NAZARETTE-GARCIA v. MCCOY
Filing
8
MEMORANDUM OPINION AND RECOMMENATION OF UNITED MAGISTRATE JUDGE L. PATRICK AULD signed on 8/18/2015, RECOMMENDING that Respondent's Motion for Summary Judgment (Docket Entry 4 ) be GRANTED and that Judgment be entered dismissing this action without issuance of a certificate of appealability. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JULIO CESAR NAVARRETE-GARCIA,1
Petitioner,
v.
T. MCCOY,
Respondent.
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1:14CV754
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner of the State of North Carolina, seeks
a writ of habeas corpus via 28 U.S.C. § 2254.
(Docket Entry 1.)
For the reasons that follow, the Court should deny relief.
I.
A
jury
Petitioner
in
the
guilty
of
Introduction
Superior
drug
Court
offenses,
of
Forsyth
including
traffic in more than 400 grams of cocaine.
County
found
“conspiracy
to
The trial court
consolidated the convictions for judgment and imposed 175 to 219
months imprisonment.”
State v. Navarrete-Garcia, No. COA12-1039,
741 S.E.2d 511 (table), 2013 WL 1314155, at *1 (N.C. Ct. App. Apr.
2, 2013) (unpublished), review denied, 366 N.C. 598, 743 S.E.2d 223
(2013).
Petitioner unsuccessfully pursued a direct appeal.
Id.
He then filed a motion for appropriate relief (“MAR”) (Docket Entry
1
The caption of the Petition spells Petitioner’s last name “NazarettGarcia” (Docket Entry 1 at 1), but the spelling of his last name in the signature
attesting to the Petition appears as “Navarrete-Garcia” (id. at 14). The direct
appeal documents from Petitioner’s underlying state criminal case use the latter
spelling as well. State v. Navarrete-Garcia, No. COA12-1039, 741 S.E.2d 511
(table), 2013 WL 1314155 (N.C. Ct. App. Apr. 2, 2013) (unpublished), review
denied, 366 N.C. 598, 743 S.E.2d 223 (2013). The verdict sheets, judgment, and
trial transcript from Petitioner’s underlying state criminal case also employ
that spelling. (See Docket Entry 5-4 at 33, 35, 38; Docket Entry 5-12 at 85.)
5-9 at 2-12), which the trial court denied (see Docket Entry 1 at
17)2 and which the North Carolina Court of Appeals declined to
review (id. at 16).
Petitioner thereafter commenced this action,
raising these three claims: 1) “Ineffective Assistance of Counsel”
(id., ¶ 12(Ground One));3 2) “Eighth Amendment Violation” (id.,
¶ 12(Ground Two)); and 3) “Defective Indictment” (id., ¶ 12(Ground
Three)).
Respondent moved for summary judgment (Docket Entry 4)
and Petitioner responded (Docket Entry 7).
II.
Discussion
The Court “shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of
a State court only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States.”
U.S.C. § 2254(a).
28
Further, “[b]efore [the] [C]ourt may grant
habeas relief to a state prisoner, the prisoner must exhaust his
remedies in state court.
In other words, the state prisoner must
give the state courts an opportunity to act on his claims before he
presents those claims to [this] [C]ourt in a habeas petition.”
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
A.
Ground
One
alleges
Grounds One and Two
that
Petitioner
received
ineffective
assistance based on these “[s]upporting facts”: “[C]ounsel refused
2
Page citations refer to the page numbers that appear in the footer
appended to documents upon their docketing in the CM/ECF system.
3
The handwritten portions of the Petition (as well as Petitioner’s summary
judgment response) use all capitals, but (for ease of reading) this Memorandum
Opinion utilizes standard capitalization conventions when quoting such text.
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to do any investigative work into the amount of the substance, the
prior record level of [Petitioner], the excessive sentencing based
on the Eighth (8th ) Amendment, the coercive tactics to try to
convince [] Petitioner to accept a plea he did not want or take.”
(Docket Entry 1, ¶ 12(Ground One)(a).)
Ground Two asserts an
Eighth Amendment claim premised on these “[s]upporting facts”:
“The excessive nature of the sentencing of [] Petitioner is/should
be weighed against the cases of Michael Lee Griffin[, case numbers]
09CRS53278, 53285, 8442; State v. Starkey, 177 N.C. App. 264, and
that of State v. Strausser[,] No. COA 04-982.”
