United States District Court, W.D. North Carolina, Charlotte Division
JAMES E. LEAKS, Petitioner,
DENNIS DANIELS, Respondent.
D. Whitney Chief United States District Judge
MATTER is before the Court upon initial review of
Petitioner James E. Leaks' 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. 5).
is a prisoner of the State of North Carolina who was found
guilty of second-degree murder by a Mecklenburg County
Superior Court jury on August 3, 2018. He did not file a
direct appeal, and according to his habeas Petition, he has
not sought any other post-conviction relief in the state
courts. (§ 2254 Pet. 1-3, Doc. No. 1.)
filed the instant Petition on February 24, 2019, when he
placed it in the prison mailbox. See Houston v.
Lack, 487 U.S. 266, 267 (1988). He claims his
first-degree murder indictment was constructively amended
during the trial in violation of his Fifth Amendment rights
and his right to a fundamentally fair trial. (§ 2254
Pet. 5; Br. in Support, Doc. No. 2.)
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 as unexhausted.
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a petitioner must 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.
North Carolina, a petitioner may satisfy § 2254's
exhaustion requirement by directly appealing his conviction
and/or sentence to the North Carolina Court of Appeals and
then petitioning the North Carolina Supreme Court for
discretionary review, or by filing a motion for appropriate
relief and petitioning the North Carolina Court of Appeals
for a writ of certiorari. See N.C. Gen. Stat. §
7A-31; N.C. Gen. Stat. § 15A-1422. By his own admission,
Petitioner has done neither. Nor, contrary to his assertions,
is Petitioner exempt from the exhaustion requirement (§
2254 Pet. 5), as he has not demonstrated either that: 1)
there is no state corrective process available to him; or (2)
circumstances exist which render the available state
corrective process(es) ineffective to protect his rights,
see 28 U.S.C. § 2254(b)(1)(B). Accordingly, the
Petition shall be dismissed without prejudice to
Petitioner's ability to file a § 2254 petition after
he has fully exhausted his state remedies.
is forewarned, however, that the AEDPA also imposes a statute
of limitations for § 2254 petitions by a person in
custody pursuant to a state court judgment. 28 U.S.C. §
2244(d)(1). The petition must be filed within one year of the
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made