Abrams v. Dismukes

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CASE NO. 1:24-cv-00074-MR
LARRY ABRAMS, )
)
Petitioner, )
)
vs. ) MEMORANDUM OF
) DECISION AND ORDER
LESLIE COOLEY DISMUKES, )
Secretary, North Carolina )
Department of Adult Correction, )
)
Respondent. )
________________________________ )
THIS MATTER is before the Court for further review of the Petition for
Writ of Habeas Corpus, filed by Petitioner under 28 U.S.C. § 2254 on March
19, 2024 [Doc. 1], and his Amended Petition filed January 5, 2026. [Doc. 10].
I. BACKGROUND
Petitioner is a North Carolina prisoner.1 Petitioner was convicted in the
Rutherford County Superior Court, on June 4, 2021, of Possession with
Intent to Manufacture, Sell, and Deliver a Schedule II controlled substance,
1 See https://webapps.doc.state.nc.us/opi/viewoffender.do?method=view&offenderID=0
652763&searchOffenderId=0652763&searchDOBRange=0&listurl=pagelistoffendersear
chresults&listpage=1 (herein “NCDAC Database”); Fed. R. Evid. 201.
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case file number 20-CRS-92 (offense date of April 1, 2019); having attained
Habitual Felon status, case file number 20-CRS-93 (offense date of April 1,
2019); and Possession of a Schedule II controlled substance, case file
number 19-CRS-50950 (offense date March 30, 2019). [NCDAC Database].
The state trial court consolidated for judgment the convictions entered in
cases 20-CRS-92 and 20-CRS-93 and imposed upon Petitioner a 67-to-93-
month active sentence of imprisonment. [Id. at 2]. That court imposed upon
Petitioner a consecutive probationary sentence for the conviction entered in
case 19-CRS-50950. [Id. at 2-3].
Following his convictions, Petitioner filed a direct appeal to the North
Carolina Court of Appeals. State v. Abrams, No. COA22-347, 2023 WL
193807 (N.C. App. Jan. 17, 2023) (unpublished). As his sole issue for appeal,
Petitioner challenged the trial court’s denial of his motion to suppress
evidence obtained during a frisk of his person following a traffic stop. Finding
no error, the appellate court affirmed the trial court’s decision. [Id.]. Petitioner
sought discretionary review from the North Carolina Supreme Court which
denied his review request. State v. Abrams, No. 42P23 (N.C. Mar. 1, 2023).
Petitioner did not seek review in the U.S. Supreme Court. [Doc. 1 at 2].
Petitioner states that he instituted a post-judgment collateral relief
action by filing a Motion for Appropriate Relief (“MAR”) in the Rutherford
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County Superior Court on May 30, 2023, raising Fourth Amendment and
Sixth Amendment claims, but the Superior Court denied Petitioner’s MAR on
July 14, 2023. [Doc. 1 at 3]. Petitioner states he then filed a petition for writ
of certiorari in the North Carolina Court of Appeals on August 14, 2023,
seeking the appellate court’s review of his MAR denial by the trial court. [Id.].
According to Petitioner, at the time he filed the present action, his petition
was still pending in the North Carolina Court of Appeals. [Id. at 4]. On
November 17, 2025, the Court entered an Order that, among other things,
directed the Petitioner to file an amendment to his petition. The Court
explained:
Given that more than two years have elapsed since Petitioner
sought certiorari review of the denial of his MAR in the North
Carolina Court of Appeals, Petitioner should be afforded an
opportunity to amend his petition to explain what, if any, action
the North Carolina Court of Appeals has taken with regard to the
petition he filed there on August 14, 2023.
[Doc. 7 at 9]. Petitioner filed an amended petition2 on January 5, 2026,
stating, in pertinent part: “Waiting to exhaust all state claims. Lack of legal
libery and knowledge of the courts. Have a writ of certiorari still pending in
2 Petitioner’s amended petition, in all material respects, is a duplicate version of his
original petition. For that reason, the Court will cite only to the original petition unless
indicated otherwise.
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the N.C. Court of Appeals proceeding informa pauperis.” [Doc. 10 at 16
(errors uncorrected)].
In his § 2254 petition (and amended petition), the Petitioner raises the
following two claims: 1) unlawful detention and frisk in violation of the Fourth
Amendment; and 2) ineffective assistance of trial counsel in violation of the
Sixth Amendment. [Doc. 1 at 5-11]. The Petitioner asks this Court to vacate
his convictions and release him from custody. [Id. at 18].
II. DISCUSSION
In accordance with the Rules Governing Section 2254 Cases in the
United States District Courts, the Court has reviewed the petition and
amended petition. Rule 4, 28 U.S.C.A. foll. §2254. Rule 4 further 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.
Id.; Wolfe v. Johnson, 565 F.3d 140 (4th Cir. 2009).
