FRALEY v. PERRY
Filing
12
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 08/06/2015. Petitioner's habeas claims all fail as a matter of law. RECOMMENDED that Respondent's Motion for Summary Judgment (Docket Entry 7 ) be granted and that judgment be entered dismissing this action without issuance of a certificate of appealability.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SHAWN G. FRALEY,
)
)
)
)
)
)
)
)
)
Petitioner,
v.
FRANK L. PERRY,
Respondent.1
1:14CV947
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 3.)2
For the reasons that follow, this Court should deny relief.
I.
A
jury
in
the
BACKGROUND
Superior
Court
of
Forsyth
County
found
Petitioner guilty of failure to register as a sex offender and
achieving habitual felon status in cases 10CRS2867 and 11CRS6166,
whereupon the trial court entered judgment sentencing him to 141 to
179 months in prison.
(Id., ¶¶ 1, 3, 6; Docket Entry 3-4 at 67-69
(portion of transcript documenting failure to register verdict);
Docket Entry 3-5 at 87-89 (portion of transcript documenting
habitual felon
verdict);
Docket
Entry
3-6 at
14
(portion
of
transcript documenting imposition of sentence); Docket Entry 8-2 at
1
Petitioner originally named the State of North Carolina as Respondent,
but, pursuant to Rule 2(a) of the Rules Governing Section 2254 Cases, the Court
ordered the substitution of the Secretary of the North Carolina Department of
Public Safety, Mr. Perry. (See Docket Entry 5 at 1 n.1.)
2
Along with the standard form for Section 2254 petitions, Petitioner
submitted numerous documents from his underlying state criminal case.
(See
Docket Entries 3-1, 3-2, 3-3, 3-4, 3-5, 3-6, 4, 4-1, 4-2, and 4-3.) Respondent
also attached to his summary judgment brief documents from Petitioner’s
underlying state criminal case. (See Docket Entries 8-2, 8-3.)
83-84 (verdict sheets), 89-90 (judgment).)
to secure relief on direct appeal.
He pursued but failed
State v. Fraley, No. COA13-69,
749 S.E.2d 111 (table), 2013 WL 4007078 (N.C. Ct. App. Aug. 6,
2013) (unpublished), review denied, 748 S.E.2d 557 (N.C. 2013).
The
Superior
Court
thereafter
denied
Petitioner’s
Motion
for
Appropriate Relief (“MAR”) and the North Carolina Court of Appeals
declined review.
(Docket Entry 3, ¶¶ 10, 11; see also Docket Entry
4-2 at 23 (order denying certiorari petition as to MAR), 38 (order
denying MAR).)3
He then instituted this action.
(Docket Entry 3.)
Respondent has moved for summary judgment (Docket Entry 7) and
Petitioner has responded (Docket Entry 10).
The
North
Carolina
Court
of
Appeals
summarized
the
circumstances of Petitioner’s underlying state criminal case as
follows:
On 24 September 2009, [Petitioner] was released from
incarceration after serving a sentence for an Indecent
Liberties with a Child conviction.
Before he was
released, [he] signed documentation acknowledging his
duty to register as a sex offender no later than the
third business day after being released from custody.
According to the supervisor of the sex offender registry,
[Petitioner] was to register by 29 September 2009.
Between 26 September 2009 and 3 October 2009,
[Petitioner] encountered several law enforcement officers
and claimed that he lived at Wilkes Drive.
When the
records custodian responsible for the sex offender
registry in Forsyth County was notified, it appeared that
[Petitioner] had failed to comply by registering as a sex
offender.
[He] was arrested on 3 October 2009 and
indicted for failure to register as a sex offender
(“failure to register”) on 30 November 2009 (“initial
indictment”). On 8 March 2010, [Petitioner] was indicted
for attaining the status of an habitual felon.
A
3
Petitioner also apparently unsuccessfully sought review of his MAR by the
North Carolina Supreme Court. See State v. Fraley, 763 S.E.2d 395 (N.C. 2014).