¶ 12(Ground Two)(a).)
(Docket Entry 1,
These claims cannot proceed.
First, Petitioner did not present such claims on direct
appeal, see Navarrete-Garcia, 2013 WL 1314155, at *1 (“In his sole
argument on appeal, [Petitioner] contends the trial court abused
its discretion by permitting [a witness] to testify as an expert in
forensic chemistry.”), or in his MAR (see Docket Entry 5-9 at 2-12;
see
also
Docket
Entry
1
at
17
(“[Petitioner]
contends
his
indictments are fatally defective due to inaccurate information
from a confidential informant.
[He] also alleges he received
ineffective assistance of trial counsel when [his counsel] failed
to submit a pre-trial motion to dismiss due to a fatally defective
indictment.” (internal ellipses and quotation marks omitted)).
Further, North Carolina law procedurally bars Petitioner from now
raising those claims in state court, see N.C. Gen. Stat. § 15A1419(a)(1) & (3) & (b), resulting in their procedural bar in this
Court as well, see Breard v. Pruett, 134 F.3d 615, 619 (4th Cir.
-3-
1998).
Finally, Petitioner has not made a showing adequate to
overcome that default.
(See Docket Entry 1, ¶ 12(Ground One)(d) &
(Ground Two)(d); Docket Entry 7.)4
B.
Grounds One and Two thus fail.
Ground Three
Ground Three seeks relief for a “defective indictment” in
reliance on these “[s]upporting facts”:
fatal variance
in
the
indictment
as to
“[t]here exist [sic] a
how
[Petitioner]
was
convicted by information and/or evidence not credible and the
4
To the extent Petitioner seeks relief from his procedural default of
Grounds One and Two based on the assertion that “the Court has records of these
[sic] gross miscarriage of justice” (Docket Entry 7 at 1), “[h]e offers nothing
to support his conclusory statements that a failure to consider [Grounds One and
Two] would be a miscarriage of justice, so his defaults of [Grounds One and Two]
are not excusable,” Neely v. Clarke, No. 2:13CV274, 2014 WL 1220544, at *7 (E.D.
Va. Mar. 24, 2014) (unpublished), appeal dismissed, 582 F. App’x 257 (4th Cir.
2014). Moreover, although two recent decisions by the United States Supreme
Court “addressed whether a procedural bar . . . should apply to an ineffective
assistance of counsel claim [not raised in] a state habeas proceeding [where the
petitioner did not have counsel in that state habeas proceeding],” Wilson v.
Perry, No. 1:14CV576, 2014 WL 4685405, at *1 (M.D.N.C. Sept. 19, 2014)
(unpublished) (discussing Trevino v. Thaler, ___ U.S. ___, 133 S. Ct. 1911
(2013), and Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012)), appeal
dismissed, 588 F. App’x 216 (4th Cir. 2014), cert. denied sub nom., Wilson v.
Joyner, ___ U.S. ___, 135 S. Ct. 2808 (2015), Petitioner cannot benefit from
those two Supreme Court decisions because he has “failed to demonstrate that his
underlying claim [in Ground One] was a substantial one, as required [by those two
Supreme Court decisions] to overcome a procedural default,” Jones v. Franke, 587
F. App’x 425, 425 (9th Cir. 2014). In that regard, “to the extent Petitioner
bases his ineffective assistance of counsel claim [in Ground One] on his
attorney’s alleged failure to investigate [various matters], [he] has presented
. . . unsupported and conclusory allegations, which are insufficient to warrant
either an evidentiary hearing or habeas relief.”
Powell v. Shanahan, No.
3:13CV496FDW, 2014 WL 1464397, at *8 (W.D.N.C. Apr. 15, 2014) (unpublished)
(citing Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992), abrogation on
other grounds recognized, Yeatts v. Angelone, 166 F.3d 255, 266 n.4 (4th Cir.
1999)). Ground Two similarly lacks merit. Most notably, with but one exception
(involving a life sentence imposed on a defendant convicted only of uttering a
$100 bad check), “not a single defendant before the Supreme Court has been
successful in establishing even a threshold inference of gross disproportionality
in a non-capital case.