While Petitioner asserts he has exhausted his first claim – it was the
subject of his direct appeal – a closer inspection of that claim indicates
otherwise. Petitioner’s first claim is comprised of two allegedly
unconstitutional detentions and searches occurring on different dates. The
first incident happened on March 30, 2019, and the second incident
happened on February 11, 2020. [Doc. 1 at 6-8]. The March 30, 2019,
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incident, according to Petitioner, began as a traffic stop and ended when
Petitioner’s female passenger “give up the small amount of cocaine from her
pants.” [Doc. 1 at 6]. Petitioner states the February 11, 2020, incident began
when a police officer approached Petitioner’s parked car, stated he smelled
marijuana, removed Petitioner from the car, and ended when the officer
located “contraband” in the vehicle’s glove box. [Id. at 8].
Unlike either of these two incidents, Petitioner’s direct appeal
concerned his conviction for a drug trafficking offense that took place on a
different date, that is, on April 1, 2019. Further, the facts surrounding the
conviction Petitioner appealed were entirely different from the facts of either
incident. Following a traffic stop of the car Petitioner was driving on April 1,
2019, police found narcotics on the person of the Petitioner (in his sock)
during a Terry-frisk3 after he was ordered out of the car. State v. Abrams, No.
COA22-347, 2023 WL 193807, slip op. at 3 (N.C. App. Jan. 17, 2023). While
the March 30, 2019, incident might be the basis for Petitioner’s drug
possession conviction (case file number 19-CRS-50950),4 it provides
Petitioner no relief. Petitioner pleaded guilty to this possession charge and
3 Terry v. Ohio, 392 U.S. 1 (1968).
4 Even though the dates hint that there may be a connection, Petitioner has alleged no
facts on which to base a claim that there actually is any connection.
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did not appeal any aspect of it. State v. Abrams, No. COA22-347, 2023 WL
193807, slip op. at 6. This part of Petitioner’s first claim is thus unexhausted
and subject to procedural default analysis, infra. As for the second incident,
a review of Petitioner’s criminal history discloses Petitioner has never
sustained any conviction in North Carolina with an offense date of February
11, 2020. NCDAC Database. Since this second incident of Petitioner’s first
claim is not a component of any state judgment Petitioner might attack here,
it is summarily dismissed.
Petitioner’s Fourth Amendment claim, assuming the March 30, 2019,
incident is the basis for Petitioner’s drug possession conviction, coming as it
does for the first time in this Court, is not cognizable because he had not first
“exhausted the remedies available in the courts of the State[.]” 28 U.S.C. §
2254(b)(1)(A). In North Carolina, a petitioner may satisfy § 2254’s
exhaustion requirement in one of two ways: (1) by directly appealing his
conviction to the North Carolina Court of Appeals and then petitioning the
North Carolina Supreme Court for discretionary review; or (2) by filing a state
post-conviction proceeding in the trial court of conviction and then petitioning
the North Carolina Court of Appeals for a writ of certiorari. N.C. Gen. Stat. §
7A–31; N.C. Gen. Stat. § 15A–1422; McNeil v. Whitener, 2012 WL 4086510,
*5 (E.D.N.C. 2012) (to satisfy the exhaustion requirement, a petitioner must
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show that “his instant federal claims followed along one of these two tracks
to completion of review in the state courts”).
The exhaustion requirement “is not satisfied if the petitioner presents
new legal theories or factual claims for the first time in his federal habeas
petition.” Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). Due to “basic
principles of federalism,” federal courts are only permitted to review “those
state-court decisions that implicate federal constitutional rights.” Kornahrens
v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995). If a defendant convicted in state
court fails to identify and pursue a federal constitutional claim on direct
appeal or in state post-conviction proceedings, the state court is deprived of
the opportunity to evaluate the federal claim “causing the state courts to rule
against him solely on state-law procedural grounds.” Id. Federal habeas
review in this circumstance is inappropriate because the state’s judgment in
such a case is based on an “independent and adequate state ground” since
no federal constitutional claim was ever presented to or reviewed by the
state. Coleman v. Thompson, 501 U.S. 722, 729–30 (1991).
Beyond the unexhausted nature of Petitioner’s Fourth Amendment
claim, Petitioner is barred from pursuing that claim in this Court pursuant to
the doctrine of procedural default. “A procedural default ... occurs when a
habeas petitioner fails to exhaust available remedies and ‘the court to which
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the petitioner would be required to present his claims in order to meet the
exhaustion requirement would now find the claims procedurally barred.’ ”
Breard, 134 F.3d at 619 (4th Cir. 1998) (quoting Coleman, 501 U.S. at 735
n.1). In this case, Petitioner pursued a direct appeal and did not raise any
constitutional claim regarding the March 30, 2019, incident. Pursuant to
N.C.R. App. P. 28(a), any such claim associated with the March 30, 2019,
incident was therefore abandoned (“The scope of review on appeal is limited
to issues so presented in the several briefs. Issues not presented and
discussed in a party’s brief are deemed abandoned.”). Petitioner asserts he
raised this constitutional challenge in his MAR which the state trial court
denied. Had Petitioner brought this constitutional claim regarding the March
30, 2019, incident in his MAR, it would have been barred by N.C. Gen. Stat.
