FRANCE v. STATE OF NORTH CAROLINA

Filing 45

MEMORANDUM OPINION AND RECOMMENDATION signed by MAG/JUDGE L. PATRICK AULD on 5/7/2015. ORDERED that Petitioner's "Motion for Leave to Expand the Record" (Docket Entry 12 ), "Motion for Leave to Invoke Discovery" (Docket E ntry 13 ), "Motion for Evidentiary Hearing and for Appointment of Counsel" (Docket Entry 14 ), "Request for Order for Production of Documents" (Docket Entry 15 ), "Request for Leave to Amend" (Docket Entry 22 ), and "Motion for Leave to Amend and Proposed Amendment" (Docket Entry 35 ) are DENIED.RECOMMENDED that Respondent's Motion for Summary Judgment (Docket Entry 8 ) be granted, that the Petition (Docket Entry 2 ) be denied, and that this action be dismissed without issuance of a certificate of appealability. (Butler, Carol)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CLOREY EUGENE FRANCE,
Petitioner,
v.
FRANK L. PERRY,1
Respondent.

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)
)
)
)
)
)
)
)

1:13CV250

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 2.)

(Docket

On March 30, 2011, in the Superior Court of Cabarrus

County, a jury found Petitioner guilty of felonious breaking or
entering, breaking or entering a motor vehicle, attempted first
degree

burglary,

possession

of

housebreaking

implements,

misdemeanor possession of stolen goods, and obtaining habitual
felon status, in cases 09 CRS 052770 and 052771.

(Docket Entry

2, ¶¶ 1, 2, 4-6; see also Docket Entry 9-2 at 178-82.)2

The

trial court sentenced Petitioner in the presumptive range as an
habitual felon to four consecutive terms of 116 to 149 months’

1
Consistent with Rule 2(a) of the Rules Governing Section 2254 Cases, the
undersigned previously deemed the Petition amended to name Kieran J. Shanahan,
then-Secretary of the North Carolina Department of Public Safety, as
Respondent. (Docket Entry 4 at 1 n.1.) Frank L. Perry currently serves in
that position, see https://www.ncdps.gov/Index2.cfm?a=000003,000008,000153,
002681 (last visited Apr. 8, 2015), and, 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), now appears as Respondent.
2

For attachments to Respondent’s memorandum in support of his instant
Motion for Summary Judgment, pin citations refer to the page number in the
footer appended to said document by the CM/ECF system.

imprisonment.

(Docket Entry 2, ¶ 3; see also Docket Entry 9-2 at

183-90.)
With the aid of appellate counsel, Petitioner appealed his
convictions (Docket Entry 2, ¶¶ 8, 9(a)-(f); see also Docket
Entries 9-2, 9-3, 9-4, 9-5), and the North Carolina Court of
Appeals

found

no

error

as

to

Petitioner’s

convictions

for

felonious breaking or entering, breaking or entering a motor
vehicle, and attempted first degree burglary, but vacated his
convictions

for

possession

of

housebreaking

implements

and

misdemeanor possession of stolen goods, State v. France, 222 N.C.
App. 635 (table), 731 S.E.2d 274 (table), No. COA12-50, 2012 WL
3573920

(Aug.

21,

2012)

(unpublished).

Petitioner

did

not

thereafter submit a certiorari petition to the North Carolina
Supreme Court.

(See Docket Entry 2, ¶ 9(g).)

Petitioner

then

filed

a

motion

for

appropriate

relief

(“MAR”) with the state trial court (Docket Entry 2, ¶ 11(a)(1)(6); see also Docket Entry 9-14), which that court denied (Docket
Entry

2,

¶

11(a)(7),

Petitioner

sought

certiorari

petition

(8);

review
in

see

of

his

the

North

also Docket
MAR’s

denial

Carolina

Entry
by

Court

9-11).

filing
of

a

Appeals

(Docket Entry 2, ¶ 11(b)(1)-(6); see also Docket Entry 9-12),
which that court denied (Docket Entry 2, ¶ 11(b)(7), (8); see
also Docket Entry 9-13).
Petitioner subsequently submitted his instant Petition to
this Court.

(Docket Entry 2.)

Respondent moved for summary

judgment on the merits (Docket Entry 8) and Petitioner responded
-2-

in opposition (Docket Entry 11), and also filed a “Motion for
Leave to Expand the Record” (Docket Entry 12), “Motion for Leave
to Invoke Discovery” (Docket Entry 13), “Motion for Evidentiary
Hearing

and

for

Appointment

of

Counsel”

(Docket

Entry

14),

“Request for Order for Production of Documents” (Docket Entry
15),

“Motion

for

Mandamus”

(Docket

Entry

16),

“Petitioner’s

Request for Leave to Amend” (Docket Entry 22), “Petitioner’s
Request for Leave for Modification of the Record” (Docket Entry
28), “Petitioner’s Motion for Court Order for the Release of
Documents” (Docket Entry 29), “Petitioner’s Motion for Leave to
Amend and Proposed Amendment” (Docket Entry 35), and “Motion for
Leave

to

File

Supplemental

Citations,

Authorities

and

Supplemental Memorandum” (Docket Entry 36).
In

previous

orders,

the

undersigned

denied

Petitioner’s

“Motion for Mandamus” (see Docket Entry 17 (denying Docket Entry
16)),3 denied as moot “Petitioner’s Motion for Court Order for
the Release of Documents” (see first Text Order dated Mar. 31,
2015

(denying

Docket

Entry

29)),

and

granted

“Petitioner’s

Request for Leave for Modification of the Record” (see second
Text Order dated Mar. 31, 2015 (granting Docket Entry 28)), the
last of which permitted Petitioner to supplement the record in

3

Petitioner objected to the order denying his Motion for Mandamus (see
Docket Entry 18 (“Notice of Appeal”); Text Order dated Dec. 4, 2013
(construing Docket Entry 18 as objections to the order denying mandamus and
directing Petitioner to file a supplemental memorandum setting out the grounds
on which he objected); Docket Entry 20 (Petitioner’s “Supplemental Memorandum”
regarding objections)), and then unsuccessfully appealed to the United States
Court of Appeals for the Fourth Circuit the District Judge’s subsequent order
denying Petitioner’s objections (see Docket Entries 23, 27, 30-33).
-3-

the instant case with a copy of the trial court transcript from a
hearing on August 26, 2010, on Petitioner’s motions to quash, for
bond reduction and to suppress (see Docket Entry 28 at 4-61).
Additionally, the undersigned denied in part, found moot in part,
and

granted

in

part

Petitioner’s

“Motion

for

Leave

to

File

Supplemental Citations, Authorities and Supplemental Memorandum”
(Docket

Entry

36),

and

struck

as

unauthorized

“Supplemental Memorandum” (Docket Entry 37).

Petitioner’s

(See third Text

Order dated Mar. 31, 2015.)4
Motion for Leave to Expand the Record
Petitioner seeks to expand the record under Rule 7 of the
Rules Governing Section 2254 Cases by inclusion of the following
materials:

(1)

reporting

officer

narrative

(“Narrative”) (see

Docket Entry 11 at 41-42); (2) photocopy of a hand print lifted
by Cabarrus County Sheriff’s Detective Mitch Queen (see id. at
43-44); (3) notes from interview of Cabarrus County Sheriff’s
Deputy Eugene Roberts (see id. at 45); (4) notes from interview
of victim Michelle Furr (see id. at 66); (5) investigative file
report (see id. at 46-47); (6) felony case summary (see id. at
48); (7) transcript of officers’ radio transmissions (see id. at
56-64); (8) certificate of request for and delivery of August 26,
2010,

pre-trial

hearings

transcripts

(see

id.

at

65);

(9)

4
The undersigned also struck as unauthorized Petitioner’s first
“Supplemental
Memorandum”
(Docket
Entry
34)
and
third
“Supplemental
Memorandum” (Docket Entry 39) and denied Petitioner’s request to consider
those documents appearing in his letter motion (Docket Entry 38). (See Text
Order dated Apr. 13, 2015.)

-4-

transcript of victim Michelle Furr’s 911 call (see id. at 49-55);
(10) victim Darren Furr’s statement to Detective Queen (see id.
at 67-73); and (11) attorney/client correspondence from April 1,
2011, through July 21, 2012 (see, e.g., Docket Entry 2-3 at 910).

(Docket Entry 12 at 1-2.)

For the reasons that follow, the

undersigned will deny Petitioner’s Motion for Leave to Expand the
Record.
Rule 7 of the Rules Governing Section 2254 Cases provides
that, “[i]f the petition is not dismissed, the judge may direct
the

parties

to

expand

the

record

materials relating to the petition.”

by

submitting

additional

When a petitioner seeks to

introduce evidence pursuant to Rule 7, he must meet the same
conditions

prescribed

evidentiary

hearing.

652–53

(2004)

(per

by

§

2254(e)(2)

See Holland
curiam)

v.

for

Jackson,

(recognizing

that

obtaining
542
§

U.S.

an
649,

2254(e)(2)’s

“restrictions apply a fortiori when a prisoner seeks relief based
on

new

evidence

Bradshaw v.

without

Richey,

appellate

court

presented

to

546

erred

state

an
U.S.

by

courts

evidentiary
74,

79

hearing”);

(2005)

relying

on

without

first

see

(holding

evidence

not

determining

also

federal
properly
whether

habeas petitioner had met § 2254(e)(2) criteria).
“Under the opening clause of § 2254(e)(2), a failure to
develop the factual basis of a claim is not established unless
there is lack of diligence, or some greater fault, attributable
to the prisoner or the prisoner’s counsel.”

Williams v. Taylor,

529 U.S. 420, 429–32 (2000); see also Wolfe v. Johnson, 565 F.3d
-5-

140, 167 (4th Cir. 2009) (applying Williams standard to review
denial of evidentiary hearing).
opening

clause

depends

upon

“Diligence for purposes of the
whether

the

prisoner

made

a

reasonable attempt, in light of the information available at the
time, to investigate and pursue claims in state court; it does
not depend . . . upon whether those efforts could have been
successful.”

Williams, 529 U.S. at 435.

If a habeas petitioner has failed to develop the factual
basis of his claim in the state court proceedings, he must show
either that his claim relies upon “a new rule of constitutional
law, made

retroactive

to cases

on

collateral review,”

or

“a

factual predicate that could not have been previously discovered
through the exercise of due diligence,” § 2254(e)(2)(A), and that
the evidence clearly and convincingly establishes “that but for
constitutional error, no reasonable fact-finder would have found
[him] guilty,” 28 U.S.C. § 2254(e)(2)(B).
As

an

initial

matter,

with

respect

to

the

Narrative,

investigative file report, and the transcript of the 911 call,
those matters already constitute part of the record before the
state court.
23

(See Docket Entry 9-9 at 81-82, 88 (911 call); 120-

(investigative

(Narrative).)

file

report);

Docket

Entry

9-10

at

61-64

Thus, no need exists to “expand” the record to

include such materials, and the undersigned will deny as moot
Petitioner’s request to add those items to the record.
As to the remaining items at issue, the record establishes
that

Petitioner

failed

to

develop
-6-

the

state

court

record.

