UNPUBLISHED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.

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Affirmed by unpublished opinion. Judge Hallanan wrote the opinion,

in which Judge Murnaghan and Senior Judge Butzner joined.

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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.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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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 remedies, 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. Bronson 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 Sheriff'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 submitted 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 spoken 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 opinion 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 condition 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 application 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 dismissed without prejudice Bronson's petition on grounds of nonexhaustion on September 25, 1995, finding that the federal constitutional issues raised by Bronson in his petition were not addressed during 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 instructions 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 Bronson'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 Bronson's brief to the Supreme Court of North Carolina shows that Bronson relied upon state law in presenting these two claims to the

Supreme Court of North Carolina. Furthermore, a reading of the published 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

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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 consideration 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 Carolina 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 presented in the several briefs. Questions raised by assignments

of error in appeals from trial tribunals but not then presented 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 petitioner 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 federal 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

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demands that the petitioner `do more than scatter some makeshift needles 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)). Furthermore, federal habeas petitioners must raise their federal constitutional 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 contention. However, the function of the Record on Appeal is not to present legal argument but to list documents the court may review and to

list all assignments of error in a manner analogous to the Joint Appendix 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, including 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

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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 failing 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 prosecutorial questioning about communications with his attorney, in

violation of federal due process, to the Supreme Court of North Carolina.

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 constitutional 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.*

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*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 statute instead of dismissing this action without prejudice on grounds of

non-exhaustion. Because it has not yet been applied by the North Carolina 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 nonexhaustion. 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 appropriate 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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