GANTT-EL v. BRANDON

Filing 19

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 7/30/2012. IT IS ORDERED that Gantt-El's request for production of documents (Doc. 10 ); motion for discovery and to expand the record (Doc. 11 ); motion for an evidentiary he aring (Doc. 14 ); motion for leave to file a supplement to his habeas petition (Doc. 15 ); motion to recuse Brandon's attorney (Doc. 16 ); motion to compel discovery (Doc. 17 ); and second request for production of documents (Doc. 18 ) are DENIED. FURTHER, that that Brandon's motion for summary judgment (Doc. [5)] is GRANTED, Gantt-El's petition for writ of habeas corpus (Doc. [2)] be DENIED, and this action be DISMISSED WITH PREJUDICE, except that, as noted herein, those of Gantt-El's claims that could have been raised under 42 U.S.C. § 1983 are DISMISSED WITHOUT PREJUDICE. An appropriate Judgment consistent with this Memorandum Opinion and Order will follow.(Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GEORGE WILLIAM GANTT-EL,
Petitioner,
v.
JUDY BRANDON, Superintendent
of the Caswell Correctional
Center,
Respondent.

)
)
)
)
)
)
)
)
)
)
)

No. 1:11-cv-264

MEMORANDUM OPINION AND ORDER
Pro se Petitioner George William Gantt-El (“Gantt-El”) is
serving a life sentence in a North Carolina state prison after
pleading guilty in 1987 to second degree murder, two counts of
assault with a deadly weapon with intent to inflict serious
injury, and one count of robbery with a dangerous weapon (armed
robbery).

(Doc. 6-2; Doc. 6-3.)

His action1 is before this

court on a petition for a writ of habeas corpus pursuant to 28
U.S.C.

§ 2254,

based

on

certain

disciplinary

against him during his incarceration.

1

action

(Doc. 2.)

taken

Respondent

Gantt-El is no stranger to the legal system.
During his
incarceration both in Maryland and in North Carolina, he has filed
over 40 different lawsuits for a wide variety of claims and
activities; it does not appear that he has been successful in any.
See Gantt v. Anderson, No. 1:09CV40, 2010 WL 3895576 (M.D.N.C. Sept.
29, 2010), adopted, No. 1:09CV40 (M.D.N.C. Dec. 1, 2010), Doc. 63;
Gantt v. Maryland Div. of Corr., 894 F. Supp. 226, 227 (D. Md. 1995)
(noting that Gantt has filed over 40 lawsuits which were dismissed for
various reasons), aff‟d, 73 F.3d 357 (4th Cir. 1996) (per curiam)
(unpublished table decision).

Judy

Brandon

(“Brandon”),

the

Superintendent

of

the

Caswell

Correctional Center prison, moves for summary judgment on GanttEl‟s claims.
motions

(Doc. 5)

seeking

Gantt-El in turn has filed a series of

expanded

discovery

(Doc.

11);

an

evidentiary

hearing (Doc. 14); leave to supplement his habeas petition (Doc.
15); recusal of Brandon‟s attorney, Mary Carla Hollis (“Hollis”)
(Doc. 16); and an order compelling discovery (Doc. 17).

He has

also filed requests for the production of certain documents from
Brandon.
El‟s

(Doc. 10; Doc. 18.)

motions

will

be

For the following reasons, Gantt-

denied,

Brandon‟s

motion

for

summary

judgment will be granted, and this action will be dismissed.
I.

BACKGROUND
In 1987, Gantt-El pleaded guilty in North Carolina state

court to second degree murder (a class C felony), two counts of
assault with a deadly weapon with intent to inflict serious
injury, and armed robbery.

(Doc. 6-2.)

He was sentenced under

the Act to Establish a Fair Sentencing System in North Carolina
Criminal Courts (“NCFSA”), ch. 760, 1979 N.C. Sess. Laws 850
(repeal effective January 1, 1995), to life in prison for the
second degree murder charge, 20 years for each assault with a
deadly weapon charge, and 14 years for the armed robbery charge.2

2

The NCFSA was repealed and replaced on January 1, 1995, with the
Structured Sentencing Act.
See An Act to Provide for Structured
Sentencing in North Carolina, ch. 538, 1993 N.C. Sess. Laws 2298
(codified at 15A-1340.10 et seq.).

