United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge
MATTER is before the Court upon Petitioner Robert
James Osborne'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).
is a prisoner of the State of North Carolina who pled guilty
in Union County Superior Court to one count of possession of
a firearm by a convicted felon and two counts of habitual
impaired driving. The trial court sentenced Petitioner to an
active term of imprisonment. Judgment was entered on August
8, 2017. (§ 2254 Pet. 1, Doc. No. 1.)
did not appeal his judgment. (§ 2254 Pet. 2.) He filed
the instant habeas 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). He raises three grounds for relief.
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 that 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.
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. (§ 2254 Pet. 3, 6, 7, 9.)
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.
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 §