MINTON v. KELLER
Filing
16
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 11/04/2014 as set out herein. ORDERED that Respondent's Motion for Summary Judgment (Docket Entry 7 ) be GRANTED, that Respondent's Motion to Expa nd the Record to Include Defense Counsel's Affidavit (Docket Entry 10 ) be DENIED AS MOOT, that the Petition (Docket Entry 2 ) be DENIED, and that Judgment be entered DISMISSING this action without issuance of a certificate of appealability.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JESSIE MAVERICK MINTON,
Petitioner,
v.
FRANK L. PERRY,
Respondent.1
)
)
)
)
)
)
)
)
)
1:12CV497
MEMORANDUM OPINION AND ORDER
Petitioner, a prisoner of the State of North Carolina, seeks
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Entries 2 (petition), 3 (memorandum in support).)
(Docket
Petitioner pled
guilty pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), in
the Superior Court of Rowan County to eight counts of discharging
a firearm into occupied property, three counts of possession of a
firearm by a felon, and one count each of possession with intent to
sell or deliver cocaine, possession with intent to sell or deliver
marijuana, maintaining a dwelling for the sale of controlled
substances, driving while impaired (“DWI”), driving with license
revoked, driving left of center, possession of cocaine, possession
of
drug
paraphernalia,
possession
of
marijuana,
carrying
a
concealed weapon, injury to personal property, assault on a female,
1
Consistent with Rule 2(a) of the Rules Governing Section 2254 Cases, the
Petition in this case originally named Alvin W. Keller, Jr., then-Secretary of
the North Carolina Department of Correction, as Respondent. (Docket Entry 2 at
1.)
On January 1, 2012, the North Carolina Department of Correction was
reorganized as the Division of Adult Correction, falling within the Department
of Public Safety, and Frank L. Perry currently serves as the Secretary of Public
Safety. See https://www.ncdps.gov (search for Frank L. Perry) (last performed
October 8, 2014).
By operation of Federal Rule of Civil Procedure 25(d)
(applicable to this proceeding pursuant to Rule 12 of the Rules Governing Section
2254 Cases), Frank L. Perry thus now appears as Respondent.
communicating threats, assault with a deadly weapon with intent to
kill, and assault with a deadly weapon inflicting serious injury.
(Docket
Entry
2,
¶¶
(transcript of plea).)
1,
2,
4-6;
see
also
Docket
Entry
6-2
Pursuant to the terms of a plea bargain,
Petitioner pled guilty to attaining habitual felon status, and the
trial court consolidated all charges except the DWI charge into a
Class C felony and sentenced Petitioner to consecutive prison terms
of 110 to 141 months (habitual felon) and 24 months (DWI).
Entry 2, ¶ 3; see also Docket Entry 6-3 (judgments).)
(Docket
Petitioner
did not appeal.
The Superior Court thereafter denied Petitioner’s Motion for
Appropriate Relief (“MAR”) and the North Carolina Court of Appeals
declined review.
(Docket Entry 2, ¶¶ 10, 11; see also Docket Entry
6-6 (MAR filed by Petitioner); Docket Entry 6-7 (order denying
MAR); Docket Entry 6-8 (certiorari petition filed by Petitioner);
Docket Entry 6-10 (order denying certiorari).)
this action.
(Docket Entry 2.)
He then instituted
Respondent answered (Docket Entry
6), moved for summary judgment (Docket Entry 7), and filed a motion
and memorandum in support for leave to expand the record to include
an affidavit from Petitioner’s trial counsel (Docket Entries 10,
11).
Petitioner responded in opposition to Respondent’s summary
judgment motion (Docket Entry 13) and submitted a document entitled
“Order Allowing Motion to Expand the Record to Include Defense
Counsel’s Affidavit” (Docket Entry 14).
The Parties consented to
the disposition of this case by a United States Magistrate Judge.
-2-
(Docket Entry 15.)
For the reasons that follow, the Court will
deny any habeas relief.
I.
PETITIONER’S CLAIMS
The Petition identifies six separate grounds for relief.
(Docket Entry 2, ¶ 12 and continuation pages 27-35.)
