SIMMONS v. KELLER
Filing
10
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 10/12/2012. IT IS THEREFORE RECOMMENDED that Respondent's Motion For Summary Judgment (Docket Entry 5 ) be granted, that the instant Petition (Docket Entry 2 ) be denied, and that Judgment be entered dismissing this action.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
EARNEST SIMMONS,
Petitioner,
v.
ALVIN W. KELLER, JR.,
Respondent.
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1:11CV697
MEMORANDUM OPINION, ORDER, 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 2.)
(Docket
On December 18, 2008, a jury in the Superior Court of
Guilford County found Petitioner guilty of two counts of assault
with a deadly weapon inflicting serious injury, one count of
felonious hit and run, and one count of driving while license
revoked in cases 08 CRS 23168, -78402, and -702131, respectively.
(Docket Entry 6-4 at 31-33.)1
As a result, Petitioner received
consecutive sentences of 53 to 73 months, 53 to 73 months, 15 to 18
months, and 120 days of imprisonment.
(Id. at 36-43.)
Petitioner
filed an unsuccessful direct appeal, State v. Simmons, No. COA091170, 204 N.C. App. 371 (table), 696 S.E.2d 202 (table), 2010 WL
2163771 (June 1, 2010) (unpublished), rev. denied, 364 N.C. 331,
701 S.E.2d 672 (2010), but did not otherwise seek relief in state
1
The jury also found Petitioner guilty of an assault inflicting serious
injury (Docket Entry 6-4 at 31), but the trial court arrested judgment on that
offense, see State v. Simmons, No. COA09-1170, 204 N.C. App. 371 (table), 696
S.E.2d 202 (table), 2010 WL 2163771, at *1 & n.1 (June 1, 2010) (unpublished),
rev. denied, 364 N.C. 331, 701 S.E.2d 672 (2010).
court (Docket Entry 2, § 10).
in this Court.
He then filed his instant Petition
(Docket Entry 2.)
for Summary Judgment.
Respondent has filed a Motion
(Docket Entry 5.)
Despite receiving notice
of his right to file a response opposing that motion (Docket Entry
7), Petitioner has not done so (see Docket Entries dated Sept. 20,
2011, to present).
Petitioner’s Claim
Petitioner raises only a single claim for relief in his
Petition: that his rights were violated because the State “had no
evidence to the 2 assaults with a deadly weapon inflicting serious
injury charges, no experts, no doctors, no ambalance [sic] workers,
ext, ext, just the word of the so called victumes [sic].” (Docket
Entry 2, § 12, Ground One Supporting Facts.)
Facts
The basic facts of the case, as set out by the North Carolina
Court of Appeals, are as follows:
The State’s evidence tends to show that, during the
afternoon of 1 February 2008, Ms. [Crystal] Roseberry was
taking her mother, Ms. [Rhoda] Caulder, for a ride in Ms.
Roseberry’s newly-acquired Jeep when an approaching
vehicle crossed over into her lane of travel and collided
with her vehicle. The driver of the other vehicle exited
his vehicle and walked away. Ms. Roseberry and Ms.
Caulder identified defendant as the driver and sole
occupant of the other vehicle.
Officer Brent Kinney of the High Point Police Department
investigated the accident. Officer Kinney testified that,
when he arrived at the scene, he observed a Jeep Cherokee
occupied by two females and an unoccupied Ford Tempo. His
subsequent research into information contained in vehicle
registration records disclosed that the Ford was jointly
owned by Lisa Hatfield and defendant Earnest Joseph
Simmons.
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Officer Kinney located defendant later that evening at
the Budget Inn in Thomasville, North Carolina. At that
time, Officer Kinney observed that defendant had several
facial injuries, including a fresh abrasion of his nose,
a swollen left eye, and a laceration over his left eye.
Simmons, 2010 WL 2163771, at *1.2
Discussion
Petitioner challenges the sufficiency of the evidence to
support his convictions for assault with a deadly weapon inflicting
serious injury.
This claim requires this Court to determine
“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.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the
original). A court reviewing the sufficiency of the evidence “must
consider circumstantial as well as direct evidence, and allow the
government the benefit of all reasonable inferences from the facts
proven to those sought to be established.”
United
States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). It has further been
held that “circumstantial evidence may support a verdict of guilty,
even
though
it
does
not
exclude
consistent with innocence.”
