United States District Court, W.D. North Carolina, Asheville Division
D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE
MATTER is before the Court upon initial review of
Petitioner Charles Alan Fancher's pro se Petition for
Writ of Habeas Corpus, 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 was found to
be responsible by a Clay County Superior Court jury of
driving left of center and guilty of driving while impaired,
assault with a deadly weapon with intent to kill, two counts
of misdemeanor assault with a deadly weapon, and three counts
of assault with a deadly weapon on a government official.
State v. Fancher, 830 S.E.2d 705, 2019 WL 3562368 at
*1 ( N.C. Ct. App. 2019) (unpublished). The trial court
sentenced him to a minimum of 8 years in prison. § 2254
Pet. (Doc. No. 1) at 1. Judgment was entered on March 15,
filed a direct appeal, and on August 6, 2019, the North
Carolina Court of Appeals (“NCCOA”) issued its
unpublished opinion finding no plain error in the judgment.
Fancher, 830 S.E.2d at *10. Petitioner did not seek
review of the NCCOA's decision in the North Carolina
Supreme Court (“NCSC”). § 2254 Pet. (Doc.
No. 1) at 2.
about November 22, 2019, Petitioner filed a motion for a new
trial in the Clay County Superior Court, which the court
denied on December 12, 2019. Order Deny. Nov. 22, 2019 Mot.
(Doc. No. 1-3). Petitioner did not seek review of the trial
court's decision by filing a petition for writ of
certiorari in the NCCOA. § 2254 Pet. (Doc. No. 1) at
filed the instant federal habeas Petition in this Court on
December 19, 2019, when he placed in the prison mailbox.
Houston v. Lack, 487 U.S. 266, 267 (1988).
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
North Carolina, a petitioner may satisfy § 2254's
exhaustion requirement by directly appealing his conviction
and/or sentence to the NCCOA and then petitioning the NCSC
for discretionary review, or by filing a post-conviction
motion for appropriate relief (“MAR”) in the
trial court and then petitioning the NCCOA for a writ of
certiorari. See N.C. Gen. Stat. § 7A-31; N.C.
Gen. Stat. § 15A-1422. By his own admission, Petitioner
did not seek discretionary review in the NCSC after the NCCOA
denied his direct appeal. Furthermore, Petitioner has not
filed an MAR in the trial court, and to the extent the trial
court construed his motion for a new trial as an MAR,
Petitioner did not file a petition for writ of certiorari in
the NCCOA seeking review of the trial court's denial of
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 federal claims in the state
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 ...