BERRIER v. SHANAHAN

Filing 11

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 01/13/2014, that Respondent's Motion for Summary Judgment (Docket Entry 4 ) be GRANTED, that the Petition pocket Entry 1 ) be DENIED, and that Judgment be entered dismissing this action.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DANA MICHAEL BERRIER,

)
)
)
)
)
)
)
)
)
)

Petitioner,
v.

KIERÄN J. SHANAHAN, Secretary,
N.C. Department of Public Safety,
Respondent.

l:13CY302

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Petitionet, a ptisoner of the State of Notth Carohna, seeks a wtit of habeas corpus
pursuant to 28 U.S.C. 52254. Q)ocket Entry 1.) Respondent has filed an Answet

pocket

Entty 3), a Motion for Summary Judgment pocket E.rtry 4), and a Bdef in Suppott of the
Motion for Summary Judgment pocket Entry 6). Petitionet has filed a Response (Docket
Etrtry 9) and Supporting Brief to Response @ocket Entry 10).

Background
On February 7,2071, Petitioner was convicted by u i"ry of trafficking more than fout
grams but less than foutteen grams
schedule

II

substances,

of opium,

substance, and maintaining

possession with intent

a dwelling fot

keeping

to sell or deliver

or

a

selling contolled

in case 10 CRS 54307. (Docket Entry 1, $$ 1-6; Docket E.ttry 6, Ex. 2 at

60-63.)

The same day she was sentenced to 10-84 months imptisonment. (Id.)

Petitioner filed a rlirect appeal and the

Noth

Carohna Coutt

of Appeals found no

error in Petitionet's criminal judgment on Decembet 20,2077. State u. Berrier, No. COA11707,20L7 WI- 6575386, 81 OI.C. App. Dec. 20 201,1). On January

17

,201.3, Petitionet filed

in

a Motion fot Âppropríate Relief ("MÂR"¡

it

Supetiot Coutt, Davidson County;

was

denied on February 1,201,3. Q)ocket Etrtty 1, SS 10-11(a); Docket Entry 6, Exs. 5-6.) On

in the Supteme Court of Noth

February 26, 201,3, Petitionet filed a cettiotati petition
Carohna;

it was dismissed on March 7,201,3. @ocket Entty 6, Ex. 7.) The instant Petition

was submitted on

Apdl 11,201.3; it was fìled on ,,\pdl 12,2013. pocket Entry

1.)

Petitionerts Claims
Petitioner taises five claims: (1) she was deprived of het rights under the Foutth
Amendment, Q) she was deptived

of het Sixth Amendment right of confrontatton

and

of

due

cross-examination because a confìdential informant did not testit/, (3) het nght
process was violated because the tdal court denied het motion

failure to disclose exculpatory evidence

in the form of

to dismiss fot the

state's

a witness, (4) her conviction was

obtained by the state's failure to disclose favorable evidence until the second or third day

ttial, and (5) ineffective assistance of counsel.

(See

of

id. S 1,2.)

Factual Background

The North Catolina Coutt of Âppeals summadzed the facts ftom Petitioner's case
follows:

Detective M. Butns of the Davidson County ShedfPs Office
Vice/Narcotics Unit was infotmed by two diffetent subiects,
arrested in Jantary and May 201,0 for drug chatges, that Dana
Michael Beriet @efendant) was selling certain ptesctþtion
pills. On 1,2 Muy 201,0, Detective Butns and two othet
detectives met with a confìdential informant who also stated
that Defendant was in the business of selling pills. The
confidential inforrnant agteed to make a conttolled purchase
from Defendant's tesidence. After the contolled purchase, the
informant turned over several oxycontin pills to Detective
Butns. Based on these facts, Detective Burns requested a

2

as

search wartaît for Defendant's residence
Hairston Road in Lexington, Notth Carohna.

^t

190 Beulah

The search watta;Írt was issued, and while searching Defendant's
home the detectives saw a small, locked safe and a locked black
makeup case in the bathroom. Upon Detective Butns'request
for keys to the safe and makeup case, Defendant handed the
keys, which she kept on her necklace, to Detective Burns who
opened the safe. Inside were one or two pill bottles, along with
a locked black makeup case. The makeup case contained more
bottles of pills.

warrant was issued for Defendant's affest on 7 June 201,0.
On 2 August 201,0, Defendant was indicted on chatges of
traffìcking in opium or heroin by possession, two counts of
possession of a controlled substance with the intent to sell ot
.4.

deliver, and maintaining a place to keep a controlled substance.
By motion dated 1 December 2010, Defendant moved to
supptess the evidence seized ftom her home and the statements
she made to police after the search. On 25 Jantary 20"1,1.,
Defendant fìled a motion to compel release of the identity of
the confidential infotmant who wotked with the detectives.
Âftet a vok dite ¡.ut¡ttg outside the presence of the jury, the
tnal court denied both motions. On 1 trebruary 201,1,
^
Davidson County jury found Defendant gúlty of (1) trafficking
in more than 4 grams but less than 1,4 grams of opium, (2)
possession with intent to sell ot delivet a schedule II conttolled
substance, and (3) intentionally maintaining a dwelling for
keeping and selling conttolled substances. Judgment was
enteted against Defendant the same day, and she was sentenced
to 70 to 84 months'impdsonment.
Ben'ier,201,1,

WL 6575386,

at*1,

Standard of Review

As a ptelimin ry m^tter, to receive habeas relief, a petitioner must fìrst exhaust her
state court temedies. 28 U.S.C. S

2254þ)(1XÐ. The rationale for this tequitement is

follows:
þ]ecause the exhaustion doctrine is designed to give the state

courts a full and fak opportunity to tesolve
a

J

federal

as

constitutional claims befote those claims are presented to the
fedetal courts . . . state ptisonets must give the state courts one
full opportunity to tesolve any constitutional issues by invoking
one complete round of the State's established appellate teview
pfocess.

O'Salliuan u. Boerckel, 526 U.S. 838, 844, 119 S.Ct. 1728, 1732 (1,999).

In a two-tiered

appellate system like North Carolina's, "one complete tound" includes not only direct appeal

to the state's intermediate
discretionary teview in the

appellate court,

Noth

but also the opportunity to petition fot

Caroltna Supreme

Court.

See

id.

Claims not raised

in

a

petition to the state's highest court are non-exhausted and thetefore genetally procedutally
barted ftom federal habeas teview. Id. at 848, 119 S.Ct. at 1734. Moteovet, failure to
exhaust state law remedies will result

teview

in the claims being procedutally barred from federal

if, upon return to the state courts, those courts would find that the claims ate

ptocedurally batred. Breard u. Pruett, 1,34

F3d

61,5, 6'1,9

Thornpson,501 U.S. 722,735 n. 1,, 1.1,1 S.Ct. 2546, 25557

(4th Ck.1.998) (citing Coleman

u.