§ 15A-1419(a)(2) (MAR should be denied when, upon a previous appeal, the
defendant was able to adequately raise the ground or issue underlying the
present motion but did not do so). This is likely the reason why the state trial
court denied this ground of Petitioner’s MAR. Regardless, Petitioner
procedurally defaulted this component of his first claim in this Court.
The only way for Petitioner to avoid procedural default is through a
showing of “cause and actual prejudice.” Reed v. Ross, 468 U.S. 1, 11 (1984)
(citation omitted). “Cause for a procedural default . . . ordinarily requires a
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showing of some external impediment preventing counsel from constructing
or raising the claim.” Murray, 477 U.S. at 492. To establish prejudice, the
prisoner must show not merely a substantial federal claim, such that “ ‘the
errors at ... trial created a possibility of prejudice,’ but rather that the
constitutional violation ‘worked to his actual and substantial disadvantage.’ ”
Id. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).
Petitioner cannot show cause or actual prejudice for his defaulted
claim. Petitioner was represented by counsel and has not alleged any
“external impediment” that prevented counsel from raising the alleged
unconstitutional search and seizure issue of the March 30, 2019, incident in
a motion to suppress and thereafter on direct appeal. Even if Petitioner could
show cause, he cannot demonstrate that the error worked to his actual and
substantial disadvantage because he pleaded guilty to the drug possession
offense flowing from the March 30, 2019, incident rendering his claim
meritless. Petitioner’s first claim shall be dismissed.
Petitioner’s second constitutional claim, Sixth Amendment ineffective
assistance of trial counsel (“IATC”), is also procedurally defaulted but for an
analytically distinct reason. Petitioner sets forth a laundry list of purported
errors and omissions by his attorney prior to, and during trial. [Doc. 1 at 10].
None of Petitioner’s complaints about his trial counsel were ever presented
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to the North Carolina Court of Appeals in Petitioner’s direct appeal.
Petitioner’s IATC claim, the sum of his trial counsel’s shortcomings, is
therefore unexhausted and subject to procedural default analysis.
In contrast, Petitioner asserts he raised his trial counsel’s alleged
ineffectiveness in the MAR he filed with the state trial court which such court
ultimately denied. [Id. at 11]. Further, Petitioner states he filed a petition for
writ of certiorari in the North Carolina Court of Appeals seeking review of the
trial court’s denial of his MAR and such appellate case is “pending.”5 [Id. at
4]. While Petitioner states he brought his IATC claim in his MAR, it is
nevertheless barred by N.C. Gen. Stat. § 15A-1419(a)(3) (MAR should be
denied when, upon a previous appeal, the defendant was able to adequately
raise the ground or issue underlying the present motion but did not do so).
Implicit in Petitioner’s argument is his contention that this IATC claim
is not unexhausted because it was not required to be asserted on direct
appeal. It is true in North Carolina that certain IATC claims fall into a category
that permit them to be raised in the first instance when filing a motion for
5 The Court has examined the North Carolina Court of Appeals on-line docketing system
which indicates that no filings have been made by Petitioner, or any attorney on his behalf,
since that court resolved Petitioner’s direct appeal on January 17, 2023. The state
appellate record, therefore, shows Petitioner has not sought review in the North Carolina
Court of Appeals of the trial court’s order denying his MAR. This Court need not address
this issue further since Petitioner’s Sixth Amendment claim is otherwise barred by the
doctrine of procedural default for unrelated reasons.
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appropriate relief. Petitioner’s IATC claim, however, is not in such category:
Under North Carolina law, “a motion for appropriate relief,
including motions filed in capital cases,” must be denied if “[u]pon
a previous appeal the defendant was in a position to adequately
raise the ground or issue underlying the ... motion but did not do
so.” N.C.G.S. § 15A–1419(a)(3), (b). However, the statute “is not
a general rule that any claim not brought on direct appeal is
forfeited on state collateral review. Instead, the rule requires
North Carolina courts to determine whether the particular claim
at issue could have been brought on direct review.” McCarver v.
Lee, 221 F.3d 583, 589 (4th Cir. 2000).
Ineffective-assistance-of-trial-counsel “claims brought on
direct review will be decided on the merits when the cold record
reveals that no further investigation is required, i.e., claims that
may be developed and argued without such ancillary procedures
as the appointment of investigators or an evidentiary hearing.”
