SMITH v. BRANDON
Filing
11
MEMORANDUM OPINION AND RECOMMENDATION as to DONALD RAY SMITH, JR., signed by MAG/JUDGE L. PATRICK AULD on 5/19/2015. RECOMMENDED that Respondent's Motion for Summary Judgment (Docket Entry 6 ) be granted, that the Petition (Docket Entry 1 ) 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
DONALD RAY SMITH, JR.,
Petitioner,
v.
MICHAEL DAVIS,1
Respondent.
)
)
)
)
)
)
)
)
)
1:13CV606
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 1.)
(Docket
On June 14, 2012, in the Superior Court of Guilford
County, Petitioner pled guilty, pursuant to North Carolina v.
Alford, 400 U.S. 25 (1970), to felonious habitual misdemeanor
assault, and pled guilty to attaining habitual felon status, in
cases 11 CRS 23219 and 10 CRS 23583.
(See Docket Entry 1, ¶¶ 1,
2, 4-6; see also Docket Entries 7-2 (transcript of plea form), 73
(plea
hearing
transcript).)2
The
trial
court
sentenced
1
The Petition originally named Judy L. Brandon, Superintendent of
Caswell Correctional Center, as Respondent. (See Docket Entry 1 at 1.) On
August 26, 2014, prison authorities transferred Petitioner to Davidson
Correctional Center.
(See http://www.doc.state.nc.us/offenders/, select
Offender Public Search and enter Petitioner’s name.) Michael Davis currently
serves as Superintendent of Davidson Correctional Center.
(See http://www.
doc.state.nc.us/news/2004/releases/davis_davidson.htm (last visited May 11,
2015).) Consistent with Rule 2(a) of the Rules Governing Section 2254 Cases
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),
Michael Davis now appears as Respondent.
2
Although Petitioner states in the Petition that he “ple[]d guilty to
habitual misdemeanor assault only” (Docket Entry 1 at 1), the transcript of plea
form and plea hearing transcript reflect that he entered an Alford plea to
habitual misdemeanor assault and pled guilty to attaining habitual felon status
(see Docket Entry 7-2 at 2; Docket Entry 7-3 at 17, 27, 31).
Petitioner in accordance with his plea arrangement to 87 to 114
months’ imprisonment.
(See Docket Entry 1, ¶ 3; see also Docket
Entry 7-2 at 4, Docket Entry 7-3 at 49-50; Docket Entry 7-4
(judgment and commitment forms).)3
Petitioner did not pursue a
direct appeal.
Petitioner thereafter filed a motion for appropriate relief
(“MAR”) with the state trial court (Docket Entry 7-7; see Docket
Entry 1, ¶¶ 10, 11(a)(1)), which that court denied (Docket Entry
7-8).
Petitioner sought review of his MAR’s denial by filing a
certiorari
petition
in
the
North
Carolina
Court
of
Appeals
(Docket Entry 7-9; see Docket Entry 1, ¶ 11(a)(1)), which that
court denied (Docket Entry 7-11).
Petitioner subsequently submitted his instant Petition to
this Court.
(Docket Entry 1.)
Respondent moved for summary
judgment on the merits (Docket Entry 6) and Petitioner responded
in opposition (Docket Entries 9, 10).
Grounds for Relief
Petitioner raises four grounds for relief in his Petition:
(1)
the
state
violated
Petitioner’s
Fifth
Amendment
rights
against double jeopardy by charging him with substantially the
same crime as the assault on a female charge that the state
dismissed on July 15, 2011 (Docket Entry 1 at 5; see also Docket
Entry 10 at 2-8); (2) the state trial court denied Petitioner
equal protection of the laws and fairness under the Fourteenth
3
Pin citations refer to the page number in the footer appended to said
document by the CM/ECF system.