-2-
superseding indictment charging [him] with attaining the
status of an habitual felon was issued on 29 November
2010 (“habitual felon indictment”).
On all the
indictments, the date of the offense was listed as 29
September 2009.
In March 2011, [Petitioner] was tried in Forsyth County
Superior Court for failure to register as a sex offender.
Upon conclusion of the State’s evidence, [he] moved to
dismiss on the grounds that there was a fatal variance in
the initial indictment for [his] failure to register.
[He] argued that the date was an essential element of the
offense and that he was not guilty for failing to
register on 29 September 2009. The trial court denied
the State’s motion to amend the initial indictment to
change
the
dates
of
the
offense
and
granted
[Petitioner’s] motion to dismiss.
On 18 April 2011, [Petitioner] was indicted under a new
indictment for failure to register (“second indictment”).
On the second indictment, the date of the offense was
corrected to begin on 30 September 2009 through 3 October
2009. [Petitioner] filed a motion to dismiss the second
indictment on the grounds that a trial under the second
indictment would violate his right to be free from double
jeopardy. The trial court denied his motion to dismiss.
[He] subsequently renewed his motion to dismiss based on
double jeopardy and the trial court denied this motion as
well.
In May 2012, after a second trial for failing to register
as a sex offender, the jury returned a verdict finding
[Petitioner] guilty of failing to register as a sex
offender. The jury also found [him] guilty of attaining
the status of an habitual felon.
Fraley, 2013 WL 4007078, at *1-2 (internal footnote omitted).
II.
PETITIONER’S CLAIMS
The Petition identifies three grounds for relief.
(Docket
Entry 3, ¶ 12.) Ground One, entitled “Double Jeopardy 5th Amendment
U.S. Constitution,” identifies the following “[s]upporting facts”:
“I went to trial twice.
After my case was dismissed in my first
trial 09CRS060866, the State of North Carolina reindicted me again
for the same thing and tried me again.
-3-
I was tried and punished
twice.
The State of North Carolina left the habitual felon
indictment
pending
09CRS060866.”
after
the
charge
was
dismissed
in
trial
(Id., ¶ 12(Ground One)(a).)
Ground Two of the Petition, which bears the title “Equal
Protection of the laws 14 Amendment U.S. Constitution,” relies on
these “[s]upporting facts”:
dismissed
my
charge
in
“When the State of North Carolina
trial
09CRS060866
the
habitual
10CRS002876 was suppose [sic] to be dismissed as well.
have a pending charge.”
(Id., ¶ 12(Ground Two)(a).)
felon
I did not
Finally,
beneath the title “Ineffective Assistance of Counsel 6th Amendment
U.S. Constitution,” the Petition’s Ground Three describes the
“[s]upporting facts” as follows:
“When I got the charge dismissed
at trial 09CRS060866 my attorney [] was suppose [sic] to get the
habitual felon dismissed as well 10CRS002876.
My attorney was
suppose [sic] to assist me. I did not receive effective assistance
of counsel.
I did not have a pending charge for the habitual felon
to attach to.”
(Id., ¶ 12(Ground Three)(a).)
III.
HABEAS STANDARDS
The Court “shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of
a State court only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States.”
U.S.C. § 2254(a).
28
Further, “[b]efore [the] [C]ourt may grant
habeas relief to a state prisoner, the prisoner must exhaust his
remedies in state court.
In other words, the state prisoner must
give the state courts an opportunity to act on his claims before he
-4-
presents those claims to [this] [C]ourt in a habeas petition.
exhaustion
doctrine
§ 2254(b)(1).”
.
.
.
is
now
codified
at
28
The
U.S.C.
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999);
see also 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to
have waived the exhaustion requirement . . . unless the State,
through counsel, expressly waives the requirement.”).4
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
on
a
question
of
law”
or
“confront[] facts that are materially indistinguishable from a
relevant [United States] Supreme Court precedent and arrive[] at a
result opposite” to the United States Supreme Court.
