United States District Court, W.D. North Carolina, Charlotte Division
BRYAN K. ROBINSON, Petitioner,
STATE OF NORTH CAROLINA, Respondent.
D. Whitney Chief United States District Judge
MATTER is before the Court upon initial review of
Petitioner Bryan K. Robinson's pro se Petition for Writ
of Habeas Corpus, 28 U.S.C. § 2254. (Doc. No. 1.)
is a prisoner of the State of North Carolina who, on January
11, 2018, was convicted by a Mecklenburg County jury of one
count of possession of a firearm by a felon. Petitioner
pleaded guilty to attaining habitual felon status. The court
sentenced him to an active sentence of 90 to 120 months.
filed a direct appeal raising two claims: 1) the trial court
erred in denying his motion to dismiss the firearm charge
based on insufficiency of the evidence; and 2) the trial
court erred in admitting evidence, over his objection, that
he was subject to a Domestic Violence Protective Order at the
time of his arrest. State v. Robinson, 823 S.E.2d
167 ( N.C. Ct. App. 2019), appeal dismissed,
review denied, 826 S.E.2d 717 ( N.C.
2019). The North Carolina Court of Appeals
affirmed the judgment. The North Carolina Supreme Court
dismissed Petitioner's appeal and denied his petition for
discretionary review on May 9, 2019. State v.
Robinson, 826 S.E.2d 717 ( N.C. 2019).
filed the instant § 2254 Petition on June 24, 2019, when
he placed it in the prison mail system. See Houston v.
Lack, 487 U.S. 266, 267 (1988). In it, he raises Fourth
Amendment challenges to the legality of the search that
discovered the firearm (Grounds One, Three, Four). He also
claims the prior convictions used to prove his habitual felon
status were used again to calculate his criminal record level
at sentencing, resulting in an unconstitutionally enhanced
sentence (Ground Two).
STANDARD OF REVIEW
reviewing the Petition, the 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 (emphasis
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 post-conviction motion
for appropriate review (“MAR”) in the trial court
and then 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. The Court has
reviewed Petitioner's brief on direct appeal,
see Def.-Appellant's Br., State v.
Robinson, No. COA18-661 ( N.C. Ct. App.), at
Pet'r's Ex. 1 (Doc. No. 1-1 at 1-24), and finds that
none of the constitutional claims raised in the § 2254
Petition were raised in Petitioner's direct appeal in the
North Carolina Court of Appeals. Moreover, by his own
admission, Petitioner has not sought collateral review of his
constitutional claims by way of an MAR in the trial court.
the claims raised in the instant Petition are unexhausted.
The Court shall dismiss the Petition 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 § 2254 petition must be filed within one
year of the latest of:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time ...