2

(Doc. 6-2 at 2; Doc. 2 at 1.)
ordered to be

The term-of-years charges were

served consecutively

to his life

sentence but

concurrently with a 25-year sentence imposed by the state of
Maryland.

(Doc. 6-2 at 2.)

After Gantt-El completed service of his Maryland sentence,
he

was

transferred

November

2005

to

to

the

serve

North

the

Carolina

remainder

of

prison
his

system

North

in

Carolina

sentence.
On

February

28,

Appropriate

Relief

challenging

his

2008,

(“MAR”)

October

Carolina convictions.

Gantt-El

in

North

1987

guilty

filed

Carolina
plea

(Doc. 12-1 at 2-4.)

as

a

Motion

Superior
to

the

for
Court
North

He claimed that his

plea was not voluntary, his counsel was ineffective, and the
sentence was invalid.
motion.

(Id.)

(Id.)

The Superior Court denied the

Gantt-El subsequently filed a petition for writ

of habeas corpus with this court, asserting the same grounds;
the petition was denied as untimely.

Gantt v. Anderson, No.

1:09CV40, 2010 WL 3895576 (M.D.N.C. Sept. 29, 2010), adopted,
No. 1:09CV40 (M.D.N.C. Dec. 1, 2010), Doc. 63.
Gantt-El‟s

current

habeas

petition

arises

out

of

an

incident at the Caswell Correctional Center on March 13, 2010.
(Doc. 2 at 10.)

While standing in line in the dining room,

Gantt-El

others

and

two

were

approached

by

a

officer who asked if they were wearing their belts.

3

correctional
(Id.)

As

the men displayed their belts, the officer asked Gantt-El to
lift

his

jacket,

and

Gantt-El

stated,

“I

am

not

like

those

punks, I ware [sic] my belt and don‟t have my pants down around
my ass.”

(Doc. 6-4 at 8.)

The corrections officer directed

Gantt-El to move along and to “quit running his mouth,” but
Gantt-El refused and began to verbally harass the officer.
at 4, 8.)

(Id.

Officers restrained Gantt-El, and when an officer

retrieved a can of pepper spray, Gantt-El threatened, “go ahead
(Id. at 4.)

and spray me and I will shove it up your ass.”

Gantt-El was charged with two prison disciplinary offenses
authorized
(“SSA”),

by

North

N.C.

Gen.

Carolina‟s

Stat.

Structured

§ 15A-1340.10

orders, and using profane language.

et

Sentencing
seq.:

Act

disobeying

(Doc. 6-5 at 10.)

He was

found guilty of both following a disciplinary hearing and as to
each was assessed punishment of segregation for 30 days, loss of
20 days of good-time credit, and an administrative fee.
He

appealed

disciplinary
convictions.

the

decision

appeals

to

the

hearing

Department

officer,

of

who

(Id.)

Corrections
upheld

the

(Doc. 2 at 10-16.)

Gantt-El then made the disciplinary punishments the subject
of a state petition for writ of habeas corpus, contending that
the prison disciplinary procedures do not apply to him and that
the disciplinary charges were false.

(Doc. 6-6.)

court

finding

summarily

denied

the

petition,

4

it

The trial
“wholly

and

totally

without

merit.”

(Doc.

6-7

at

2.)

Gantt-El

unsuccessfully appealed his petition to the North Carolina Court
of Appeals and the North Carolina Supreme Court.

(Doc. 2 at 7-

9, 17.)
Gantt-El

filed

his

present

corpus on April 5, 2011.

petition

(Doc. 2.)

for

writ

of

habeas

In the petition, Gantt-El

raises the same objections he raised in

his

state

petition,

which he contends the North Carolina erred in dismissing.

(Id.)

He has also filed numerous motions seeking discovery.
Brandon now moves for summary judgment, arguing that GanttEl‟s claim is meritless because he has a life sentence and the
loss of good-time credits does not affect the fact or duration
of his confinement.
argues, Gantt-El‟s

(Doc. 6 at 4-5.)
claim

that

the

Alternatively, Brandon

prison

engaged in

ex

post

facto application of disciplinary procedures is meritless and
his

claims

that

false

evidence

was

used

against

him

in

disciplinary hearing are unassailable on federal review.

the
(Id.

at 5, 11.)