(1991). Noth Caroltna Genetal

Statute S 154-1419 imposes such a mandatory procedural bar for claims that could have
been presented on appeal ot in a prior motion for appropriate

relief.

Ro¡e u. I-"ee,

252 F.3d

676,683 (4th Cit. 200t¡.t Where the claims below are found to be procedutally bared, this
standard will apply

t On. may overcome

by showing câuse and ptejudice arising from the asserted
consd.tutional error. McCaraer u. I-.ee,221 tr.3d 583, 597-92 (4th Cir. 2000). To show "cause," a
petitionet may make "a showing that the factual or legal basis fot the claim was not teasonably
available to counsel." Id. at 591 (citation omitted). To establish "prejudice," a petitioner must show
"not metely that the errors at his trial created a possibility of prejudice, but that they worked to his
acítal and substantial disadvantage, infecting his entire trial with error of consd.tutional dimensions."
Id. at 592 (citation omitted). One may also overcome procedural default by demonsftatsng that the
court's failure to considet the claim will result in a fundamental miscarnage of justice. Hedrick u.
True, 443 F.3d 342, 359 (4th Cft. 2006) (citation omitted). This exception applies only to cases
involving exttaotdinary instances "where a constitutional violation has 'ptobably resulted' in the
a procedural default

4

Âdditionally, whete a state ftial coutt adjudicated a petitionet's claims on theit metits,

this Coutt must apply 28 U.S.C.

highly deferential standard of review to such

S 2254(d)'s

claims. That statute ptecludes habeas relief in

cases

whete a state court has considered a

claim on its medts unless the decision was contrary

to or involved an unreasonable

application of cleady established fedetal law as set out by the United States Supreme Coutt

ot the state court decision was based ofl

^rr

uffeasonable determination of the facts. A state

court decision is "contrary to" Supreme Court precedent if it eithet attives at "a coflclusion
opposite to that teached by [the Supreme] Court on a question of law" or "conftonts facts

that are matedally indistinguishable from a televant Supteme Court precedent and arnves at
a result opposite"

to that of the Supreme Coutt. I[/illiams u. Ta1lor,529 U.S. 362, 405, 120

S.Ct. 1495,151.9 (2000). -A state decision "involves arì uffeasonable application" of Supteme

Coutt law

"if the state court identifies the corect governing

Court's cases but urìreasonably applies

legal

de

it to the facts of the paticular

ftom [the Supteme]

state ptisonet's case."

Id. at 407,120 S.Ct. at 1.520. "IJffeasonable" does not mean just "incotrect" or "effoneous"

and the Coutt must judge the teasonableness from an objective standpoint. Id. at
120 S.Ct.

^t"1521.-23.

409-'1.1.,

State court facttal findings are presumptively coffect unless tebutted

by clear and convincing evidence. 28 U.S.C. $ 225a(e)(1). Whete the claims below were
denied on theit medts, this standard will apply.

conviction of one who is 'zctually innocent' of the substantive offense." Dretke u. Haley 541 U.S.
386,392-94,124 S.Ct. 1851-52 Q004) (citing Mural u. Carier, 477 U.S. 478,494-96,706 S.Ct.2639,
264e-s0 (1e86).
5

Discussion
Respondent first argues that the Petition is time-barted undet 28 U.S.C.

\

2244(d).

Q)ocket Entty 6 at 4-1,3.) Although Respondent's atguments concerning the timeliness

the PetitioÍr

^ppe

r

well-taken, they involve

unsetded issues. The other grounds set out

present

a number of complicated and

in

of

somewhat

Respondent's summaq/ judgment bdef

no such difficulties. Moreover, the limitation petiod in S 2244(d) is

not

judsdictional, so the Coutt need not consider it befote proceeding to other arguments. Hi//
u.

Braxton,277 tr.3d701,,705 (4th Cir. 2002). Given allof these circumstances, the

Coutwill

not address the time bar issue furthet, but instead wtll analyze Respondent's other summaty
judgment arguments.

Claim One
Petitionet asserts a depdvation of het Fourth Âmendment dghts because the üial
court denied her motion to suppress a seatch w^r.ant. pocket Entty 1, S 12, Ground One;

Docket E.rtty
even

if it

1,0

at 3-4.) However, the Court is ptohibited ftom considering this claim and,

were not, the claim fails on the medts. More specifically, Petitioner raised this

Fourth Amendment atgument with the trial court, where it was denied, and then attempted
to raise

it

agun on dkect appeal.

pocket Entry 6, Exs. 3

and 17 at 11,4-1.19,184-238.) The

appellate court concluded that this issue had not been pteserved at tl:tal and that

it

could

thetefote only teview the issue fot plain ertor on appeal if plain error was specifically atgued.
See

Benier,201,1.Iül,6575386,

plain

atx2.

Because Petitionet's appellate counsel failed

to

argue

eror on appeal, the appellate court declined to review this issue on the merits.

Id.

Petitioner did not seek futthet review on ditect appeal by way of a petition for discretionary

6

106 S.Ct.

at

2583. These same standards apply to claims that appellate counsel ptovided

ineffective assistance of counsel. See l-^awrence u. Branleer, 517 F.3d 700, 708-09 (4th Cir. 2008).

,{lso, appellate counsel need not taise on appeal evelT non-frivolous issue tequested by
defendant. Jones u. Bames,463 U.S. 7 45,
u. Tbompson, 881

7

50-54, 1,03 S.Ct. 3308 , 331,2-1.4 (1983);

see

a

also E aaøs

F.2d 117,124 (4th Cit. 1989) (declaring that counsel putsued sound strategy

when he "detetmined what he believed to be petitioner's most viable arguments and taised
them on appeal'). Winnowing out weaket arguments to press forward with mote important

points constitutes an impotant part of effective appellate advocacy. Jones,463 U.S. at751.52,1,03 S.Ct. at 331.3. Pteiudice can arise

if "'counsel omitted signifìcant and obvious issues

while putsuing issues that wete cleatly and significandy 'weaker."' Be//
1

80 (4th Cir. 2000) (qaoting Mqo

u. Henderson, '13 tr

a.

Jarais, 236 F.3d 1,49,

.3d 528, 533 Qd C:n. 1994)).

