United States District Court, W.D. North Carolina, Asheville Division
D. Whitney Chief United States District Judge
MATTER is before the Court upon Petitioner Tommy
McAbee's pro se Amended Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 7.) Also
before the Court is Petitioner's motion to appoint
counsel. (Doc. No. 8.)
is a prisoner of the State of North Carolina who pled guilty
on September 9, 2016, in Madison County Superior Court, to
two counts of drug trafficking. (Am. § 2254 Pet. 1-2,
Doc. No. 7.) The trial court sentenced him to a minimum of 70
months and a maximum of 93 months in prison. (Am. § 2254
Pet. 1.) Petitioner did not appeal. (Am. § 2254 Pet. 2.)
December 30, 2016, Petitioner filed a document titled
“Motion for the State's Entire file after a
Conviction” in the United States District Court for the
Eastern District of North Carolina. (Doc. No. 1.) Based upon
the allegations in the motion, the court directed Petitioner
to refile it on the form prescribed for use in that court for
filing a 28 U.S.C. § 2254 petition for writ of habeas
corpus. (Doc. No. 3.) That Order was entered on January 6,
2017, and notwithstanding that he was given 21 days to
comply, Petitioner did not do so until January 21, 2018 (Am.
§ 2254 Pet. 16), when he filed the instant Amended
Petition for Writ of Habeas Corpus. Thereafter, the Eastern
District transferred the entire action to this Court, where
venue is proper. (Doc. No. 9.)
Amended Petition raises four grounds for relief, including
ineffective assistance of counsel and violation of
Miranda rights. The second and third grounds allege
an illegal search and seizure of a cell phone, in violation
of the Fourth Amendment, and that police planted evidence in
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. The Court concludes that disposition of
this Petition can be made based upon the record before it,
and no response from the State is necessary.
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
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 v. Thomas,
855 F.3d 278, 283 (4th Cir. 2017) (quoting Baldwin v.
Reese, 541 U.S. 27, 29 (2004)). “Fair
presentation” requires a petitioner to show “that
‘both the operative facts and the controlling legal
principles [were] presented to the state court.'”
Jones v. Sussex I State Prison, 591 F.3d 707, 713
(4th Cir. 2010) (quoting Baker v. Corcoran, 220 F.3d
276, 289 (4th Cir. 2000)). That means a petitioner must
include a reference to a specific federal constitutional
guarantee, as well as a statement of facts that entitle him
to relief, in his state court proceedings. See Gray v.
Netherland, 518 U.S. 152, 162-63 (1996). “[T]he
presentation to the state court of a state law claim that is
similar to a federal claim does not exhaust the federal
claim.” Baker, 220 F.3d at 289 (citing
Duncan v. Henry, 513 U.S. 364, 366 (1995) (per
curiam)). Furthermore, the prisoner must present the federal
claim to all appropriate state courts, including the highest
appellate court established to review such a claim. See
O'Sullivan, 526 U.S. at 845.
clear from the face of the Amended Petition that Petitioner
has not exhausted any of the grounds raised therein. He did
not file a direct appeal challenging his judgments (Am.
§ 2254 Pet. 2); nor did he seek post-conviction review
by way of a motion for appropriate relief, see N.C.
Gen. Stat. § 15A-1411, in the Madison County Superior
Court, prior to filing his Amended Petition.
alleges that in “Jan/March 2017, ” he sent a
letter to the “clerk of court” requesting court
documents, including a transcript of his plea hearing, but
received no response. (Am. § 2254 Pet. 3.) He further
alleges he sent the clerk's office a motion for
preparation of a stenographic transcript, an in forma
pauperis affidavit, and a petition for writ of habeas corpus.
Again, he received no response from the clerk's office.
(Am. § 2254 Pet. 3.)
no doubt frustrating, the Madison County Superior Court
Clerk's unresponsiveness does not free Petitioner of the
statutory exhaustion requirement. He has made a single
attempt to obtain post-conviction review - a state petition
for writ of habeas corpus. He has not, however, filed a
motion for appropriate relief in the Madison County Superior
Court, which is the primary mechanism by ...