Petitioner
alleges that (1) the “habitual felon indictment is defective” in
violation of the Fifth, Eighth, and Fourteenth Amendments to the
United States Constitution because “the prosecutor’s exercise of
discretion . . . to apply the Habitual Felon Act exceeded . . .
[his] authority” under “Article IV, Section 18” of the North
Carolina Constitution (id. at 16, 29); (2) Petitioner’s guilty plea
“was involuntary” in violation of the Fourteenth Amendment because
the trial court did not sentence him in accordance with the plea
agreement and his counsel did not appeal or inform Petitioner of
his statutory right to appeal or to withdraw the plea (id. at 17,
31);
(3)
Petitioner
suffered
ineffective
assistance
of
trial
counsel at sentencing because Petitioner did not receive the
sentence for which he plea-bargained (id. at 19, 32); (4) the trial
court violated the Equal Protection Clause of the Fourteenth
Amendment
by
failing
to
retroactively
apply
the
Justice
Reinvestment Act of 2011 to Petitioner’s sentence (id. at 21, 33);
(5) the trial court “committed constitutional error by imposing
consecutive
sentences
and
sentencing
Petitioner
out
of
the
mitigat[ed] range” in violation of the Fourteenth Amendment (id. at
27; see also id. at 34); and (6) the MAR court “failed to apply the
standards of review [in] violation of Due Process of Law” and
-3-
“wrongfully determined that Petitioner’s MAR was without merit and
denied an evidentiary hearing” (id. at 28, 35).
II.
HABEAS STANDARDS
The Court “shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of
a State court only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States.”
U.S.C. § 2254(a).
28
Further, “[b]efore [the] [C]ourt may grant
habeas relief to a state prisoner, the prisoner must exhaust his
remedies in state court.
In other words, the state prisoner must
give the state courts an opportunity to act on his claims before he
presents those claims to [this] [C]ourt in a habeas petition.
exhaustion
doctrine
§ 2254(b)(1).”
.
.
.
is
now
codified
at
28
The
U.S.C.
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999);
see also 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to
have waived the exhaustion requirement . . . unless the State,
through counsel, expressly waives the requirement.”).
When a petitioner has exhausted state remedies, this Court
must apply a highly deferential standard of review in connection
with habeas claims “adjudicated on the merits in State court
proceedings,” 28 U.S.C. § 2254(d).
More specifically, the Court
may not grant relief unless a state court decision on the merits
“was contrary to, or involved an unreasonable application of
clearly established Federal law, as determined by the Supreme Court
of the United States; or . . . was based on an unreasonable
determination of the facts in light of the evidence presented in
-4-
the State court proceeding.”
Id.
To qualify as “contrary to”
United States Supreme Court precedent, a state court decision
either must arrive at “a conclusion opposite to that reached by
[the
United
States
Supreme]
Court
on
a
question
of
law”
or
“confront[] facts that are materially indistinguishable from a
relevant [United States] Supreme Court precedent and arrive[] at a
result opposite” to the United States Supreme Court.
Williams v.
Taylor, 529 U.S. 362, 406 (2000). A state court decision “involves
an unreasonable application” of United States Supreme Court case
law “if the state court identifies the correct governing legal rule
from [the United States Supreme] Court’s cases but unreasonably
applies it to the facts of the particular state prisoner’s case.”
Id. at 407; see also id. at 409–11 (explaining that “unreasonable”
does not mean merely “incorrect” or “erroneous”). Finally, this
Court must presume state court findings of fact correct unless
clear and convincing evidence rebuts them. 28 U.S.C. § 2254(e)(1).
III.
A.
DISCUSSION
Habitual Felon Indictment
In his first ground for relief, Petitioner asserts that the
prosecutor exceeded his authority under Article IV, Section 18 of
the North Carolina Constitution by charging Petitioner as an
habitual
defective.
felon,
rendering
the
habitual
(Docket Entry 2 at 29.)2
felon
“indictment”
Petitioner contends that
2
Petitioner was charged as an habitual felon through an information rather
than an indictment.
(See Docket Entry 8-5 at 2-3.)
Petitioner signed the
information on the day he pled guilty (March 31, 2011), and expressly “waive[d]
the finding and return of a Bill of Indictment . . . .” (Id. at 3.)