Flete, Petitioner's Foutth Amendment claims tegarding the seatch wattant wete not

medtorious and thetefote appellate counsel was undet no obligation to raise

them. A

conttolled purchase of drugs by an infotmant under the supervision of ¿n offiçs¡-as was

the case þs1s-i5 sufficient to establish probable cause to search the premises where the
purchase took place.a Petitionet suffered no prejudice from the failue to preserve the issue

fot de novo teview or ftom appellate counsel's failute to seek plain ettot review.
Petitioner also assetts that the

tial

coutt's decision not to telease the identity of

a

confidential informant in the case entitles her to fedetal habeas telief. @ocket Entty 1, $ 12,
a See (Jnited States u. Stearn, 597 F.3d 540, 556
(3d Cir. 2010) (frnding probable cause when
informant's tip was cortoborated by his subsequent controlled buy); U.J. a. Þ-reeman, No. 1:09-cr-55,
2010 WL 7957303, *4 (8.D. Tenn. }lIay 73,2010) þrobable cause fot wattant present where
detective "conduct[ed] a controlled buy, which took place in Defendant's home" because "[a]fter the
controlled buy was completed, it was reasonable fot Detective . . . to anticipate that evidence of drug
sales would be present in the home, especially given that the controlled buy occurred shortly before
he completed the afftdavrt and procured the wananf').
8

review to the state high court, but did taise this issue again in a post-conviction MAR, which
was also denied. (Docket E.rtry 6, Exs.

5 and 6.) Petitionet's Fouth .,{mendment

search

and seizute claim is thus bared ftom federal habeas review, as she had an opportunity for

full and fat2 httganon of het Fourth Amendment claim.

See Stone u.

Powel/,428 U.S. 465,481,-

82,96 S.Ct. 3037 ,3046 (1,976).3

One point deserves additional consideration. In het MAR, Petitioner asserted that

tnal and possibly appellate counsel mishandled Fourth Amendment issues telated to the

w^rr^flt and that she thetefote suffeted ftom constitutionally ineffective assistance of
counsel. pocket Entry 6, Ex.

5.) It is true that a Fourth

Amendment claim is not

ptecluded by Stone u. Powell when it is taised in the context of a Sixth .,\mendment ineffective
assistance claim.

See

Kimmelman

u.

Morison, 477 U.S. 365, 382-83,106 S.Ct. 2574,2587 (1,986)

To ptevail orì an ineffective assistance claim for an alleged Foutth Âmendment violation,

a

petitionet must prove that het Foutth Amendment claim is metitotious and that there is

a

teasonable ptobability

of a different vetdict absent the excludable evidence.

See

id. at 375,

2 The United States Court of Appeals for the Fourth Circuit has previously recognized that Noth
Carolina's statutory scheme govetning the litigation of modons to suppress, ree N.C.G.S. $S 15,{.971-980, establishes "an oppottunity for the full and falr litigad.on" of Fourth Amendment claims.
Sallie u. Søn of Noøh Carolina,587 F.2d 636,639 (4th Cir. 1978).
3

See also IYright u. IYest,505 U.S. 277,293, 112 S.Ct. 2482,2497 (1992) ("rùØe have also held . . . that
claims under Mapp levrdence obtained in violation of the Fourth Amendment] ate not cognizable on
habeas as long as the state courts have provided a full andfa:n opportunity to litigate them at trralor
ondirectteview."); Muelleru.Angel0ne,181 F.3d 557,570 n.8 (4th Cft.1999) (acknowledgþgStoneu.

Powe// rule that federal habeas courts decline to review state court Foutth Amendment
determinations); Crimsle1 u. D0ds0n,696F.2d303,304 (4th Cir. 7982) ("Stone a. Powell marked, for
most practical purposes, the end of federal court reconsidetation of Fourth
'\mendment claims by
way of habeas colpus petitions where the petitioner has ân opportunity to litigate those claims in
state court."); Edwards u. Jackson, No. 3:08-cv-584-RJC, 2012WL 737413, *4 CX/.D.N.C. Jan. 18,
201,2) ("Petttionet was afforded a full and fau oppotunity to raise any Fourth Amendment search
and seizure or unlawful arrest claims he wished to taise attltal and on appeal, but he did not do so.
Therefote, his current Fourth -,{mendment seatch and seizute claim and unlawful arrest claims are
both batted from federal habeas review.").
7

Gtound One; Docket Entry 1,0 at 3-4.) Petitioner never mentioned this as a Fouth
Amendment claim on direct appeal and she did not specifically addtess it in het MAR.
Petitionet ttied to raise the issue in a MAR now,

If

it would be procedurally bared because

Petitionet could have taised the issue on dirsç¡ appeal or in her ptiot MAR. It is tue that
constitutionally ineffective assistance of counsel amounts to cause to excuse a procedutally
defaulted claim.

See Coleman,501,

U.S. at 753-54,111 S.Ct. at2567;Murral u. Carrier,477 U.S.

478, 488,106 S.Ct. 2639,2645 (1,986). Nevertheless, while Petitionet does contend ot

i-ply

that appellate counsel was ineffective for other reasons, addtessed hetein, Petitioner

does

not contend that appellate counsel was ineffective fot failing to taise the issue of
confìdential infotmant

on appeal. Not

does Petitioner contend that

the

it would be a

fundamental miscardage of justice to fail to review this claim. Petitioner has thus failed to
overcome the procedural default of this claim.

This claim is also ptecluded by
disclose the identity

Stone a. Powe//.

This is because atttal court's refusal to

of a confidential informant does not depdve a defendant of a full

and

fair oppottunity to litigate a Fourth Amendment search and seizure claim in state corút.s
Thus, even setting aside the issue of ptocedutal default, Petitionet's assettion that she is
entitled to fedetal habeas telief because the trial corrt would not ordet the telease of the
identity of a confidential informant is not reviewable by this Court.

s

Se€, €.g., United States ex re/. Petillo a. Nz;w Jersey 562 tr.2d 903, 907 (3rd Cir. 1977); OrtQ u. Ollison,
2009 WL 4281989, at*6-9 (C.D. Cal. Sept. 23, 2009); see also McCrq u. Illinois,386 U.S. 300,372-73,
87 S.Ct. 1056 (1967) (th. Constitution does not compel the states to disclose an informer's identity
whete the "officers made the arest or search in reliance upon facts supplied by an informer they
had reason to trust'); United States u. Napier, 436 F.3d 1733, 1.134-36 (gth Crn. 2006) (rejecting claim
that ttíal court unduly hampered defendant's ability to challenge a seatch w^rr^nt when the court

sealed ponions of the warraflt identifying the confidential informant).
9

Finally, even

medts.

