WESTMORELAND v. BEAL

Filing 8

MEMORANDUM OPINION AND RECOMMENDED RULING - MAGISTRATE JUDGE re 4 MOTION for Summary Judgment filed by MICHAEL T. BELL be granted, that the Petition (Docket Entry 1 ) be denied, and that Judgment be entered dismissingthis action signed by MAG/JUDGE L. PATRICK AULD on 10/4/11. (Wilson, JoAnne)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DONALD WESTMORELAND,
Petitioner,
v.
MICHAEL T. BELL,
Respondent.

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1:10CV705

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner of the State of North Carolina, seeks
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Entry 1.)

(Docket

On October 4 and 5, 2000, after a jury trial in the

Superior Court of Stokes County, Petitioner was convicted of one
count of larceny and one count of breaking and/or entering in case
99 CRS 004651 and was determined to have obtained the status of a
habitual felon in case 00 CRS 00274.
5-2 at 16, 19.)

(See id. at 1-2; Docket Entry

Petitioner originally received a sentence of 150

to 189 months of imprisonment in a consolidated judgment containing
the

breaking

and/or

entering

and

larceny

convictions

and

a

consecutive sentence of 150 to 189 months of imprisonment for being
a habitual felon. (Docket Entry 5-2 at 22-25.) The North Carolina
Court of Appeals reversed the sentence(s) because the habitual
felon determination simply increased the punishment applicable to
the underlying offenses of breaking and/or entering and larceny; it
did not constitute a separate offense.

(Docket Entry 5-5 at 3-4.)

On remand, Petitioner was sentenced to 150 to 189 months of
imprisonment for the breaking and/or entering conviction and a

consecutive 121 to 155 months of imprisonment for the larceny
conviction.

(Docket Entry 5-8 at 12-15.)

Petitioner

filed

a

second

direct

appeal,

but

it

ended

unsuccessfully when the North Carolina Supreme Court denied review
after the North Carolina Court of Appeals issued an unpublished
opinion

finding

no

error

in

the

resentencing.

State

v.

Westmoreland, 358 N.C. 549, 673 S.E.2d 358 (2004). Petitioner next
sought relief through a motion for appropriate relief that was
signed on July 17, 2003, and filed in Stokes County sometime
thereafter.

(Docket Entry 5-12.)

December 17, 2003.

That motion was denied on

(Docket Entry 5-13.)

Petitioner then filed a

petition for certiorari with the North Carolina Court of Appeals,
which that court dismissed without prejudice on March 1, 2004.
(Docket Entry 5-16.)

Petitioner did not refile his petition for

certiorari, but instead, on March 15, 2004, filed a “Notice of
Appeal Based on a Constitutional Question” and a “Petition for
Discretionary Review” with the North Carolina Supreme Court, which
that court construed as petitions for certiorari and denied on June
24, 2004.

(Docket Entry 5-18.)

Petitioner next filed a petition for a writ of habeas corpus
under § 2254 through counsel in this Court on September 22, 2005,
in case 1:05CV829, which the Court dismissed on February 16, 2006,
at Petitioner’s request, in order to allow him to exhaust his state
court remedies.

(1:05CV829, Docket Entries 10, 12, 14.)

Neither

Petitioner nor his attorney thereafter filed anything in any court
for nearly three years, until Petitioner’s attorney filed a second
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motion for appropriate relief in Stokes County on December 15,
2008.

(Docket Entry 5-20.)

Upon the denial of that motion,

Petitioner sought further review by the North Carolina Court of
Appeals, which denied certiorari on February 27, 2009.

(Docket

Entry 5-24.)
Petitioner continued his pursuit of relief in the state courts
by filing a petition for habeas corpus in Stokes County on June 30,
2009.

(Docket Entry 5-25.)

After that petition was denied, he

sought a writ of certiorari from the North Carolina Court of
Appeals and, later, discretionary review from the North Carolina
Supreme Court, which denied his petition on June 16, 2010. (Docket
Entries 5-29, 5-31.) Petitioner then dated his current Petition to
this

Court

as

submitted

to

prison

officials

for

mailing

on

September 6, 2010, but signed it as completed and had it notarized
on August 17, 2010.

(Docket Entry 1 at 14.)

the Petition on September 14, 2010.

The Court received

(Id. at 1.)