Petitioner either already possessed, or had access through his
stand-by trial and/or appellate counsel to, such items prior to
the date on which he filed his MAR in the state trial court
(December 21, 2012 (see Docket Entry 9-14 at 2 (reflecting date
MAR filed)).
letter

(See Docket Entry 2-2 at 14 (February 2, 2010

from

prosecutor

to

Petitioner

regarding

disclosure

of

radio transmissions and 911 call), 17 and 20 (September 30, 2009
and September 22, 2010 letters from prosecutor to Petitioner
regarding disclosure of felony case summary), 19 (February 3,
2010 letter from prosecutor to Petitioner regarding disclosure of
notes from interview of Deputy Roberts); Docket Entry 11 at 65
(court reporter’s certification regarding August 26, 2010 hearing
transcript provided to stand-by counsel on March 1, 2011); Docket
Entry 9-14 at 23 (Petitioner’s MAR argument demonstrating his
awareness

of

his

correspondence

with

appellate

counsel),

26

(Petitioner’s MAR argument specifically referencing notes from
interview

of

Michelle

Furr),

28

(Petitioner’s

MAR

argument

expressly referencing Darren Furr’s statement), 31 (Petitioner’s
MAR argument referencing photograph of hand print he received in
discovery).

Notwithstanding his possession of (or access to)

those items, Petitioner failed to submit them to the MAR court or
otherwise ensure that such materials became a part of the state
court

record.

(See

Docket

Entries

9-2,

9-12,

9-14.)

Petitioner’s omission of those items from the state court record
constitutes
underlying

a

failure

claims

in

to
the

develop
state
-7-

the

court

factual

basis

proceedings,

28

of

his

U.S.C.

§ 2254(e)(2).

See Swann v. Taylor, No. 98-20, 1999 WL 92435, at

*8

Feb.

(4th Cir.

18, 1999)

(unpublished)

(finding

that the

petitioner “failed to develop the factual basis of his . . .
claim within the meaning of § 2254(e)(2), because he did not
present the [new evidence] at any point during the proceedings in
the state courts” and further finding “no basis upon which to
conclude that the state courts . . . denied [the petitioner] the
opportunity to offer the [evidence] or otherwise develop the
factual basis of his claim” (internal quotation marks omitted));
Waters v. Clark, No. 2:11cv630, 2012 WL 4498914, at *15 (E.D. Va.
Sept.

28,

2012)

“failed to

(unpublished)

diligently

(holding

develop the

record

that
in

the
the

petitioner
state

court

proceedings because he apparently had in his possession several
pieces of evidence in support of his habeas claims that he did
not present to the state court — namely, the majority of the
exhibits

attached

to

[the

petitioner’s]

improperly

filed

supplemental brief”).
Accordingly,

Petitioner

may

expand

the

record

with

his

requested materials only if he can make the showing required by
28 U.S.C. § 2254(e)(2)(A) and (B).

Here, Petitioner has neither

argued that his claims depend on a new, retroactive rule of
constitutional

law,

nor

factual

asserted

discovered

the

predicate

diligence.

(See Docket Entry 12.)

that
of

he

such

could
claims

not
with

have
due

Indeed, a review of Grounds

One through Nine in the instant Petition reveals that none of
those grounds rely upon a new, retroactive constitutional rule,
-8-

and that Petitioner possessed awareness of the factual predicates
of those grounds, at the latest, as of the completion of his
trial (Grounds Two through Nine), or as of the conclusion of his
direct appeal (Ground One).
Accordingly, the undersigned will deny Petitioner’s Motion
for Leave to Expand the Record.
Motions to Amend the Petition
On March 31, 2015, the undersigned allowed Petitioner 30
days to file a supplemental memorandum addressing the timeliness
of the proposed amendments to the Petition in his “Request for
Leave to Amend” (Docket Entry 22) and “Motion for Leave to Amend
and Proposed Amendment” (Docket Entry 35).
dated Mar. 31, 2015.)5

(See third Text Order

In Petitioner’s Supplemental Memorandum

5
In the first of those filings, Petitioner sought to amend the instant
Petition by adding new Grounds Ten and Eleven. (Docket Entry 22 at 4-6, 8.) Via
Ground Ten, Petitioner alleges that the trial court violated his Sixth Amendment
rights to a fair trial and due process by denying or dismissing his pre-trial and
trial motions to suppress/exclude evidence, dismiss charges, for a continuance,
and to compel discovery. (Id. at 4-6.) In Ground Eleven, Petitioner contends
that the North Carolina Court of Appeals violated his rights under the Fifth,
Sixth, and Fourteenth Amendments by dismissing, denying, or ignoring Petitioner’s
pro se motions and correspondence. (Id. at 8.) Petitioner’s other above-cited
filing proposes to amend existing Grounds Three and Four of the Petition.
(See Docket Entry 35 at 2 (seeking to amend Ground Three with a claim that trial
court violated the Confrontation Clause by denying Petitioner’s right to
effectively cross-examine victim Darren Furr and by admitting testimony regarding
a latex glove without admitting the glove itself, and to amend Ground Four with
a claim that the state violated Petitioner’s Fifth and Sixth Amendment rights to
due process and a fair trial by failing to allow Petitioner to view, inspect, or
test the latex glove prior to presenting testimony about the glove).) However,
Petitioner makes no argument that those proposed amendments to Grounds Three and
Four should “relate back” to the filing date of the initial Petition because they
arise out of the same transaction or occurrence. (See id.; see also Fed. R. Civ.
P. 15(c)(1)(B) (providing that relation-back doctrine only saves “a claim or
defense that arose out of the conduct, transaction, or occurrence set out — or
attempted to be set out — in the original pleading”.) Moreover, after a review
of Grounds Three and Four and the corresponding proposed amendments to those
grounds (compare Docket Entry 2 at 8, 10, with Docket Entry 35 at 2), the
undersigned finds no such connection. Mayle v. Felix, 545 U.S. 644, 664 (2005)

-9-

Addressing Timeliness of Proposed Amendments to § 2254 Petition
(Docket Entry 44), he tacitly conceded the untimeliness of his
proposed amendments, and focused his arguments instead on various
grounds on which the Court should consider his amendments despite
their

untimeliness.

In

other

words,

Petitioner

impliedly

requested equitable tolling, which doctrine the Supreme Court has
ruled applicable in this context.
U.S.

631,

petitioner

634

(2010).

“shows

See Holland v. Florida, 560

Equitable

‘(1)

that

he

tolling

has

been

may

apply

pursuing

when

his

a

rights

diligently, and (2) that some extraordinary circumstance stood in
his way’ and prevented timely filing.”

Id.

(quoting Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005)).
Here,

Petitioner

argues

his

ignorance

of

the

law

as

a

“layman,” his lack of access to a law library or assistance from
North Carolina Prisoner Legal Services (“NCPLS”), his indigence,
and his “diagnosed mental illness complications and/or illness”
ought to toll the one-year statute of limitations.
Entry 44 at 2-3.)
Unfamiliarity

(See Docket

Petitioner’s arguments lack merit.
with

the

legal

process

and

lack

of

legal

representation do not constitute grounds for equitable tolling.

(holding that, in the context of a habeas petition, “conduct, transaction, or
occurrence” does not mean a petitioner’s entire trial or sentencing); Ingram v.
Buckingham Corr. Ctr., No. 3:09CV831, 2011 WL 836826, at *7 (E.D. Va. Mar. 4,
2011) (unpublished) (“[I]t is not sufficient that the new claim simply has the
same form as the original claims . . . . Thus, ‘a petitioner does not satisfy
the Rule 15 ‘relation back’ standard merely by raising some type of ineffective
assistance in the original petition, and then amending the petition to assert
another ineffective assistance claim based upon an entirely distinct type of
attorney misfeasance.’” (quoting United States v. Ciampi, 419 F.3d 20, 24 (1st
Cir. 2005))).
-10-

United

States

Further,

under

v.

Sosa,

Bounds

364
v.

F.3d

Smith,

507,
430

512

(4th

Cir.

U.S.

817,

828

2004).
(1977),

overruled on other grounds by Lewis v. Casey, 518 U.S. 343, 354
(1996), the state has an obligation to provide either prison law
libraries or assistance from persons trained in the law.

Because

inmates in this State have access to NCPLS, the state has no
legal obligation to provide law libraries for its inmates.
Burgess
(M.D.N.C.

v.

Herron,
Nov.

2,

No.

1:11CV420,

2011)

2011

WL

(unpublished).

5289769,
In

that

at

See
*2

regard,

Petitioner’s conclusory assertion that NCPLS did not aid him by
“providing legal information” or “staff attorneys for the filing
of § 2254 habeas corpus petitions” (see Docket Entry 44 at 2)
does not suffice to demonstrate an “extraordinary circumstance”
preventing timely filing, Holland, 430 U.S. at 634.

Petitioner

does not even assert that he ever contacted NCPLS for assistance
with

the

instant

Petition,

much

less

that

NCPLS

ignored

or

declined his request for assistance (see Docket Entry 44), but
such claims generally will not support an equitable tolling claim
in any event.

Hood v. Jackson, No. 5:10-HC2008-FL, 2010 WL

4974550, at *2 (E.D.N.C. Dec. 1, 2010) (unpublished) (citing
cases); Dockery v. Beck, No. 1:02CV00070, 2002 WL 32813704, at *2
(M.D.N.C. August 1, 2002) (Beaty, J., adopting recommendation of
Eliason, M.J.) (unpublished).6

6

Of course, a failure to at least attempt to utilize this resource would
constitute a lack diligence on Petitioner’s part.
-11-

Finally,

courts

have

held

that

mental

incompetency

can

warrant equitable tolling; however, a petitioner’s mental illness
must not have merely lessened his ability to file or made filing
difficult,

but

must

have

actually

prevented

him

understanding his legal rights and acting on them.

from

Rhodes v.

Senkowski, 82 F. Supp. 2d 160, 168-69 (S.D.N.Y. 2000) (collecting
cases).

“As a general matter, the federal courts will apply

equitable tolling because of a petitioner’s mental condition only
in

cases

of

profound

mental

incapacity,”

such

as

where

a

petitioner is institutionalized or adjudged mentally incompetent.
Sosa, 364 F.3d at 513.

Simply having a mental illness and taking

medications

suffice.

does

not

Id.

allegations meet a petitioner’s burden.
at 172.

Nor

will

conclusory

Rhodes, 82 F. Supp. 2d

Here, Petitioner has neither alleged any specific mental

condition nor made any showing that any such condition actually
prevented him from understanding his legal rights and acting on
them.