-5-
Article IV, Section 18 limits district attorneys to the prosecution
of crimes, and that prosecutors lacked the authority to charge
individuals with habitual felon status until the effective date of
the applicable portion of the Justice Reinvestment Act on December
1, 2011.
(Id. at 29-30.)
Additionally, Petitioner maintains that
“unequal and arbitrary application of the Habitual Felon Act (1967)
in Rowan County, North Carolina, violates the right to equal
protection of law and to be free from arbitrary punishment secured
by
the
8th
and
Const[itution].”
14th
Amendments
(Docket
Entry
of
13
the
at
4.)3
[United
States]
According
to
Petitioner, “[t]he validity of an indictment can be challenged at
any time through collateral attacks and cannot be waived by a plea
of
guilty,”
proposition.
although
Petitioner
cites
no
authority
(Id. at 30 (emphasis in original).)
for
that
Those arguments
provide no basis for habeas relief.
To the extent that Petitioner’s first ground for relief relies
upon an alleged violation of Article IV, Section 18 of the North
3
Petitioner asserts that, in his “collateral attacks, he has shown and
proven disparate treatment by pointing [to] other similar[ly] situated
individuals in Rowan County from 2008, 2009 and 2010 who were not indicted, and
the ones indicted were not prosecuted.” (Docket Entry 13 at 7.) However, Rule
2(c) of the Rules Governing Section 2254 Cases in the United States District
Courts “explicitly requires that a petitioner summarize the facts supporting each
of the alleged grounds for relief.” Adams v. Armontrout, 897 F.2d 332, 333 (8th
Cir. 1990).
Thus, a habeas petitioner who generally references allegations
raised in other case records and briefs “patently fail[s] to comply with Rule
2(c).” Id. Federal courts need not “sift through voluminous documents filed by
habeas corpus petitioners in order to divine the grounds or facts which allegedly
warrant relief.” Id. (citing Williams v. Kullman, 722 F.2d 1048, 1051 (2d Cir.
1983)). The particularized facts which entitle a petitioner to habeas relief
“must consist of sufficient detail to enable the court to determine, from the
face of the petition alone, whether the petition merits further habeas corpus
review.”
Id. at 334 (emphasis added).
The Court will conduct its review
accordingly.
-6-
Carolina Constitution, such a claim is simply not cognizable on
federal habeas review.
See 28 U.S.C. § 2254(a) (“[A] district
court shall entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.”); see also
Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We have stated many
times that ‘federal habeas corpus does not lie for errors of state
law.’” (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990))).4
The portion of Petitioner’s first claim grounded on purported
violations of the Fifth, Eighth, and Fourteenth Amendments to the
United
States
Constitution
similarly
fails
as
conclusory
and
unsupported, Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992)
(recognizing that “[u]nsupported, conclusory allegations do not
entitle a habeas petitioner to an evidentiary hearing”), abrogated
on other grounds by, Gray v. Netherland, 518 U.S. 152, 165-66
(1996).
Petitioner has provided no evidence, beyond his own
unsupported allegations, of “unequal and arbitrary application of
the Habitual Felon Act (1967) in Rowan County, North Carolina”
4
Petitioner’s first ground for relief lacks merit in any event. North
Carolina’s Habitual Felon Act, provides, in pertinent part, that “[a]ny person
who has been convicted of or pled guilty to three felony offenses in any federal
court or state court in the United States or combination thereof is declared to
be an habitual felon and may be charged as a status offender pursuant to this
Article,” N.C. Gen. Stat. § 14-7.1. Although the Justice Reinvestment Act of
2011 did add the underlined language, see id. Historical and Statutory Notes,
Petitioner incorrectly concludes that district attorneys lacked the authority to
prosecute habitual felon status prior to the 2011 amendment (Docket Entry 2 at
30). North Carolina case law predating this amendment by over a decade belies
Petitioner’s position. See, e.g., State v. Patton, 342 N.C. 633, 635, 466 S.E.2d
708, 710 (1996) (affirming sentence enhanced by habitual felon status and
explicitly recognizing that “[b]eing an habitual felon is not a crime but rather
a status . . .”).
-7-
(Docket Entry 13 at 4), and has thus fallen far short of his
obligation to provide “clear evidence” of selective or vindictive
prosecution.