1064, 1069 (4th
every
reasonable
hypothesis
United States v. George, 568 F.2d
Cir. 1978).
In addition, because Petitioner raised this claim on direct
appeal and had it adjudicated on the merits by the North Carolina
Court of Appeals, this Court must apply the deferential standards
2
The trial evidence reflected that Petitioner had been drinking beer
shortly before the collision. (Docket Entry 6-11 at 69-71, 76.)
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of 28 U.S.C. § 2254(d).
That statute precludes habeas relief in
cases where a state court has considered a claim on its merits
unless the Petitioner shows that 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.
See 28 U.S.C. § 2254(d); Cullen v. Pinholster, ___ U.S.
___, ___, 131 S. Ct. 1388, 1398 (2011) (holding that “petitioner
carries the burden” under § 2254(d)).
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”
does not mean simply “incorrect” or “erroneous” and the Court must
judge the reasonableness of the state court’s decision from an
objective, rather than subjective, standpoint.
Id. at 409-11.
Finally, state court findings of fact are presumed correct unless
rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
These standards apply even where the state court does not cite
to federal law or explain its reasoning. Early v. Packer, 537 U.S.
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3, 8 (2002) (ruling that state court need not cite relevant Supreme
Court cases for decision to merit deference); Bell v. Jarvis, 236
F.3d 149, 158 (4th Cir. 2000) (“In this case, the North Carolina
state
court
did
not
articulate
the
rationale
underlying
its
rejection of [the petitioner’s] Sixth Amendment claim. However, we
may not presume that the summary order is indicative of a cursory
or haphazard review of the petitioner’s claims.
Rather, the state
court decision is no less an adjudication of the merits of the
claim and must be reviewed under the deferential provisions of
§ 2254(d)(1).” (internal brackets and quotation marks omitted)).
Here,
the
North
Carolina
Court
of
Appeals
adjudicated
Petitioner’s insufficient evidence claim in the following manner:
The elements of assault with a deadly weapon inflicting
serious injury in violation of N.C. Gen. Stat. § 14-32(b)
are (1) an assault (2) with a deadly weapon (3)
inflicting serious injury (4) not resulting in death.
State v. Aytche, 98 N.C. App. 358, 366, 391 S.E.2d 43, 47
(1990). According to defendant, the State failed to
present sufficient evidence to establish that either Ms.
Caulder or Ms. Roseberry sustained a serious injury.
Defendant concedes that the State presented sufficient
evidence to establish all of the other elements of the
offenses for which he was convicted.
“Whether a serious injury has been inflicted depends upon
the facts of each case and is generally for the jury to
decide under appropriate instructions.” State v.
Hedgepeth, 330 N.C. 38, 53, 409 S.E.2d 309, 318 (1991),
cert. denied, 529 U.S. 1006, 146 L.Ed.2d 223 (2000).
“Cases that have addressed the issue of the sufficiency
of evidence of serious injury appear to stand for the
proposition that as long as the State presents evidence
that the victim sustained a physical injury as a result
of an assault by the defendant, it is for the jury to
determine the question of whether the injury was
serious.” State v. Alexander, 337 N.C. 182, 189, 446
S.E.2d 83, 87 (1994). Factors a jury may consider in
determining whether a serious injury has been inflicted
include hospitalization, pain, loss of blood, or
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inability to work. State v. Owens, 65 N.C. App. 107, 111,
308 S.E.2d 494, 498 (1983).
Ms. Caulder testified that she injured her back as a
result of the accident, that she “couldn’t move from
where [she] had been slammed from the impact,” that she
“couldn’t twist her body,” that she went to the emergency
room on the day of the accident for treatment, that she
was referred to a chiropractor and a “bone and joint
specialist” for follow-up treatment, that she is in pain
“24/7,” that she is unable to work except under strict
doctor’s orders, and that, in the aftermath of the
accident, she could no longer work and pick up her
grandchildren. We hold that, based upon the foregoing
testimony, a jury could reasonably find that defendant
inflicted serious injury upon Ms. Caulder. Although
defendant argues that much, if not all, of the evidence
that tends to support a finding that Ms. Caulder
sustained a serious injury at the time of the collision
was inadmissible due to the absence of expert medical
testimony linking the injuries that she sustained to the
collision as is required by the principles enunciated in
Gillikin v. Burbage, 263 N.C. 317, 325, 139 S.E.2d 753,
760 (1965) (stating that a disk condition is “so far
removed from the usual and ordinary experience of the
average man that expert knowledge is essential to the
formation of an intelligent opinion,” that “physical
processes [that] produce a ruptured disk belong to the
mysteries of medicine,” and that “‘[w]here a layman can
have no well-founded knowledge and can do no more than
indulge in mere speculation (as to the cause of a
physical condition), there is no proper foundation for a
finding by the trier without expert medical testimony’”)
(quoting Burton v. Holden & Martin Luther Co., 112 Vt.