Petitioner’s

failure

to

make

that

showing

carries

heightened significance where, as here, he managed to file the
instant Petition containing nine grounds for relief and multiple
other motions and filings despite any mental limitations.
In sum, the undersigned will deny “Petitioner’s Request for
Leave to Amend” (Docket Entry 22) and “Petitioner’s Motion for
Leave to Amend and Proposed Amendment” (Docket Entry 35), as the
untimeliness
futile.

of

the

amendments

contained

therein

render

them

See Woodruff v. Warden of Perry Corr. Inst., Civ. Action

No. 9:07–2739–PMD–GCK, 2008 WL 4200291, at *5 (D.S.C. Sept. 8,
-12-

2008)

(unpublished)

(“[The][p]etitioner’s

proposed

new

claim

. . . is clearly devoid of legal merit, and allowing him leave to
amend his § 2254 petition to add such a claim would be futile.
Therefore, [his] Motion to Amend is denied.”).
Facts
The facts of the case, as set out in the North Carolina
Court of Appeals’s opinion on Petitioner’s direct appeal, are as
follows:
[I]n the early morning hours of 20 August 2009, Darren
and Michelle Furr awoke to the sound of ringing chimes,
which indicated that the door to their detached garage
was opened. Mrs. Furr called 911 and went to a window
which faced the driveway in the front of her house. As
she arrived at the window, she heard a rattling sound
that appeared to come from the door leading to another
garage which was attached to their house. Through the
window, Mrs. Furr saw a man, later identified as
[Petitioner], reaching into the passenger side of her
Chevrolet Suburban. [Petitioner] ran when Mrs. Furr
attempted to open the window, and Mr. Furr and his son
chased after him. Mr. Furr lost sight of [Petitioner],
but responding officers located [Petitioner] in a tree
in the front yard of a nearby house and took him into
custody.
France, 2012 WL 3573920, at *1.
Grounds for Relief
Petitioner raises nine grounds for relief in his Petition.
He

alleges

that

(1)

Petitioner’s

appellate

counsel

provided

constitutionally ineffective assistance by failing “to raise any
and all grounds upon first appeal,” by failing to obtain a pretrial motion hearing transcript, and by “waiv[ing] Petitioner’s
statutory

rights

to

withdraw

his

appeal

against

Petitioner’s

instructions” (Docket Entry 2 at 5; see also Docket Entry 11 at
-13-

2-10); (2) the “arresting and complaining officers both knowingly
and/or in deliberate disregard for the truth supplied the issuing
magistrate false information and/or falsified evidence in the
complaint in order to establish probable cause for issuance of
warrants for Petitioner’s arrest” in violation of the Fourth
Amendment (Docket Entry 2 at 6; see also Docket Entry 11 at 1215); (3) the trial court violated the Confrontation Clause of the
Sixth Amendment by proceeding to trial in the absence of an
arresting officer and by admitting hearsay testimony from seven
state

witnesses

regarding

the

arresting

officer’s

statements

(Docket Entry 2 at 8; see also Docket Entry 11 at 16-17); (4) the
state violated Petitioner’s rights under the Fifth and Sixth
Amendments

by

failing

to

provide

Petitioner

with

fingerprint

evidence and complete radio transmissions, photographs, and video
footage from the arresting officer’s vehicle, by “provid[ing]
false

and/or

evidence,”

fabricated

and

by

material

“fail[ing]

to

statements
disclose

of

the

fact

use

and/or

of

expert

testimony” (Docket Entry 2 at 10; see also Docket Entry 11 at 1922);

(5)

the

state

violated

Petitioner’s

Fifth

and

Sixth

Amendment rights by “prosecuting him without probable cause to
believe he committed the offenses charged” (Docket Entry 2 at 12;
see

also

Docket

Petitioner’s
“impermissibly

Entry

Fifth

11

at

Amendment

suggestive

23-24);
due

(6)

process

identification

the

state

rights

by

procedures”

violated
use

of

(Docket

Entry 2 at 14; see also Docket Entry 11 at 25-27); (7) the state
violated Petitioner’s Fifth and Sixth Amendment rights to a fair
-14-

trial and due process by presenting the “perjured testimony” of
an

officer

to

also Docket

the

Entry

grand
11

jury

at

(Docket

28-31);

Entry

(8)

the

2

at

state

16;

see

violated

Petitioner’s Sixth Amendment right to a speedy trial (Docket
Entry 2 at 18; see also Docket Entry 11 at 32-34); and (9) “the
cumulative

affect

irrelevant

or

[sic]

otherwise

of

perjured,

inadmissible

prejudicial,
testimony

or

hearsay,
evidence”

admitted by the trial court violated Petitioner’s Fifth and Sixth
Amendment rights to due process and a fair trial (Docket Entry 2
at 20; see also Docket Entry 11 at 35-37).
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.”

28 U.S.C. § 2254(a).

Further, “[b]efore

[the] [C]ourt may grant habeas relief to a state prisoner, the
prisoner must exhaust his remedies in state court.
words,

the

state

prisoner

must

give

the

state

In other
courts

an

opportunity to act on his claims before he presents those claims
to [this] [C]ourt in a habeas petition.

The exhaustion doctrine

. . . is now codified at 28 U.S.C. § 2254(b)(1).”

O’Sullivan v.

Boerckel,

28

526

U.S.

838,

842

(1999);

see

also

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.”).
-15-

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
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 [or] . . . confront[] facts
that are materially indistinguishable from a relevant [United
States] Supreme Court precedent and arrive[] at a result opposite
to that reached by [the United States Supreme Court].”
v. Taylor, 529 U.S. 362, 405 (2000).

Williams

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”).

-16-

Discussion
I.

Ground One
Petitioner

first

maintains

that

his

appellate

counsel

provided constitutionally deficient performance.

(Docket Entry 2

at

In

5;

see

also

Docket

Entry

11

at

2-10.)

particular,

Petitioner alleges that his appellate counsel refused to “raise
any and all grounds on first appeal against Petitioner’s specific
instructions.”
2-5, 8-10.)
his

(Docket Entry 2 at 5; see also Docket Entry 11 at

Although Petitioner did not specify which grounds

appellate

counsel

should

have

raised

in

the

“Supporting

Facts” section of Ground One (see Docket Entry 2, ¶ 12 (Ground
One)

(a)),

for

each

of

Petitioner’s

subsequent

grounds,

he

indicated that he did not raise those issues on direct appeal
because his appellate counsel refused to investigate or raise the
issues after being instructed to do so by Petitioner (see id., ¶
12 (Ground Two) (c)(2), (Ground Three) (c)(2), (Ground Four)
(c)(2), (Ground Five) (c)(2), (Ground Six) (c)(2), (Ground Seven)
(c)(2), (Ground Eight) (c)(2), (Ground Nine) (c)(2)).

Thus, the

Court should construe his Petition to assert Grounds Two through
Nine as

issues

direct appeal.7

that

appellate

counsel

should

have

raised

on

According to Petitioner, his appellate counsel’s

7
In Petitioner’s response in opposition to the instant summary judgment
motion, he describes additional arguments he contends his appellate counsel
should have raised on direct appeal. (Compare Docket Entry 2 at 5, 6, 8, 10,
12, 14, 16, 18, 20, with Docket Entry 11 at 9.) However, a summary judgment
response “is not the proper place to raise new facts. Under Rule 2(c) of the
Rules Governing Section 2254 Cases, a petitioner must set forth in his
petition ‘the facts supporting each ground’ for relief.” Velasquez v. Gipson,
No. SA CV 12-1078(JSL), 2013 WL 3381371, at *9 n.4 (C.D. Cal. July 8, 2013)
(unpublished) (emphasis added); see also Quackenbush v. Tilton, No.

-17-

“failure

to

raise

a

single

issue

in

challenge

to

[his]

convictions for attempted first degree burglary, breaking and
entering, and breaking and entering a motor vehicle, essentially
constituted

counsel

conceding

Petitioner’s

guilt

in

matters, against Petitioner’s instructions . . . .”
Entry

11

at

3.)

Additionally,

Petitioner

argues

these
(Docket

that

his

appellate counsel failed to obtain a transcript of the August 26,
2010, hearing before the trial court on Petitioner’s motions to
quash,

for

Petitioner’s
Petitioner’s

bond

reduction,

statutory

rights

instructions.”

and
to

to

suppress,

withdraw

(Docket

also Docket Entry 11 at 2, 8, 9, 10.)

his

Entry

and

“waived

appeal

against

2

5;

at

see

Petitioner’s arguments

lack merit.
Petitioner presented the substance of this ground to the
state trial court in his MAR.
23-24.)

(See Docket Entry 9-14 at 4, 13,

That court denied the claim on the merits as follows:

The court has reviewed the excellent appellate brief
filed by [Petitioner’s appellate counsel], and the
court finds that she correctly briefed and argued the
only appropriate assignments of error. As a result of
her efforts, [Petitioner’s] sentence was shortened by a
minimum of 116 months and a maximum of 149 months.
[Petitioner] in his motion contends incorrectly that
[his appellate counsel] should have briefed and argued
numerous other points – none of which were supported by
the evidence. [Petitioner’s] contention that he was
afforded ineffective assistance of counsel on appeal by

07CV413W(WMC), 2008 WL 183710, at *6 (S.D. Cal. Jan. 18, 2008) (unpublished)
(“Facts must be stated, in the petition, with sufficient detail to enable the
Court to determine, from the face of the petition, whether further habeas
corpus review is warranted. Moreover, the allegations should be sufficiently
specific to permit the respondent to assert appropriate objections and
defenses.” (internal citations omitted) (emphasis in original)).
-18-

[his appellate counsel’s] refusing to raise certain
issues is without merit.
[Petitioner’s appellate
counsel] briefed and argued the points that she should
have, and correctly refused to brief what she should
not have. The court finds that he received outstanding
assistance of counsel in the Court of Appeals.
(Docket Entry 9-11 at 3.)
Under

these

circumstances,

this

Court

must

Section 2254(d)’s highly deferential standard of review.

apply
In that

regard, the trial court’s order denying Petitioner’s parallel
ineffective

assistance

of

appellate

counsel

claim

neither

resulted in a decision contrary to, nor involved an unreasonable
application of, clearly established federal law.8
prove ineffective

assistance

of

appellate

In order to

counsel,

Petitioner

must satisfy the standard set forth in Strickland v. Washington,
466 U.S. 668 (1984).
(1986)

(applying

See Smith v. Murray, 477 U.S. 527, 535-36

Strickland

standard

to

claim

of

appellate

ineffective assistance); Bell v. Jarvis, 236 F.3d 149, 164 (4th
Cir. 2000) (en banc) (same).