-2-
Amendment by failing to answer Petitioner’s three requests to
explain how the state could charge him with substantially the
same crime as the assault on a female charge that the state
dismissed on July 15, 2011 (Docket Entry 1 at 6; see also Docket
Entry 10 at 9); (3) the state trial court’s threats to send the
case to trial pressured and coerced Petitioner into taking a plea
and rendered his plea involuntary (Docket Entry 1 at 8; see also
Docket
Entry
10
at
10);
and
(4)
Petitioner’s
trial
counsel
provided ineffective assistance by answering “Yes” to the trial
court’s question as to whether Petitioner wanted to plead guilty
and by failing to answer Petitioner’s question about the state’s
dismissal of the assault on a female charge (Docket Entry 1 at
10; see also Docket Entry 10 at 11).
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);
-3-
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.”).
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
-4-
(explaining that “unreasonable” does not mean merely “incorrect”
or “erroneous”).
Discussion
I.
Ground One
In Petitioner’s first ground for relief, he contends that
the state violated his rights against double jeopardy by charging
him with (and, upon his Alford plea, convicting him of) felonious
habitual misdemeanor assault, which constitutes substantially the
same crime based on the same facts as the misdemeanor assault on
a female charge that the state dismissed with prejudice on July
15, 2011.
at
2-8.)
(See Docket Entry 1 at 5, 15; see also Docket Entry 10
summarizing
Petitioner
the
details
attached
and
a
document
disposition
of
to
his
his
Petition
misdemeanor
assault on a female charge (Docket Entry 1 at 15), and argues
that, under the constitutional guarantee against double jeopardy,
the prosecutor’s dismissal “with prejudice” of that charge bars
the state from prosecuting Petitioner for other substantially
similar crimes based on the same facts, citing Grady v. Corbin,
495 U.S. 508 (1990), and Brown v. Ohio, 432 U.S. 161, 165 (1977).
-5-
(Docket
Entry
1
at
5,
15;
see
Docket
Entry
10
at
2.)4
Petitioner’s argument lacks merit.
As
an
initial
matter,
the
parties
disagree
whether
Petitioner exhausted his state remedies with respect to this
ground for relief by sufficiently presenting the substance of the
claim to the MAR court.
10 at 4-8.)
MAR
shows
(See Docket Entry 7 at 4-6, Docket Entry
Respondent contends that “a review of Petitioner’s
that
although
he
mentioned
the
dismissal
of
his
misdemeanor assault on a female charge, and argued his subsequent
4
In Petitioner’s response in opposition to the instant summary judgment
motion, he argues, for the first time, that the state “punished” him for the
September 17, 2010, misdemeanor assault on a female charge in case number 10 CR
88962 (notwithstanding its dismissal) by ordering him “to participate in the
Domestic Violence Intervention Program [“DVIP”],” which Petitioner claims he
“successfully completed.” (Docket Entry 10 at 3-5 (citing Docket Entries 10-7
(certificate of completion of DVIP), 10-8 (receipts for Petitioner’s payments for
the DVIP), 10-10 (argument of Petitioner’s counsel at time of sentencing
regarding Petitioner’s participation in DVIP), 10-12 (order that Petitioner
participate in the DVIP)).) That argument fails for two reasons. First, 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.
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)).
Second, and more
significantly, the order directing Petitioner to participate in the DVIP does not
constitute evidence that the state “punished” Petitioner for the misdemeanor
assault on a female charge in case 10 CR 88962. The document Petitioner attached
to his response to summary judgment consists of pages three and four of a
Domestic Violence Order of Protection (Form AOC-CV-306), signed by Guilford
County District Court Judge Thomas Jarrell on September 22, 2010, which
prohibited Petitioner from possessing or purchasing a firearm, and ordered him
to not contact the victim and to stay away from the victim’s residence and place
of employment, as well as to complete the DVIP.
(Docket Entry 10-12.)
Petitioner neglected to attach pages one and two of Judge Jarrell’s order, which
likely would have reflected a different case number than Petitioner’s misdemeanor
assault on a female charge (case 10 CR 88962). (See id.)
-6-
charge contained the same elements, he did not squarely raise a
double jeopardy claim,” citing Duncan v. Henry, 513 U.S. 364
(1995), and Mallory v. Smith, 27 F.3d 991, 994-95 (4th Cir.