Finally, she claims, the state court properly denied

the

petition

habeas

state‟s determination.

and

this

court

(Id. at 12.)

to Gantt-El‟s various motions.

5

should

be

bound

by

the

Brandon has not responded

II.

ANALYSIS
A.

Cognizable Claim

A writ of habeas corpus permits a prisoner to challenge the
fact or duration of his confinement.
411 U.S. 475, 500 (1973).
his

loss

of

good-time

See Preiser v. Rodriguez,

Gantt-El raises claims relating to

credits

because

of

his

disciplinary

infraction, what he perceives as the manufacturing of evidence
against

him

in

his

disciplinary

proceeding,

court‟s dismissal of his habeas action.

and

the

state

Before the

(Doc. 2.)

court may consider the merits of Gantt-El‟s petition, however,
it must determine whether he raises challenges to the fact or
duration of his confinement.
1276,

1280

(10th

Cir.

See Standifer v. Ledezma, 653 F.3d

2011)

(“It

is

well-settled

law

that

prisoners who wish to challenge only the conditions of their
confinement, as opposed to its fact or duration, must do so
through civil rights lawsuits filed pursuant to 42 U.S.C. § 1983
. . . not through federal habeas proceedings.”); Gibson v. North
Carolina, 991 F.2d 789 (4th Cir. 1993) (per curiam) (unpublished
table decision).
Generally speaking, an action for the restoration of goodtime credits is actionable in a habeas petition.

Wilkinson v.

Dotson, 544 U.S. 74, 79 (2005); see also Preiser, 411 U.S. at
476, 500 (holding that habeas corpus actions are the appropriate
avenue to federal relief for “state prisoners who were deprived

6

of good-conduct-time credits by [state prison officials] as a
result

of

Court

has

“where

disciplinary
explained

success

in

proceedings”).

that
the

habeas

action

However,

petitions
would

not

are

the

inappropriate

necessarily

immediate or speedier release for the prisoner.”

Supreme

spell

Wilkinson, 544

U.S. at 81 (emphasis in original).
North Carolina‟s prison regulations at the time of GanttEl‟s incident, which were promulgated under the SSA, dictate
that inmates sentenced under the NCFSA to life in prison for the
commission of a Class C felony are ineligible to earn good-time
credits towards a sentence reduction.3

Instead, their good-time

credits are used only to reduce the amount of time they must
serve before becoming parole eligible.

Teasley v. Beck, 155

N.C. App. 282, 289-90, 574 S.E.2d 137, 142 (2002).
Supreme

Court

has

held

that

challenges

to

However, the

prison

procedures

that, if successful, will result in “speed[ier] consideration of
a . . . parole application” rather than an “immediate release or
a

shorter

concerns.

stay

in

prison”

do

not

implicate

“core”

habeas

Wilkinson, 544 U.S at 82.

3

Division of Prisons, N.C. Dep‟t of Correction, Policy and Procedure,
Sentence Reduction Credits, ch. B, §§ .0111(d)(4), .0112(c)(4) (issued
Oct. 5, 2007) (providing that inmates sentenced under the NCFSA are
eligible for good-time and gain-time credits to reduce their sentences
if they meet the requisite conditions; however, those convicted of a
Class C felony and sentenced to life imprisonment are ineligible to
earn good-time as a sentence reduction credit).

7

Here,

Gantt-El

is

a

prisoner

serving

a

Class

sentence in addition to terms-of-years sentences.

C

life

As such, his

good-time credits will not be used to calculate the length of
his sentence.

(Doc. 6-10 at 3.)

Their loss, therefore, does

not affect the fact or duration of his confinement.

The fact

that Gantt-El is also serving terms-of-years convictions does
not change this result.
02-MU,

2008

WL

(“Petitioner

is

Cf. Hemphill v. Jackson, No. 308CV150-

2761320,
serving

at
a

*2

life

(W.D.N.C.
sentence

July

under

11,
a

2008)

statutory

provision which prohibits the use of good-time credits as a
means for obtaining a reduced sentence.