United States v. Armstrong, 517 U.S. 456, 465 (1996)
(“[T]o dispel the presumption that a prosecutor has not violated
equal protection, a criminal defendant must present clear evidence
to the contrary.”)
B.
Petitioner’s claim fails as a matter of law.
Voluntariness of Guilty Plea
Petitioner next challenges his guilty plea on the ground that
the trial court did not honor the plea arrangement and sentence
Petitioner in the mitigated range to 66 months’ imprisonment.
(Docket Entry 2 at 30-31; see also Docket Entry 13 at 11-12.)
According to Petitioner, he “signed a plea agreement where [he] was
to be sentenced [in] the mitigat[ed] range with less than 10 [prior
record] points for sentencing purposes due to his participation and
cooperation in the investigation of another criminal prosecution
pertaining to the sheriff of Rowan County.”
31.)
(Docket Entry 2 at
Although Petitioner concedes the plea arrangement he signed
did not contain an express agreement that he receive a 66-month,
mitigated sentence (see Docket Entry 13 at 11, 12), he nonetheless
urges that the arrangement’s lack of a specific sentence amounts to
an “ambiguity” that should be construed in his favor (id. at 12).
Further, Petitioner alleges that his trial counsel “failed to
appeal the
sentence
imposed
by
the
court,
nor
did [counsel]
inform[] [] Petitioner of his statutory right to appeal or withdraw
-8-
[the] plea.”
(Docket Entry 2 at 31.)5
Petitioner’s claim lacks
merit.
“[R]epresentations of the defendant, his lawyer, and the
prosecutor at . . . a [plea] hearing as well as any findings made
by the judge accepting the plea constitute a formidable barrier in
subsequent collateral proceedings.”
U.S.
63,
73-74
(1977).
A
Blackledge v. Allison, 431
petitioner
challenging
his
plea
“necessarily . . . assert[s] that not only his own transcribed
responses, but [also] those given by two lawyers, were untruthful
. . . .” Id. at 80 n.19.
“In the absence of clear and convincing
evidence to the contrary, [a petitioner] must be bound by what he
said at the time of the plea.”
Little v. Allsbrook, 731 F.2d 238,
239 n.2 (4th Cir. 1984).
Here, Petitioner’s claim that the trial court refused to honor
his plea arrangement contradicts Petitioner’s sworn declarations on
the
transcript
of
plea
form.
(Docket
Entry
8-2.)
Most
significantly, Petitioner represented to the trial court that he,
his trial counsel and the prosecutor had agreed on the following
plea arrangement:
All the matters, except 09 CRS 55476 [driving while
impaired], will be consolidated for sentencing and the
defendant shall plead to Habitual Felon pursuant to a
Bill of Information. All matters, except 09 CRS 55476,
5
Petitioner additionally claims that the trial court failed to inform him
of the mandatory minimum sentence for his crimes in violation of Rule 11(b)(1)
of the Federal Rules of Criminal Procedure. (Docket Entry 13 at 11.) As an
initial matter, the Federal Rules of Criminal Procedure do not govern the conduct
of a state trial court in a criminal matter. Further, although N.C. Gen. Stat.
§ 15A-1022(a)(6), which governs state court plea proceedings, required the trial
court to inform Petitioner of the maximum sentences that correlate to his crimes,
as well as any mandatory minimum sentences, the record reflects that the trial
court fulfilled this obligation (Docket Entry 8-2 at 3).
-9-
will be consolidated into 10 CRS 57961 [discharging a
weapon into occupied property] for sentencing as Habitual
status.
(Id. at 4.) In that regard, Petitioner swore that the above-quoted
plea arrangement constituted the full and correct agreement, that
no one promised him anything or threatened him in any way to cause
him to enter the plea against his wishes, and that he entered the
plea of his own free will, fully understanding his actions.
(Id.
(emphasis added).)
Petitioner
further
indicated
that
he
did
not
have
any
questions about the plea colloquy or about anything else connected
to his case.
(Id.)
Petitioner’s trial counsel and the prosecutor
each certified that Petitioner had agreed to the plea agreement as
above-described.
(Id.)
The record reflects the trial court then
sentenced Petitioner in accordance with this plea arrangement.
(Docket Entry 2, ¶ 3; see also Docket Entry 6-3 (judgments).)