1994).
the
(Docket Entry 7 at 4.)
sufficiency
of
the
In response, Petitioner maintains
following
language
in
his
MAR
to
adequately place his double jeopardy claim before the MAR court:
“I tried very hard to understand the plea but was just not sure
if the plea was lawful because the charge that I plead to had
been dismissed in some of the charges that have the same element
[sic] from beginning to end.”
Docket Entry 10-2 at 3.)
(Docket Entry 10 at 4; see also
Petitioner urges the Court to liberally
construe his pro se MAR to find sufficient exhaustion.
(See id.
at 5-7.)5
“For a claim to be exhausted, ‘both the operative facts and
the controlling legal principles must be presented to the state
court.’”
Winston v. Kelly, 592 F.3d 535, 549 (4th Cir. 2010)
(quoting Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997));
see also Jones v. Sussex I State Prison, 591 F.3d 707, 712–13
(4th Cir. 2010) (observing that, to exhaust a claim, a “prisoner
must fairly present his claim in each appropriate state court,”
5
Petitioner argues that he adequately presented his double jeopardy claim
to the state courts by relying on facts and arguments that he included in his
certiorari petition to the North Carolina Court of Appeals seeking review of his
MAR’s denial.
(See Docket Entry 10 at 6-7.)
However, that argument fails
because raising a claim for the first time in a discretionary petition to a state
appellate court does not suffice to exhaust state remedies. See Castille v.
Peoples, 489 U.S. 346, 351 (1989); cf. Felton v. Barnett, 912 F.2d 92, 94-95 (4th
Cir. 1990) (certiorari petition under North Carolina appellate procedure
constitutes discretionary petition and denial does not amount to adjudication of
merits but merely discretionary refusal to hear case).
-7-
which requires “more than scatter[ing] some makeshift needles in
the haystack of the state court record,” but instead obligates
the prisoner to make the “substance of the claim evident, such
that
both
the
operative
facts
and
the
controlling
legal
principles are presented to the state court” (internal brackets,
citations, and quotation marks omitted and emphasis added)).
Here,
regarding
Petitioner
his double
arguably
jeopardy
included
claim
to
the
operative
the MAR
court
facts
(i.e.,
dismissal of a prior charge with the same elements as the current
charge), albeit in one brief sentence.
3.)
(See Docket Entry 10-2 at
However, Petitioner did so in the context of urging the
unlawful nature of his plea.
(See id.)
Indeed, his entire MAR
focused on the issue of whether he knowingly and voluntarily
entered
his
Alford
plea
to
felonious
habitual
assault, rather than on issues of double jeopardy.
10-2.)6
misdemeanor
(Docket Entry
Moreover, Petitioner did not cite any state or federal
cases that would have the apprised the MAR court that he intended
to raise a federal double jeopardy claim.
See Baldwin v. Reese,
541 U.S. 27, 33 (2004) (“The petition provides no citation of any
case that might have alerted the court to the alleged federal
nature of the claim.”).
under
a
liberal
Accordingly, Petitioner did not, even
construction,
present
any
controlling
legal
principles to the MAR court regarding his double jeopardy claim
6
The MAR court likewise interpreted Petitioner’s parallel claim as one
challenging the knowing and voluntary character of his plea, as evidenced by its
order denying the MAR. (Docket Entry 10-9.)
-8-
and,
therefore,
he
has
failed
to
exhaust
that
claim.
Nevertheless, the Court may deny this unexhausted claim on the
merits, 28 U.S.C. § 2254(b)(2).
Petitioner’s
Ground
One
fails
on
its
merits
for
the
principal reason that jeopardy never attached with respect to the
misdemeanor assault on a female charge in case 10 CR 88962.
Although
Petitioner
contends
the
state
dismissed
that
charge
“with prejudice” (Docket Entry 1 at 5), Petitioner’s own evidence
reflects
that
the
“prosecutor
enter[ed
a]
dismissal”
because
Petitioner had “been indicted [for felony] assault [and] habitual
felon out of the same indictment” (id. at 15).
voluntary
dismissal
of
a
charge
because
of
The state’s
a
subsequent
indictment does not equate to a dismissal “with prejudice” of
that charge, much less an acquittal on the merits.