Williams v.
Taylor, 529 U.S. 362, 406 (2000). A state court decision “involves
an unreasonable application” of United States Supreme Court case
4
The Court may deny a claim on the merits despite a lack of exhaustion.
See 28 U.S.C. § 2254(b)(2).
-5-
law “if the state court identifies the correct governing legal rule
from [the United States Supreme] Court’s cases but unreasonably
applies it to the facts of the particular state prisoner’s case.”
Id. at 407; see also id. at 409–11 (explaining that “unreasonable”
does not mean merely “incorrect” or “erroneous”).
Finally, this
Court must presume state court findings of fact correct unless
clear and convincing evidence rebuts them. 28 U.S.C. § 2254(e)(1).
IV.
A.
DISCUSSION
Ground One:
Double Jeopardy
Ground One of the Petition seeks federal habeas relief based
on the contention that Petitioner’s underlying state conviction(s)
for failing to register as a sex offender and achieving habitual
felon
status
violated
his
federal
guarantee
against
double
jeopardy5 because a prior trial on such charges ended when the
trial court granted his motion to dismiss.
¶ 12(Ground One)(a).)
(See Docket Entry 3,
Petitioner raised this same claim on direct
appeal and the North Carolina Court of Appeals rejected it thusly:
[Petitioner] argues that the trial court erred by denying
his motion to dismiss because he claims he was tried
twice for the same offense that was dismissed at a
previous trial.
According to [Petitioner], the State
violated the double jeopardy provisions of the state and
federal constitutions. We disagree.
. . . The doctrine of double jeopardy “provides that no
person shall be subject for the same offence to be twice
5
“Under the Double Jeopardy Clause of the Fifth Amendment, no ‘person
shall be subject for the same offence to be twice put in jeopardy of life or
limb.’ U.S. Const. amend. V. The double jeopardy prohibition - ‘a fundamental
ideal in our constitutional heritage’ - applies ‘to the States through the
Fourteenth Amendment.’ Benton v. Maryland, 395 U.S. 784, 794 (1969).” Baum v.
Rushton, 572 F.3d 198, 206 (4th Cir. 2009) (internal brackets and parallel
citations omitted).
-6-
put in jeopardy of life or limb.” State v. Sparks, 182
N.C. App. 45, 47, 641 S.E.2d 339, 341 (2007) (citation
and quotations omitted). “[T]he Double Jeopardy Clause
protects against (1) a second prosecution for the same
offense after acquittal, (2) a second prosecution for the
same offense after conviction, and (3) multiple
punishments for the same offense.” State v. Rahaman, 202
N.C. App. 36, 40, 688 S.E.2d 58, 62 (2010) (citations and
quotations omitted). “[W]hen the trial court grants a
defendant’s motion to dismiss at the close of evidence,
that ruling has the same effect as a verdict of not
guilty.”
Id. at 43, 688 S.E.2d at 64; see N.C. Gen.
Stat. § 15–173 (2011). “However, the 5th Amendment right
to be free from double jeopardy only attaches in a
situation where the motion to dismiss is granted due to
insufficiency of the evidence to support each element of
the crime charged.” Rahaman, 202 N.C. App. at 44, 688
S.E.2d at 64.
Double jeopardy does not preclude a
retrial when a charge is dismissed because there was a
fatal variance between the proof and the allegations in
the charge. Id.; see also State v. Johnson, 9 N.C. App.
253, 175 S.E.2d 711 (1970).
In the instant case, [Petitioner] was released on 24
September 2009. According to the statute, [he] had three
business days to comply and the deadline for him to
register was 30 September.
See N.C. Gen. Stat.
§ 14–208.7(a)(1) (2011). The initial indictment charged
[Petitioner] with failing to register on 29 September.
