UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WARREN S. BRONSON,
Petitioner-Appellant,

v.
                                                                     No. 95-7752
FRANKLIN E. FREEMAN, JR.; JACK
TURLINGTON,
Respondents-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CA-95-22-5-BO)

Argued: September 24, 1996

Decided: December 18, 1996

Before MURNAGHAN, Circuit Judge, BUTZNER, Senior Circuit
Judge, and HALLANAN, United States District Judge for the
Southern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Hallanan wrote the opinion,
in which Judge Murnaghan and Senior Judge Butzner joined.

_________________________________________________________________

COUNSEL

ARGUED: Nora Henry Hargrove, Wilmington, North Carolina, for
Appellant. Clarence Joe Delforge, III, Assistant Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellees. ON BRIEF: Michael F. Easley, Attorney
General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

HALLANAN, District Judge:

Petitioner-Appellant Warren Bronson appeals from the district
court's dismissal of his petition for federal habeas relief. The district
court dismissed Bronson's petition without prejudice on grounds of
non-exhaustion. Finding that Bronson failed to exhaust his state reme-
dies, we affirm.

I.

Bronson is a prisoner of the state of North Carolina, convicted after
a trial by jury of first degree murder in the Superior Court of Pender
County, North Carolina. The facts giving rise to Bronson's conviction
occurred on August 2, 1990. Bronson, his wife Sherry and their
twenty month old son lived in Pender County, North Carolina. Bron-
son was in the Marine Corps and Sherry, who had chronic health
problems, stayed home and cared for their son. The Bronsons were
having marital difficulties over health and financial problems. At
approximately 5:00 a.m. on August 2, 1990 the Pender County Sher-
iff's department received an emergency call from Bronson reporting
that someone had broken into his home and shot him and his wife.
Bronson gave conflicting stories about what happened that night. One
version was that intruders had shot Bronson and his wife. Another
was that he and Sherry had wrestled over the gun and she was shot,
and another was that he had shot her and then himself.

At a voir dire hearing held immediately before trial Bronson sub-
mitted to the trial judge for his approval a signed document authoriz-

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ing defense counsel to tell the jury he unlawfully killed his wife but
that he was guilty of second, rather than first, degree murder.

At trial Bronson testified that he and his wife had argued the night
of the shooting and that at 3:00 a.m. Bronson awoke and let his dogs
outside. He testified that at 5:00 a.m. he looked at his wife in bed, told
her he loved her and shot her with a shotgun that was already loaded
because of a recent break-in. Bronson testified that after the shooting,
he tried to kill himself but the gun failed to fire and that as he lowered
the gun, it misfired and hit his leg. Then Bronson called the police.
At trial he testified he was so disoriented that he believed he was
watching a stranger shoot his wife and that he could not reason or
make or carry out plans. Bronson admitted killing his wife but denied
planning to kill her. He testified he was still confused about what had
happened.

On cross-examination, the prosecutor asked Bronson if he had spo-
ken with his attorney and understood the meaning of premeditation
and deliberation, asking if Bronson's version of the events omitted
any acts supporting premeditation and deliberation, now that he
understood those terms. The prosecutor also asked Bronson several
times if any of his earlier statements had been made before he spoke
with a lawyer. Bronson's expert witness, Dr. Henry Tonn, testified at
trial that he had examined and tested Bronson and that it was his opin-
ion that Bronson suffered from mental "disassociation" at the time of
the shooting, making him feel separate from himself as though he was
observing himself. It was Dr. Tonn's opinion that Bronson's condi-
tion substantially interfered with his mental faculties and ability to
reason and the different versions of the night's events indicate that he
was not thinking with a clear mind.

On July 19, 1991, in the Superior Court of Pender County, Bronson
was convicted after trial by jury of first degree murder and sentenced
to life imprisonment in Case 90 CRS 2628. Bronson appealed and on
December 18, 1992 the Supreme Court of North Carolina found no
error in Bronson's trial. State v. Bronson, 423 S.E.2d 772 (N.C.
1992). Bronson was represented at trial by William J. Morgan and on
appeal and in this federal habeas action by Nora Henry Hargrove. On
January 6, 1995 Bronson filed, through retained counsel, an applica-
tion for federal habeas relief in the United States District Court for the

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Eastern District of North Carolina. Judge Terrence W. Boyle dis-
missed without prejudice Bronson's petition on grounds of non-
exhaustion on September 25, 1995, finding that the federal constitu-
tional issues raised by Bronson in his petition were not addressed dur-
ing the state appellate review and were not properly before the
District Court. Bronson filed a notice of appeal to this court and a
petition for certificate of probable cause on October 25, 1995. Judge
Boyle issued a certificate of probable cause on November 2, 1995.