"ffihen

if the Coutt were to considet this mattet furthet, it would fail on the

the informant is an actve patttcipant in the transactions at issue instead

of

just a mere tipstet, the failure to require disclosure of the infotmant's identity is mote likely

to amount to error." Unind

Søtes u. Bleuins,960 F.2d 1252, 1,258 (4th C1t. 1,992); see also

United States u. Cra1,47 F.3d 1359,1,364-65 (4th

Cir. 1995) (noting "the well settled principle

that the government is permitted to withhold the identity of a confidential infotmant when

w^tr^nt').

the infotmant was used only for the limited pu{pose of obtaining a search

Hete,

Petitionet has not pointed to any evidence that the infotmant in this case was used fot any
reason other than providing infotmation to support the search w^rtant. Nor does

that Petitioner was chatged with the illegal sale of drugs to the infotmant.

E.rt

y 6, Ex. 17 at 235-238.) See also Berrier, 201,1, WL

6575386,

*3

it

(See, e.g.,

appear

Docket

(concluding that

"Defendant was never charged in telation to these events"). The undersigned has been
presented with no reason, and has found none,

to conclude that it was ertot for the trial

court to refuse to disclose the identity of the informant.

Claim Two
Petitioner next asserts that she was depdved

of her Sixth Amendment dght of

confrontation and cross-examination because the confidential informant did not testi$..
(Docket E.rtty 1, S 12, Ground Two.) Petitionet essentially made this argument on dirsç¡
appeal and
6575386,

it

was denied by the North Caroltna Court

of Appeals.

Berrier, 2011

\Xl,

*3. Petitioner did not seek funhet teview on this issue with the Supteme Coutt of

North Carolina during her direct appeal, nor did

Mr\R. (Docket Entty 6, Exs. 5-6.) Petitioner

she taise het Sixth Amendment claim

in her

has thetefore failed to exhaust this claim and

10

it

would be futile to attempt to do so now. Mote specifically, Petitioner carinot now putsue

this issue furthet with the Supreme Court of Notth Caroltna as the time to do so
expired.

.|¿e

has

N.C. R. Âpp. P. Rules 1,4(a) and 15þ) and Rule 32þ). Likewise, it is too late to

raise this issue

in a MAR because if Petitioner returned to the state courts to exhaust the

claim thtough a MAR, she would face rr..aldatory imposition of the procedutal bat in N.C.

Gen. Stat.

$

15A-1419(u)(1), (u)(3), and

þ).

Consequently, whete, as here,

a

habeas

petitionet would find her nonexhausted claim subject to a mandatory procedural bat
returned

to

state court

fot

if

she

exhaustion, the claim is batted from fedetal habeas teview.

Petitioner has neither pled nor established cause and prejudice, nor has Petitioner pled ot
established that it would be a fundamental miscariage of justice to refrain from considedng

this claim futthet. In short, this Coutt is batted from teviewing this claim.
However, even

if this claim

were not procedutally barted, it would fatl. on its medts.

In addtessing this claim, the Noth Caroltna Court of Appeals concluded that:
Defendant contends that the trial court erted in allowing
testimony that was both inadmissible heatsay and violative of
her Sixth Amendment dght to conftontation. We disagtee.
Putsuant to N.C. Gen. Stat. S 8C-1, Rule 801(c) (2009),
hearsay is "a statement, othet than one made by the declatant
while testi$ring at the trial or hearing, offered in evidence to
prove the truth of the matter asserted." Defendant argues that
information communicated by the confidential informant in this
case is heatsay, because "lufny statements that tend to connect
Ms. Berier to sale of opiates necessadly address the truth of
^
the mattet asserted." Because the contested testimony contains
no vetbal statements ftom the confìdential informant,
Defendant cites numerous cases whete a declarant's conduct
was found to be a nonvetbal "statemenC' fot the putposes of
heatsay analysis.

11

The only conduct of the confidential ínformant, as
descdbed by Detective Burns, which could constitute

^
statement is the act of teturning from the Defendant's residence
after the conttolled purchase and turning over fìve pills to the
detectives. Flowever, testimony regarding this interaction was

not inffoduced to prove the truth of the matter 2ssgl¡sdnamely that Defendant sold the informant illegal drugs. In fact,
Defendant was never charged in relation to these events. The
pulpose of the testimony regarding this controlled putchase was
to establish Detective Burns' belief that controlled substances
wete sold by Defendant
her tesidence. Detective Burns'
^twas the affìant who applied for the
belief is televant because he
seatch w^ffaît fot Defendant's residence. The testimony was

not being offered for its truth, and so is not

hearsay;

accotdingly, Defendant's atguments are overruled.
Berrier, 201,1,

The

WL

657 5386, *3.

Noth

Carchna Court of Âppeals was coffect in its holding for the reasons set

fotth above even without regard to AEDPA's deferential standard of review.
Il/ashington, 541 U.S.

See

Crawþrd

u.

36, 59, n.9, 124 S.Ct. 1354, 1,369 Q004) (declining to "bar the use of

testimonial statements

for

purposes other than establishing the

assetted"). And, under the AEDPÂ standard, the

Noth

truth of the matter

Caroltna Court

of Âppeals

tesolution of this matter is neithet contrarT to nor an urìreasonable application of cleatly
established fedetal law, as determined by the U.S. Supteme Coutt, nor was

it

based on an

uffeasonable detetmination of the facts, in light of the evidence presented in the state court
ptoceedings.

Claims Thrce and Fout
Petitionet next asserts that her dght to due process was violated when the ttial court
denied her motion to dismiss based upon the state's alleged failute to disclose exculpatory

evidence. (Docket E.ttty 1, S 12, Gtounds 3 and 4.) Petitioner also argues that "thete was

1.2

insufficient evidence to charge and convict þer] of traffìcking." pocket E.rtty

1,0

at 5-6.)

Because these claims ovetlap, they are best considered together.

If Petitioner is simply

tephrasing her second gtound for relief,

it should be denied fot

the teasons and authodties set forth above.
.As for Petitioner's Braþtclaim, Petitioner did
raise the issue

in het MÂR,

where

it

was summarily denied (Docket Entty 6, Exs. 5-6).