More significantly, even if, prior to trial, the trial court
had
dismissed
jeopardy
would
the
not
misdemeanor
have
assault
attached,
as
charge
the
with
state
prejudice,
had
not
yet
empaneled and sworn a jury, nor had Petitioner yet waived his
right to a jury trial.
As explained by the United States Supreme
Court:
[T]he Court has consistently adhered to the view that
jeopardy does not attach until a defendant is ‘put to
trial before the trier of the facts, whether the trier
be a jury or a judge.’ United States v. Jorn, 400 U.S.
470, 479 (1971).
This is by no means a mere
technicality, nor is it a ‘rigid, mechanical’ rule. It
is, of course, like most legal rules, an attempt to
impart content to an abstraction.
When a criminal prosecution is terminated prior to
trial, an accused is often spared much of the expense,
-9-
delay, strain, and embarrassment which attend a trial.
See Green v. United States, 355 U.S. 184, 187—88
(1957); Jorn, 400 U.S. at 479. Although an accused may
raise defenses or objections before trial which are
‘capable of determination without the trial of the
general issue,’ Fed. R. Crim. P. 12(b)(1), and although
he must raise certain other defenses or objections
before trial, Fed. R. Crim. P. 12(b)(2), in neither
case is he ‘subjected to the hazards of trial and
possible conviction.’
Green, 355 U.S. at 187. . . .
Both the history of the Double Jeopardy Clause and its
terms demonstrate that it does not come into play until
a proceeding begins before a trier ‘having jurisdiction
to try the question of the guilt or innocence of the
accused.’ Kepner v. United States, 195 U.S. 100, 133
(1904); see Price v. Georgia, 398 U.S. 323, 329 (1970).
Without risk of a determination of guilt, jeopardy does
not
attach,
and
further
prosecution
[does
not]
constitute[] double jeopardy.
Serfass v. United States, 420 U.S. 377, 391-92 (1975) (parallel
citations omitted and citations adjusted to match format of this
Recommendation); see also United States v. Cooper, No. 94-5310,
77 F.3d 471 (table), 1996 WL 67171, at *2-5 (4th Cir. Feb. 15,
1996) (unpublished) (rejecting argument that jeopardy attached
when one count of indictment dismissed with prejudice pre-trial
where
“no
jury
had
been
empaneled
or
sworn,
petitioner] waived his right to a jury trial”);
nor
had
[the
United States v.
Hawes, 774 F. Supp. 965, 969 (E.D.N.C. 1991) (holding that “[a]
pretrial dismissal of an indictment or count within an indictment
does
not
invoke
the
double
jeopardy
clause
because
jeopardy
cannot attach until a jury is sworn on such charges”).
As
jeopardy had not yet attached at the time the state dismissed the
misdemeanor assault charge in case 10 CR 88962, Petitioner’s
subsequent indictment for felony habitual misdemeanor assault did
not violate Petitioner’s rights against double jeopardy.
-10-
In sum, Ground One fails to entitle Petitioner to habeas
relief.
II.
Ground Two
In
violated
Ground
his
Two,
Petitioner
rights
to
“equal
claims
that
protection
the
of
trial
the
court
laws
and
fairness” under the Fourteenth Amendment by failing to answer
Petitioner’s multiple requests to explain why his felony habitual
misdemeanor assault charge did not constitute double jeopardy.
(Docket Entry 1 at 6; see also Docket Entry 10 at 9.)7
This
claim warrants no habeas relief.
“[R]epresentations of the defendant, [and] his lawyer . . .
at . . . a [plea] hearing as well as any findings made by the
judge
accepting
the
plea
constitute
subsequent collateral proceedings.”
U.S. 63, 73-74 (1977).
a
formidable
barrier
in
Blackledge v. Allison, 431
“In the absence of clear and convincing
evidence to the contrary, [a petitioner] must be bound by what he
said at the time of the plea.”
Little v. Allsbrook, 731 F.2d
238, 239 n.2 (4th Cir. 1984).