II.

A.

Bronson's federal habeas contentions allege improper jury instruc-
tions and improper prosecutorial questioning. Bronson maintains that
he fairly presented these claims in his appeal to the Supreme Court
of North Carolina. These contentions correspond to Arguments I and
II in his brief to the Supreme Court of North Carolina. While the
Argument section of his brief to the Supreme Court of North Carolina
referred to the right to present a defense and assigned error in Bron-
son's Assignments of Error to the trial court's instructions regarding
his expert witness as a deprivation of right to present a defense and
due process guaranteed by the state and federal constitutions and
assigned error in his Assignments of Error to improper prosecutorial
questioning as a deprivation of his right to counsel and due process
guaranteed by the state and federal constitutions, a review of Bron-
son's brief to the Supreme Court of North Carolina shows that Bron-
son relied upon state law in presenting these two claims to the
Supreme Court of North Carolina. Furthermore, a reading of the pub-
lished opinion by the Supreme Court of North Carolina also reveals
that the Supreme Court of North Carolina did not discuss any federal
constitutional arguments on these two claims. State v. Bronson, 423
S.E.2d 772, 776-79 (N.C. 1992).

B.

The function of the Record on Appeal under the North Carolina
Rules of Appellate Procedure is to list the Assignments of Error and
those documents and exhibits which the Court may review in order
to adjudicate the appeal. "[R]eview is solely upon the record on

                    4
appeal and the verbatim transcript of proceedings . . . ." N.C.R. App.
P. 9(a). "[T]he scope of review on appeal is confined to a consider-
ation of those assignments of error set out in the record on appeal
. . . ." N.C.R. App. P. 10(a).

The function of a brief in an appeal is set forth in the North Caro-
lina Rules of Appellate Procedure which state that:

          [t]he function of all briefs required or permitted by these
          rules is to define clearly the questions presented to the
          reviewing court and to present the arguments and authorities
          upon which the parties rely in support of their respective
          positions thereon. Review is limited to questions so pres-
          ented in the several briefs. Questions raised by assignments
          of error in appeals from trial tribunals but not then pres-
          ented and discussed in a party's brief, are deemed
          abandoned.

N.C.R. App. P. 28(a) (emphasis added).

A federal habeas petitioner must raise the same factual and legal
claim in state court that he seeks to have reviewed in federal court in
order to exhaust state remedies.

          If state courts are to be given the opportunity to correct
          alleged violations of prisoners' federal rights, they must
          surely be alerted to the fact that the prisoners are asserting
          claims under the United States Constitution. If a habeas peti-
          tioner wishes to claim that an evidentiary ruling at a state
          court trial denied him the due process of law guaranteed by
          the Fourteenth Amendment, he must say so, not only in fed-
          eral court, but in state court.

Duncan v. Henry, 115 S. Ct. 887, 888 (1995). Elsewhere, the
Supreme Court has held that a federal habeas petitioner must raise the
same factual and legal claims in state court that he seeks to present
on federal habeas review. Anderson v. Harless , 459 U.S. 4 (1982);
Pitchess v. Davis, 421 U.S. 482 (1975); Picard v. Connor, 404 U.S.
270 (1971). This court has stated that "the exhaustion requirement

                    5
demands that the petitioner `do more than scatter some makeshift nee-
dles in the haystack of the state court record. The ground relied upon
must be presented face-up and squarely; the federal question must be
plainly defined. Oblique references which hint that a theory may be
lurking in the woodwork will not turn the trick.'" Mallory v. Smith,
27 F.3d 991, 995 (4th Cir. 1994), cert. denied , 115 S. Ct. 644 (1994)
(quoting Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988)). Fur-
thermore, federal habeas petitioners must raise their federal constitu-
tional claims in state court in the manner prescribed by state
procedural rules. Coleman v. Thompson, 501 U.S. 722 (1991);
Murray v. Carrier, 477 U.S. 478 (1986); Smith v. Murray, 477 U.S.
527 (1986).