Accordingly, Petitioner’s conclusory and unsupported assertion that
the plea arrangement he signed implicitly guaranteed him a 66-month
sentence in the mitigated range with fewer than 10 prior record
points falls far short of the “clear and convincing evidence”
necessary for this Court to disregard his sworn and unambiguous
statements, and those of his counsel and the prosecutor, to the
contrary at the plea hearing.
Allsbrook, 731 F.2d at 239 n.2.
This ground warrants no habeas relief.6
6
Petitioner’s allegations that his trial counsel “failed to appeal the
sentence imposed by the court” and failed to inform Petitioner “of his statutory
right to appeal or withdraw [the] plea” (Docket Entry 2 at 31), address matters
occurring after Petitioner offered his Alford plea to the trial court. Thus,
(continued...)
-10-
C.
Ineffective Assistance of Trial Counsel
In support of this claim, Petitioner first states that he
“incorporates” into his instant Petition the ineffective assistance
allegations he raised in his “collateral attacks . . . as a
reference in their entirety.”
(Docket Entry 2 at 31.)
However,
Rule 2(c) of the Rules Governing Section 2254 Cases in the United
States District Courts “explicitly requires that a petitioner
summarize the facts supporting each of the alleged grounds for
relief.”
Adams v. Armontrout, 897 F.2d 332, 333 (8th Cir. 1990).
Thus, a habeas petitioner who generally references allegations
raised in other case records and briefs “patently fail[s] to comply
with Rule 2(c).”
Id.
Federal courts need not “sift through
voluminous documents filed by habeas corpus petitioners in order to
divine the grounds or facts which allegedly warrant relief.” Id.
(citing Williams v. Kullman, 722 F.2d 1048, 1051 (2d Cir. 1983)).
The particularized facts which entitle a petitioner to habeas
relief “must consist of sufficient detail to enable the court to
determine,
from
the
face
of
the petition
alone,
petition merits further habeas corpus review.”
whether
the
Id. at 334.
The
Court will review the instant claim consistently with Rule 2(c).
As discussed above, Petitioner did raise certain allegations
which address the effectiveness of his trial counsel in his second
ground for relief which the Court will now consider.
6
He alleges
(...continued)
such matters do not impact the voluntariness of Petitioner’s plea, but rather,
address the effectiveness of Petitioner’s trial counsel. As such, the Court will
discuss said allegations in the context of Petitioner’s third ground for relief,
which alleges ineffective assistance of trial counsel.
-11-
that his trial counsel “failed to appeal the sentence imposed by
the court” and failed to inform Petitioner “of his statutory right
to appeal or withdraw [the] plea.”
(Docket Entry 2 at 31.)
In
addition, Petitioner contends that his trial counsel failed to
ensure Petitioner received a 66-month sentence at “the bottom of
the mitigated range” to run concurrently with his DWI sentence.
(Id. at 32.)
Petitioner claims prejudice from his counsel’s
failing, because he asserts that “an objectively reasonable person
in his shoes would not have pled guilty and would have insisted on
going to trial, absent the alleged [professional] dereliction.”
(Id.)
In
Petitioner’s arguments provide no basis for habeas relief.
order
to
prove
ineffective
assistance
of
counsel,
a
petitioner must establish, first, that his attorney’s performance
fell below a reasonable standard for defense attorneys and, second,
that prejudice resulted.
668, 687-94 (1984).
See Strickland v. Washington, 466 U.S.
To demonstrate prejudice in the context of a
guilty plea, Petitioner must show a reasonable probability that but
for counsel’s allegedly deficient conduct, he would not have pled
guilty but would have gone to trial.
See Hill v. Lockhart, 474
U.S. 52, 58-59 (1985); Meyer v. Branker, 506 F.3d 358, 369 (4th Cir
2007).
Petitioner cannot make this showing.
Petitioner’s claim that his trial counsel failed to appeal
Petitioner’s sentence and failed to advise Petitioner of his
“statutory right to appeal” depends on the erroneous assumption
that Petitioner
actually
possessed
circumstances of his guilty plea.
a
right
to
appeal
in
the
North Carolina precedent belies
-12-
Petitioner’s position.