Petitionet's Bradl claim lacks merit and the MAR state court did not err, much less act
contrary to or urreasonably apply clearþ established fedetal law, in denying this claim.
Specifically, Petitionet assetted atftiaI and asserts anew that the state withheld ftom
her the fact that dudng ot immediately after the execution

of the wanant a Detective, Burns,

met and conversed with Bdan Gaither, an individual whose name was on one or more
bottles of ptescription drugs found in Petitioner's home. pocket Entty 6, Ex. 1.9 at'1,28,
330,402-06,41.0-'1."1.;

Docket Entty

1.0

at7.) Detective Burns testifìed that "during the end"

of his investigation Gaither pulled up in
himself and asked if he could help. (Id.

^t

a

vehicle. (Id. at 41,0.) Detective Butns identified

41,1,.)

Gaither said he was there to get his pills and

Detective Burns said "those pills were seized fot funhet investigation." (Id. at

41,0-1,1,.)

Detective Butns testified that he told Gaither that "they wete evidence that he would have to
get a disposition from a judge before those pills could be tetutned

tetutned." (Id. at

41,1,.) The

if

and when they could be

ttial court denied Petitionet's motion to dismiss due to the

alleged Braþ violation, but requited Detective Burns to reduce to writing his encounter with

Gaither, which he did.6 (Id. at 406-08.) Petitionet thus had ample opportunity to make use

of Detective Burn's statement attrial. Qd. at408,410.)

6

The statements reads as follows
13

In Braþ

u.

Maryland,373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97 (1963), the Supreme

Coutt held that "suppression by the prosecution of evidence favorable to an accused
violates due ptocess where the evidence
futespective

is material either to guilt or to

.

punishment,

of the good faith ot bad faith of the prosecution." The prosecutor's duty to

disclose such exculpatory evidence is applicable even

information by the accused. United

States u. Agars, 427 U.S.

01' (1,976). Bradl encompasses evidence

to the prosecutor. I9ltt

u.

in the absence of a request fot

the

97, 1.10-1.1, 96 S.Ct. 2392,2400-

known to police investigators, even if it is not known

ll/hitley 514 U.S. 41,9,438,115 S.Ct. 155, 1568 (1995).

To successfully show a Bradlt violation, a petitioner must establish three things. First,
"[t]he evidence at issue must be favorable to the accused, either because it is exculpartory, of
because

it is impeaching." Stricleler

u. Greene,527 U.S.263,281-82, "119 S.Ct. 1936,1,948

(1999). Second, the evidence must have been willfully or inadvettently supptessed by the

On May 25, 2070, I executed
Hairston Rd, Lexington, NC.

a

search w^ttaÍtt

at 1.90 Beullah

At

some point near the end of execution, I was outside the residence
and a white male unknown to me drove up to the residence. I do not

recall what he was ddving. I do not recall if anyone else was with
him. I walked to [the] vehicle and identified myself and asked him
"Can I help you?" He identified himself by name. I do not recall if
he said "Brzrdon" ot "Brandon Gaither." He said he "needed to get
his pills." I then tecalled that a bottle seized had the name of
Brandon Gaither pdnted on a label affxed to it. I told him that "his
pills were seized pending an investigation." He asked how to get
them back. I told him that once evidence wâs ordered to be disposed
by a judge he may be able to get his pills back. He left. I arn fattly
confident we had all but concluded our activities at 190 Beulah
Hairston Rd when tfris conversation took place. It is possible that I
was the only officet remaining at the scene but I am not cettain about
this.

pocket E.rtty

7 at22.)

14

state. Id. at282,1,19 S.Ct. at 1,948; see also United

States u.

Stokes,261F3d 496,502 (4th Cir.

2001). Finally, prejudice against a petitioner must have tesulted
was

"matetal"). Strickler,527 U.S.

Evidence

is

^t

282,119 S.Ct. at 1948;

considered "material" and thus subject

see

(i.e.,

the evidence at issue

also Stokes, 261

tr.3d at 502.

to Bradl disclosute "if thete is

a

reasonable probabiJity that, had the evidence been disclosed to the defense, the result of the

proceeding would have been

different."

United States ,. BnghJ,473 U.S. 667, 682, 105 S.Ct.

337s,3383 (1985).

In this case, the

state court did not ett, much less act contrary

apply cleady established federal law, when

it

to or unreasonably

concluded there had been no Bradl violation.

Petitioner was provided Detective Butns' statement tegatding Brandon Gaithet aftet the
state's case in chief. Petitionet's counsel then examined Detective Burn's on this issue in the
presence

of the jury. Thus, it does not appear to the undersþed that, even assuming this

evidence is favorable to Petitioner,

it was suppressed by the state. See Unind Snns u. Røssell,

911 tr.2d 1098, 1112 (4th Ctn. 1,992) (concluding that thete is no due process violation "[a]s

long as evidence is disclosed before it is too late fot the defendant to make effective use of

rt);

see

also Unhed States

u.

Jade,29 Fed.

App'"

11,6,

at x1 (4th Cu. 2002) ("Defense counsel

were granted an oppottunity to review the matetial, and there is no indication that eadier

ptoduction would have been

of

measutable benefit. Accotdingly, we

find no violation

tesulting from the delivery of the documents on the day of ttial."). And, even assuming that

Burns' exchange with Gaither was favorable to Petitioner and its disclosure during trial
constitutes supptession by the state, thete is no reason to believe that had it been disclosed
eadier the outcome

of Petitioner's ctiminal

proceedings would have been

15

different. The

evidence in this case against Petitioner is strong and includes Petitionet's admission that she

sold drugs, controlled putchases

of drugs from Petitiorler's tesidence,

and a locked safe

containing drugs whose key Petitiorìer wore around het neck. pocket E.ttty 6, Ex. 1.7 at
247 -262,

265-66,

287

-96.) This atgument is lacking in merit.

Regarding Petitioner's sufficiency of the evidence claim, the North Carolina

Cout of

Appeals rejected this argument on direct appeal

Defendant argues in her motion to dismiss that the State failed
to ptoduce sufficient evidence to support all elements of the
charged ctimes. With regard to the charges of ttafficking and
maintaining a dwelling fot the putposes of drug activity,
Defendant asserts that the State failed to prove that she
controlled the drugs found at the home, and as â consequence
failed to show consftuctive possession. This argument is
without medt. The evidence is urìcontroverted that Defendant
wore a chain atound her neck with the keys to the locked boxes
whete most of the dtugs wete kept. It is irtelevant that the
names of othets wete on the presctiption botdes because
Defendant possessed the keys, she cleatly controlled access to
the drugs. This evidence of control also suppotts a finding that
Defendant had constructive possession over the dtugs, as
"[c]onstuctive possession exists when a person has the
intent and capability to maintain control and dominion over a
controlled substance." State u. Il/illians,307 N.C. 452, 455,298
s.E.2d 372,374 (1983).

