Charles Avery, Petitioner-appellant, v. Frankie Rickenbaker, State of South Carolina, Attorneygeneral of South Carolina, Respondents-appellees, 940 F.2d 651 (4th Cir. 1991)

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US Court of Appeals for the Fourth Circuit - 940 F.2d 651 (4th Cir. 1991) Submitted Feb. 14, 1991. Decided Aug. 15, 1991

Appeal from the United States District Court for the District of South Carolina, at Columbia. G. Ross Anderson, Jr., District Judge. (CA-90-468-3)

Charles Avery, appellant pro se.

Donald John Zelenka, Chief Deputy Attorney General, Columbia, S.C., for appellees.






Charles Avery seeks to appeal the district court's order refusing habeas corpus relief pursuant to 28 U.S.C. § 2254. Our review of the record and the district court's opinion discloses that this appeal is without merit. We note that the district court did not address the fourth ground for relief asserted in Avery's petition, in which Avery asserts that the trial judge abused his discretion in sentencing. This claim has never been presented to the South Carolina courts. However, because the interests of comity and federalism will be better served, we address it here. See Granberry v. Greer, 481 U.S. 129, 134, 135 n. 7 (1987). The record indicates that the fifteen-year sentence imposed was well within the statutory limits.*  Moreover, Avery does not present any facts or arguments supporting his claim, and the transcript of the sentencing hearing reveals no such abuse.

Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.



Petitioner was convicted of manufacturing marijuana and possession with intent to distribute marijuana in violation of S.C.Code Ann. Sec. 44-53370(a) (1) and (2) (Law.Co-op.1976). The record shows that at the time of sentencing, petitioner had a prior record of at least two drug offenses. The sentencing judge treated this as his third drug offense and sentenced him to fifteen years on each charge. The statutory scheme authorizes sentences from five to twenty years. See S.C.Code Ann. Sec. 44-53-370(b) (2)