For example, in Harmelin v. Michigan, 501 U.S. 957
(1991), the Court rejected an as-applied Eighth Amendment challenge to a
mandatory life sentence in a cocaine possession case.” United States v. Said,
___ F.3d ___, ___, 2015 WL 4759502, at *12 (4th Cir. 2015) (internal quotation
marks and some internal citations omitted); see also id. at ___, 2015 WL 4759502,
at *15 (Davis, J., concurring) (observing that “the Constitution has remarkably
little to say about severe, but non-capital, criminal punishments”).
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wording of the alleged evidence in conflict with the language of
the
indictment.”
(Docket
Entry
1,
¶
12(Ground
Three)(a).)
Petitioner did not present this claim on direct appeal.
See
Navarrete-Garcia, 2013 WL 1314155, at *1 (“In his sole argument on
appeal, [Petitioner] contends the trial court abused its discretion
by permitting [a witness] to testify as an expert in forensic
chemistry.”). Petitioner’s MAR did attack his convictions based on
the alleged existence of “fatally defective indictments (fatal
variance) . . . .”
(Docket Entry 5-9 at 4; see also id. at 5
(“Petitioner[] asserts that several of his charging indictments are
fatally defective due to inaccurate information from a confidential
informant. . . .
Moreover, the indictments fail especially when
there is a fatal variance between its allegation [sic] and the
evidence introduced at trial or before sentencing.”).)
The trial court, however, deemed that claim procedurally
barred by North Carolina law because Petitioner failed to raise it
on direct appeal.
(See Docket Entry 1 at 17.)
That determination
renders Ground Three procedurally barred in this Court.
Williams v. French, 221 F.3d 203, 208-09 (4th Cir. 1998).
See
Nor has
Petitioner established a basis to set aside that default.
(See
Docket Entry 1, ¶ 12(Ground Three)(d); Docket Entry 7.)5
5
Petitioner’s conclusory statement that “the Court has records of these
[sic] gross miscarriage of justice” (Docket Entry 7 at 1), does not provide a
viable basis for excusing his procedural default of Ground Three, see Neely v.
Clarke, No. 2:13CV274, 2014 WL 1220544, at *7 (E.D. Va. Mar. 24, 2014)
(unpublished), appeal dismissed, 582 F. App’x 257 (4th Cir. 2014). In any event,
Ground Three would fail on the merits. “[T]he Fifth Amendment requirement of
indictment by grand jury does not apply to the states,” Hartman v. Lee, 283 F.3d
190, 195 n.4 (4th Cir. 2002), and thus “[v]ariances and other deficiencies in
state court indictments are not ordinarily a basis of federal habeas corpus
(continued...)
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Accordingly, the Court should deny Ground Three.
III.
Conclusion
Petitioner has not shown entitlement to habeas relief.
IT IS THEREFORE RECOMMENDED that Respondent’s Motion for
Summary Judgment (Docket Entry 4) be GRANTED and that Judgment be
entered dismissing this action without issuance of a certificate of
appealability.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 18, 2015
5
(...continued)
relief unless the deficiency makes the trial so egregiously unfair as to amount
to a deprivation of the [petitioner’s] right to due process,” Ashford v. Edwards,
780 F.2d 405, 407 (4th Cir. 1985); see also Locklear v. North Carolina, No.
1:07CV682, 2008 WL 4426167, at *3 (M.D.N.C. Sept. 24, 2008) (unpublished)
(“[C]laims of this type, i.e., those alleging deficiencies in state court
indictments, are not cognizable on federal habeas review, absent a showing that
they rendered the entire state court proceeding fundamentally unfair.”), appeal
dismissed, 393 F. App’x 122 (4th Cir. 2010).
Ground Three alleges no such
circumstances, but instead merely offers the bald assertion that, due to some
unidentified “fatal variance in the indictment . . . [Petitioner] was convicted
by information and/or evidence [that was] not credible . . . .” (Docket Entry
1, ¶ 12(Ground Three)(a).) Such vague allegations do not state a habeas claim.
See Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992), abrogation on other
grounds recognized, Yeatts v. Angelone, 166 F.3d 255, 266 n.4 (4th Cir. 1999);
see also United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) (“[A] habeas
petition is expected to state facts that point to a real possibility of
constitutional error.” (internal quotation marks omitted)).
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