Accordingly, Petitioner

merely is accruing and/or losing good-time credits on paper in
the event that, if his life sentence ever is overturned, such
credits can be applied to the resulting determinative sentence.
. . . [H]owever, such a speculative and unlikely event simply
falls

short

which

to

of

providing

challenge

the

Petitioner

loss

proceeding under § 2254.”).

of

his

a

sufficient

good-time

basis

credits

upon
in

a

Accordingly, Gantt-El‟s claim based

on loss of good-time credit fails to state a cognizable claim
under § 2254.
B.

Ex Post Facto Claim

As a secondary basis for the court‟s decision, the court
finds that Gantt-El‟s claims do not entitle him to relief on the
merits.

Summary

judgment

is

8

appropriate

when

the

movant

demonstrates that there is no genuine dispute of material fact
and he is entitled to judgment as a matter of law.
P. 56(a).

Fed. R. Civ.

Habeas cases, like all other civil cases, are subject

to summary judgment analysis.

See Rules Governing Section 2254

Cases in the United States District Courts (“Habeas Rules”),
Rule 12.

Yet, where a habeas petition involves a challenge to a

prior state court proceeding, the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110
Stat.

1214,

creates

a

“highly

constrained”

scope

of

Jackson v. Johnson, 523 F.3d 273, 276 (4th Cir. 2008).
even

for

adjudications

in

which

a

state

court

review,
Indeed,

declines

to

articulate any reasons for its decision, Harrington v. Richter,
--- U.S. ---, 131 S. Ct. 770, 785 (2011), a federal court “may
grant a petition with respect to any claim adjudicated on the
merits

in

state

court

only

if

the

state-court

decision

was

either contrary to, or an unreasonable application of, clearly
established federal law as determined by the Supreme Court.”
Jackson, 523 F.3d at 276 (citing 28 U.S.C. § 2254(d)(1)).
A state court decision is “contrary to” clearly established
federal law if the state court “arrives at a conclusion opposite
to that reached by [the Supreme] Court on a question of law or
if the state court decides a case differently than [the Supreme]
Court

has

on

a

set

of

materially

indistinguishable

facts.”

Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O‟Conner, J.,

9

majority opinion).

A state court engages in an unreasonable

application of clearly established federal law when the court
“identifies
Supreme]

the

correct

Court‟s

governing

decisions

legal

but

principle

unreasonably

from

[the

applies

that

principle to the facts of the prisoner‟s case,” id. at 413, or
“„applies a precedent in a context different from the one in
which the precedent was decided and one to which extension of
the legal principle of the precedent is not reasonable [or]
fails to apply the principle of a precedent in a context where
such

failure

is

unreasonable,‟”

Jackson,

523

F.3d

at

277

(alteration in original) (quoting Robinson v. Polk, 438 F.3d
350, 355

(4th Cir. 2006)).

The phrase “clearly established

federal law” means “the holdings, as opposed to the dicta, of
[the Supreme] Court‟s decision as of the time of the relevant
state-court decision.”
a

petitioner‟s

Williams, 529 U.S. at 412.

allegation

that

a

state-court

In assessing
decision

is

deficient, a federal district court must presume that the state
court‟s
rebuts

finding
that

of

facts

presumption

were
by

correct

“clear

and

unless

the

petitioner

convincing

evidence.”

Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007) (citing 42
U.S.C. § 2254(e)(1)).
Here,

Gantt-El

challenges

the

application

prison disciplinary procedures applied to him.

of

the

SSA‟s

He contests two

provisions specifically: the loss of good time credit for minor

10

offenses, and the imposition of a $10 administrative fee for his
violations.
As to the good-time credit contention, the NCFSA (under
which Gantt-El was sentenced) permitted the loss of good-time
credits only for major, not minor, offenses.

See NCFSA, ch.

760, § 2, 1979 N.C. Sess. Laws 850, 854-55 (repeal effective
January 1, 1995).

This provision was repealed with the passage

of the SSA, which became effective on January 1, 1995.
Gen. Stat. § 15A-1340.10.

N.C.

Regulations adopted pursuant to the

SSA provide for the loss of good-time and gain-time credits for
major and minor violations.

(Doc. 6-10 at 3-4.)

Gantt-El thus

contends that the application of the SSA to his disciplinary
offenses

violates

Constitution

the

because

Ex

Post

Facto

Clause

of

the

U.S.

prison regulations promulgated under the

SSA provide a punishment for minor disciplinary offenses that
Gantt-El‟s argument is without

did not exist under the NCFSA.
merit.