The
transcript
of
the
plea
hearing
in
this
case
belies
Petitioner’s claim regarding the trial court’s alleged failure to
7
Petitioner arguably raised the substance of Ground Two in his MAR, albeit
without mention of either “equal protection” or “fairness.” (Docket Entry 7-7
at 3 (“[The] judge . . . was in oppose [sic] to letting me say where I was
lacking in understand [sic].”); id. (“I honestly think that the judge . . . was
not professional about me been [sic] heard with the concerns that I needed
understand [sic] on.”); id. (“[T]he judge did not present themself [sic]
according [sic] and took away my rights to be heard by not allowing me to ask
questions.”).) However, given the undersigned’s recommendation that Ground Two
lacks merit, such Ground would similarly fail if the Court evaluated the MAR
court’s denial of Petitioner’s parallel claim under the deferential standard of
review required by 28 U.S.C. § 2254(d).
-11-
address Petitioner’s concerns regarding double jeopardy.
Entry 9-3.)
(Docket
During the plea colloquoy, Petitioner stated, “I
haven’t had the clearance [sic] that I necessarily need according
to what I’m pleading to. . . . It’s just the fact that what’s
being offered to me according to the offenses – some of the
offenses were dismissed and the – my lawyer has really tried to
explain it to me.”
(Id. at 14.)
Shortly thereafter, Petitioner
remarked, “The part that I don’t understand is the fact that if
I’m
being
charged
misdemeanor,
understand
assault.
and
and
how
if
you’re
the
I’m
pleading
dismissing
habitual
guilty
the
misdemeanor
to
a
assault,
is
created
habitual
I
don’t
from
the
The habitual misdemeanor never could have been placed
on me if the assault wasn’t there.
And now to say that the
assault is dismissed, I don’t understand it.”
(Id. at 20-21.)
In response, although the trial court declined to explain
the
elements
of
felony
misdemeanor
habitual
assault,
noting
“That’s the function of your attorney, sir” (id. at 21), the
trial court permitted Petitioner’s counsel to address the court
on the matter (id.).
Petitioner’s counsel then advised the trial
court that he had discussed the elements of the charges with
Petitioner
on
two
prior
occasions
and
indicated he understood the elements.
that
(Id.)
Petitioner
had
At that point,
Petitioner’s counsel again explained, on the record, the elements
of
felony
habitual
misdemeanor
assault
and
differs from misdemeanor assault on a female:
-12-
how
that
charge
On this charge of felonious habitual misdemeanor
assault, you’re charged with assaulting [the victim],
causing a laceration to her lip and bruises on her
body.
You have been charged with having two prior
assaults. And the earlier of these convictions did not
occur 15 years prior to the date of the current
violation. And those two are marked. And I have the
certified copies of those two prior convictions.
And you’re charged with this assault on [the victim]
causing physical injury.
And we discussed that, the
laceration on her lip.
There was blood on her body.
Two of her teeth were knocked loose.
And so those are the elements of felonious habitual
misdemeanor assault. And that’s a substantive charge.
Misdemeanor assault on a female that would be dismissed
pursuant to the plea is something different. And this
is the substantive charge.
. . .
So I have gone over this with him, Your Honor. And we
discussed, you know, what would happen if we tried this
case, and the witnesses and everything else.
(Id. at 23-24.)
The trial court then re-asked the question
whether Petitioner understood the nature of the charges against
him, to which Petitioner answered, “Yes, sir.”
(Id. at 24.)
Petitioner’s sworn statement, after an on-the-record explanation
by his counsel, that he understood the nature of the charges
against him precludes his instant habeas claim.
Accordingly, Ground Two fails on the merits.
III. Ground Three
Via Ground Three, Petitioner contends that the trial court
violated due process by threatening to send his case to trial and
thereby coercing Petitioner to plead guilty.
at 8; see also Docket Entry 10 at 10.)
short.
-13-
(See Docket Entry 1
That contention falls
Petitioner raised the substance of Ground Three in his MAR
(Docket Entry 7-7), and the MAR court denied that parallel claim
on the merits as follows:
[Petitioner] now claims he did not understand his plea
arrangement and that he was coerced into acceptance
under pressure of having to go to trial to adjudicate
the charges lodged against him.
The Court construes
this argument as being a Due Process violation
argument.