In North Carolina, defendants who plead
guilty have very limited grounds on which they can appeal:
1. Whether the sentence “is supported by the evidence.”
This issue is appealable only if [the defendant’s]
minimum term of imprisonment does not fall within the
presumptive range.
N.C. Gen. Stat. § 15A-1444(a1)
(2001);
2. Whether the sentence “[r]esults from an incorrect
finding of the defendant’s prior record level under G.S.
15A-1340.14 or the defendant’s prior conviction level
under
G.S.
15A-1340.21.”
N.C.
Gen.
Stat.
§ 15A-1444(a2)(1) (2001);
3. Whether the sentence “[c]ontains a type of sentence
disposition that is not authorized by G.S. 15A-1340.17 or
G.S. 15A-1340.23 for the defendant’s class of offense and
prior record or conviction level.”
N.C. Gen. Stat.
§ 15A-1444(a2)(2) (2001);
4. Whether the sentence “[c]ontains a term of
imprisonment that is for a duration not authorized by
G.S. 15A-1340.17 or G.S. 15A-1340.23 for the defendant’s
class of offense and prior record or conviction level.”
N.C. Gen. Stat. § 15A-1444(a2)(3) (2001);
5. Whether the trial court improperly denied defendant’s
motion to suppress. N.C. Gen. Stat. §§ 15A-979(b)(2001),
15A-1444(e) (2001);
6. Whether the trial court improperly denied defendant’s
motion to withdraw his guilty plea.
N.C. Gen. Stat.
§ 15A-1444(e).
State v. Smith, 193 N.C. App. 739, 741-42, 668 S.E.2d 612, 613-14
(2008) (citing State v. Jamerson, 161 N.C. App. 527, 528-29, 588
S.E.2d 545, 546-47 (2003)); see also N.C. Gen. Stat. §§ 15A-979(b)
& 15A-1444.
Here, Petitioner received a sentence of 110 to 141 months,
which falls within the presumptive range of sentences for a Class
C felony (habitual felon) with a prior record level of four.
N.C. Gen. Stat. § 15A-1340.17(c), (e) (2009).
-13-
See
Thus, Petitioner
could
not
appeal
on
the
ground
that
his
sentence
“is
[not]
supported by the evidence” or “[c]ontains a term of imprisonment
that is . . . not authorized . . . for the defendant’s class of
offense and
prior
record
15A-1444(a1), (a2)(3).
.
.
. level.”
N.C.
Gen.
Stat.
§
Moreover, Petitioner has not alleged or
otherwise shown that any of the other enumerated grounds existed
and thus he had no right to appeal.
Where Petitioner lacked a
right
could
to
appeal,
his
trial
counsel
not
have
rendered
ineffective assistance by failing to file a futile appeal or to
advise Petitioner of his right to do so.
Petitioner’s
assertion
that
his
trial
counsel
supplied
deficient performance by failing to advise petitioner of his right
to withdraw his guilty plea and failing to ensure a concurrent, 66month sentence similarly fails.
Under North Carolina law, a trial
court must advise a defendant of his or her right to withdraw a
guilty plea when the trial court hands down a sentence which
differs from the plea arrangement.
1024.7
See N.C. Gen. Stat. § 15A-
However, as discussed above, the trial court here issued a
sentence in compliance with Petitioner’s plea arrangement.
Docket
Entries
8-2,
8-3.)
Moreover,
as
already
found,
(See
the
transcript of plea establishes the voluntary, knowing and counseled
nature of Petitioner’s guilty plea, and Petitioner has failed to
7
Section 15A-1024 mandates that, “[i]f at the time of sentencing, the
judge for any reason determines to impose a sentence other than provided for in
a plea arrangement between the parties, the judge must inform the defendant of
that fact and inform the defendant that he may withdraw his plea.” In addition,
upon withdrawal of the plea, Section 15A-1024 requires the judge to continue the
case “until the next session of court.”
-14-
provide the Court with clear and convincing evidence to overcome
his sworn statements during the plea hearing.
Accordingly, Petitioner possessed no grounds to withdraw his
plea and counsel could not have performed ineffectively by failing
to advise Petitioner of a right he did not possess.
