United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
a state inmate proceeding pro se, petitions this court for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
matter is before the court on respondent's motion for
summary judgment (DE 16), filed pursuant to Federal Rule of
Civil Procedure 56. Petitioner filed response in opposition
and thus the issues raised are ripe for decision. For the
following reasons, the court grants respondent's motion
for summary judgment.
filed the instant habeas petition on June 6, 2017, arguing
the state trial court in his then-pending criminal
proceedings violated the speedy trial provisions of the
Interstate Agreement on Detainers Act, 18 U.S.C. App. §
2. On January 19, 2018, the court conducted its frivolity
review of the petition, and directed petitioner to file
amended petition providing additional information about the
state judgment of conviction he was attempting to challenge.
Petitioner timely filed the amended petition, and on April
25, 2018, the court allowed the matter to proceed. Respondent
filed the instant motion for summary judgment on May 11,
2018, arguing in part the petition should be dismissed
because petitioner failed to exhaust his state court
November 30, 2017, petitioner was convicted in state court of
breaking and entering, larceny after breaking and entering,
and two counts of possession of stolen goods. (J. &
Commitment (DE 18-1)). The state court thereafter sentenced
petitioner to three terms of 11-23 months' imprisonment,
to run consecutively. (Id.) Petitioner gave notice
of appeal of his conviction in open court on November 30,
2017. (Pet'r's Resp. (DE 21) at 1; see also
J. & Commitment (DE 18-1) at 3).
Standard of Review
judgment is appropriate when there exists no genuine issue of
material fact, and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); Anderson v.
Liberty Lobby, 477 U.S. 242, 247 (1986). The party
seeking summary judgment bears the burden of initially coming
forward and demonstrating an absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Once the moving party has met its burden,
the nonmoving party “may not rest upon the mere
allegations or denials of his pleading” but “must
set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at
248-49; see also Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving
party thus “bears the burden of showing, by means of
affidavits or other verified evidence, that [a] genuine
dispute of material fact exists.” Bouchat v.
Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522
(4th Cir. 2003). There is no issue for trial unless there is
sufficient evidence favoring the non-moving party for a jury
to return a verdict for that party. Anderson, 477
U.S. at 250.
a valid excuse, a state prisoner must exhaust his remedies in
state court before seeking federal habeas corpus relief.
See 28 U.S.C. § 2254(b). To exhaust available
state court remedies, a petitioner must “fairly
present to the state court both the operative facts and the
controlling legal principles associated with each
claim.” Longworth v. Ozmint, 377 F.3d 437, 448
(4th Cir. 2004) (internal quotation omitted). Section
2254's exhaustion requirement demands that state
prisoners give “the state courts one full opportunity
to resolve any constitutional issues by invoking one complete
round of the State's established appellate review
process.” O'Sullivan v. Boerckel, 526 U.S.
838, 845 (1999). This “one full opportunity”
includes filing petitions for discretionary review with the
state supreme court when that review is part of the ordinary
appellate procedure in the state. See id. A habeas
petitioner has the burden of proving that a claim is
exhausted. Mallory v. Smith, 27 F.3d 991, 994 (4th
North Carolina, a petitioner may satisfy the exhaustion
requirement of section 2254 by directly appealing his
conviction to the North Carolina Court of Appeals and then
petitioning the Supreme Court of North Carolina for
discretionary review, or by filing a motion for appropriate
relief (“MAR”) and petitioning the North Carolina
Court of Appeals for a writ of certiorari. See N.C.
Gen. Stat. §§ 7A-27, 7A-31, 15A-1422.
petitioner admits in his response brief that he filed his
notice of appeal of the relevant North Carolina convictions
on November 30, 2017, six months after he filed the
instant petition. (Resp. (DE 21) at 3). Accordingly,
petitioner did not exhaust his state court remedies before
filing the instant petition. Petitioner must present his
claim to the North Carolina courts, in either his direct
appeal or by filing an MAR, before filing a federal habeas
petition. O'Sullivan, 526 U.S. at 845;
Longworth, 377 F.3d at 448; see also Rose v.
Lundy, 455 U.S. 509, 518-19 (1982) (providing that state
prisoner seeking habeas relief must “seek full relief
first from the state courts” before filing federal
court therefore dismisses the instant habeas petition without
prejudice to allow petitioner to exhaust his state court
remedies. A dismissal without prejudice means petitioner may
re-file his habeas ...