The trial court granted [Petitioner’s] motion to dismiss
the initial indictment. Subsequently, the State issued
the second indictment charging [him] with failure to
register as a sex offender and corrected the dates to
begin on 30 September through 3 October 2009.
[Petitioner’s] reliance on N.C. Gen. Stat. § 15–173 is
misplaced. Here, the trial court granted [Petitioner’s]
motion to dismiss the initial indictment due to a fatal
variance between the initial indictment and the proof at
trial, not due to insufficiency of the evidence. The
State was permitted to retry [Petitioner] because the
second indictment, charging him for failing to register,
corrected the dates of the offense. As a result, the
trial court did not violate [Petitioner’s] double
jeopardy
provisions
of
the
state
and
federal
constitutions and did not err by denying [his] motion to
dismiss.
[Petitioner] also argues that failure to register is a
continuing offense and therefore, he can only be charged
once. However, [his] initial indictment for failure to
-7-
register was dismissed.
Double jeopardy does not
preclude a retrial when a charge is dismissed because
there was a fatal variance between the proof and the
allegations in the charge.
Therefore, there was no
original offense to “continue.”
Rather, after the
initial indictment was dismissed, the State issued the
second indictment charging [Petitioner] with failure to
register from 30 September to 3 October.
Unlike
[Petitioner’s] claim, the State did not attempt to
“divide a single act . . . into as many counts . . . as
the prosecutor could devise.” State v. White, 127 N.C.
App. 565, 570, 492 S.E.2d 48, 51 (1997).
Therefore,
[Petitioner’s] argument has no merit.
Fraley, 2013 WL 4007078, at *2-3.
“[B]ecause this matter comes before [this Court] pursuant to
[a] § 2254 petition for habeas corpus relief, [the instant] review
focuses on the propriety of the [above-quoted] [s]tate [d]ecision
. . . .”
Baum v. Rushton, 572 F.3d 198, 209 (4th Cir. 2009).
More
specifically, this Court “may award [Petitioner] relief only if
[that] [s]tate [d]ecision . . . can be found deficient under the
highly deferential standards . . . contained in § 2254(d)(1)’s
‘contrary to’ and ‘unreasonable application’ clauses, as well as in
§
2254(d)(2)’s
‘unreasonable
determination
of
the
facts’
provision.” Id.; see also Cullen v. Pinholster, ___ U.S. ___, ___,
131 S. Ct. 1388, 1398 (2011) (observing that Section 2254(d)
imposes “a difficult to meet and highly deferential standard . . .,
which demands that state-court decisions be given the benefit of
the doubt . . . [and that a] petitioner carries the burden of
proof” (internal citations and quotation marks omitted)); Baum, 572
F.3d at 209 (“We emphasize ‘that it is Supreme Court precedent, and
not Fourth Circuit precedent, to which we look in applying [Section
-8-
2254(d)(1)’s] standard of review.’” (quoting Bustos v. White, 521
F.3d 321, 325 (4th Cir. 2008))).
Petitioner has not made the showing required by Section
2254(d).
First, he has not identified any unreasonable fact-
finding (made or relied upon) by the North Carolina Court of
Appeals as to the double jeopardy issue.
(See Docket Entry 3,
¶ 12(Ground One)(a); Docket Entry 10 at 4-6.)
Second, Petitioner
has not established that the North Carolina Court of Appeals
contradicted or unreasonably applied any United States Supreme
Court interpretation of the Double Jeopardy Clause.
(See id.)6
Nor could he meet that burden, given the litany of decisions
by the United States Supreme Court supporting the North Carolina
Court of Appeals’s ruling on point.