Similarly,
Petitioner has provided no evidence, beyond his own unsupported
allegations, that a plea arrangement different from that reflected
on the transcript of plea form existed and, therefore, has not
shown any professional failing by trial counsel arising from
Petitioner not receiving a 66-month, concurrent sentence.
This
claim provides no basis for habeas relief.8
D.
Retroactivity of the Justice Reinvestment Act of 2011
In his fourth ground for relief, Petitioner contends that the
trial court should have retroactively applied N.C. Gen. Stat.
§ 15A-1340.18 (part of the Justice Reinvestment Act of 2011) in
determining his sentences, and that the trial court’s failure to do
so
violated
Amendment.
the
Equal
Protection
(Docket Entry 2 at 33.)
Clause
of
the
Fourteenth
According to Petitioner,
Section 15A-1340.18 “allows advanced supervised release effective
1 January 2012,” and because “the Equal Protection Clause demands
equal treatment for all petitioners, regardless of when they were
sentenced,” Section 15A-1340.18 should apply to him, despite his
8
The Court reaches this conclusion without consideration of the Affidavit
of Thomas Gregory Jones (Docket Entry 11-1), Petitioner’s trial counsel, attached
to Respondent’s brief (Docket Entry 11) supporting his motion to expand the
record (Docket Entry 10). As a result, the Court will deny that Motion as moot.
-15-
March 31, 2011 convictions.
(Id.)9
Petitioner’s argument fails
for two reasons.
First, the language of the Justice Reinvestment Act of 2011
belies Petitioner’s retroactivity argument.
The provisions of
Section 15A-1340.18 do not apply to individuals who pled guilty
prior to January 1, 2012:
“This section becomes effective January
1, 2012, and applies to persons entering a plea or who are found
guilty of an offense on or after that date.”
Justice Reinvestment
Act of 2011, 2011 N.C. Sess. Laws ch. 192, § 5(e) (emphasis added).
Further, the North Carolina legislature made clear that courts
should
not
apply
the
Justice
Reinvestment
Act
of
2011
retroactively: “Except as otherwise provided in this act, this act
is effective when it becomes law.
Prosecutions for offenses
committed before the effective date of this act are not abated or
affected by this act, and the statutes that would be applicable but
for this act remain applicable to those prosecutions.”
Id., § 10.
Thus, by its very terms, Section 15A-1340.18 does not apply to
Petitioner, who pled guilty on March 31, 2011, nine months before
the statute’s effective date.
2d
,
See Smith v. Shanahan,
F. Supp.
, 2014 WL 575723, at *4 (M.D.N.C. Feb. 11, 2014)(Osteen,
J. adopting rec. of Webster, M.J.) (“[C]ourts generally presume
that ‘legislation, especially of the criminal sort, is not to be
9
Again, in support of his fourth ground for relief, Petitioner attempts
to incorporate by reference additional arguments he made in his MAR. (Docket
Entry 2 at 33.) The Court, as discussed above, will not consider such arguments
in determining the merits of his instant ground for relief. Rule 2(c), Rules
Gov’g Sect. 2254 Cases in the United States Dist. Courts; Adams, 897 F.2d at 333.
-16-
applied retroactively’ unless the legislature clearly requires
otherwise.
habeas
Johnson v. United States, 529 U.S. 694, 701 (2000).
petitioner
has
no
federal
constitutional
right
A
to
retroactive application of more lenient state sentencing laws where
the state legislature or the state courts have indicated that the
laws are only to be applied prospectively.”); see also State v.
Whitehead, 365 N.C. 444, 447, 722 S.E.2d 492, 495 (2012) (by
providing that Structured Sentencing Act applies only to offenses
occurring on or after its effective date, North Carolina General
Assembly “clearly and unambiguously provided the [Act] may not be
applied retroactively”).
Second, the Equal Protection Clause does not prohibit the
legislature from prospectively reducing the penalty for a crime,
even if defendants sentenced for the crime prior to the effective
date of the change would serve a longer term of imprisonment than
defendants sentenced thereafter.
See Foster v. Washington State
Bd. of Prison Terms & Paroles, 878 F.2d 1233, 1235 (9th Cir. 1989)
(“There
is
no
denial
of
equal
protection
in
having
persons
sentenced under one system for crimes committed before July 1, 1984
and another class of prisoners sentenced under a different system.