[Petitioner’s] plea agreement is plain.
There is no
reason why [Petitioner] should misunderstand it in
light of the abundant time he had to confer with his
attorney. Moreover, [Petitioner] has been found guilty
of ten class H or class I felonies as well as twentytwo class A-1 or 1 misdemeanors in the past; four of
those crimes were assaults. He should be well aware of
the law on Habitual Felon and Habitual Assault at this
point.
In light of these facts, the Court is of the
opinion
that
[Petitioner]
understood
his
plea
arrangement and that he was not coerced.
(Docket Entry 7-8 at 2).
In
light
of
that
adjudication
on
the
merits,
Section
2254(d)’s highly deferential standard governs this Court’s review
of Petitioner’s instant parallel claim and the Court thus must
consider
whether
the
MAR
court
contradicted
applied clearly established federal law.8
or
unreasonably
As discussed above in
the context of Ground Two, the “representations of the defendant,
[and] his lawyer . . . at . . . a [plea] hearing as well as any
findings
made
formidable
by
the
barrier
judge
in
accepting
subsequent
Blackledge, 431 U.S. at 73-74.
8
the
plea
collateral
constitute
a
proceedings.”
“In the absence of clear and
Petitioner does not contend that the MAR court relied on any unreasonably
determined facts. (See Docket Entry 2 at 8: Docket Entry 10 at 10.)
-14-
convincing evidence to the contrary, [a petitioner] must be bound
by what he said at the time of the plea.”
Little, 731 F.2d at
239 n.2.
Here, Petitioner’s claim that the trial court coerced his
guilty pleas contradicts both the transcript of plea form, signed
by Petitioner under oath (see Docket Entry 7-2 at 4), and his
sworn testimony at the plea hearing (see Docket Entry 7-3 at 432, 49, 50).
that,
when
A review of the plea hearing transcript reveals
Petitioner
indicated
he
did
not
understand
the
elements of the charges against him, the trial judge informed him
that he could not accept Petitioner’s guilty plea under those
circumstances, and would set the matter for trial.
22.)
(Id. at 19-
Petitioner then reaffirmed his desire to accept the plea
arrangement and, as discussed above in the context of Ground Two,
trial counsel’s on-the-record explanation of the elements of the
charges ensued, followed by Petitioner’s sworn statement that he
did in fact understand the nature of the charges against him.
(Id. at 22-24.) Quite simply, the colloquoy does not reveal any
threats, coercion,
or
pressure by
the
trial
court
to
induce
guilty pleas by Petitioner.
Moreover, Petitioner swore that no one promised him anything
or threatened him in any way to cause him to enter the pleas
against his wishes, and that he entered the pleas of his own free
will, fully understanding his actions.
(Docket Entry 7-2 at 4;
see also Docket Entry 7-3 at 24, 29-30.)
Petitioner further
indicated that he did not have any questions about the plea
-15-
colloquy or about anything else connected to his case.
Docket Entry 7-3 at 30, 32.)
prosecutor
each
certified
(Id.;
Petitioner’s trial counsel and the
that
the
transcript
of
plea
form
correctly stated the terms and conditions of the plea arrangement
and that Petitioner had agreed to those terms.
In
light
of
these
admissions
under
(Id.)
oath,
Petitioner’s
conclusory and unsupported statements in his Petition that the
trial court coerced his pleas (Docket Entry 1 at 8) fall far
short of the “clear and convincing evidence” necessary for this
Court to disregard his sworn and unambiguous statements, and
those of his counsel and the prosecutor, to the contrary at the
plea hearing.
Thus,
contradicted
Allsbrook, 731 F.2d at 239 n.2.
the
MAR
court
clearly
neither
established
unreasonably
federal
law
applied
by
nor
denying
Petitioner’s parallel claim, and Ground Three fails to entitle
Petitioner to relief.
IV.
Ground Four
Finally, in Ground Four, Petitioner alleges that his trial
counsel provided ineffective assistance by answering “Yes” on two
or more occasions when the trial court asked whether Petitioner
wished to plead guilty and by failing to answer Petitioner’s
questions about double jeopardy.