III.

A.

Bronson maintains that he adequately informed the Supreme Court
of North Carolina that he was raising a federal constitutional claim
with respect to the jury instruction issue. First, he points to the fact
that in the state Record on Appeal he raised a federal constitutional
claim in the Assignment of Error corresponding to this present con-
tention. However, the function of the Record on Appeal is not to pres-
ent legal argument but to list documents the court may review and to
list all assignments of error in a manner analogous to the Joint Appen-
dix in an appeal to this court which contains the necessary documents
but not legal argument. Second, Bronson maintains that his statement
that the trial court's instruction "depriv[ed] the defendant of his right
to present a defense," contained in his state brief, sufficiently alerted
the Supreme Court of North Carolina that he was raising claims under
the Sixth and Fourteenth Amendments to the federal constitution. We
find that Bronson's brief and ambiguous statement could just as easily
have been construed as an allegation of state law violations because
at no point did he make a federal constitutional argument to support
his jury instruction contention and in his state brief Bronson sets forth
his "Applicable Legal Principles" on the jury instruction issue, includ-
ing only citations to state statutory and case law.

Therefore, Bronson's contention that he fairly presented his claim
that the trial court's instruction on expert testimony violated his Sixth

                     6
and Fourteenth Amendment rights, even though he never mentioned
the federal constitution or raised any federal argument on this issue
in his brief to the Supreme Court of North Carolina, is without merit.
Although Bronson raised federal constitutional arguments in his
Assignments of Error on these two claims in the state Record on
Appeal, he abandoned these federal constitutional arguments by fail-
ing to bring them forward and discuss them in his brief to the
Supreme Court of North Carolina on these two issues. The District
Court did not err when it found that Bronson's federal constitutional
arguments concerning jury instructions were not addressed in the state
court appellate review and were not appropriately before the District
Court.

B.

Although he did not once mention the federal constitution or due
process in his brief to the Supreme Court of North Carolina and only
used the term "due process" in his Assignments of Error, Bronson
also maintains that he adequately presented his claim of improper pro-
secutorial questioning about communications with his attorney, in
violation of federal due process, to the Supreme Court of North Caro-
lina.

A review of the Joint Appendix and the applicable law show that
Bronson's second contention is without merit for the reasons stated
above. Raising a federal constitutional argument in an Assignment of
Error in the state Record on Appeal was insufficient to alert the
Supreme Court of North Carolina of the federal constitutional claim.
Therefore, Bronson waived this federal constitutional claim regarding
improper prosecutorial questioning by failing to bring it forward and
discuss it in his brief to the Supreme Court of North Carolina. The
District Court did not err when it found that Bronson's federal consti-
tutional arguments concerning improper prosecutorial questioning
into attorney-client communication were not addressed in the state
court appellate review and were not appropriately before the District
Court.*
_________________________________________________________________
*Bronson asks that, in the event that we find his first contention
exhausted and his second non-exhausted, we treat his petition as "mixed"
or allow him to excise his second argument. Because we find neither of
Bronson's contentions exhausted, we do not reach the merits of
Respondent-Appellees' arguments that treating his petition as "mixed"
would be inappropriate on appellate review.

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IV.

On June 21, 1996 the General Assembly of North Carolina ratified
"An Act to Expedite the Postconviction Process" which imposes a
mandatory procedural bar on all claims which could have been raised
in a prior appeal or a post-appeal motion for appropriate relief.
N.C.G.S. § 15A-1419(a)(3) and (b) (effective June 21, 1996). In a
supplemental brief, Respondent-Appellees asked this court to apply
the mandatory procedural bar contained in North Carolina's new stat-
ute instead of dismissing this action without prejudice on grounds of
non-exhaustion. Because it has not yet been applied by the North Car-
olina courts and was not (and could not have been) raised before the
district court, we decline to apply the mandatory bar and decline to
dismiss this matter on grounds of procedural default instead of non-
exhaustion. The state statute is brand new and the North Carolina
courts have yet to apply it. If appropriate, North Carolina will apply
its own procedural bar, if and when Bronson raises the same issues
which he raises here in an appeal or post-appeal motion for appropri-
ate relief before the state court.

Our review of the record and the district courts opinion discloses
no error in the opinion of the district court. Accordingly, we affirm
the opinion of the district court.

AFFIRMED

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