The standard is of a rational relation to governmental purpose.”);
Frazier v. Manson, 703 F.2d 30, 35-36 (2d Cir. 1983) (finding no
Equal Protection violation where legislature had rational basis for
applying enlargement of good time credits prospectively); see also
Hunt v. Nuth, 57 F.3d 1327, 1335-36 (4th Cir. 1995) (upholding
under Equal Protection Clause prospective application of Maryland
-17-
law adding life without parole sentence because legislature had
rational
basis
for
such
application).
The
North
Carolina
legislature’s passage of the Justice Reinvestment Act of 2011 to
better its sentencing laws constitutes a rational governmental
purpose.
is
a
See Foster, 878 F.2d at 1235 (“Improvement in sentencing
rational
governmental
purpose.”).
As
such,
no
Equal
Protection violation occurs with prospective application of Section
15A-1340.18.
Consequently, this claim does not warrant federal habeas
corpus relief.
E.
Trial Court Sentencing Error
Petitioner contends in his fifth ground for relief that the
trial court erred at sentencing by failing to consider “at least
eight mitigating factors which clearly outweighed any aggravating
factors” in violation of N.C. Gen. Stat. § 15A-1340.16.
Entry 2 at 34.)
(Docket
Further, Petitioner asserts that “the trial court
abused its discretion by imposing a consecutive sentence on the DWI
conviction when Petitioner clearly understood that” the sentences
would
“run
concurrently.”
(Id.)
Petitioner
reiterates
his
allegation that he “was promised [a sentence] at the bottom of the
mitigated range in exchange [for] cooperation [in] a pending
criminal investigation against the Rowan County[] sheriff . . . .”
(Id.)10 However, the instant claim relies upon an alleged violation
10
Once again, Petitioner attempts to incorporate by reference additional
arguments he made in his MAR. (Docket Entry 2 at 34.) The Court, as discussed
above, will not consider such arguments in determining the merits of his instant
ground for relief. Rule 2(c), Rules Gov’g Sect. 2254 Cases in the United States
(continued...)
-18-
of a North Carolina statute, N.C. Gen. Stat. § 15A-1340.16, and
makes no colorable reference to a violation of the United States
Constitution.
As such, Petitioner’s fifth claim is simply not
cognizable on federal habeas review. See 28 U.S.C. § 2254(a) (“[A]
district court shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of
a State court only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States.”);
see also Estelle, 502 U.S. at 67 (“We have stated many times that
‘federal habeas corpus does not lie for errors of state law.’”
(quoting Lewis, 497 U.S. at 780)).
F.
MAR Court Error
Finally, Petitioner maintains that the trial court which ruled
on his MAR “wrongfully determined that [his] MAR was without merit
and denied an evidentiary hearing when [he] presented questions of
law or fact as provided by the U.S. Constitution” in violation of
N.C. Gen. Stat. § 15A-1420(c)(1).
(Docket Entry 2 at 35.)11
Petitioner's contention fails, because “[c]laims of error occurring
in a state post conviction proceeding cannot serve as a basis of
federal habeas corpus relief.”
Bryant v. Maryland, 848 F.2d 492,
493 (4th Cir. 1988); accord Lawrence v. Branker, 517 F.3d 700, 717
10
(...continued)
Dist. Courts; Adams, 897 F.2d at 333.
11
As discussed above, the Court will not consider arguments Petitioner
attempts to incorporate by reference from his MAR in determining the merits of
his instant ground for relief. Rule 2(c), Rules Gov’g Sect. 2254 Cases in the
United States Dist. Courts; Adams, 897 F.2d at 333.
-19-
(4th Cir. 2008); Wright v. Angelone, 151 F.3d 151, 159 (4th Cir.
1998).
V.
CONCLUSION
Petitioner’s habeas claims all fail as a matter of law.
IT IS THEREFORE ORDERED that Respondent’s Motion for Summary
Judgment (Docket Entry 7) be GRANTED, that Respondent’s Motion to
Expand the Record to Include Defense Counsel’s Affidavit (Docket
Entry 10) be DENIED AS MOOT, that the Petition (Docket Entry 2) be
DENIED, and that Judgment be entered DISMISSING this action without
issuance of a certificate of appealability.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
November 4, 2014
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