Respondent has

filed a Motion for Summary Judgment (Docket Entry 4), Petitioner
has responded (Docket Entry 7), and Respondent’s Motion for Summary
Judgment now comes before the Court for a decision.
Petitioner’s Claims
The Petition raises the following five claims for relief:
1) North Carolina’s habitual felon law violated Petitioner’s
right to be free from double jeopardy because it used felony
convictions for which he had already been punished to establish his
status as a habitual felon (Docket Entry 1 at 6);

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2) the habitual felon law violated Petitioner’s right to equal
protection because it allowed prosecutors to pick and choose which
offenders are prosecuted as habitual felons (id. at 7);
3) Petitioner’s lengthy consecutive sentences as a habitual
felon amounted to cruel and unusual punishment (id. at 9);
4)

the

deconsolidation

of

Petitioner’s

breaking

and/or

entering and larceny convictions at his resentencing violated N.C.
Gen. Stat. § 15A-1335 which prohibits an increased sentence upon
resentencing (id. at 11); and
5) Petitioner received ineffective assistance of counsel
because no objection was made to the constitutionality of the
habitual felon statute or his illegal resentencing (id., Ex. 1 at
6-8).
Statute of Limitations
Respondent has sought summary judgment because the Petition is
time-barred under 28 U.S.C. § 2244(d).

Although Respondent’s

arguments concerning the timeliness of the Petition appear welltaken, they involve a number of complicated and somewhat unsettled
issues.

On the other hand, Petitioner’s claims can more easily be

disposed of on other grounds set out in Respondent’s summary
judgment

brief.

The

limitation

period

in

§

2244(d)

is

jurisdictional, so the Court may proceed to other arguments.
v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002).

not
Hill

Given all of these

circumstances, this Recommendation will not consider the statute of
limitation issue further, but will instead address Respondent’s
other summary judgment arguments.
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Standards of Review
Where the state courts adjudicated a petitioner’s claims on
their merits, this Court must apply 28 U.S.C. § 2254(d)’s highly
deferential standard of review to such claims.

That statute

precludes habeas relief in cases where a state court has considered
a claim on its merits unless the decision was contrary to or
involved an unreasonable application of clearly established federal
law as set out by the United States Supreme Court or the state
court decision was based on an unreasonable determination of the
facts.

A state court decision is “contrary to” Supreme Court

precedent if it either arrives at “a conclusion opposite to that
reached by [the Supreme] Court on a question of law” or “confronts
facts that are materially indistinguishable from a relevant Supreme
Court precedent and arrives at a result opposite” to that of the
Supreme Court.

Williams v. Taylor, 529 U.S. 362, 406 (2000).

A

state decision “involves an unreasonable application” of Supreme
Court law “if the state court identifies the correct governing
legal rule from [the Supreme] Court’s cases but unreasonably
applies it to the facts of the particular state prisoner’s case.”
Id. at 407.

“Unreasonable” is not the same as “incorrect” or

“erroneous” and the reasonableness of the state court’s decision
must

be

judged

standpoint.

from

an

Id. at 409-11.

objective,

rather

than

subjective,

As for questions of fact, state court

findings of fact are presumed correct unless rebutted by clear and
convincing evidence.

28 U.S.C. § 2254(e)(1).

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Here, Petitioner’s claims were considered on their merits by
the state courts.
Therefore,

the

(Docket Entries 5-11, 5-13, 5-21, 5-26.)

standards

just

set

out

will

be

applied

to

Petitioner’s claims.
Discussion
Petitioner’s first three claims for relief assert that North
Carolina’s habitual felon law violated his right to be free from
double jeopardy, his right to equal protection under the law, and
his

right

to

respectively.

be

free

from

cruel

and

unusual

punishment,

These claims were considered and rejected by the

North Carolina Court of Appeals, which noted that North Carolina’s
appellate courts had previously denied such claims on both state
and federal grounds.

(Docket Entry 5-11 at 2.)

The United States

Supreme Court also has repeatedly upheld statutes which punish
recidivism in this fashion, including against challenges based on
“double jeopardy, ex post facto laws, cruel and unusual punishment,
due process, equal protection, and privileges and immunities.”
Spencer v. Texas, 385 U.S. 554, 559-60 (1967) (citing cases).
has

also

denied

a

cruel

and

unusual

punishment

It

claim

under

circumstances much more extreme than the present case.

See,

Lockyer v. Andrade, 538 U.S. 63 (2003) (rejecting challenge to two
consecutive sentences of 25 years to life under “three strikes” law
for petty theft of $150 worth of videotapes from two stores).
Petitioner’s convictions and sentences based on his status as
a habitual felon in no way constituted double jeopardy, a denial of
equal

protection,

or

cruel

and
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unusual

punishment.

More

importantly, the state court decision denying his claims was
neither contrary to, nor an unreasonable application of, Supreme
Court precedent. Petitioner’s first three claims for relief should
be denied.
Petitioner’s

fourth

claim

for

relief

alleges

that

the

sentences he received at resentencing violated N.C. Gen. Stat.
§ 15A-1335, which provides in pertinent part that, “[w]hen a
conviction or sentence . . . has been set aside on . . . direct
review or collateral attack, the court may not impose a new
sentence for the same offense . . . which is more severe than the
prior sentence . . . .”