More specifically, Petitioner must

show that (1) his appellate counsel’s performance fell below an
objective

standard

of

reasonableness;

and

(2)

the

deficient

performance prejudiced Petitioner, i.e., a reasonable probability
that, but for his appellate counsel’s unprofessional errors, the
result of the proceeding would have changed.
U.S. at 678-88, 694.
have

rendered

See Strickland, 466

Further, “counsel is strongly presumed to

adequate

assistance

8

and

made

all

significant

Petitioner has not alleged (and the Court has not identified) any
unreasonable fact-finding by the trial court in denying Petitioner’s
ineffective assistance of appellate counsel claim.
-19-

decisions in the exercise of reasonable professional judgment.”
Id. at

690.

“decided

Courts likewise

which

appeal.”

issues

were

presume that

most

likely

appellate

to

afford

counsel

relief

on

Pruett v. Thompson, 996 F.2d 1560, 1568 (4th Cir.

1993).
The state trial court neither contradicted nor unreasonably
applied Strickland in denying Petitioner’s ineffective assistance
of appellate counsel claim.

As discussed in more detail below,

Petitioner’s

his

claim

that

appellate

counsel

provided

ineffective assistance by not presenting Grounds Two through Nine
on appeal fails, because those grounds themselves lack merit.
See Carter v. Lee, No. 99–10, 202 F.3d 257 (table), 1999 WL
1267353,

at

*11

(4th

Cir.

Dec.

29,

1999)

(unpublished)

(“Appellate counsel [is] not ineffective for failing to raise [an
issue] on appeal [that] is plainly without merit.”); Walker v.
Hall, No. 1:11CV128, 2014 WL 7272812, at *9 n.11 (M.D.N.C. Dec.
18,

2014)

(unpublished)

(“Petitioner’s

related

ineffective

assistance of appellate counsel claim also lacks merit, given the
. . . patent deficiency of his underlying allegations . . . .”),
appeal

dismissed,

WL

1798925

(4th

Ellison

(unpublished);

2015

Cir.

v.

United

States,

Apr.

Nos.

21,

2015)

3:07CR30RJC,

3:10CV207RJC, 2013 WL 2480654, at *3 (W.D.N.C. June 10, 2013)
(unpublished) (“[A]ny arguments made by counsel along the lines
suggested
Petitioner

by

Petitioner

has

failed

would
to

have

establish

been
a

futile.

prima

facie

Therefore,
claim

of

ineffective assistance of counsel.”); Walker v. United States,
-20-

Civ. No. WDQ–10–2739, Crim. No. WDQ–07–0146, 2011 WL 4103032, at
*3 (D. Md. Sept. 9, 2011) (unpublished) (ruling that where an
argument

“would

have

been

futile

[a

defendant’s]

appellate

counsel was not ineffective for failing to raise it”).
Petitioner contends in his second ground for relief that
“the

arresting

unconstitutional

and

complaining

seizure

of

his

officers”

person”

in

committed
violation

“an

of

the

Fourth Amendment by “knowingly and/or in deliberate disregard for
the

truth

suppl[ying]

the

issuing

magistrate

with

false

information and/or falsified evidence in the complaint in order
to

establish

probable

(Docket Entry 2 at 6.)

cause for

.

. .

Petitioner’s

arrest.”

More specifically, Petitioner points to

three inconsistencies between the information in the Narrative,
and the testimony of various state’s witnesses at trial:
(1) the Narrative reflects that the victims observed the
suspect entering one of their motor vehicles in the garage (see
Docket Entry 11 at 41), whereas the testimony of victim Michelle
Furr (see Docket Entry 9-9 at 68-70, 73-74, 91), victim Darren
Furr (see id. at 97-98, 100, 120-22), Deputy Roberts (see Docket
Entry 9-10 at 27), and Detective Mitch Queen (see id. at 34),
indicates that the suspect entered the vehicle in question in the
driveway (Docket Entry 11 at 12-14);
(2)

the

Narrative

states

that

Darren

Furr

and

his

son

“observed the suspect flee the scene on foot” (see Docket Entry
11 at 41), but, according to Petitioner, Darren Furr “testified
that by the time he had exited the residence, he didn’t know
-21-

where the suspect went; he ‘guessed’ the suspect ran east from
the residence; he did not see the suspect anywhere in sight;
thinks the suspect had to come around the back of the residences”
(id. at 15-16 n.2; see also Docket Entry 9-9 at 98-99, 109-12));
and
(3) the Narrative indicates that Darren and Michelle Furr
identified keys found on the suspect as keys stolen from them
during a previous breaking and entering of their motor vehicle
(Docket Entry 11 at 41), but those individuals testified that
they did not identify any keys on the night in question (Docket
Entry 11 at 13; see also Docket Entry 9-9 at 74-75, 90-91, 11920).
As

an

initial

matter,

Petitioner’s

allegations

do

not

establish that the Narrative contains perjured statements (much
less

that

any

magistrate).
on

gave

any

perjured

testimony

to

a

Deputy Roberts prepared the Narrative based in part

information

Sheriff’s

officer

provided

Deputy

Kevin

by

the

victims

Klinglesmith

to

during

Cabarrus
the

County

immediate

aftermath of the crimes and before the arrest of Petitioner.
(See

Docket

Entry

11

at

41

(reflecting

initial

dispatch

of

deputies at 4:45 a.m. on August 20, 2009, first deputy in-person
contact with victims at 4:49 a.m., and report time of Narrative
at

6:23

a.m.).)

As

such,

the

inconsistencies

alleged

by

Petitioner could simply constitute the result of a mistake or a
faulty memory of the victims’ accounts.

(See Docket Entry 9-9 at

123 (trial court sustaining state’s objection to Petitioner’s use
-22-

of inconsistencies in Narrative to cross-examine victim Darren
Furr and noting that “the officers may have mistaken what [Darren
Furr]

said”

(emphasis

(testimony

of

mistakenly

added);

Detective

transcribed

Docket

in

Sergeant

Entry

Pfister

computer

9-10

that

automated

at

911

38-41

operator

display

(“CAD”)

report that suspect entered victims’ motor vehicle in garage
rather than driveway)); see also United States v. Mount, 896 F.2d
612, 624 (1st Cir. 1990) (holding that the petitioner did not
establish

inaccurate

testimony

of

agent

amounted

to

perjury,

where the petitioner failed to show that agent “did not believe
what he said to be true”); United States v. Williamson, No.
1:06CR474,

2012

WL

1657929,

at

*3

(M.D.N.C.

May

11,

2012)

(unpublished) (recognizing that “an inconsistency can result from
innocent mistake or failed recollection rather than falsity”).
Even

if

Petitioner

inconsistencies
demonstrated

between

perjured

could
the

establish

Narrative

statements

in

the

and

that

the

trial

Narrative

alleged
testimony

(and

to

a

magistrate), he cannot demonstrate prejudice arising from any
such perjury.

The jury’s guilty verdicts on all of the charged

offenses render harmless any allegedly perjured statements made
by officers to establish probable cause for Petitioner’s arrest
warrant.

See United States v. Mechanik, 475 U.S. 66, 70 (1986)

(declining to grant habeas relief arising from grand jury defect
because “the petit jury’s subsequent guilty verdict means not
only that there was probable cause to believe that the defendants
were guilty as charged, but also that they are in fact guilty as
-23-

charged beyond a reasonable doubt”); United States v. Masiarczyk,
1 F. App’x 199, 213-14 (4th Cir. 2001) (concluding that, “even if
[the agent’s] grand jury testimony was inaccurate or false, that
falsity

provides

convictions”
subsequently

no

and

basis

holding

convicted

for

reversing

[the

“because

the

that

[the

defendants]

beyond

defendants’]
petit
a

jury

reasonable

doubt, any error in their grand jury proceedings is harmless”);
United States v. Colon–Munoz, 192 F.3d 210, 218–19 (1st Cir.
1999) (relying upon Mechanik and stating that “any error in the
charging decision of the grand jury was rendered harmless by the
verdict”);

Mount,

896

F.3d

at

624

(holding

that

“[w]itness

perjury in establishing probable cause becomes harmless after the
rendition of a guilty verdict unless prosecutorial misconduct is
so ‘serious and blatant’ as to ‘distort[] the integrity of the
judicial process’” (quoting United States v. Bucci, 839 F.2d 825,
831 (1st Cir. 1988), in turn, quoting United States v. Ogden, 703
F.2d 629, 636 (1st Cir. 1983)).

In fact, on cross-examination,

Petitioner questioned Cabarrus County Detective Sergeant Kevin
Pfister
Narrative

about
(see

some

of

Docket

the

alleged

Entry

9-10

inconsistencies

at

212-15),

and

in
the

the
jury

nevertheless found sufficient evidence to find Petitioner guilty
beyond a reasonable doubt on all charges.
App’x at

213

(rejecting

testimony

prejudiced

the

claim

that

defendants

See Masiarczyk, 1 F.

agent’s
in

part

false

grand

because

jury

“defense

counsel thoroughly cross-examined [the agent] at trial on this
issue”).
-24-

Accordingly,

the

state

trial

court

did

not

unreasonably

apply or contradict clearly established federal law in ruling
that Petitioner’s

ineffective

assistance

of

appellate

counsel

claim premised on counsel’s failure to present the substance of
Ground Two on direct appeal lacked merit.
In Ground Three, Petitioner asserts that the trial court
violated

the

proceeding

to

Confrontation
trial

in

Clause

the

of

absence

the
of

Sixth

one

of

Amendment
the

by

arresting

officers, Deputy Klinglesmith, and by permitting several state’s
witnesses to testify about Deputy Klinglesmith in his absence.
(Docket Entry 2 at 8; see also Docket Entry 11 at 16-18 (citing
Docket Entry 9-9 at 74, 101, 109, 113, 114; Docket Entry 9-10 at
17).)

According

to

Petitioner,

“Deputy

Klinglesmith

was

an

accusatory witness,” giving Petitioner “the constitutional right
to confront him.”

(Docket Entry 11 at 17.)

Petitioner’s assertion that the trial court violated the
Confrontation Clause fails as a matter of law.

Although the

Confrontation Clause of the Sixth Amendment guarantees a criminal
defendant the right “to be confronted with the witnesses against
him,” U.S. Const. amend. VI, “[t]he main and essential purpose of
confrontation is to secure for the opponent the opportunity of
cross-examination,” Davis v. Alaska, 415 U.S. 308, 315-16 (1974)
(internal
added).

quotation

marks

and

citation

omitted

and

emphasis

Here, the record reflects that Deputy Klinglesmith’s

long-planned honeymoon in Mexico prevented him from attending
Petitioner’s trial.

(See Docket Entry 9-10 at 17.)
-25-

Further, the

state did not seek to introduce any prior testimony of Deputy
Klinglesmith in his absence, such as grand jury testimony or the
Narrative

containing

Deputy

Klinglesmith’s

from his interview of the victims.
141;

Docket

transcript

Entry
pages

9-10
cited

at

derived

(See Docket Entry 9-9 at 32-

14-68,
by

statements

110-19.)9

Petitioner

as

Moreover,

the

evidence

of

“[p]rosecutors . . . knowingly eliciting hearsay testimony” do
not contain any hearsay statements by Deputy Klinglesmith.