The Constitution provides that “[n]o state shall . . . pass
any . . . ex post facto Law.”

U.S. Const. art. I, § 10, cl. 1.

The

that

Supreme

“forbids

Court

the

has

imposition
by

held
of
law

the

punishment
when

the

Ex

Post

more
act

Facto

severe

punishment

assigned

to

be

occurred.”

Weaver v. Graham, 450 U.S. 24, 30 (1981).

Clause

than

the

punished
Thus, for

Gantt-El to prevail on his ex post facto claim, he must show

11

“that the law he challenges operates retroactively . . . and
that it raises the penalty from whatever the law provided when
he acted.”

Johnson v. United States, 529 U.S. 694, 699 (2000)

(applying the federal Ex Post Facto Clause); see also Burnette
v. Fahey, --- F.3d ---, No. 11-1324, 2012 WL 2695854 (4th Cir.
July

9,

2012)

(“To

state

a

claim

for

a

violation

of

this

provision, a plaintiff must plead facts showing the retroactive
application of a new rule that „by its own terms‟ or through
implementation‟

„practical

creates

a

„significant

risk‟

of

extending the period of incarceration to which he is subject.”
(quoting

Garner

v.

Jones,

529

U.S.

244,

255

(2000)).

Furthermore, AEDPA requires a habeas petitioner like Gantt-El to
demonstrate that the North Carolina courts were unreasonable in
their application of the Ex Post Facto Clause as articulated by
controlling Supreme Court precedents in order to prevail.
The United States Court of Appeals for the Fourth Circuit
has held that prison regulations may be subject to “reasonable
amendments
safety[,]

as
and

concerns.”
1993).

necessary
efficiency,

Ewell

v.

for

good

without

Murray,

11

prison

administration,

implicating
F.3d

482,

ex

post

485-86

(4th

facto
Cir.

An inmate “has no right to a particular set of prison

regulations

adopted

to

maintain

efficiency of the prison.”
regulatory

scheme

“does

the

Id. at 486.

not

add

12

order,

safety,

and

Thus, as long as a new

punishment

for

the

original

crime for which the inmate was incarcerated,” inmates may lose
good time credits for their subsequent conduct that violates the
new regulations.
In
courts

this

Id.

case,

it

unreasonably

controlling

cannot

applied

Supreme

Court

relief that he seeks.
summarily
courts

dismissed

have

be
the

Ex

precedent

that

North

Post
in

Facto

denying

Carolina‟s
Clause

Gantt-El

or
the

First, while North Carolina‟s courts

Gantt-El‟s

already

said

habeas

determined

petition,

that

the

applying

state‟s

the

SSA‟s

regulations to prisoners sentenced before the act‟s imposition
(like Gantt-El) does not run afoul of the Ex Post Facto Clause
or Weaver because the SSA only authorizes the loss of good-time
credit “when inmates choose to commit disciplinary infractions.”
Smith v. Beck, 176 N.C. App. 757, 760-61, 627 S.E.2d 284, 287
(2006).
Carolina
Circuit‟s

This

position,

correctly

as

the

recognized,
in

decision

Ewell,

is

Court

of

Appeals

consistent

which

denied

with

of
the

habeas

North
Fourth

relief

to

inmates challenging new prison regulations that permitted the
loss

of

good-time

infractions.

credits

as

a

consequence

Ewell, 11 F.3d at 487.

of

disciplinary

Moreover, it is evident

that applying the SSA to Gantt-El did not “raise[] the penalty
[for his original crime] from whatever the law provided when he
acted.”

See

Johnson,

officials

removed

a

529

portion

U.S.
of

13

at

699.

Gantt-El‟s

Instead,
good-time

prison
credits

pursuant to North Carolina‟s reasonable prison regulations for
his conduct on March 13, 2010.

Consequently, this basis of his

challenge lacks merit.
Gantt-El‟s second contention -- that the assessment of an
administrative fee violates the Ex Post Facto Clause -- is not
cognizable under 28 U.S.C. § 2254 because its imposition does
not

affect

Wilkinson,

the
544

fact
U.S.

or
at

duration
81-82

of

his

(explaining

confinement.
that

See

habeas

corpus

remedies are properly applied only “when they seek to invalidate
the duration of [an inmate‟s] confinement” (emphasis added));
Gaskins v. Johnson, 443 F. Supp. 2d 800, 803 (E.D. Va. 2006)
(“[I]n challenges to prison procedures, where success in the
action would not necessarily spell immediate or speedier release
for the prisoner, § 1983, not habeas corpus, is the appropriate
remedy.”