See, e.g., Evans v. Michigan,
___ U.S. ___, ___, 133 S. Ct. 1069, 1074-75 (2013) (“[T]he Double
Jeopardy Clause bars retrial following a court-decreed acquittal
6
In support of Ground One, Petitioner’s summary judgment response quotes
a United States Supreme Court decision for the proposition that “‘the prosecutor
is entitled to one, and only one, opportunity to require an accused to stand
trial,’ Arizona v. Washington, 434 U.S. 497, 503 [sic] (1978)” (Docket Entry 10
at 4 (parallel citation omitted)); that quotation, however, omitted a material
qualification embedded in the original text (which actually appears at page 505,
not page 503, of volume 434 of the United States Reports): “as a general rule.”
Moreover, the cited decision goes on to make clear that, “[u]nlike the situation
in which the trial has ended in an acquittal or conviction, retrial is not
automatically barred when a criminal proceeding is terminated without finally
resolving the merits of the charges against the accused.” Id. at 505 (emphasis
added); see also United States v. Scott, 437 U.S. 82, 100 (1978) (“[W]here the
defendant . . . obtains the termination of the proceedings against him in the
trial court without any finding by a court or jury as to his guilt . . . [h]e has
not been ‘deprived’ of his valued right to go to the first jury; only the public
has been deprived of its valued right to ‘one complete opportunity to convict
those who have violated its laws.’” (quoting Washington, 434 U.S. at 509)).
Finally, in the cited case, the United States Supreme Court ultimately allowed
a second trial (even though, unlike here, the defendant there had opposed, not
solicited, a pre-verdict termination of the first trial). See Washington, 434
U.S. at 503, 516-17. Accordingly, the North Carolina Court of Appeals did not
run afoul of Washington when it denied Petitioner’s double jeopardy claim.
-9-
. . . .
[O]ur cases have defined an acquittal to encompass any
ruling that the prosecution’s proof is insufficient to establish
criminal
liability
for
an
offense.
.
.
.
These
sorts
of
substantive rulings stand apart from procedural rulings that may
also terminate a case midtrial, which we generally refer to as
dismissals or mistrials.
Procedural dismissals include rulings on
questions that are unrelated to factual guilt . . . like an error
with the indictment.
Both procedural dismissals and substantive
rulings result in an early end to trial, but . . . the double
jeopardy consequences of each differ.
The law attaches particular
significance to an acquittal, so a merits-related ruling concludes
proceedings absolutely.
This is because to permit a second trial
after an acquittal . . . would present an unacceptably high risk
that the Government . . . might wear down the defendant so that
even though innocent he may be found guilty. And retrial following
an acquittal would upset a defendant’s expectation of repose
. . . .
In contrast, a termination of the proceedings against a
defendant on a basis unrelated to factual guilt . . ., i.e., some
procedural ground, does not pose the same concerns . . . .”
(internal
brackets,
citations,
and
quotation
marks
omitted)
(emphasis added)); Lee v. United States, 432 U.S. 23, 25-34 (1977)
(“[T]he Government charged [the defendant] with the crime of theft
. . . .
Although the defect did not come to light before trial,
the allegations of the information were incomplete. . . .
After
the prosecutor’s opening statement, [the defendant’s] lawyer moved
to dismiss the information . . . [and] called the court’s attention
-10-
to the lack of any allegation of knowledge or intent in the
information. . . .
After the Government had presented its case
[and] . . . [t]he defense [had] rested without presenting any
evidence, [] the court . . . grant[ed] the motion to dismiss
because
of
the
failure
of
knowledge or intent . . . .
the
information
to
charge
either
[Subsequently, the defendant] again
was charged with the theft, this time in an indictment alleging all
of the elements of the [offense].
On substantially the same
evidence
the
as
had
been
presented
at
first
trial,
he
was
convicted. On appeal, the Court of Appeals for the Seventh Circuit
affirmed, rejecting [the defendant’s] claim that the second trial
was barred by the Double Jeopardy Clause. We granted certiorari to
consider the double jeopardy issue. . . .
[T]he proceedings were
terminated [during the first trial] at the defendant’s request and
with his consent. . . .
jeopardy
barrier
to
It follows . . . that there was no double
[his]
retrial
unless
the
judicial
or
prosecutorial error that prompted [his] motion was intended to
provoke the motion or was otherwise motivated by bad faith or
undertaken to harass or prejudice [him]. . . .
