United States District Court, W.D. North Carolina, Asheville Division
NORMAN D. CHURCH, Petitioner,
DENNIS DANIELS, Respondent.
D. Whitney Chief United States District Judge
MATTER is before the Court upon Petitioner Norman D.
Church's pro se Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254. (Doc. No. 1.)
is a prisoner of the State of North Carolina who pled guilty
in Cleveland County Superior Court to one count of possession
of a firearm by a convicted felon and one count of having
attained habitual felon status. The trial court sentenced him
to an active term of imprisonment. Judgment was entered,
according to the habeas Petition, in December 2016. (§
2254 Pet. 1, Doc. No. 1.)
did not appeal his judgment. (§ 2254 Pet. 2.) He filed
the instant § 2254 Petition on July 23, 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). Petitioner raises a
single ground for relief alleging he was sentenced twice for
the same offense in violation of his due process rights and
the Double Jeopardy Clause. (§ 2254 Pet. 5; § 2254
Br. 1, Doc. No. 1-1.)
STANDARD OF REVIEW
Court is guided by Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts, which directs 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 the Petition must be
dismissed without prejudice because Petitioner has not
exhausted his state court remedies.
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). 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.
acknowledges that he did not file a direct appeal challenging
his judgment (§ 2254 Pet. 2). That fact is not
necessarily fatal to his § 2254 petition, if he
exhausted his habeas claims by properly raising them
elsewhere in the state courts. According to Petitioner, he
has not raised his federal constitutional claims in a
post-conviction motion for appropriate relief or a petition
for habeas relief in the state trial court. (§ 2254 Pet.
3, 5-6.) Instead, he contends that:
The Due Process violation in Petitioner's case and also
the Invalidity and ERRONIOUS sentencing and procedure exempts
him from any further litigation requirement in the state
courts. State authorities also deviated from the original
contractual (plea) agreement in violation of federal law and
is therefore excused from exhaustion requirement.
(§ 2254 Pet. 5.) Petitioner, however, has not identified
any existing circumstances that would render either a motion
for appropriate relief or a petition for habeas relief in the
state trial court ineffective to protect his right to seek
redress for the alleged due process and double jeopardy
violations. See 28 U.S.C. § 2254(b)(1)(B)(ii).
Accordingly, he must exhaust his state court remedies before
seeking § 2254 habeas relief. See §
2254(b)(1)(A); O'Sullivan, 526 U.S. at 845.
he has not provided the state courts any opportunity to
resolve his federal constitutional claims, Petitioner has not
exhausted his available state remedies. See
O'Sullivan, 526 U.S. at 845. Consequently, 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.