(See

Docket Entry 11 at 18 (citing Docket Entry 9-9 at 74, 101, 109,
113, 114; Docket Entry 9-10 at 17).)

Thus, Petitioner has shown

neither that the state introduced prior testimony from Deputy
Klinglesmith to which a right of confrontation would attach, nor
that the state elicited any impermissible hearsay statements by
Deputy Klinglesmith in his absence.
Accordingly, the MAR court reasonably applied and did not
contradict Strickland in concluding that Petitioner’s appellate
counsel reasonably opted not to raise Ground Three on appeal.10
9

In fact, Petitioner used Deputy Klinglesmith’s imputed statements in the
Narrative to cross-examine Detective Pfister. (Docket Entry 9-10 at 61-64.)
10
In Petitioner’s response in opposition to the instant summary judgment
motion, he attempts to add an argument in support of Ground Three that the
trial court violated his Confrontation Clause rights by denying him the
opportunity to cross-examine Darren Furr regarding his prior inconsistent
statements as reflected in the Narrative, investigative file report, felony
case summary, and radio transmissions.
(See Docket Entry 11 at 17 (citing
Docket Entry 9-9 at 120-23).)
However, a summary judgment response “is not
the proper place to raise new facts. Under Rule 2(c) of the Rules Governing
Section 2254 Cases, a petitioner must set forth in his petition ‘the facts
supporting each ground’ for relief.”
Velasquez v. Gipson, No. SA CV 121078(JSL), 2013 WL 3381371, at *9 n.4 (C.D. Cal. July 8, 2013) (unpublished)
(emphasis added); see also Quackenbush v. Tilton, No. 07CV413W(WMC), 2008 WL
183710, at *6 (S.D. Cal. Jan. 18, 2008) (unpublished) (“Facts must be stated,
in the petition, with sufficient detail to enable the Court to determine, from
the face of the petition, whether further habeas corpus review is warranted.

-26-

Petitioner alleges in Ground Four that the state violated
his rights under the Fifth and Sixth Amendments by willfully
failing to comply with disclosure requirements.
at 10.)

(Docket Entry 2

In particular, Petitioner claims that the prosecution

and the trial court refused Petitioner’s repeated requests for
complete

radio

photographs,

transmissions

videographic

by

footage

the
from

officers
Deputy

involved,

Klinglesmith’s

vehicle, and fingerprint evidence, and failed to disclose the use
of Detective Queen as a fingerprint expert at trial.
also Docket Entry 11 at 19-22.)

(Id.; see

Petitioner additionally argues

that the state provided to him “false and/or fabricated material
statements of fact and/or evidence.”

(Docket Entry 2 at 10.)

Those allegations lack merit.
Under
violates

a

Brady

v.

Maryland,

defendant’s

due

373

process

U.S.

83

rights

(1963),
when

it

“a

State

fails

to

disclose to the defendant prior to trial ‘evidence favorable to
an accused where the evidence is material.’”
F.3d 602, 608 (4th Cir. 2002) (quoting

Basden v. Lee, 290

Brady, 373 U.S. at 87).

“There are three fundamental components to a Brady claim: (1)
‘[t]he evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching’; (2) the
‘evidence must have been suppressed by the State’; and (3) the
evidence must be material to the defense, that is, ‘prejudice

Moreover, the allegations should be sufficiently specific to permit the
respondent to assert appropriate objections and defenses.” (internal citations
omitted) (emphasis in original)).
-27-

must ensue.’”

Walker v. Kelly, 589 F.3d 127, 137 (4th Cir. 2009)

(quoting

Strickler

v.

(internal

brackets

and

Whitley,

514

U.S.

Greene,

527

ellipses

419,

434

U.S.

omitted);

(1995)

263,

281–82

see

(“[The]

also

(1999))
Kyles

touchstone

v.
of

materiality [in the Brady context] is a reasonable probability of
a different result, and the adjective is important.

The question

is not whether the defendant would more likely than not have
received a different verdict with the [suppressed] evidence, but
whether in its absence he received a fair trial, understood as a
trial resulting in a verdict worthy of confidence.” (internal
quotation marks omitted)).

“It is the petitioner’s burden to

establish the three elements of a Brady violation[.]”

Fullwood

v. Lee, 290 F.3d 663, 685 (4th Cir. 2003) (internal citation
omitted).

Here, Petitioner has not met his burden as to the

“favorable” and “material” elements of his instant Brady claim.
With regard to the radio transmissions, the record reflects
that the trial court denied Petitioner’s motion to continue the
trial based on the state’s alleged failure to provide Petitioner
with complete radio transmissions because the state affirmed that
it

had

already

provided

Petitioner

with

all

substantive

transmissions:
Petitioner:

State had the obligation to supply
[Petitioner] with discovery materials.
As of right now the radio transmissions
are still missing, all of them aren’t
complete. The transmissions stopped at
5:37 [a.m.] on what they gave me, but
they were still making them up until at
least 10:43 [a.m.].
-28-

[Trial Court]: What says the State?
[Prosecutor]:

Your Honor, the initial request went in
to get the radio traffic.
They pulled
all the radio traffic they had that
related to the incident.
From what I
understand, anything beyond that would
have been just confirming that the tow
truck was there and that the tow truck
had left. But as far as substantive to
this case, we’ve given over everything
that was substantive.

[Trial Court]: You’re affirmatively stating to the
Court as an officer of the court you’ve
given everything to [Petitioner] that’s
available; is that right?
[Prosecutor]:

Yes.

Yes, sir.

(Docket Entry 9-9 at 12.)
Notwithstanding the prosecutor’s above-quoted assertion to
the trial court, Petitioner asserts that “complete” transmissions
would have “established” that Deputy Roberts never drove back to
the victims’ residence after Petitioner’s arrest and, thus, that
Darren

Furr

and

Deputy

Roberts

“perjured”

themselves

by

testifying that Deputy Roberts did drive Petitioner to the Furrs’
residence
Petitioner

post-arrest,
as

the

and

that

perpetrator.

Darren

Furr

(Docket

then

Entry

identified

11

at

20.)

Petitioner’s speculative assertion fails to make out a Brady
claim for two reasons.
reflect

testimony

from

First, the trial transcript does not
either

Darren

Furr

or

Deputy

Roberts

regarding a post-arrest identification of Petitioner by Darren
Furr.
27.)

(See Docket Entry 9-9 at 94-125; Docket Entry 9-10 at 14Therefore, even if the complete transmissions demonstrated

that Deputy Roberts did not drive back to the victims’ residence

-29-

post-arrest, such fact would not have any tendency to impeach the
trial testimony of either Darren Furr or Deputy Roberts.
Second, Petitioner’s bald assertion as to what further radio
transmissions would “establish” constitutes sheer speculation,
particularly in the context of the state’s affirmation to the
trial

court

that

the

undisclosed

transmissions

involved

only

discussions regarding the tow truck used to tow Petitioner’s
vehicle from the scene.

Unsupported, speculative assertions do

not suffice to establish the “favorable” or “material” elements
of Brady.
2003)

See Godlock v. Fatkin, 84 F. App'x 24, 29 (10th Cir.

(“Although

[the]

petitioner

offers

various

theories

to

support his position [on the favorable and material elements of
his

Brady

claim],

his

conclusory

allegations

and

speculation

. . . fail to meet the Brady standard.”); see also United States
v. Aleman, 548 F.3d 1158, 1164 (8th Cir. 2008) (“[The defendant]
only speculates that interviews of [the undisclosed] individuals
would have provided evidence favorable to his defense, however,
and mere speculation is not sufficient to sustain a Brady claim.”
(internal

ellipses

Ballard, Civ.

and

Action

quotation

No.

marks

3:02–1348,

2015

omitted));
WL

Green

1612198,

at

v.
*37

(S.D.W. Va. Apr. 10, 2015) (unpublished) (“[T]o succeed on [his
Brady] claim, [the p]etitioner must not only demonstrate that
evidence

was

exculpatory.
burden.”);

withheld,
Mere

United

he

must

show

that

speculation

is

States

Bujilici,

v.

the

insufficient
Crim.

evidence
to

was

meet

that

Action

No.

12–00231–01, 2014 WL 2112858, at *6 (W.D. La. May 19, 2014)
-30-

(unpublished) (“[The] [p]etitioner’s bald assertion that he would
not

have

been

found

guilty

is

insufficient

to

establish

materiality under the third prong of Brady.”).
Petitioner’s claim that the state and/or trial court refused
his repeated requests for “photos” (see Docket Entry 2 at 10)
fails as conclusory and unsupported, where Petitioner has made no
attempt
provide.

to

describe

which

photographs

the

state

failed

to

See Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir.

1992) (“In order to obtain an evidentiary hearing on . . . any
claim[], a habeas petitioner must come forward with some evidence
that

the

claim

might

have

merit.

Unsupported,

conclusory

allegations do not entitle a habeas petitioner to an evidentiary
hearing.”), abrog’n on other grounds recog’d, Yeatts v. Angelone,
166 F.3d 255 (4th Cir. 1999).
Petitioner’s

contentions

regarding

dashboard camera footage fare no better.

Deputy

Klinglesmith’s

The trial court denied

Petitioner’s pre-trial motion regarding the footage based on the
prosecutor’s

affirmation

that

the

state

had

camera

in

turned

over

available and applicable materials:
[Trial Court]:

In-dash
vehicle?

[Prosecutor]:

Yes. None of the patrol units that
responded had it. Is that correct,
Deputy Roberts?

Deputy Roberts:

Deputy Klinglesmith’s did, but --

[Prosecutor]:

Do we know if we have –- did we
ever pull that or do we have it or
--31-

the motor

all

Deputy [Roberts]:

I don’t think so.

[Prosecutor]:

No, we’ve turned over everything we
have.

[Trial Court]:

Again,
you’re
stating
that –you’re telling me that you have
turned over, the State has turned
over
absolutely
every
bit
of
evidence that possibly could apply
to this case; is that right?

[Prosecutor]:

Everything that we are aware of,
yes.

[Trial Court]:

All right. You can ask an officer
on the stand about it, if you want
to later on.

[Petitioner]:

It’s Officer Klinglesmith’s footage
that I wanted, that I needed for my
case.

[Trial Court]:

Well, I don’t know –- they’re
saying there is no such footage,
sir.
I can’t manufacture it, nor
can they, if it doesn’t exist.

(Docket Entry 9-9 at 13-14.)
Here,

Petitioner

assumes

from

the

fact

that

Deputy

Klinglesmith’s vehicle contained a dashboard camera that (1) the
camera

actually

investigation

of

operated
the

during

underlying

produced usable footage;

Deputy

crimes;

(2)

Klinglesmith’s
that

the

camera

(3) the footage remained intact (i.e.,

not destroyed, recorded over, erased, etc.).

Petitioner cannot

base a Brady claim on evidence which he feels should exist as
opposed to evidence that actually does exist.