(citation

and

internal

quotation

marks

omitted)).

Because a successful challenge to the $10 administrative fee
would not result in a shorter duration of confinement, GanttEl‟s remedy, if any, lies with 42 U.S.C. § 1983.
Ex

Post

Facto

Issues,

561

F.3d

294,

298-99

Cf. In re DNA

(4th

Cir.

2009)

(employing 42 U.S.C. § 1983 to assess the constitutionality of a
South

Carolina

law

that

required

state

prisoners

to

pay

an

administrative fee (to offset the cost of obtaining the inmates‟
DNA samples) before the inmates could be paroled or released).
Indeed, as the Supreme Court has held, claims affecting the

14

circumstances of confinement may be presented pursuant to 42
U.S.C. § 1983.
curiam).4

Muhammad v. Close, 540 U.S. 749, 750 (2004) (per

Thus,

Gantt-El‟s

constitutional

challenge

to

the

imposition of an administrative fee will be dismissed without
prejudice to his right, if any, to raise the claim in a civil
rights action pursuant to 42 U.S.C. § 1983.
For these reasons, Gantt-El has failed to meet his burden
for obtaining habeas relief on his Ex Post Facto Clause claim.
C.

False Evidence Claim

Gantt-El

also

contends

that

his

reduction

credit was the product of false evidence.
Supreme

Court

has

held

that

in

order

in

good-time

(Doc. 2 at 7.)
for

revocation

of

The
an

inmate‟s good-time credits to be proper, the findings of the
prison disciplinary board must be supported by “some evidence in
the record.”

Superintendent v. Hill, 472 U.S. 445, 454 (1985).

Thus, federal courts should not conduct an independent review of
the entire record or make credibility determinations.
455-56.

Id. at

Instead, the determination of a prison disciplinary

board should be overturned only where it is entirely lacking in
evidence such that it can be said to be arbitrary or capricious.

4

Gantt-El‟s contention that North Carolina law prohibits the
Department of Corrections from implementing a fee for prisoners‟
disciplinary infractions is not cognizable in this court.
A federal
habeas court has no authority “to correct the interpretation by state
courts of a state‟s own laws.” Sharpe v. Bell, 593 F.3d 372, 383 (4th
Cir. 2010) (citing Cagle v. Branker, 520 F.3d 320, 324 (4th Cir.
2008)).

15

Id.

at

457;

Rankins

v.

Keller,

No.

3:10CV297-3-MU,

2010

WL

3240132, at *3 (W.D.N.C. Aug. 16, 2010), appeal dismissed, 409
F. App‟x 703 (4th Cir. 2011) (unpublished).
Here, there is at least “some evidence in the record” that
supports the disciplinary officer‟s decision to revoke GanttEl‟s good-time credits.

The record contains multiple entries of

testimony from correctional officers describing the March 13,
2010 incident and Gantt-El‟s refusal to follow orders.
5 at 3-8.)

(Doc. 6-

There is also evidence that when a guard displayed a

can of pepper spray because of Gantt-El‟s resistance, Gantt-El
threated to “shove it up [the guard‟s] ass” if he sprayed him.
(Id. at 4.)

“Ass” is commonly recognized as “vulgar slang” for

“buttocks.”

American Heritage Dictionary (5th ed. 2011).

Thus,

the disciplinary board‟s decision to revoke a portion of GanttEl‟s good-time credits for disobeying orders and using profane
language is supported by the record, and Gantt-El‟s petition on
this basis will be denied.
D.

Claims Related to State Court Proceedings

The final bases for Gantt-El‟s habeas petition are directed
towards

the

proceedings.

adequacy

of

his

North

Carolina

state

court

First, he challenges the North Carolina courts‟

failure to “liberally construe” his state-court habeas petition

16

and to address the “operative facts.”5
there

is

no

constitutional

mandate

procedures for post-conviction review.
Attorney

v.

Coss,

532

U.S.