Defendant also argues that the State presented insufficient
evidence of het intent to sell dtugs, as tequired fot the guilt of
possession with intent to sell and deliver. F{owevet, the State
presented Detective Butns' testimony tegarding Defendant's
tesponse to the question of how m^ny pills per month she sells.
That evidence is sufficient to establish the element of intent to
sell. Defendant's argument is overuled.
Berrier, 201,1,

WL

657 5386, at

*3-4. Petitionet did not raise this issue by way of

a

petition for

discretionary review to the Supreme Court of Notth Caroltna, not did Petitionet address
specifìcally in a post-conviction

MÂR. Petitionet
16

sets forth

it

no rationale for this ptocedural

default which would overcome

it.

Consequently, Petitioner cannot teceive habeas telief by

way of this claim. And, even were

it not procedurally bared, this claim fails on its merits.

This is true even without resort to AEDPA's deferential standard of review and is certainly
the case in light of the standard.

A

fedetal court teviewing a habeas claim of insufficient

evidence must detetmine whether, after viewing the evidence in the light most favotable to

the state, any raional trier-of-fact could find the essential elements of the crime beyond

doubt.

teasonable
Jackson u.

foth

See lT/right

a

u. Ilvest, 505 U.S. 27J, 284, 112 S.Ct. 2482, 2485-86 (1,992);

Virginia,443 U.S. 307,31,9,99 S.Ct. 2781,,2789 (1,979). Here, fot the reasons set

above, and elsewhete

evidence at Petitioner's trial

in this Recommendation, the ptosecution presented suffìcient
to satis$r the due process tequirements for sufficiency of the

evidence undet cleatþ established U.S. Supreme Coutt law.

Grcund Five

In Gtound Five, Petitionet alleges that she received ineffective
pocket E.rtty 1, S 12, Gtound trive) The

essence

assistance of counsel.

of this claim is that her trial counsel had

an impetmissible conflict of intetest tegarding another client, Mark Lankfotd, and waited

until the last minute to inform Petitionet that he could not tepresent het as a tesult.

Qd.)

Petitioner also claims that her trial counsel misadvised her. (Id.) Petitionet claims futhet
that her trial attorney "did not offer þer] the disttict attorney plea agreement in a timely
manner to the extent that the plea was taken off the table." (Docket Entty 10 at
appellate counsel, Petitionet continues, was constitutionally ineffective
these issues

to let het

8.) Het

fot failing to taise

on appeal. (Id.) Finally, Petitioner alleged that the trial court ered by declining

fte het attotney and either hfue a new attorney or represent herself.
17

(Id. at 10.)

Petitioner raised ineffective assistance of ttial and appellate counsel in het MAR and

it was summadly denied by the MAR Court. @ocket Er,ry 6, Exs. 5-6.) Upon teview, and
as detailed

below, the state court did not etr, much less act conúary to ot unreasonably apply

cleady established federal law, in its summary denial of Petitioner's ineffective assistance
counsel claims. As noted, to prove ineffective assistance

of

of counsel genetally, a petitioner

must establish, fìrst, that his attorney's performance fell below a teasonable standatd fot
defense attorneys and, second, that
If/ashington,

he suffered ptejudice as tesult.

u.

466 U.S. 668, 688, 694, 1,04 S.Ct. 2052, 2064, 2068 (1,984). Unsuppoted,

conclusory allegations do not entitle Petitionet to even a hearing.

tr.2d 1125, 1136 (4th Ctr. 1,992), abrog'n

(4th Cir.

See Strickland

1,999).

performance.

Â

Nickerson a. I¿e,

97'1.

on otlter grounds recog'd, Yeatts u. Angelone, 1,66

F.3d 255

of afftmatively showing

deficient

petitioner bears the butden

See Spencer u.

See

MutEl, 18 F'.3d 229, 233 (4th Cir. 1994). Ptejudice tequires

showing of a reasonable probability that but for counsel's unptofessional ertors, the result

a

of

the proceeding would have differed. Strickland,466 U.S. at 694, 104 S.Ct. at 2068. As
explained below, none of Petitioner's petmutations of this claim have merit.

^.

Conflict of Interest

First, any clairr' that Petitioner's tdal counsel was constitutionally ineffective for
opetating under a conflict of intetest during the time he represented het must

whete defense counsel is involved

fail.

Even

in an alleged conflict, a petitioner must show that

representation of counsel is advetsely affected by an acttal conflict of intetest. United States
u. Tatam,943 F.2d 370,375 (4th

Cit. 1991);

see

Micken¡ u. Ta1lor,535 U.S. 1.62, 112 n.5, 535

U.S. 1.62, 172 n.5 Q002). Courts have held that to show an advetse effect, a petitionet must

18

demonstrate that some plausible defense strategy or tactic might have been pursued, but was

not because of the conflict.
cases);

see

also Patterson u.

See Perillo u. Johnson,T9

F.3d 441,,449 (5th Cir. 1,996) (citing

Virginia Dept of Corrections, No. 96-7438,1,998WL957464 (4thCk.

Sept. 22,1993) (unpublished) (adopting this approach).

If a petitionet

makes this showing,

prejudice is then presumed. Mickens,535 U.S. at172 n.5, 535 U.S. at 172,t.5.
F{ete, the transcript reveals that the day

of ttial-befote all of the pteúial motions

had been addressed, but after the jury had been selected and empaneled-Petitioner's trial
attorney, Corey Buggs, moved to withdraw as counsel aftet being informed by Petitioner
that he was relieved of his duties. pocket Entty 6, Ex. 17 at 21,4.) Petitionet addtessed the

court and asserted that Mt. Buggs had a conflict of intetest. (Id. at21,5.) The putported
conflict of interest involved a man named "Lankford," who was also a client of Mr. Buggs.
(Id. at 216-17.) Apparently, Petitioner previously made a statement to authodties tegatding

Lankford's relationship to some stolen lawn equipment. (Docket Etttty
E.rtry 6, Ex.

1,7

at 2"1.6-17.) The state indicated that

1,

at 23, Docket

it had "no knowledge of Mr. Lankfotd

ever having given any infotmation about fPetitionet]," that Mr. Lankfotd was not a witness

in the

case, and

that the state had no knowledge of any infotmaion "that would cre^te

^îy

sort of conflict for Mr. Bugs." (Docket Entty 6, Ex. 17 at 21,6-1,7.) Mr. Bugs stated to the
court that he had only heard about Lankford's alleged statements against Petitioner the prior
day when told by Petitioner herself. (Id.)

