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Love v. State of North Carolina County of Buncombe

United States District Court, W.D. North Carolina, Asheville Division

August 1, 2018

QUANTAY LOVE, SR., Petitioner,
v.
STATE OF NORTH CAROLINA COUNTY OF BUNCOMBE, Respondent.

          ORDER

          Frank D. Whitney Chief United States District Judge

         THIS MATTER is before the Court upon Petitioner Quantay Love, Sr.'s pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 1), and motion to proceed in forma pauperis (Doc. No. 2).

         I. BACKGROUND

         Petitioner is a prisoner of the State of North Carolina who pled guilty in Buncombe County Superior Court to two counts of possession of a firearm by a convicted felon and two counts of having attained habitual felon status. The trial court sentenced Petitioner to an active term of imprisonment. Judgment was entered on September 28, 2017. (§ 2254 Pet. 1, Doc. No. 1.)

         Petitioner did not appeal his judgment. (§ 2254 Pet. 1.) He filed the instant habeas Petition on July 11, 2018, when he signed it under penalty of perjury and placed it in the prison mailbox (§ 2254 Pet. 15). See Houston v. Lack, 487 U.S. 266, 267 (1988). He raises a single ground for relief which appears to challenge the sufficiency of the evidence for the two possession convictions. (§ 2254 Pet. 5).

         II. STANDARD OF REVIEW

         The Court is guided by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, which directs the district court to dismiss a habeas petition 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 the Petition must be dismissed without prejudice because Petitioner has not exhausted his state court remedies.

         III. DISCUSSION

         The Antiterrorism and Effective Death Penalty Act of 1996 requires that a petitioner exhaust his available state remedies before he may pursue habeas relief in federal district court. 28 U.S.C. § 2254(b)(1)(A).[1] 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). “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 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)). 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.

         As an initial matter, Petitioner did not file a direct appeal challenging his judgments (§ 2254 Pet. 2). That fact is not necessarily fatal to his § 2254 petition, if Petitioner demonstrates that he has exhausted his habeas claims by properly raising them elsewhere in the state courts. According to Petitioner, however, he has not raised any of his grounds for relief in a post-conviction motion for appropriate relief or a petition for habeas relief in the state trial court.[2] (§ 2254 Pet. 3, 6, 10, 12.)

         In short, Petitioner has not provided the state courts any opportunity to resolve his federal constitutional claims. Consequently, he has not exhausted his available state remedies. See O'Sullivan, 526 U.S. at 845.

         Therefore, the Court shall dismiss the instant habeas Petition without prejudice so that Petitioner may cure the exhaustion defect and seek future habeas relief, if he wishes. Petitioner is forewarned, however, that a one-year statute of limitation applies to the filing of a § 2254 petition. See 28 U.S.C. § 2244(d)(1). Generally, the statute of limitation begins to run on the date a petitioner's conviction becomes final, see § 2244(d)(1)(A), and is tolled while a properly filed post-conviction action is pending in the state courts, see § 2244(d)(2).

         IT IS, ...


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