See Green, 2015 WL

1612198, at *37 (“Petitioner’s claim relies on documents that he
believes should have been created, but not on documents that he
can show actually were created.

The failure of State workers to

-32-

record interviews or complete their written records in the manner
that Petitioner interprets the statute to require does not give
rise to a claim under Brady.” (emphasis in original)).
Moreover, Petitioner conclusorily states that the footage
“would

have

Deputy

Klinglesmith

supplied to

established

the

that

w[ere]

magistrate

investigators,

aware
in

that

support

the
of

primarily
information

probable

Petitioner’s arrest was false and/or misleading.”
11 at 20.)
footage

.

.

.

being

cause

for

(Docket Entry

Petitioner makes no attempt to explain how the

would

establish

such

awareness

on

the

part

of

the

officers involved (see id.), especially given the testimony of
other officers that Deputy Klinglesmith spent most of his time
away

from

his

patrol

vehicle

interviewing

the

victims

and

apprehending Petitioner (see, e.g., Docket Entry 9-9 at 49, 13134, 139, 140-41; Docket Entry 9-10 at 18, 24-25).

Again, such

unsupported allegations do not entitle Petitioner to relief under
Brady.

See Godlock, 84 F. App'x at 29; Aleman, 548 F.3d at 1164;

Green, 2015 WL 1612198, at *37.
Petitioner next claims that the state failed to disclose
that Detective Queen would testify as an expert in fingerprint
analysis.
19.)

(Docket Entry 2 at 10; see also Docket Entry 11 at

That claim fails for the simple reason that the State did

not tender Detective Queen as an expert witness.
Entry 9-10 at 27-35.)

(See Docket

Furthermore, even assuming arguendo that

Detective Queen’s testimony amounted to expert opinion and that
the state’s failure to disclose him as an expert violated the
-33-

United States Constitution, Petitioner cannot show any resulting
prejudice because Detective Queen did not identify any usable
fingerprints.
In

(Id. at 32, 34.)

support

of

his

claim

that

the

state

provided

false

evidence in discovery, Petitioner rehashes his assertion from
Ground Two that the Narrative (and other investigative documents)
falsely state that the victims (1) observed the suspect entering
their vehicle in their garage as opposed to their driveway; and
(2) identified the set of keys found on Petitioner as being their
stolen property.
context

of

Ground

inconsistencies
investigative
trial.
for

the

(Docket Entry 11 at 22.)
Two,

between
documents

Petitioner

information
and

various

As discussed in the
has

merely

contained
witnesses’

in

shown
those

testimony

at

Such inconsistencies constitute a matter of credibility
jury

to

decide

and

do

not

constitutionally impermissible perjury.

rise

to

the

level

of

See Washington v. Hall,

No. 1:11CV764, 2013 WL 1788593, at *2 (M.D.N.C. Apr. 26, 2013)
(unpublished) (“Here, [the petitioner] has done no more than
point to inconsistent testimony.

There is no evidence that the

testimony of any of the three witnesses was perjured, much less
that the prosecution knew it was perjured.

The inconsistent

testimony was fully presented to the jury, and it was the jury’s
job to decide what the credible evidence was.”).
Petitioner additionally asserts that investigative documents
provided to him in discovery falsely state that “officers making
visual observations

into

Petitioner’s
-34-

vehicle

reported

seeing

other items believed to be burglary tools.”
22.)

(Docket Entry 11 at

However, the record does not establish the falsity of that

statement.

Cabarrus County Sheriff’s Deputy J.R. Smith testified

that he located Petitioner’s vehicle near the scene of the crimes
and saw a GPS unit, a latex glove, and a screwdriver inside.
(Docket Entry 9-9 at 53-54.)

The latex glove and the screwdriver

formed the basis of Petitioner’s conviction of possession of
housebreaking implements.

(Docket Entry 9-2 at 10, 26.)

Thus,

Petitioner has not shown false Deputy Smith’s reported belief
that he observed burglary tools inside Petitioner’s vehicle.
In sum, the MAR court did not contradict or unreasonably
apply Strickland by denying Petitioner’s ineffective assistance
of appellate counsel claim based upon counsel’s failure to raise
the substance of Ground Four on appeal.
In Ground Five, Petitioner merely repackages a portion of
Ground Four (the state provided false discovery) and the entirety
of Grounds Six through Nine.

(Docket Entry 2 at 12; see also

Docket

Accordingly,

Entry

11

at

23-24.)

no

need

exists

to

independently assess the merits of Ground Five.
Petitioner maintains in Ground Six that the state violated
his

Fifth

Amendment

due

process

suggestive identification procedures.”
see

also

Petitioner

Docket

Entry

alleges

11

that

at

rights

“impermissibly

(Docket Entry 2 at 14;

25-27.)

“two

by

More

impermissibly

specifically,
suggestive

identification procedures took place; one at the August 26, 2010
Motion to Suppress hearing at which [Darren] Furr testified to
-35-

seeing . . . Petitioner, and again at the Furr residence shortly
after

Petitioner’s

arrest

where

having

brought

Sheriff’s

deputies

residence

handcuffed and

[Darren]

detained

.

.

in

.

the

Furr

testified

Petitioner
back

of

to

the

to
the

patrol

vehicle, thus constituting an ‘in-court show up’” in violation of
United States v. Emanuele, 51 F.3d 1123, 1131 (3d Cir. 1995),
United States v. Brownlee, 454 F.3d 131, 138 (3d Cir. 2006), and
Neil v. Biggers, 409 U.S. 188 (1972).

(Docket Entry 11 at 25-

26.)
Ground Six fails for the simple reason that neither victim
even testified, much less “identified” Petitioner, at the motion
hearing on August 26, 2010 (see Docket Entry 28 at 4-61), and
neither victim identified Petitioner during their testimony at
Petitioner’s trial (see Docket Entry 9-9 at 70-133).
acknowledges

that

[]Petitioner

out

the
as

victims

the

“did

not

perpetrator”

Petitioner

specifically

during

their

point

in-court

testimony, but argues that the victims’ testimonial descriptions
of the perpetrator, (see Docket Entry 9-9 at 79 (testimony of
Michelle Furr: “He was a –- he was black.
could see his hands, nice big hands.

He was a big guy; I

No hair.”); 108 (testimony

of Darren Furr: “[H]e was –- he’s brown, he’s about 5’11, six
foot tall, weighs about 250, 260, maybe 300 pounds. . . . I know
he’s a big guy.

And I said he had baggy clothes on.”); 116

(testimony of Darren Furr: “He was about 5, anywhere from 5’10”
to 6 foot tall, between 250 to 300 pounds, bald headed and he had
baggy clothes on.

He was heavy set.”)), “w[ere] a perfect match
-36-

to [] Petitioner” and “would have left no room for doubt in the
minds of the jurors” (Docket Entry 11 at 25).
However, witness testimony providing a description of the
suspect based on the witness’ first-hand knowledge from the scene
of the crimes neither amounts to a positive identification of the
defendant as the perpetrator nor testimony that the defendant
resembles the suspect, the latter two of which implicate due
process concerns.

See Patler v. Slayton, 503 F.2d 472, 476-77

(4th Cir. 1975) (noting distinction between “eliciting only what
[witnesses] saw at the scene” and unconstitutional identification
and resemblance testimony); see also United States v. Greene, 704
F.3d 298, 311 (4th Cir. 2013) (“The law is plain: A prosecutor
cannot point to the defendant, or direct the witness’ attention
to the defendant, and then elicit identification or resemblance
testimony.”

(emphasis

added)).

Moreover,

to

the

extent

the

victims’ descriptions of the suspect during their trial testimony
differed

from

any

description

previously

provided

to

the

investigating deputies, such inconsistencies constitute a matter
of credibility, which remains the province of the jury.

See

United States v. Cecil, 836 F.2d 1431, 1442 (4th Cir. 1988)
(“Credibility . . . is for the jury — the jury is the lie
detector in the courtroom.” (quoting United States v. Barnard,
490 F.2d 907, 912 (9th Cir. 1973))).
Thus,

the

MAR

court

neither

unreasonably

applied

nor

contradicted Strickland in denying Petitioner’s claim that his

-37-

appellate counsel failed him by not raising Ground Six on direct
appeal.
In his seventh ground for relief, Petitioner contends that
the

state

violated

his

Fifth

and

Sixth

Amendment

rights

by

“knowingly presenting perjured testimony to the Grand Jury in
order to obtain true bills of indictment . . . .”
11 at 28; Docket Entry 2 at 16.)
attend

the

grand

jury’s

(Docket Entry

Although Petitioner did not

proceedings

in

his

case,

Petitioner

nevertheless argues “upon information and belief” that the state
presented to the grand jury the perjured testimony of Deputy
Roberts that (1) Michelle Furr observed the suspect exiting her
detached garage; (2) Darren Furr provided a description of the
suspect that matched Petitioner’s physical appearance; and (3)
Petitioner broke and entered the victims’s dwelling house.
at 26-27.)

(Id.

Petitioner bases the first two instances of that

alleged perjury on Deputy Roberts’ statements in the Narrative
and testimony during voir dire at the motions hearing on August
26, 2010, and reasons that “the only presumption that can be made
is that Deputy Roberts supplied the same false statements and
fabricated evidence” before the grand jury.

(Id. at 27.)

As for

the third example of perjury, Petitioner contends that the grand
jury’s

superceding

entering

the

indictment

victims’

of

residence

Petitioner
(as

opposed

for
to

breaking
the

or

original

indictment for attempted breaking or entering) (compare Docket
Entry 9-2 at 24, with id. at 107) means that the state must “have
put forth some testimonial evidence to establish th[e] essential
-38-

element of an actual breaking and entering . . . from the one and
only witness testifying before the grand jury: Deputy [] Roberts”
(Docket Entry 11 at 31).
Petitioner again conflates mere inconsistencies in Deputy
Roberts’ statements with proof of perjury.

As discussed in the

context of Grounds Two and Four, such inconsistencies do not
amount to perjury.
Moreover,

as

See Washington, 2013 WL 1788593, at *2.

discussed

above,

the

jury’s

subsequent

guilty

verdicts render harmless any alleged perjury before the grand
jury.

See Mechanik, 475 U.S. at 70; Masiarczyk, 1 F. App’x at

213-14; Colon–Munoz, 192 F.3d at 218–19; Mount, 896 F.3d at 624.
Furthermore,

although

the

superceding

indictment

charged

Petitioner with first degree burglary of the victims’ residence
(see Docket Entry 9-2 at 24), the prosecutor notified the trial
court prior to trial that the state would “be proceeding on the
lesser

included

offense

of

attempted

first

(Docket Entry 9-8 at 8 (emphasis added).)
that

notification,

the

trial

court

degree

burglary.”

In accordance with

instructed

the

jury

on

attempted first degree burglary of the residence (see Docket
Entry 9-10 at 90-91) and the jury found him guilty of that crime
(see Docket Entry 9-2 at 180; see also id. at 187).