'lhe trial coutt indicated that Mt. Bugs had spoken

to the state bar about the potential conflict of interest, which had determined that thete was

no such conflict. (Id. at 21,5.) Petitioner responded, stating that "They said it wasn't

19

a

conflict if his client didn't

sþ

several people his client did

a statement on me

sþ

Petitioner has failed

to

statements on

petaining to this case. I have been told by

me." (d.

at21,6.)

establish any actual conflict that affected

rial

counsel's

petformance. No statement by Lankford was ever presented to the jury, is in the recotd, ot
is contained in

ot

attached to the pleadings. The only evidence on tecotd

in support of her

contention that one of het trial counsel's othet clients was making statements against her is
het vague and conclusolT assertion that several unnamed persons told her as much. This is

insuffìcient to establish an actual conflict of interest. Moteover, even

if thete was an actual

conflict of interest on the tecotd, and there is not, thete is no reason to believe it adversely
affected ftial counsel's performance. Petitioner points to no parttcular action of ltrial counsel

but rathet asserts that

"I feel as if my attorney

did not do his best to represent me and in fact

hurt me more than help me because of out conflict." (Docket Etttty

1,

at 24.) This vague

and conclusory statement is insufficient to establish an advetse effect even

if tdal counsel

opetated undet a conflict of interest. Ând, as explained elsewhete hetein, Petitioner's other
assertions of ineffective assistance of tdal counsel ate unpersuasive.

b.

Misadvice

Petitioner also states that trial counsel was constitutionally ineffective because he
"repeatedly misadvised
ex^ct scope
clea47

[h.t]."

@ocket E.rtty

'1.

at23; Docket Etttty 10 at 8.)

While

the

of what Petitionet considets to be misadvice from tial counsel is not entirely

it is clear from the Response @ocket Entty 10 at 8) that Petitionet complains of the

manrìer in which ttial counsel handled plea negotiations with the state. More specifically, on
t If P.titioner is arguing that üial counsel misadvised het in regatds to the purported conflict of
interest involving Lankford, this argument fails fot the reasons set fotth above.
20

the day

of tial, while the ttial court was addressing

various pretrial motions, including the

conflict of interestissue addressed above and the motion for a continuaflce addtessed below,
Petitioner stated that:

He [trial counsel] said he was going to speak with the DA and
try to get the DÂ to give me a bettet plea than two years. I
didn't heat ftom him anymote and he says he called me on
Sunday. I don't temember. My intentions was to come in this
courtroom on Monday and tell him I was going to take the two
year plea because I have thtee kids. My three yeat old - my
husband's health is not good enough to take care of het.
Qefendant crying.) I was a half hour late fot coutt because I
couldn't get her ready. She has sttep throat. You [trial coutt]
gave me a hundted thousand dollar bond. The D.,{' says
because I was late the plea went from two yeats to thtee yeats.
I told him I got in here and talked to you, tell him I will take the
'We
three years. I'm scated to go to tdal. The D,A. said "No.
are not doing it. Âll bets arc off. We ate going to tdal. fMr.
Buggs] calls me last night and offers me another plea of fìve
years if I plead g"ilty but he says you don't have to take it until
aftet the motion, then you can decide. That is what he told me
last night. All dght. Then I get here this motning, he tells me,
"Oh, I'm sorry, I misunderstood. You have to take the plea
rìow, you can't do the motion and take the plea. I was once
again misadvised.

This is a nightmate to me and I think
bettet counsel than what I have.
(Docket Entry 6, Ex.

I deserve to have, to get

1.7 at21,5-1,6.)

Dudng this hearing, both trial counsel and the state tesponded to Petitioner's
allegations. Qd. at21,8-220.) Petitioner's trial counsel indicated that he had spoken with the
state the previous day about a potential

plea. (Id. at 21,8.) Petitioner's counsel asserted that

he understood the state as offedngPetitioner aplea regardless of whethet she prqceeded to

ahearing on various pre-trial motions, including a motion to suppress. Qd.) He therefote
communicated this to Petitioner later that same day. (Id.) However, that evening, the state
21,

contacted Petitionet's counsel ar'd clariîted that
agteement

if

she opted

it would only be offering Petitioner a plea

not to proceed on her pteftial motions. (Id. at21,8-1,9.) After telating

this to the tdal coutt, Petitioner's trial counsel then noted that "I guess that she has

a

decision to make whethet or not she wants to enter a plea ot does she want to proceed on."
(Id. at21,9.)

The state prosecutor, in turn, agteed that the previous day he had indicated to
Petitioner's trial counsel that he would be willing

to offer a plea to the lowet class of

tafficking, which would be 70 to 84 months impdsonment, but not fìve years
Petitionet.

Qd.

as alleged by

at219.) However, the state prosecutor continued, that evening he clarified to

Petitioner's trial counsel that any plea agteement was ptedicated upon Petitionet opting not

to putsue her motions to suppress. (Id.) The state prosecutor also indicated that if
Petitioner "Pled this motning

I would let her plead to the lowet

class

of trafficking."

(Id.)

Upon headng this exchange, the tdal coutt called a five minute recess so that Petitioner's
üial counsel could explain to Petitioner what had transpired. (Id. at 220.) After the recess,
Petitionet's úial counsel indicated that Petitionet "would have evidence on the supptession

of the search w^rr^ît." (Id.)

In light of the above, the only potential misadvice on the record was the
miscommunication described above. Flowever, as explained, it was cleatly resolved pdot to
the heating of Petitioner's motions to suppress. Thus, nothing suggests that Petitioner's ttial
counsel mishandled plea negotiations with the state in such a w^y as to hampet Petitioner's

ability to accept a plea bargain offeted by the state. While the block quote set forth above
shows Petitioner referencing another plea offer, Petitionet states

22

futher in that

same block

quote that it was her tatdy appeàtaîce at Coutt, and not the conduct of trial counsel, that led

to the

State's retraction

of the offet. Nothing

suggests that tÁal counsel mishandled ot

misadvised Petitionet tegarding this plea offet or any plea offet.

Beyond this, the Petition (Docket Entty 1) and Response (Docket Etrtty 10) contain

only vague and conclusory allegations of misadvice but no additional facttal allegations or
evidence

in suppott theteof. Consequently, Petitionet has failed to support her contention

that trial counsel "did not offer þer] the disttict attorney plea agreement in a timely mafl.ner

to the extent that the plea was taken off the table." (Docket Etttry 10 at 8.) Petitionet
therefore caflflot demonstrate either prong of Stricklandhere.

c.

See

Nickerson,971. F.2d at 11,36.

