ORDER

LOUISE W. FLANAGAN, District Judge.

The matter now comes before the court on respondent's motion for summary judgment (DE 5) pursuant to Federal Rule of Civil Procedure 56(a). Petitioner did not respond to respondent's motion. In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants respondent's motion for summary judgment and dismisses this action without prejudice.

On March 15, 2013, in the Wake County Superior Court, petitioner was convicted following a jury trial of first-degree rape. State v. Keane, 235 N.C. App. 656, 764 S.E.2d 700, at *5 (Aug. 19, 2014). Petitioner then was sentenced to a term of 384-470 months imprisonment. Id. Petitioner subsequently appealed his conviction and sentence to the North Carolina Court of Appeals. Id. On August 19, 2014, the court of appeals entered an order finding no error. Id. at *9. The North Carolina Supreme Court subsequently denied petitioner's petition for discretionary review. State v. Keane, 368 N.C. 296, 776 S.E.2d 192 (2015). On November 15, 2016, petitioner filed a pro se motion for appropriate relief ("MAR") in the Wake County Superior Court raising the same issues he raises in this action. (Pet. ¶ 11). Petitioner's MAR remains pending. (Id.)

On November 18, 2016, petitioner, through counsel, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleged the following claims: (1) ineffective assistance of counsel for conceding petitioner's factual guilt without petitioner's consent; (2) ineffective assistance of counsel for not acting in a timely manner to finalize plea negotiations resulting in the withdrawal of the plea offer; (3) ineffective assistance of counsel for failing to present evidence or argument at the sentencing hearing; (4) the 32 year sentence was excessive in violation of the Eighth Amendment to the United States Constitution; and (5) given the totality of the circumstances there was a breakdown of the adversary system in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. On December 16, 2016, respondent filed a motion to dismiss, arguing that petitioner failed to exhaust his state court remedies prior to filing this action. Petitioner did not respond to the motion.

DISCUSSION

A. Motion for Summary Judgment

1. Standard of Review

Summary judgment is appropriate when there exists no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the burden of initially coming forward and demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmoving party then must affirmatively demonstrate that there exists a genuine issue of material fact requiring trial. Matsushita Elec. Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 250.

2. Analysis

Respondent contends this action should be dismissed because petitioner failed to exhaust his state court remedies. Absent a valid excuse, a state prisoner must exhaust his remedies in state court before seeking federal habeas corpus relief. See 28 U.S.C. § 2254(b)(1)(A). To exhaust his available state court remedies, a petitioner must "fairly present[] to the state court both the operative facts and the controlling legal principles' associated with each claim." Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (internal quotation omitted). This exhaustion requirement compels a habeas petitioner to "invok[e] one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Here, petitioner did not raise the instant claims on direct review and, thus, has not invoked one complete round of the State's established appellate review process for his claims. Petitioner, however, did recently raise the instant claims in a MAR, which remains pending. As such, petitioner's claims are not exhausted. See O'Sullivan, 526 U.S. at 845.

The court next determines whether this action should be stayed pending the exhaustion of petitioner's state court remedies. The United States Supreme Court has recognized limited circumstances in which a district court may stay a habeas petition to allow a petitioner the opportunity to exhaust his state court remedies for his claims. See Rhines v. Weber, 544 U.S. 269, 277 (2005). In Rhines, the court stated:

Rhines, 544 U.S. at 277. Stay and abeyance should only be used under limited circumstances. Id.

Here, petitioner has not demonstrated good cause for his failure to exhaust. Further, there are no meritorious claims readily apparent in the petition. Based upon the foregoing, the court finds that a stay of the action is not warranted, and the action is DISMISSED without prejudice to allow petitioner the opportunity to exhaust such remedies.

B. Certificate of Appealability

Rule 11 of the Rules Governing Section 2254 Cases ("Habeas Rules") provides "the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Having determined petitioner is not entitled to relief and respondent is entitled to dismissal of the petition, the court considers whether petitioner is nonetheless entitled to a certificate of appealability with respect to one or more of the issues presented in his habeas petition.

A certificate of appealability may issue only upon a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Where a petitioner's constitutional claims have been adjudicated and denied on the merits by the district court, the petitioner must demonstrate reasonable jurists could debate whether the issue should have been decided differently or show the issue is adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

Where a petitioner's constitutional claims are dismissed on procedural grounds, a certificate of appealability will not issue unless the petitioner can demonstrate both "(1) `that jurists of reason would find it debatable whether the petition [or motion] states a valid claim of denial of a constitutional right' and (2) `that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.'" Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting Slack, 529 U.S. at 484). "Each component of the § 2253(c) showing is part of a threshold inquiry, and a court may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments." Slack, 529 U.S. at 484-85.

After reviewing the claims presented in the habeas petition in light of the applicable standard, the court finds reasonable jurists would not find the court's treatment of any of petitioner's claims debatable or wrong and none of the issue are adequate to deserve encouragement to proceed further. Accordingly, a certificate of appealability is DENIED.

CONCLUSION

For the foregoing reasons, respondent's motion for summary judgment (DE 5) is GRANTED and petitioner's petition is dismissed without prejudice for failure to exhaust his state court remedies. The certificate of appealability is DENIED. The clerk of court is DIRECTED to close this case.

SO ORDERED.