394,

(Doc. 2 at 7.)
that

states

However,
provide

Lackawanna Cnty. Dist.
402-03

(2001)

Pennsylvania v. Finley, 481 U.S. 551, 557 (1987)).

(citing
And even

where a state provides for habeas review, as North Carolina did
here, and an error occurs in that proceeding, “a petitioner is
not entitled

to federal habeas relief” because his claim of

error attacks the “proceeding collateral to detention and not
. . . the detention itself.”
717 (4th Cir. 2008).

Lawrence v. Branker, 517 F.3d 700,

Consequently, Gantt-El‟s collateral attack

on his state habeas proceeding is without merit.
Second, Gantt-El attempts to raise renewed challenges to
both his original conviction and the denial of his original
habeas petition related to that conviction.

(Doc. 12 at 9-11.)

He has already petitioned this court for a writ of habeas corpus
related to his North Carolina conviction, which was denied as
time-barred.

See Gantt, 2010 WL 3895576, at *4.

Under AEDPA,

Gantt-El is precluded from renewing arguments that he already

5

Gantt-El also mentions the “conditions of [his] confinement” (Doc. 2
at 7) but beyond this fleeting reference provides no evidentiary
support or argument in favor of habeas relief on that ground.
Challenges to the conditions of confinement are properly brought as
section 1983 actions. Standifer, 653 F.3d at 1280; see also Nelson v.
Campbell, 541 U.S. 637, 643 (2004). Accordingly, to the extent GanttEl seeks to challenge the conditions of his confinement, his argument
-- such as it is -- is dismissed without prejudice to him raising the
claim in a civil rights action under 42 U.S.C. § 1983.

17

made

in

his

original

collateral

conviction and sentence.
he

attempts

to

raise

attack

on

his

28 U.S.C. § 2244(b)(1).

new

grounds

for

relief

state-court

To the extent
that

were

not

identified in his prior application for habeas relief, he must
receive

permission

from

the

Fourth

Circuit

prior to doing so, which he has not done.
For

these

reasons,

his

attempts

to

Court

of

Appeals

Id. § 2244(b)(3)(A).

challenge

his

original

conviction and habeas petition are without merit.
E.

Additional Motions/Filings

Since filing his response to Brandon‟s motion for summary
judgment, Gantt-El has submitted a number of additional motions
and filings to the court.

Many of his motions are discovery-

related and involve attempts to compel discovery or expand the
(Doc. 11; Doc. 17.)6

scope of discoverable material.

Gantt-El,

however, has failed to show good cause for expanded discovery.
Habeas Rule 6(a);

see also

Fed. R. Civ. P. 26(b)(2)(C)(iii)

(requiring the court to limit the scope of discovery where, in
light of the issues at stake and the relative positions of the
parties,

the

“burden

or

expense

6

of

the

proposed

discovery

Two of Gantt-El‟s filings related to discoverable materials were
mistakenly categorized as “motions.”
(See Doc. 10, Doc. 18, and
Docket Entries at March 25, 2012.)
They are, as the record now
reflects, simply discovery requests. Such requests must not be filed
with the court “until they are used in the proceeding or the court
orders filing.”
Fed. R. Civ. P. 5(d)(1).
The motions have been
terminated as improperly filed, but to the extent they seek action
from the court, Gantt-El‟s “First Request for Production of Documents”
(Doc. 10) and “Second Request for Production of Documents” (Doc. 18)
are denied for the reasons explained above.

18

outweighs

its

likely

benefit”).

Accordingly,

his

discovery

motions will be denied.
Gantt-El‟s request for an evidentiary hearing into (and a
preliminary

injunction

against)

what

he

characterizes

as

Brandon‟s retaliation, mail thefts, denial of medical care, and
arbitrary and unlawful acts (Doc. 14) is similarly precluded.
Gantt-El

raised

petition

(Doc.

these
6-6

at

exact
8),

arguments
and

they

in

were

his

state

found

by

habeas
a

state

Superior Court Judge to be “wholly and totally without merit”
(Doc. 6-7 at 2).

