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Albea v. State

United States District Court, M.D. North Carolina

March 11, 2019

SCARBOROUGH B. ALBEA, Petitioner,
v.
STATE OF NORTH CAROLINA, Respondent.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          JOE L. WEBSTER UNITED STATES MAGISTRATE JUDGE

         Petitioner, a prisoner of the State of North Carolina, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket Entry 1.) Respondent filed an Answer (Docket Entry 3), a Motion for Summary Judgment (Docket Entry 4), and a Supporting Brief (Docket Entry 5). Petitioner then filed a response, docketed as “Exhibits A and B.” (Docket Entry 7.) This matter is now ready for a ruling.

         Background

         Petitioner pled guilty in May of 2017 in the Superior Court of Guilford County to attempted heroin trafficking and was sentenced to 50-72 months of imprisonment. (Docket Entry 5, Exs. 1-2.) Petitioner did not appeal but instead filed in that same court a Motion for Appropriate Relief (“MAR”), a motion for discovery, and other related miscellaneous motions, in March of 2018. (Id., Ex. 3.) In April of 2018, Petitioner filed an amended MAR. (Id., Ex. 4.) In June of 2018, the court granted the MAR, as amended, insofar as the court acknowledged a sentencing error and granted Petitioner's request for resentencing, but denied the remainder of the claims. (Id., Ex. 5.) Later that month, Petitioner was resentenced to 44-65 months of imprisonment. (Id., Ex. 6.) On July 2, 2018, Petitioner filed a second MAR in the Superior Court of Guilford County. (Id., Ex. 7.) On July 20, 2018, this MAR was denied. (Id., Ex. 8.) Petitioner then filed his federal habeas petition in this Court on September 24, 2018. (Docket Entry 1.)

         Petitioner's Grounds

          Petitioner contends: (1) that he was sentenced at the wrong prior record level; (2) that his attorney provided ineffective assistance of counsel by failing to present mitigating factors; (3) that there was insufficient evidence because of error in the admission or exclusion of evidence because post-test procedures of DNA conducted were in his favor; and (4) that there was a lack of jurisdiction due to the denial of pre-trial motions or relief to which he was entitled, affecting the preparation or presentation of his defense. (Docket Entry 1, Grounds One through Four.)

         Standard of Review

          Where a state trial court adjudicated a petitioner's claims on their merits, this Court must apply 28 U.S.C. § 2254(d)'s highly deferential standard of review to such claims. That statute precludes habeas relief in cases where a state court has considered a claim on its merits unless the decision was contrary to or involved an unreasonable application of clearly established federal law as set out by the United States Supreme Court or the state court decision was based on an unreasonable determination of the facts. A state court decision is “contrary to” Supreme Court precedent if it either arrives at “a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite” to that of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state decision “involves an unreasonable application” of Supreme Court law “if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case.” Id. at 407. “Unreasonable” does not mean just “incorrect” or “erroneous” and the Court must judge the reasonableness from an objective standpoint. Id. at 409-11. State court factual findings are presumptively correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Where the claims below are denied on their merits, this standard will apply.

         Ground One

         Petitioner first contends that he was sentenced at the “[w]rong prior record level” and in support he asserts that he “was told by [his] lawyer and the DA that [he] was a level 6 with 19 points, habitual status, and FBI was reviewing [his] case. [However, he contends he] was a level 5 with 14 points[.] They only took 6 months off instead of 18 months off.” (Docket Entry 1, Ground One.) Put differently, Petitioner asserts that at his resentencing he was at a prior record level of V (rather than the initially erroneously calculated prior record level of VI) with fourteen points (rather than the initially erroneously calculated nineteen points) and the court only reduced six months off his sentence instead of eighteen months. (See id.) Petitioner's contention is without merit.

         First, this claim is procedurally barred. To receive habeas relief, a petitioner must first exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). The rationale for this requirement is as follows:

[b]ecause the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts . . . state prisoners must 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, 844 (1999). “In 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 MAR and petitioning the North Carolina Court of Appeals for a writ of certiorari.” Jessup v. Daniels, No. 1:13CV607, 2014 WL 1431728, at *4, n.4 (M.D. N.C. Apr. 14, 2014) (unpublished) (citing N.C. Gen. Stat. §§ 7A-27, 7A-31, 15A-1422). Moreover, failure to exhaust state law remedies will result in the claims being procedurally barred from federal review if, upon return to the state courts, those courts would find that the claims are procedurally barred. Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998) (citing Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991)). North Carolina General Statute § 15A-1419 imposes such a mandatory procedural bar for claims that could have been presented on appeal or in a prior MAR. Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001).[1]

         Here, the Court has reviewed Petitioner's July 2018 MAR, which is Petitioner's second MAR, and nowhere in it does he allege that he was resentenced at the wrong prior record level. Because he did not present this issue to the trial court in his July 2018 MAR, this claim is unexhausted. Moreover, Petitioner would now be procedurally barred from seeking post-conviction review of this claim in the North Carolina courts. See N.C. Gen. Stat. § 15A-1419(a) (listing as grounds for denying a MAR: (1) “Upon a previous motion [for appropriate relief] . . . the defendant was in a position to adequately raise the ground or issue underlying the present motion but did not do so.”). Accordingly, ground one of the Petition (Docket Entry 1) is procedurally defaulted on federal habeas review.[2]See Breard, ...


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