Right to Counsel

Petitioner riext asserts that the trial court ered by denying her the "dght to

fte

het

ttial attorney and represent hetself or hire other legal counsel." Qocket Etttty 10 at 10.)
Petitioner did not raise this issue in her state proceedings and it is thus procedurally barred.

Petitioner sets fotth no rattonale

fot this procedutal

default which would overcome it.

Consequently, Petitioner canriot receive habeas telief by way of this claim

However, the claim also fails on the medts. The Sixth -,\mendment dght to counsel
includes "the right of a defendant who does not require appointed counsel to choose who

will represent him."

United States u. Gonqa/e7-I-npe7, 548 U.S. 140, 1.44, 1.26 S.Ct. 2557, 2561,

Q006) (citation omitted).

If a coutt wtongly

denies a defendant's right to counsel of choice,

a Sixth Amendment violation has occured, and coutts need not conduct
assistance

aî

ineffective

of counsel inqurry. Id. at 1,48, 1,26 S.Ct. at 2563. Futther, the "ettoneous

depdvation of the dght to counsel of choice . . . 'qualifies as structrttal enor."' Id- at 1.50,

23

1,26 S.Ct. at

2564 (qøoting Sølliuan u. Loaisiana,508 U.S.

27

5, 282, 113 S.Ct. 2078, 2083 (1993))

(additional intetnal quotation marks omitted). Flowever, the dght to counsel of choice is not
absolute and "'is circumscribed

in

several impottant respects."' Id. at 1,44, 1,26 S.Ct. at 2561,

(quotingl[/heat u. United States,486 U.S. 1.53,1.59,108 S.Ct. '1,692,1.697 (1988)).

In fact "a

trTal

coutt[] þas] wide latitude in balancing the tþht to counsel of choice against the needs of
fairness, and agaínst the demands of its calendar" Id. at 1.52, 1,26 S.Ct. at 2565-66 (citations

omitted).

Thus, despite the fact that constitutional rþhts may be implicated,
accorded wide discretion

Attj.

Gen. of

tial

in detetmining whether or not to grant continuances.

courts

are

Sample1

u.

N.C.,786 tr.2d 610,6'1,3 (4th Cir. 1986). "Indeed, the constitutional tþht is

probably best stated as a limit on trial court disctetion: that discretion only exceeds its
constitutional bounds when

it is exercised to deny a continuance orì the basis of an

'unreasoning and arbittary insistence upon expeditiousness in the face of a justifiable request

for deIay."' Id. (quottngMon'is

A

u. S/oþp1t,461

U.S. 1,'1,1-1,2,103 S.Ct. 1610,1,61,6-1,7 (1983).

reviewing court must look to the circumstances and facts

of each case, paticulatly

the

reasons presented to the tdal coutt at the time the request is

denied. Ungar u. Sarafn,

376

U.S. 575, 589, 84 S.Ct. 841, 850 (1964). "Obviously a defendant has no constitutional dght

to dictate the time,

if

evet, at which he is willing to be tded by simply showing up without

counsel, ot with allegedly unsatisfactolT counsel, whenever his case is called for ttial

objecting that counsel then retained

ot

assigned

Sampley 786 tr.2d at 613 (internal citations omitted).

24

ot by

is not presendy counsel of his choice."

Flete, as an initial m^tte4 after Petitioner expressed her wish to dismiss het ttial
counsel the day of tdal, the tdal court asked Petitionet "Do you want to represent youtself,)"

to which Petitionet tesponded, "No." (Docket Etttty 6, Ex. 17 at 220.) Consequenúy, any
argument that she was denied het tight to self-reptesentation must fail. Moreovet, Petitioner
has shown, and the undersigned has found, nothing to demonstrate afl abuse

of disctetion

by the trial judge regatding the denial of het motion for a continuance. Petitioner essentially
sought to change attorneys on the day

of tnal, after the jury had

akeady been selected, based

in latge part on unsupported allegations of a conflict of intetest. The trial court thotoughly
investigated the issue and did not abuse its disctetion

in denying a continuance. See, e.!.,

Unind Stutes u. Corporan-Cøeuas,35 F.3d 953,956 (4th Cir. 1,994) (noting that proper inquiry

involved considering the timeliness of the motion; adequacy of the court's inqutry into the
defendant's complaint; and whethet the attotney/client conflict was so great that
resulted in total lack

it

had

of communication preventing an adequate defense and observing that

motion to continue to substitute counsel "made on the

ftst

day

of tnal. . . would cleady be

untimely undet all but the most exigent circumstances").

In futthet support of her claim, Petitionet points to a statemeflt on the tecotd whete
her tdal counsel sought to be relieved because he did not feel comfottable teptesenting
Petitioner any longet. (Docket E.ttty 1,0 at9 (citing Docket Entty 6, Ex. 17 at21,7-18.)

would be my pteference to let me stand down.

I will temain on as standby

("It

counsel, but

I

don't feel comfottable going forward knowing she has put fofth in the courtroom things
that arc not true.")) Petitioner appears to contend that the fact that het attorney did not

"feel comfortable" representing her amounted to deptivation of a tight to counsel ot to

25

infective assistance of counsel. The record does not beat this

out. It

shows that, after

hearing from Petitioner, her attorney, and the state, the trial coutt implicitly tejected the

possibility

of a breakdown in the

attotney-client telationship

Petitioner and her trial counsel would deprive her

ot

tha;t the issues between

of an adeqruate defense. The Sixth

A,mendment does not guatantee a cdminal defend^rtt a "me^ningful telationship" with her

âttoÍney. Moris

u. Slapp1t,461 U.S.

'1.,

74,103 S.Cu 761.0,

1,61,7

(1983). And "no Supteme

Court case has held that'the Sixth Amendment is violated when a defendant is teptesented

by a lawyer free of actual conflicts of intetest, but with whom the defendant refuses to
cooperate because

of dislike ot distrust."'I-.arszn

u. Palruateer,515

F.3d 7057,1067 (9th Cir.

2008) (quoting Plamlee u. Masto,51,2F.3d 1,204,1,21,1 (9th, Cir. 2008) (en banc)). This claim,

like all the claims set forth above, lacks medt. Consequently, the undetsigned concludes that
the instant Petition should be denied, judgment enteted, and this case dismissed.

IT IS THEREFORE RECOMMENDED that Respondent's Motion fot
SummaryJudgment (Docket Etrtry 4) be GRANTED, that the Petition pocket Enry 1) be

DENIED,

and thatJudgment be entered dismissing this action.

\Webster
Joe L.
United States Magistrate Judge

Dutham, North Catolina
January 73,201.4

26