Thus, even

assuming arguendo that the state presented perjured testimony to
the grand jury, Petitioner cannot demonstrate any prejudice from
the

issuance

burglary.

of

the

superceding

indictment

for

first

degree

See United States v. Lovasco, 431 U.S. 783, 790 (1977)

-39-

(“[P]roof

of

prejudice

is

generally

a

necessary

but

not

sufficient element of a due process claim.”).
Therefore, the MAR court reasonably applied and did not
contradict

Strickland

in

denying

Petitioner’s

appellate

ineffective assistance claim to the extent such claim relied upon
appellate counsel’s failure to raise Ground Seven on appeal.
Via

Ground

Eight,

Petitioner

maintains

that

the

state

violated his right to a speedy trial under the Sixth Amendment.
(Docket Entry 2 at 18; see also Docket Entry 11 at 32-34.)
Although
appointed

Petitioner
trial

concedes

counsel

that

withdrew

all

three

their

of

his

court-

representation,

he

nonetheless argues that, “even without considering the time spent
with . . . counsel’s withdrawals, the one-year delay between the
time Petitioner opted to represent himself and his trial would
still be sufficient to trigger a[n] . . . analysis” of the delay
under Barker v. Wingo, 407 U.S. 514, 530-33 (1972).
Entry 11 at 32.)

(Docket

Petitioner claims prejudice arising from the

delay in the form of Deputy Klinglesmith’s unavailability for
trial and other witnesses’ “inability to remember certain facts
and

therefore

examination.”

answer

[the]

defense’s

questions

upon

cross-

(Id. at 33 (citing Docket Entry 9-9 at 60-61, 119;

Docket Entry 9-10 at 33-34, 64-65).)

Petitioner concludes that

the four Barker factors “weigh heavily against [] Respondent.”
(Id. at 34.)
Petitioner

correctly

identifies

Barker

as

test for analysis of the right to a speedy trial.

the

-40-

applicable

See Ricon v.

Garrison, 517 F.2d 628, 631 (4th Cir. 1975) (describing Barker as
“the authoritative decision” on the speedy trial right). Under
Barker, the Court must consider (1) the length of the delay; (2)
the reason for the delay; (3) the defendant’s assertion of his
speedy trial right; and (4) prejudice to the defendant.
407 U.S. at 522, 530–32.
“that

on

balance,

Barker,

Under this test, a petitioner must show

[the]

four

separate

factors

weigh

in

his

favor.” United States v. Thomas, 55 F.3d 144, 148 (4th Cir.
1995).

Petitioner has failed to show that these factors weigh in

his favor.
For purposes of gauging the length of the delay, the speedy
trial

right

is

“triggered

official accusation.”
655 (1992).

by

arrest,

indictment,

or

other

Doggett v. United States, 505 U.S. 647,

Here, the time between Petitioner’s arrest on August

20, 2009, and his trial on March 28, 2011, exceeded 20 months.

A

delay of such length requires consideration of the remaining
Barker factors.
733

(D.

Md.

prejudicial”
Mills

v.

See United States v. James, 164 F. Supp. 2d 718,
2001)

and

(assuming

considering

Shepherd,

445

F.

20-month

remaining
Supp.

1231,

delay
three
1235

“presumptively
Barker factors);
(W.D.N.C.

1975)

(finding “[20]-month pretrial delay . . . long enough to trigger
serious inquiry into the remaining factors”).
Regarding the reason for the delay, the record reflects that
Petitioner’s

requests

that

each

of

his

three

court-appointed

attorneys withdraw and multiple pre-trial motions and filings
caused the majority of the 20-month time lapse.
-41-

(See generally

Docket Entry 9-2 (record on appeal); see also Docket Entry 9 at
18 (detailing procedural history of appointment and subsequent
withdrawal of Petitioner’s three court-appointed trial counsel).)
Although

Petitioner

claims

that

the

“[p]rosecution

gained

a

tactical advantage of delaying the trial until the arresting
officer would be out of the country and unavailable to be crossexamined” (Docket Entry 2 at 18), Petitioner has not supplied any
evidence to support the notion that the prosecutors chose the
March

28,

2011,

trial

date

with

knowledge

that

Deputy

Klinglesmith would be on his honeymoon at that time, let alone
that they deliberately chose that date to ensure that witness’
unavailability.

Thus, this factor weighs against Petitioner.

The Court must now consider whether Petitioner asserted his
speedy trial right at any time during the delay.

Petitioner’s

third court-appointed attorney stated at the April 27, 2010,
hearing on his motion to withdraw that Petitioner had, up until
that point

in

time,

speedy trial right.

equivocated

about

whether

to

(See Docket Entry 9-7 at 6.)

assert

his

Although

Petitioner contends that he first asserted his speedy trial right
in May 2010 (see Docket Entry 2 at 18), no documentary evidence
of such an invocation of that right appears in the record.

The

record does contain a statement by a prosecutor during the August
26, 2010, hearing on several of Petitioner’s pre-trial motions
that Petitioner had filed a motion for a speedy trial on August
17, 2010, although in that motion, Petitioner apparently stated
that he would not be ready for trial until September 15, 2010.
-42-

(See Docket Entry 28 at 8.)11

Accordingly, as far as the record

reflects, Petitioner waited nearly one year from the date of his
arrest to assert his speedy trial right, and, even beyond that
point, agreed to further delays until at least November 2010,
occasioned by his request for transcription of Michelle Furr’s
911 call.

(See id. at 50-54.)

Thus, this factor weighs in favor

of Petitioner, but not heavily so.
Lastly, the Court must address the degree to which the delay
in this case prejudiced Petitioner.

In regard to prejudice, the

United States Supreme Court has explained the following:
We have observed in prior cases that unreasonable delay
between formal accusation and trial threatens to
produce more than one sort of harm, including
“oppressive
pretrial
incarceration,”
“anxiety
and
concern of the accused,” and “the possibility that the
[accused's] defense will be impaired” by dimming
memories and loss of exculpatory evidence. Barker, 407
U.S. at 532; see also Smith v. Hooey, 393 U.S. 374,
377–79 (1969); United States v. Ewell, 383 U.S. 116,
120 (1966).
Of these forms of prejudice, “the most
serious is the last, because the inability of a
defendant adequately to prepare his case skews the
fairness of the entire system.” [Barker,] 407 U.S. at
532.
Doggett, 505 U.S. at 654 (internal parallel citations omitted).
“The burden of establishing prejudice rests on the petitioner.”
Ricon,

517

demonstrate

F.2d
actual

at

634.

prejudice,

Although
he

or

a
she

petitioner
must,

establish “the credible possibility of prejudice.”

11

at

need
a

not

minimum,

Id.

The materials provided to the Court do not include a copy of such

motion.
-43-

Here, Petitioner argues that he suffered prejudice in two
ways.

Primarily,

Klinglesmith’s

he

alleges

the

for

unavailability

that

delay

trial,

caused

which

Deputy

precluded

Petitioner from impeaching Darren Furr regarding his description
of the suspect to Deputy Klinglesmith.
32-33.)

Petitioner

further

(See Docket Entry 11 at

emphasizes

that

“no

other

law

enforcement officer other than Deputy Klinglesmith took [Darren]
Furr’s statement, nor imputed the description [of the suspect]
through radio transmissions, nor alleged the key found on []
Petitioner unlocked a door to the Furr residence.”

(Id. at 33.)

Additionally, Petitioner contends that several state’s witnesses
could not “remember certain facts and therefore answer [the]
defense’s questions upon cross-examination.”

(Id. (citing Docket

Entry 9-9 at 60-61, 119; Docket Entry 9-10 at 33-34, 64-65).)
Petitioner’s

allegations

possibility of prejudice.”
court

did

not

sustain

the

fail

to

establish

a

Ricon, 517 F.2d at 634.
state’s

objection

to

“credible
The trial

Petitioner’s

attempt to impeach Darren Furr with his statements to Deputy
Klinglesmith

as

reflected

in

the

investigative

file

report

because Deputy Klinglesmith did not testify at trial; rather, the
trial court correctly sustained the objection because Darren Furr
did not author the document and thus lacked any foundation to
testify as to why it contained certain statements.
Entry 9-9 at 120-23.)12

(See Docket

Further, the record belies Petitioner’s

12

Deputy Roberts authored the Narrative, which contained similar
statements that Darren Furr made to Deputy Klinglesmith. (See Docket Entry 11
at 41.) However, although Petitioner cross-examined Deputy Roberts, Petitioner
-44-

assertion

that

“no

other

law

enforcement

officer

other

than

Deputy Klinglesmith took [Darren] Furr’s statement” (Docket Entry
11

at

33)

Petitioner

–

Detective

specifically

Queen

answered

asked

Detective

affirmatively
Queen

on

when
cross-

examination whether he had taken a statement Darren Furr (see
Docket Entry 9-10 at 33).
Similarly, the record refutes Petitioner’s assertion that
only Deputy Klinglesmith “alleged the key found on [] Petitioner
unlocked a door to the Furr residence.”

(Docket Entry 11 at 33.)

Deputy Roberts testified, without rebuttal, that Deputy Harless
accompanied Deputy Klinglesmith into the residence to try the
keys found in Petitioner’s pockets on the victims’ door locks
(Docket Entry 9-10 at 25), and Darren Furr testified to more than
one officer’s presence when the key in question opened his back
door (Docket Entry 9-9 at 113).

Furthermore, Petitioner has not

shown that Deputy Klinglesmith’s absence caused other prejudice,
especially given that Petitioner cross-examined the three other
officers involved in the arrest (see Docket Entry 9-9 at 50-51
(Deputy Harless), 139-40 (Officer Drake), Docket Entry 9-10 at 27
(Deputy Roberts)), the officer who located Petitioner’s vehicle
at the scene (see Docket Entry 9-9 at 59-61 (Deputy Smith)), the
officer who attempted to obtain fingerprint evidence (see Docket
Entry 9-10

at

33-34

(Detective

Queen)),

and

the

officer

did not specifically question Deputy Roberts about the Narrative.
Entry 9-10 at 27.)
-45-

who

(See Docket

obtained a search warrant for Petitioner’s car (see Docket Entry
9-10 at 61-67 (Detective Sergeant Pfister)).13
Moreover, with regard to Petitioner’s allegations that the
delay caused several state’s witnesses to forget certain facts
(see Docket Entry 11 at 33), the United States Supreme Court has
cautioned that the “possibility of prejudice” arising from the
fading memory of a witness generally does not suffice to support
a speedy trial claim.