It is intended to be a general embodiment

of North Carolina v. Pearce, 395 U.S. 711 (1969), overruled in part
by Alabama v. Smith, 490 U.S. 794 (1989). See Official Commentary
to N.C. Gen. Stat. § 15A-1335. Petitioner raised this claim in the
state courts and had it denied, at least alternatively, on the
merits.

(Docket Entry 5-21.)

Here, Petitioner received an original total sentence of 300 to
378 months of imprisonment.

His total sentence after remand was

271 to 344 months of imprisonment, or 29 to 34 months lower than
his original sentence.

Petitioner complains that the new sentence

resulted from a deconsolidation of his breaking and/or entering and
larceny convictions, but North Carolina law and N.C. Gen. Stat.
§ 15A-1335 permits such action.

See State v. Ransom, 80 N.C. App.

711, 713-14, 343 S.E.2d 232, 234, cert. denied, 317 N.C. 712, 347
S.E.2d 450 (1986).

In this case, Petitioner did not receive a

haarsher total sentence upon remand and, therefore, the state
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court’s decision to deny his instant claim easily passes muster
under the applicable standards of review. See Hagans v. Korneygay,
No. 5:10HC3005FL, 2010 WL 3835140, at *5-7 (E.D.N.C. Sept. 29,
2010) (unpublished) (finding no violation of Pearce where state
court

changed

manner

of

consolidation

upon

petitioner received lesser total sentence).

resentencing

but

Petitioner’s fourth

claim for relief should be denied.
Finally, Petitioner has not presented his fifth claim for
relief clearly, but instead has referred the Court to “Amendment
No. #1.”

(Docket Entry 1 at 1-10.)

He has filed no amendments to

his Petition, but his first attachment to his Petition consists of
a copy of his state court habeas corpus petition, in which he set
out a claim of ineffective assistance apparently based on the
allegation that, on resentencing, his counsel should have raised
the substance of the first four grounds for relief that appear in
his instant Petition.
court

denied

the

assistance claim.

(See Docket Entry 1-1 at 6-8.)

petition

that

contained

that

The state
ineffective

(Docket Entry 5-26.)

This Court must review an ineffective assistance of counsel
claim by using a two-part test:
In order to establish an ineffective assistance of
counsel claim . . . [a petitioner is] required to
establish that his “counsel’s representation fell below
an objective standard of reasonableness,” measured by the
“prevailing
professional
norms,”
[Strickland
v.
Washington, 466 U.S. 668, 688 (1984)], and “that there is
a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different,” id. at 694, 104 S.Ct. 2052. “Unless
a defendant makes both showings, it cannot be said that
the conviction or death sentence resulted from a
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breakdown in the adversary process that renders the
result unreliable.” Id. at 687, 104 S.Ct. 2052.
In determining whether counsel’s performance was
deficient, “[i]t is all too tempting for a defendant to
second guess counsel’s assistance after conviction or
adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable.” Id. at 689, 104
S.Ct. 2052.
Hence, “court[s] must indulge a strong
presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance . . . [and]
that, under the circumstances, the challenged action
might be considered sound trial strategy.” Id. (internal
quotation marks omitted).
Similarly, in evaluating whether the defendant has
shown actual prejudice from any such deficient
performance, it is insufficient for the defendant “to
show that the errors had some conceivable effect on the
outcome of the proceeding,” because “[v]irtually every
act or omission of counsel would meet that test.” Id. at
693, 104 S.Ct. 2052. Rather, a “reasonable probability”
that the result would have been different requires “a
probability sufficient to undermine confidence in the
outcome.” Id. at 694, 104 S.Ct. 2052. When challenging
a conviction, “the question is whether there is a
reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting
guilt.” Id. at 695, 104 S.Ct. 2052.
Fisher v. Lee, 215 F.3d 438, 446-447 (4th Cir. 2000).
Here, Petitioner has not demonstrated ineffective assistance
of counsel.

As explained previously, none of Petitioner’s first

four claims has merit. There would have been no reason for counsel
to raise these meritless claims at his resentencing.

Likewise,

Petitioner could not have been prejudiced by the failure to raise
them.

Petitioner’s fifth claim for relief should be denied.
IT IS THEREFORE RECOMMENDED that Respondent’s Motion for

Summary Judgment (Docket Entry 4) be granted, that the Petition

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(Docket Entry 1) be denied, and that Judgment be entered dismissing
this action.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 4, 2011

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