The drafting error
was at most an act of negligence, as prejudicial to the Government
as to the defendant. . . .
We hold that [the defendant’s] retrial
after dismissal of the defective information at his request did not
violate
the
Double
Jeopardy
Clause.”
(internal
citations
and
quotation marks omitted) (emphasis added)).
The Court therefore should enter judgment against Petitioner
on Ground One, pursuant to Section 2254(d).
-11-
B.
Ground Two:
Equal Protection
In Ground Two, the Petition asserts that an equal protection
violation occurred because Petitioner’s habitual felon indictment
remained pending after the dismissal of his first failure to
register indictment.
(See Docket Entry 3, ¶ 12(Ground Two)(a).)
“The Equal Protection Clause of the Fourteenth Amendment provides
that ‘no State shall deny to any person within its jurisdiction the
equal protection of the laws.’”
Morrison v. Garraghty, 239 F.3d
648, 653 (4th Cir. 2001) (quoting U.S. Const. amend. XIV, § 1)
(internal brackets and ellipses omitted).
“To succeed on an equal
protection claim, [Petitioner] must first demonstrate that he has
been treated differently from others with whom he is similarly
situated
and
that
the
unequal
treatment
intentional or purposeful discrimination.”
was
the
result
of
Id. at 654; see also
id. (“Once this showing is made, the court proceeds to determine
whether the disparity in treatment can be justified under the
requisite level of scrutiny.
Ordinarily, a state regulation or
policy . . . will be sustained if the classification is rationally
related to a legitimate state interest. . . .
[C]lassifications
which are based upon [such] factors [as race or national origin],
or
which
impinge
upon
fundamental
rights
protected
by
the
Constitution, are subjected to stricter scrutiny, sustained only if
they are narrowly tailored to serve a compelling state interest.”
(internal citations omitted)).
Petitioner
has
not
alleged
that
other
habitual
felon-
defendants in North Carolina who had their related, predicate
-12-
felony
charges
dismissed
due
to
indictment
defects
received
different treatment than he did; nor has Petitioner alleged that
any differential treatment stemmed from an intent to discriminate
against him (much less that racial or other suspect-classificationbased bias fueled any discrimination in his case).
(See Docket
Entry 3, ¶ 12(Ground Two)(a); Docket Entry 10 at 6-9.)
Instead,
Petitioner simply has contended that, due to certain procedural
requirements of North Carolina law, “[b]ecause the state did not
reindict [him] with the habitual felon [charge] when the state
reindicted [him] with the [failure to register] charge [] the trial
court lacked jurisdiction to sentence [him] as a habitual felon.”
(Docket Entry 10 at 9; see also id. at 7 (citing state cases).)
“It is black letter law that a federal court may grant habeas
relief ‘only on the ground that the petitioner is in custody in
violation of the Constitution or laws or treaties of the United
States.’
Because [Petitioner’s instant] claim, when pared down to
its core, rests solely upon an interpretation of [state] case law
and statutes,
review.”
it
is simply
not
cognizable
on
federal
habeas
Wright v. Angelone, 151 F.3d 151, 157 (4th Cir. 1998)
(quoting 28 U.S.C. § 2254(a)) (internal brackets and citations
omitted); see also Ashby v. Payne, 317 F. App’x 641, 643 (9th Cir.
2008) (“[The petitioner] has failed to state a cognizable equal
protection claim . . . because his allegations are conclusory and
he has not provided sufficient facts to support them.”); Newbold v.
Secretary, Fla. Dep’t of Corr., No. 4:12CV307-WS, 2015 WL 3794934,
at *4 (N.D. Fla. June 17, 2015) (unpublished) (“[B]ecause [the]
-13-
[p]etitioner has done nothing more that couch a garden variety
state
law
[]
constitutional
claim
as
a
federal
law provisions
-
claim
with
no
by
intoning
mention
of
federal
facts or
argument to suggest that there are federal constitutional claims [he] has failed to present a cognizable habeas claim.”); Owens v.