United States v. Loud Hawk, 474 U.S. 302,

315 (1986); see also Hakeem v. Beyer, 990 F.2d 750, 763 (3d Cir.
1993) (stating “[g]eneral allegations that witnesses’ memories
have faded are insufficient to create prejudice, at least absent
extreme delay such as eight and one-half years, or the special
circumstances that existed in Doggett”).
contention

that

the

particular

length

Further, Petitioner’s
of delay

in

this

case

caused the witnesses’ uncertainty as to certain facts amounts to
sheer speculation.
witnesses

ever

No evidence exists in the record that those

could

have

recalled

the

particular

facts

at

issue.14

13

Petitioner’s claim of prejudice arising from the allegation that Deputy
Klinglesmith alone “imputed [Darren Furr’s] description [of the suspect]
through radio transmissions” (see Docket Entry 11 at 33) lacks merit. Neither
the state nor Petitioner introduced the radio transmissions as evidence during
Petitioner’s trial.
14

Darren Furr’s inability to recall the names of officers he spoke with
in the immediate aftermath of the crimes because “he was scared out of his
mind” underscores the unlikelihood that he would have ever recalled the names
of the other officers and exemplifies Petitioner’s inability to demonstrate
that the delay caused the witnesses’ inability to remember certain facts.
(Docket Entry 9-9 at 119.)
-46-

On balance, the Barker factors do not compel a finding that
Petitioner suffered a violation of his right to a speedy trial.
In

other

words,

[Petitioner’s

one

can

appellate]

make

a

“reasonable

counsel

argument

satisfied

deferential standard,” Harrington, 526 U.S. at

that

Strickland’s
, 131 S. Ct. at

788, when she declined to raise any speedy trial claim and/or
that any such challenge would have failed.

As such, the MAR

court reasonably applied Strickland in ruling against Petitioner
on this basis of his ineffective assistance of appellate counsel
claim.
Petitioner alleges in Ground Nine that the prosecution and
the trial court violated his Fifth and Sixth Amendment rights to
due

process

“perjured,

and

a

fair

prejudicial,

trial

by

hearsay,

inadmissible testimony or evidence.”
also Docket Entry 11 at 35-37.)

the

cumulative

irrelevant

or

effect

of

otherwise

(Docket Entry 2 at 20; see
In support of that Ground,

Petitioner asserts that seven state’s witnesses provided perjured
testimony,

that

the

“prosecution

elicited

large

amounts

of

testimony regarding previous unrelated and unsolved burglaries”
and “unrelated ‘additional victims’ from other similar crimes,”15
that eight state’s witnesses provided hearsay testimony regarding

15

In further support of his allegation regarding inadmissible evidence of
unrelated burglaries and victims, Petitioner alleges that Detective Pfister
“presented . . . inadmissible testimony in violation of Federal Rules of
Evidence, Rule 404(b) . . . .” (Docket Entry 11 at 36 (citing Docket Entry 910 at 38, 42, 45-46, 50-51, 53, 57).)
A review of those transcript pages
reveals, however, that the trial court sustained Petitioner’s objection to
such testimony under North Carolina Rule of Evidence 404(b) and ordered the
testimony stricken from the record. (See id. at 53; see also id. at 57.)
-47-

the actions or statements of Deputy Klinglesmith, that the trial
court allowed testimony about and admitted “unconstitutionally
seized” evidence including keys and a sales flyer, and that the
trial court allowed testimony about the invalid search warrant.
(See id.)
Ground
Petitioner’s

Nine

lacks

merit

allegations

in

for

two

Ground

Nine

reasons.
fail

First,

as

utterly

conclusory and unsupported under Nickerson, 971 F.2d at 1136.
Second,

Petitioner

cannot

obtain

habeas

relief

based

on

allegations of the cumulative effect of trial errors, where, as
here, he has failed to demonstrate any individual constitutional
violations.

See Fisher v. Angelone, 163 F.3d 835, 852-53 (4th

Cir. 1998).
Accordingly, the MAR court correctly applied Strickland in
denying

Petitioner’s

appellate

ineffective

assistance

claim

founded on his appellate counsel’s failure to raise Ground Nine
on direct appeal.
Finally,

Petitioner’s

claim

that

his

appellate

counsel

provided ineffective assistance by failing to obtain a transcript
of the August 26, 2010, pre-trial motions hearing (see Docket
Entry 2 at 5) fails because the matters at issue in that hearing
bore no

relevance

to

the

issues

appellate

counsel

raised

on

direct appeal (compare Docket Entry 28 at 4-61, with Docket Entry
9-3).

Moreover, to the extent that the transcript would support

Petitioner’s Grounds Two through Nine, as discussed above, those
grounds lack merit.

Thus, appellate counsel had no obligation to
-48-

obtain a transcript to aid in the development of such meritless
claims.
Similarly,

Petitioner’s

claim

that

his

appellate

counsel

failed him by “waiving” his right to withdraw his appeal lacks
merit.

(Docket

Entry

2

at

5.)

In

support

of

that

claim,

Petitioner asserts that he “repeatedly advised” his appellate
counsel to raise the substance of Grounds Two through Nine on
direct

appeal,

and,

after

reviewing

her

appellate

brief,

instructed her to move for a stay of ruling and amend the brief.
(Docket Entry 2-1 at 52.)

After appellate counsel refused to do

so, Petitioner filed such a motion pro se, which the Court of
Appeals
(Id.)

dismissed

based

on

Petitioner’s

represented

status.

As a result of this alleged impasse, Petitioner alleges

that he requested that his appellate counsel withdraw from his
case, which she purportedly refused to do.

(Id.)

Petitioner

claims he then submitted a motion to the North Carolina Supreme
Court, seeking to either withdraw his appeal or proceed pro se,
which that court denied.

(Id.)

Finally, Petitioner contends

that he instructed his appellate counsel to withdraw his appeal
but that she refused to do so.
Even

assuming

arguendo

(Id.)16
that

Petitioner

has

sufficiently

shown that his appellate counsel waived Petitioner’s right to
withdraw his appeal, Petitioner cannot show any prejudice arising

16
The record also reflects that Petitioner filed an untitled motion in the
North Carolina Court of Appeals seeking to either withdraw his appeal or
represent himself, which that court dismissed, again based on Petitioner’s
represented status. (See Docket Entry 9-14 at 63-64.)

-49-

from

that

waiver

to

satisfy

Strickland.

The

completion

of

Petitioner’s appeal resulted in vacation of his convictions of
possession of housebreaking implements and possession of stolen
property and a corresponding reduction in his sentence of 116 to
149 months.

See France, 2012 WL 3573920, at *2-3.

In contrast,

had Petitioner withdrawn his appeal, any subsequent attempt to
file a second appeal would likely have failed as untimely.

See

N.C. R. App. P. 4(a)(2) (allowing criminal defendants 14 days
after entry of judgment to file a notice of appeal).
even

if

Petitioner

could

have

pursued

a

second

Moreover,
appeal,

as

discussed above, the issues he planned to raise lack merit and
would not have resulted in any relief from his convictions and
sentences.
In

sum,

Petitioner’s

ineffective

assistance

of

appellate

counsel claim in Ground One fails to entitle Petitioner to habeas
relief.
II.

Grounds Two Through Nine
Although Respondent has addressed the merits of Petitioner’s

Grounds Two through Nine (see Docket Entry 9 at 6-20), Respondent
has additionally argued the procedural default of such grounds
(see id. at 3-6).

Respondent bases that argument upon N.C. Gen.

Stat. § 15A-1419(a)(3) and (b) (requiring denial of MAR claim
where the defendant could have raised such claim in a prior
appeal

but

did

not

do

so,

absent

cause

and

prejudice

or

fundamental miscarriage of justice) and the MAR court’s order
which

denied

Petitioner’s

parallel
-50-

claims

because

Petitioner

could have raised them on direct appeal.

(Id. at 3; see also

Docket Entry 9-14 at 3-4.)
In light of that procedural bar, Petitioner must demonstrate
either that cause for and prejudice from his procedural default
exists or that the refusal to address the defaulted claim will
result in a fundamental miscarriage of justice.
Ozmint, 377 F.3d 437, 447–48 (4th Cir. 2004).

Longworth v.

Here, Petitioner

asserts that “sufficient cause for excusing procedural default
exists when attorney error or oversight rises to the level of
ineffective

assistance

of

counsel

in

violation

of

the

Sixth

Amendment.”

(Docket Entry 11 at 8 (citing Murray v. Carrier, 477

U.S. 478, 485 (1986), and House v. Bell, 547 U.S. 518, 536-37
(2006)).)

In Ground One of his instant Petition, Petitioner has

indeed alleged that his appellate counsel provided ineffective
assistance

by

failing

to raise

the

substance

of

Grounds

Two

through Nine on direct appeal (see Docket Entry 2 at 5 and
¶ 12(c)(2) (Grounds Two through Nine)), which can constitute
grounds to excuse a procedural default, see Cole v. Branker, 328
F.

App’x

149,

158

(4th

Cir.

2008)

(recognizing

that

“[t]he

Supreme Court has ‘acknowledged that in certain circumstances
counsel’s ineffectiveness in failing properly to preserve [a]
claim for review in state court will suffice’ to establish cause
for a procedural default” (citing Edwards v. Carpenter, 529 U.S.
446, 451 (2000))).
However, as discussed above, because Grounds Two through
Nine lack merit, Petitioner’s appellate counsel could not have
-51-

provided ineffective assistance for failing to raise such futile
claims.

Thus,

Petitioner’s

allegations

that

his

appellate

counsel supplied ineffective assistance cannot constitute cause
sufficient to excuse his default.

See Dunaway v. Director of Va.

Dep’t of Corrs., 414 F. App’x 560, 562 (4th Cir. 2012) (“Because
his ineffective assistance claim fails, [the petitioner] has also
failed

to

show

cause

and

prejudice

excusing

the

procedural

default.”)
In

sum,

Grounds

Two

through

Nine

fail

as

procedurally

barred, as well as on the merits.17
Conclusion
IT IS THEREFORE ORDERED that Petitioner’s “Motion for Leave
to Expand the Record” (Docket Entry 12), “Motion for Leave to
Invoke
Hearing

Discovery”
and

for

(Docket

Entry

Appointment

of

13),

“Motion

Counsel”

for

(Docket

Evidentiary
Entry

14),

“Request for Order for Production of Documents” (Docket Entry
15), “Request for Leave to Amend” (Docket Entry 22), and “Motion
for Leave to Amend and Proposed Amendment” (Docket Entry 35) are
DENIED.
IT

IS

RECOMMENDED

that

Respondent’s

Motion

for

Summary

Judgment (Docket Entry 8) be granted, that the Petition (Docket

17

In view of the undersigned’s recommendation that the Petition lacks
merit, no basis exists to appoint counsel, to hold an evidentiary hearing, or to
order the production of documents.
Accordingly, the undersigned denies
Petitioner’s “Motion for Leave to Invoke Discovery” (Docket Entry 13), “Motion
for Evidentiary Hearing and for Appointment of Counsel” (Docket Entry 14), and
“Request for Order for Production of Documents” (Docket Entry 15).
-52-

Entry 2) be denied, and that this action be dismissed without
issuance of a certificate of appealability.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
May 7, 2015

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