Docket Entry 10 at 11.)
(Docket Entry 1 at 10; see also
Ground Four fails on its merits.9
9
Respondent maintains that Petitioner “raised the substance of his current
ineffectiveness claim, albeit without specifically stating ‘ineffective
assistance of counsel’” in his MAR. (Docket Entry 7 at 14.) It does not appear
that Petitioner’s allegations in his MAR fairly presented to the MAR court both
the operative facts and the controlling law of his instant ineffective assistance
-16-
In
order
to
prove
ineffective
assistance
of
counsel,
a
petitioner must establish, first, that his attorney’s performance
fell
below
a
reasonable
standard
second, that prejudice resulted.
466 U.S. 668, 687–94 (1984).
context of
a
guilty
plea,
for
defense
attorneys
and,
See Strickland v. Washington,
To demonstrate prejudice in the
Petitioner
must
show
a
reasonable
probability that, but for counsel’s allegedly deficient conduct,
he would not have pled guilty but would have gone to trial.
See
Hill v. Lockhart, 474 U.S. 52, 58–59 (1985); Meyer v. Branker,
506 F.3d 358, 369 (4th Cir. 2007).
Petitioner cannot make that
showing.
Even
assuming, arguendo,
that
Petitioner’s
trial counsel
represented to the trial court that Petitioner wished to plead
guilty without Petitioner’s agreement or consent to do so (see
Docket Entry 7-3 at 3), Petitioner cannot show prejudice arising
from
his
counsel’s
representations.
Petitioner,
on
multiple
occasions after his trial counsel’s representations, also stated
to the trial court, under oath, that he wished to plead guilty
(see id. at 4 (Petitioner’s affirmation), 7-8, 14-15, 26-27, 2829),
and
signed
the
transcript
of
plea
form,
under
oath,
indicating he wished to plead guilty (see Docket Entry 7-2 at 4;
claim, Winston, 592 F.3d at 549. (See Docket Entry 7-7 at 3 (“[M]y lawyer . .
. was in oppose [sic] to letting me say where I was lacking understand [sic].”);
id. (“[M]y lawyer . . . was not professional about me been [sic] heard with the
concerns that I needed understand [sic] on.”); id. (“[M]y lawyer . . . did not
present themself [sic] according [sic] and took away my rights to be heard by not
allowing me to ask questions.”).) The MAR court’s order denying Petitioner’s MAR
indicates that court did not interpret Petitioner’s MAR to raise an ineffective
assistance claim. (See Docket Entry 7-8.) Nevertheless, the Court may deny an
unexhausted claim on its merits. See 28 U.S.C. § 2254(b)(2).
-17-
see also Docket Entry 7-3 at 32).
reasonable
probability
that,
Thus, Petitioner cannot show a
but
for
his
trial
counsel’s
representations to the trial court, he would not have pled guilty
and would have gone to trial.
See Strickland, 466 U.S. at 697
(“[T]here is no reason . . . to address both components of the
[performance and prejudice] inquiry if the defendant makes an
insufficient showing on one.”).
Similarly, as discussed above in the context of Ground Two,
the plea hearing
claim
that
his
transcript directly
trial
counsel
failed
contradicts
to
answer
questions about his double jeopardy concerns.
7-3
at
22-24
(trial
counsel’s
Petitioner’s
Petitioner’s
(See Docket Entry
on-the-record
explanation
of
charges), 30 (Petitioner’s subsequent denial, under oath, that he
had any questions in connection with his pleas).)
Simply put,
Petitioner cannot show that his trial counsel’s conduct at the
plea hearing fell below an objective standard of reasonableness.
See Strickland, 466 U.S. at 697 (“[T]here is no reason . . . to
address
both
components
of
the
[performance
and
prejudice]
inquiry if the defendant makes an insufficient showing on one.”).
In short, Ground Four warrants no habeas relief.
-18-
Conclusion
Petitioner has not shown entitlement to relief.
IT IS THEREFORE RECOMMENDED that Respondent’s Motion for
Summary Judgment (Docket Entry 6) be granted, that the Petition
(Docket Entry 1) 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 19, 2015
-19-
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