State v. Fair, 354 N.C. 131, 557 S.E.2d 500, 524 (2001).
Otherwise, the claims “should be considered through motions for
appropriate relief and not on direct appeal.” State v. Stroud, 147
N.C. App. 549, 557 S.E.2d 544, 547 (2001). “Thus, while in some
situations a defendant may be required to raise an [ineffective-
assistance-of-trial-counsel] claim on direct appeal, a defendant
will not be required to do so in all situations.” State v. Long, 354
N.C. 534, 557 S.E.2d 89, 93 (2001). Accordingly, “to avoid
procedural default under N.C.G.S. § 15A–1419(a)(3),
defendants should necessarily raise those [ineffective-
assistance-of-trial-counsel] claims on direct appeal that are
apparent from the record.” Fair, 557 S.E.2d at 525
(“commend[ing]” counsel “for properly raising [five] claims [of
ineffective assistance of counsel] on direct appeal”). “[S]hould
the reviewing court determine that [ineffective-assistance-of-trial-
counsel] claims have been prematurely asserted on direct
appeal, it shall dismiss those claims without prejudice to the
defendant's right to reassert them during a subsequent MAR
proceeding.” Id.
Fowler v. Joyner, 753 F.3d 446, 462-63 (4th Cir. 2014); in accord, Richardson
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v. Kornegay, 3 F.4th 687, 694 (2021). The IATC claim set forth by Petitioner
has several components and alleges that his trial counsel: (1) improperly
delayed giving him his “Motion of Discovery for the first time at trial”; (2) failed
to conduct pretrial discovery of evidence; (3) failed to seek exclusion of
evidence; (4) failed to object to discrepancies in drug lab documentation; (5)
failed to subpoena officer Thompson and then impeach him at trial; and (6)
failed to impeach officer Logan. [Doc. 1 at 10]. All these purported
transgressions would be apparent from the discovery, hearings and trial
transcripts, and everything else filed with the state trial court – the cold record
– and would require no “ancillary procedures as the appointment of
investigators or an evidentiary hearing.” Fowler, 753 F.ed at 462. Based
upon Fowler and Richardson and the North Carolina precedent cited therein,
Petitioner’s Sixth Amendment claim is unexhausted and procedurally
defaulted.
Petitioner cannot show cause or actual prejudice for this defaulted
claim. Petitioner was represented by independent appellate counsel and has
not alleged any “external impediment” that prevented said counsel from
raising any of the alleged errors and omissions of trial counsel on direct
appeal. Further, Petitioner was present throughout this case and for all trial
court proceedings and thus could have advised appellate defense counsel
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of any alleged failures by trial counsel. Even if Petitioner could show cause,
he cannot demonstrate that any error by trial counsel worked to his actual
and substantial disadvantage. Petitioner pleaded guilty to Possession of a
Schedule II controlled substance, case file number 19-CRS-50950 (offense
date March 30, 2019). State v. Abrams, No. COA22-347, 2023 WL 193807,
slip op. at 6. Likewise, Petitioner pleaded guilty to having attained Habitual
Felon status, case file number 20-CRS-93 (offense date of April 1, 2019). Id.
Petitioner proceeded to trial on the remaining charge of Possession with
Intent to Manufacture, Sell, and Deliver a Schedule II controlled substance,
case file number 20-CRS-92 (offense date of April 1, 2019) only to preserve
his right to appeal the trial court’s adverse ruling on his motion to suppress.
Id., slip op. at 7. This was not a “who done it” case where any ineffectiveness
of defense counsel prior to or during trial would render the jury’s verdict
constitutionally infirm. Petitioner has made no showing that any alleged
errors by trial counsel worked to his “actual and substantial disadvantage,”
rather than just creating a “possibility of prejudice.” Petitioner’s second claim
is procedurally defaulted and shall be dismissed.
III. CONCLUSION
For the reasons set forth above, the Court rejects both of Petitioner’s
claims for relief. Petitioner’s § 2254 petition will be denied and dismissed.
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Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases,
the Court declines to issue a certificate of appealability. See 28 U.S.C.
§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (noting that, in
order to satisfy § 2253(c), a petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding
that, when relief is denied on procedural grounds, a petitioner must establish
both that the dispositive procedural ruling is debatable and that the petition
states a debatable claim of the denial of a constitutional right).
O R D E R
IT IS, THEREFORE, ORDERED that:
1. The Petition for Writ of Habeas Corpus [Docs. 1; 10] is DENIED
and DISMISSED;
2. The Court DECLINES to issue a certificate of appealability
pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases; and
3. The Clerk of Court is respectfully directed to terminate this case.
IT IS SO ORDERED. Signed: January 12, 2026
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