As a result, he must demonstrate that the

state court decision was contrary to or involved an unreasonable
application of federal law, or that the decision was based on an
unreasonable determination of the facts presented in the state
proceeding, as required by 28 U.S.C. § 2254(d).
to

do

so.

unnecessary.
(concluding
petition

This

any

proposed

evidentiary

hearing

See Williams v. Taylor, 529 U.S. 420, 444 (2000)
that

on

unnecessary

renders

He has failed

the
to

a

federal
merits

conduct

an

court‟s

under

rejection

section

evidentiary

of

2254(d)

hearing

a

habeas

makes

under

it

section

2254(e)).
Gantt-El‟s motion to supplement his habeas petition with
additional claims (Doc. 15) is also without merit.

Beyond his

blanket statement that Brandon and her subordinates have denied
him his “first, fourth, sixth, eighth, and fourteenth amendment

19

rights and [are] using false reports, deceit, fraud and mail
thefts

as

a

omissions,”

means

he

to
to

fails

(Doc. 15 at 1-2.)

cover

up

identify

their
any

unlawful

basis

for

acts

his

and

motion.

In addition, his attempt to raise additional

legal arguments and factual allegations is precluded under 28
U.S.C.

§ 2254(b)(1),

which

requires

a

habeas

petitioner

to

exhaust the remedies available in state court before bringing a
federal claim.

See, e.g., Gray v. Netherland, 518 U.S. 152,

(1996).7

162-63

Finally,

it

appears

that

Gantt-El‟s

supplementary allegations seek to challenge the conditions of
his confinement, a claim that falls beyond the “core” of habeas
corpus.

See

Nelson

v.

Campbell,

541

U.S.

637,

643

(2004)

(explaining that challenges to conditions of confinement should
be brought as claims under 42 U.S.C. § 1983); Standifer, 653
F.3d at 1280.

Therefore, for all of these reasons, Gantt-El‟s

motion to supplement his habeas petition will be denied.
Gantt-El‟s final motion seeks the “Recusal of Attorney Mary
Carla

Hollis

attorneys

of

Pursuant
record

in

to

Local

this

Rule

case.

7.1,”
(Doc.

one
16.)

of

Brandon‟s

Apparently,

Gantt-El believes that Hollis is interfering with his legal and

7

While a district court has the authority to stay a habeas petition
while the petitioner exhausts his state administrative remedies, “the
district court would abuse its discretion if it were to grant him a
stay when his unexhausted claims are plainly meritless.”
Rhines v.
Weber, 544 U.S. 269, 277 (2005).
Given the lack of evidentiary
support for Gantt-El‟s naked assertions, the court concludes that they
are meritless and that a stay would be improper.

20

personal mail.

(Doc. 16 at 1-2.)

Yet he points to no facts in

support of his claims beyond his vague statement that “another
docket entry sheet from the [U]nited [S]tates [D]istrict [C]ourt
Greensboro . . . shows numerous mail delays, thefts and other
first, fourth, sixth, eighth and fourteenth amendment violations
„inter alia‟ missing documents.”

(Id.)

In fact, Gantt-El has

failed to identify any “missing documents,” show how the docket
sheet supports his conclusion that his mail is being delayed or
stolen,

and,

most

importantly,

how

Hollis

involved in his allegations in any way.

is

alleged

to

be

Gantt-El‟s motion for

recusal is spurious and will be denied.
III. CONCLUSION
For the reasons stated herein, therefore,
IT IS ORDERED that Gantt-El‟s request for production of
documents (Doc. 10); motion for discovery and to

expand the

record (Doc. 11); motion for an evidentiary hearing (Doc. 14);
motion for leave to file a supplement to his habeas petition
(Doc. 15); motion to recuse Brandon‟s attorney (Doc. 16); motion
to compel discovery (Doc. 17); and second request for production
of documents (Doc. 18) are DENIED.
IT

IS

FURTHER

ORDERED

that

that

Brandon‟s

motion

for

summary judgment (Doc. 5) is GRANTED, Gantt-El‟s petition for
writ of habeas corpus (Doc. 2) be DENIED, and this action be
DISMISSED WITH PREJUDICE, except that, as noted herein, those of

21

Gantt-El‟s claims that could have been raised under 42 U.S.C.
§ 1983 are DISMISSED WITHOUT PREJUDICE.
An

appropriate

Judgment

consistent

with

this

Memorandum

Opinion and Order will follow.

/s/
Thomas D. Schroeder
United States District Judge
July 30, 2012

22