CEARLEY v. KELLER

Filing 43

ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 09/26/2014, that the Magistrate Judge's Recommendation (Doc. 36 ) is ADOPTED. FURTHER that Respondent's Motion for Summary Judgment (Doc. 5 ) is GRANTED, t hat Petitioner's Motion for Partial Summary Judgment (Doc. 15 ) and Motion for Judgment on the Pleadings (Doc. 31 ) are DENIED, that the Petition (Doc. 1 ) is DENIED, and that this action is DISMISSED. A Judgment dismissi ng this action will be entered contemporaneously with this Order. Finding no substantial issue for appeal concerning the denial of a constitutional right affecting the conviction, nor a debatable procedural ruling, a certificate of appealability is not issued. (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JACKIE RAY CEARLEY,

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Petitioner,
v.
FRANK L. PERRY,
Respondent.

1:09CV397

ORDER
This matter is before this court for review of the
Memorandum Opinion, Order, and Recommendation (ARecommendation@)
filed on June 11, 2014, by the Magistrate Judge in accordance
with 28 U.S.C. § 636(b).

(Doc. 36.)

In the Recommendation, the

Magistrate Judge recommends that Respondent’s Motion for Summary
Judgment (Doc. 5) be granted, that Petitioner’s Motion for
Partial Summary Judgment (Doc. 15) and Motion for Judgment on
the Pleadings (Doc. 31) be denied, that the Petition (Doc. 1) be
denied, and that Judgment be entered dismissing this action
without issuance of a certificate of appealability. The
Recommendation was served on the parties to this action on
June 11, 2014. (Doc. 37.)

Petitioner filed timely objections

(Doc. 38) to the Recommendation.

This court is required to “make a de novo determination of
those portions of the [Magistrate Judge’s] report or specified
proposed findings or recommendations to which objection is
made.”

28 U.S.C. § 636(b)(1).

This court “may accept, reject,

or modify, in whole or in part, the findings or recommendations
made by the [M]agistrate [J]udge. . . . [O]r recommit the matter
to the [M]agistrate [J]udge with instructions.”

Id.

Petitioner raises a number of objections to the Magistrate
Judge’s Recommendation.1

This court has appropriately reviewed

the portions of the Recommendation to which objection was made
and has made a de novo determination which is in accord with the
Magistrate Judge’s Recommendation.

This court therefore adopts

the Recommendation.

Petitioner raises a number of objections challenging the
deference that the Magistrate Judge gave to the findings of the
state court and the standard of review that the Magistrate Judge
used when reviewing the Ineffective Assistance of Counsel
claims. (Petitioner’s Objections to the Recommendation (“Pet’r’s
Objs.”) (Doc. 38) ¶¶ 1—7, 9, 11—13.) As noted by the Magistrate
Judge, the standard of review for an Ineffective Assistance of
Counsel claim made in a habeas petition is a very high burden
for a petitioner to meet. Harrington v. Richter, 562 U.S. 86,
131 S. Ct. 770, 783 (2011) (recognizing that § 2254 requires a
showing that there was “an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of
the United States” or “a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding”). After reviewing the
record, we agree with the Magistrate Judge that the Petitioner
has not met this burden.
1

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However, the court’s analysis of one of Petitioner’s
objections warrants further explanation. Petitioner objects to
the Magistrate Judge’s finding that one of Petitioner’s
Ineffective Assistance of Counsel claims was procedurally barred
because it was not exhausted in state court. (Petitioner’s Objs.
(Pet’r’s Objs. (Doc. 38) ¶ 14; Recommendation (Doc. 36) at 12–
13.)

A claim is procedurally barred in a § 2254 petition if the

petitioner has not “fairly presented” the claim to the state
court before petitioning the federal court on the issue. Jones
v. Sussex I State Prison, 591 F.3d 707 (4th Cir. 2010).

To meet

this presentment requirement, “both the operative facts and the
controlling legal principles must be presented to the state
court.” Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000).
In his § 2254 petition, Petitioner claims that his trial counsel
did not provide effective assistance when he chose not to call
Trooper Mathis to the stand to testify about the dangerous
nature of the intersection where Petitioner had his accident.
(Petitioner’s Petition for Writ of Habeas Corpus (Doc 1) ¶ 12.)
Although this claim was not specifically made in Petitioner’s
Motion for Appropriate Relief (MAR) or amended MAR, Petitioner
made the general claim that his trial counsel provided
ineffective assistance by not calling more witnesses to the

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stand to speak about the danger of the intersection.
Additionally, the superior court that heard his MAR took
testimony from Trooper Mathis on the danger of the intersection.
(Respondent’s Br., Ex. 11 (Doc. 6-13) at 37-38.)
As a result, Petitioner argues that the issue was fairly
presented to the state court. Assuming without finding that this
claim is not procedurally barred, the failure to call Trooper
Mathis to the stand fails for the same reasons as Petitioner’s
other claims of Ineffective Assistance of Counsel —- his trial
counsel exercised professional judgment and chose to forego
putting on any evidence so that he could have the last word with
the jury. (Recommendation (Doc. 36) at 13–18.)2 This court, like

Petitioner also argues that the Magistrate Judge
improperly ignored evidence from the procedurally barred
Ineffective Assistance of Counsel claim when determining if
Petitioner’s conviction was supported by sufficient evidence.
(Pet’r’s Objs. (Doc. 38) ¶ 15.) When faced with a § 2254
petition challenging the sufficiency of the evidence in a state
court proceeding, this court considers all of the evidence in
front of the trial court at the time it rendered a verdict.
Jackson v. Virginia, 443 U.S. 307 (1979) (“[T]he relevant
question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.”). Evidence presented in post-conviction
hearings is not relevant to the determination of whether a state
court’s verdict is supported by sufficient evidence. See id.
Therefore, Petitioner cannot argue that the testimony of Trooper
Mathis or any of the other testimony from the MAR hearing
supports a finding that the original verdict rendered against
Petitioner was based on insufficient evidence.
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the Magistrate Judge, finds that this claim does not entitle
Petitioner to relief.
IT IS THEREFORE ORDERED that the Magistrate Judge=s
Recommendation (Doc. 36) is ADOPTED.

IT IS FURTHER ORDERED that

Respondent’s Motion for Summary Judgment (Doc. 5) is GRANTED,
that Petitioner’s Motion for Partial Summary Judgment (Doc. 15)
and Motion for Judgment on the Pleadings (Doc. 31) are DENIED,
that the Petition (Doc. 1) is DENIED, and that this action is
DISMISSED.

A Judgment dismissing this action will be entered

contemporaneously with this Order.

Finding no substantial issue

for appeal concerning the denial of a constitutional right
affecting the conviction, nor a debatable procedural ruling, a
certificate of appealability is not issued.
This the 26th day of September, 2014.

_______________________________________
United States District Judge

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