17, 19, 20 A.2d 99, 100 (1941)), defendant’s argument
does not provide any basis for a successful challenge to
the trial court’s denial of his motion to dismiss the
assault with a deadly weapon inflicting serious injury
charge relating to Ms. Caulder since all of the evidence,
regardless of whether that evidence was properly
admitted, State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d
451, 455 (2000), cert. denied, 531 U.S. 890, 148 L.Ed.2d
150 (2000); State v. Jones, 342 N.C. 523, 540, 467 S.E.2d
12, 23 (1996), is considered in evaluating a challenge to
the sufficiency of the evidence to support a conviction.
As a result, defendant’s challenge to the admissibility
of Ms. Caulder’s testimony concerning the extent of her
injuries does not provide any basis for a valid challenge
to the sufficiency of the evidence to support the
“serious injury” element of assault with a deadly weapon
inflicting serious injury.
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Similarly, Ms. Roseberry testified that she sustained a
knee injury in the collision, which left it “swolled up
and bruised.” Ms. Roseberry sought treatment for her knee
injury in the emergency room, where “they put it in a
splint because I could not walk on it.” In addition, Ms.
Roseberry claimed that she suffered a disk “separation,”
causing her to “end[] up going to a chiropracter for my
back for about a month and a half” before she requested
to be released “because I had no income and I had kids,
so I couldn’t continue with [chiropractic care] and
trying to work, too.” Ms. Roseberry testified that she
“was in a lot of pain,” that she used crutches for “a
couple of weeks” after the collision, that she still has
pain, that her “knee just starts throbbing real bad” when
“the weather is bad,” and that her “back always hurts[.]”
Although defendant argues that Ms. Roseberry’s injuries
did not rise to the level of a “serious injury” as that
term is used in N.C. Gen. Stat. § 14-32(b) and that “[a]
witness’ bare conclusions that she suffers from certain
ailments without connecting those ailments in any way to
the assault is insufficient to support the charge,” we
conclude, for the reasons set forth above, that Ms.
Roseberry’s testimony that her injuries resulted from the
collision is sufficient to establish a causal link
between her injuries and the collision and that a
reasonable juror could, but need not, find that the
injuries that Ms. Roseberry described in her testimony
are “serious injuries” for purposes of N.C. Gen. Stat.
§ 14-32(b). As a result, the trial court did not err by
denying defendant’s motion to dismiss the charge that
defendant committed an assault with a deadly weapon
inflicting serious injury upon Ms. Roseberry.
Simmons, 2010 WL 2163771, at *2-3 (brackets in original).
The foregoing adjudication of Petitioner’s claim was not
contrary to, or an unreasonable application of, established Supreme
Court precedent. As the North Carolina Court of Appeals described,
both
of
Petitioner’s
victims
gave
testimony
concerning
their
injuries and the jury determined that those injuries were serious
as defined by North Carolina law. Petitioner complains that further
evidence, such as the testimony of doctors or emergency workers was
not introduced.
However, he cites to no United States Supreme
Court case, and the Court knows of none, which would require such
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testimony concerning physical injury from an automobile collision.
Nor has Petitioner cited any case law from the United States
Supreme Court that would render victim testimony somehow improper.
In
sum,
Petitioner
constitutional
has
rights.
shown
His
no
violation
Petition
of
should
[his]
be
federal
denied
and
Respondent’s Motion for Summary Judgment should be granted.
IT IS THEREFORE RECOMMENDED that Respondent’s Motion For
Summary Judgment (Docket Entry 5) be granted, that the instant
Petition (Docket Entry 2) be denied, and that Judgment be entered
dismissing this action.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 12, 2012.
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