HUNT v. NORTH CAROLINA DIVISION OF PRISONS
Filing
8
MEMORANDUM OPINION AND RECOMMENDATION signed by MAG/JUDGE L. PATRICK AULD on 09/09/2011. RECOMMENDED that Respondent's Motion for Summary Judgment (Docket Entry 5 ) be GRANTED that the Habeas Petition (Docket Entry 2 ) be DENIED, and that Judgment be entered dismissing this action. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MICHAEL HARRISON HUNT, JR.,
Petitioner,
v.
ALVIN W. KELLER, JR.,
Respondent.
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1:10CV730
MEMORANDUM OPINION AND RECOMMENDATION
OF 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.
Entry 2.)
(Docket
On March 20, 2008, Petitioner was convicted of first-
degree murder and discharging a firearm into an occupied vehicle in
cases 06 CRS 53037 and 07 CRS 3874 and was sentenced to life
imprisonment without the possibility of parole.
Ex. 2.)
(Docket Entry 6,
Petitioner filed a direct appeal, but the North Carolina
Court of Appeals found no error and the North Carolina Supreme
Court denied discretionary review.
State v. Hunt, 198 N.C. App.
488, 680 S.E.2d 720, rev. denied, 363 N.C. 747, 689 S.E.2d 141
(2009).
Petitioner then filed his Habeas Petition in this Court.
(Docket Entry 2.)
Judgment.
Respondent has filed a Motion for Summary
(Docket Entry 5.)
Despite being informed of his right
to file a response (Docket Entry 7), Petitioner has not done so.
(See Docket Entries dated Nov. 9, 2010, to present.)
motion is now before the Court for a decision.
Respondent’s
Petitioner’s Claim
Petitioner raises only one claim for relief in his Petition,
i.e., that he was denied his right to a fair and impartial jury
when the trial judge rejected his attempt to strike the entire jury
pool after a prospective juror stated in front of said pool “that
there was too much ‘gun play’ in Durham.”
(Docket Entry 2 at 6.)
Discussion
Respondent initially has asserted that Petitioner’s instant
claim is unexhausted and procedurally barred because Petitioner
raised the claim in his appeal to the North Carolina Court of
Appeals, but did not raise it in his petition seeking discretionary
review from the North Carolina Supreme Court.
4-6.)
(Docket Entry 6 at
This argument is dispositive.
Petitioner must exhaust available state court remedies before
this Court can consider granting relief on a claim.
§ 2254(b)(1).
28 U.S.C.
In order to exhaust his state court remedies,
Petitioner must allow “the State the opportunity to pass upon and
correct alleged violations of its prisoners’ federal rights” by
“‘?fairly present[ing]” his claim in each appropriate state court
. . ., thereby alerting that court to the federal nature of the
claim.’”
Jones v. Sussex I State Prison, 591 F.3d 707, 712 (4th
Cir. 2010)(citing and quoting Baldwin v. Reese, 541 U.S. 27, 29
(2004)).
state
He must also “raise his claim before every available
court,
including
discretionary.”
those
courts
.
.
.
whose
review
is
Id. at 713 (citing O’Sullivan v. Boerckel, 526
U.S. 838, 847 (1999)).
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Here, Petitioner did not raise his claim in his petition for
discretionary review to the North Carolina Supreme Court (Docket
Entry 6, Ex. 6) and, therefore, did not exhaust his state court
remedies as to that claim.
The Court could allow Petitioner to
return to state court to exhaust his remedies.
However, no need
exists to do so because Petitioner’s claim is also procedurally
barred.
If Petitioner were to return to the state courts to
exhaust his claim, he would find that his claim is now procedurally
barred by N.C. Gen. Stat. § 15A-1419 because he could have raised
the claim in his previous petition for discretionary review, but
did not.
This means that the claim is also procedurally barred
from consideration in this Court.
O’Sullivan, 526 U.S. at 848.
Petitioner has not made any argument in favor of excusing the
procedural bar and none is apparent in the record.
In fact, as
already noted, he has not even responded to Respondent’s Motion for
Summary Judgment. His claim should be denied for being unexhausted
and procedurally barred.
-3-
IT IS THEREFORE RECOMMENDED that Respondent’s Motion for
Summary Judgment (Docket Entry 5) be GRANTED that the Habeas
Petition (Docket Entry 2) be DENIED, and that Judgment be entered
dismissing this action.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 9, 2011
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