily and knowingly. Ross, 794
S.E.2d at 291. After reviewing the plea hearing transcript,
the court held that Petitioner conditioned his plea on the
appealability of a non-appealable issue, and that the plea,
therefore, “was not entered knowingly and
voluntarily.” Id. at 292 (quoting
Ross, 2015 WL 4620517, at *2). The appellate court
vacated the trial court's judgment and remanded for
further proceedings. Id. The North Carolina Supreme
Court allowed the State's petition for discretionary
review and, in an opinion issued on December 21, 2016,
reversed the decision of the lower court. Id. at
filed the instant § 2254 Petition on December 12, 2017,
when he signed it under penalty of perjury and placed it in
the prison mail system. See Houston v. Lack, 487
U.S. 266, 267 (1988). He raises a single ground for relief -
that he was denied his right to due process when the trial
court failed to dismiss the two firearm possession charges
after the State violated the provisions of N.C. Gen. Stat.
§ 15A-711. (§ 2254 Pet. 7, Doc. No. 1.)
STANDARD OF REVIEW
Court is guided by Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts, which directs
district courts to dismiss habeas petitions when it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief. Rule 4, 28 U.S.C.A.
foll. § 2254. This Petition may be adjudicated on the
record before the Court; no answer is required of Respondent.
to the Petition, on October 14, 2010, while Petitioner was
incarcerated in another county on unrelated charges, he filed
a motion under § 15A-711(c) in Cleveland Count Superior
Court to proceed with the possession of firearms charges.
(§ 2254 Pet. 7.) Section 15A-711 provides the procedures
for securing attendance at hearings and trials of criminal
defendants who are incarcerated in institutions within the
State. Subsection 15A-711(c) provides that “[a]
defendant who is confined in an institution in this State
pursuant to a criminal proceeding and who has other criminal
charges pending against him” may file a written request
“with the clerk of the court where the other charges
are pending” to “require the prosecutor
prosecuting such charges to proceed pursuant to this
section.” § 15A-711(c) (2015). The defendant also
must serve the prosecutor with the request, and “[i]f
the prosecutor does not proceed pursuant to [§
15A-711](a) within six months from the date the request is
filed with the clerk, the charges must be dismissed.”
Id. Petitioner alleges he was not brought back to
Cleveland County on the firearms possession charges until his
plea hearing on August 5, 2014; that he notified the trial
judge of the State's failure to comply with §
15A-711(c); and that the judge asked no questions of either
side, made no findings on the issue, and did not dismiss the
charges. (§ 2254 Pet. 7.)
contends the North Carolina legislature created a liberty
interest under the due process clause when it enacted §
15A-711(c). He claims the State's failure to comply with
the requirements of § 15A-711(c) mandated that the
charges against him be dismissed, and that the trial
court's failure to dismiss the charges violated his right
to due process. (§ 2254 Pet. 7.)
has failed to exhaust this claim in the state courts. Under
the Antiterrorism and Effective Death Penalty Act of 1986, 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
purpose of the exhaustion requirement is to ‘giv[e] the
State the opportunity to pass upon and correct alleged
violations of its prisoners' federal rights.'”
Robinson v. Thomas, 855 F.3d 278, 283 (4th Cir.
2017) (quoting Jones v. Sussex I State Prison, 591
F.3d 707, 712 (4th Cir. 2010)). “A habeas petitioner
satisfies the exhaustion requirement by ‘fairly
present[ing] his claim in each appropriate state court . . .
thereby alerting that court to the federal nature of the
claim.'” Robinson, 855 F.3d at 283
(quoting Baldwin v. Reese, 541 U.S. 27, 29 (2004)).
“Fair presentation” requires a petitioner to show
“that ‘both the ...