Birkett, No. 2:07CV14930, 2007 WL 4327814, at *2 (E.D. Mich. Dec.
7, 2007) (unpublished) (“[The] [p]etitioner’s conclusory reference
to an equal protection violation, even construed liberally, does
not state a claim for a constitutional deprivation cognizable in a
federal habeas corpus proceeding.”).7
Under these circumstances, the Court should deny relief on
Ground Two.
C.
Ground Three:
Ineffective Assistance of Counsel
According to the Petition’s Ground Three, Petitioner’s counsel
provided constitutionally ineffective assistance because he failed
to have Petitioner’s habitual felon charge dismissed along with the
first failure to register charge. (See Docket Entry 3, ¶ 12(Ground
Three)(a)). When assessing Ground Three, the Court must note that:
In order to establish an ineffective assistance of
counsel claim . . ., [a petitioner must] establish that
his “counsel’s representation fell below an objective
standard of reasonableness,” measured by the “prevailing
professional norms,” [Strickland v. Washington, 466 U.S.
668, 688 (1984)], and “that there is a reasonable
probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different,” id. at 694.
“Unless a [petitioner] makes
7
Moreover, Petitioner raised this same state-law-based jurisdictional
claim on direct appeal and the North Carolina Court of Appeals rejected it. See
Fraley, 2013 WL 4007078, at *3-4. “[I]t is not the province of a federal habeas
court to reexamine state-court determinations on state-law questions.” Estelle
v. McGuire, 502 U.S. 62, 67-68 (1991).
-14-
both showings, it cannot be said that the conviction or
. . . sentence resulted from a breakdown in the adversary
process that renders the result unreliable.” Id. at 687.
In determining whether counsel’s performance was
deficient, “[i]t is all too tempting for a [petitioner]
to second guess counsel’s assistance after conviction or
adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable.”
Id. at 689.
Hence, “court[s] must indulge a strong presumption that
counsel’s conduct falls within the wide range of
reasonable professional assistance . . . [and] that,
under the circumstances, the challenged action might be
considered sound trial strategy.”
Id. (internal
quotation marks omitted).
Similarly, in evaluating whether [a petitioner] has shown
actual prejudice from any such deficient performance, it
is insufficient for the [petitioner] “to show that the
errors had some conceivable effect on the outcome of the
proceeding,” because “[v]irtually every act or omission
of counsel would meet that test.” Id. at 693. Rather,
a “reasonable probability” that the result would have
been different requires “a probability sufficient to
undermine confidence in the outcome.” Id. at 694. When
challenging a conviction, “the question is whether there
is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting
guilt.” Id. at 695.
Fisher v. Lee, 215 F.3d 438, 446-47 (4th Cir. 2000) (internal
parallel citations omitted); see also Harrington v. Richter, ___
U.S.
___,
___,
131
S.
Ct.
770,
788
(2011)
(“Surmounting
Strickland’s high bar is never an easy task. . . .
Even under de
novo review, the standard for judging counsel’s representation is
a most deferential one.” (internal quotation marks omitted)).8
8
As Respondent has observed, “Petitioner first raised his ineffective
assistance of counsel claim in an amendment to his MAR.” (Docket Entry 8 at 14;
see also Docket Entry 4-2 at 46-49 (Motion to Amend MAR).) Respondent further
argues that, because the Superior Court “summarily and alternatively denied the
MAR on the merits,” this Court should apply “the highly deferential standards of
review contained in [S]ection 2254(d) and (e).” (Id. at 14-15.) That order by
(continued...)
-15-
Petitioner
requisite
assistance
has
not
showing under
of
entitled him
counsel
to
made
(and,
indeed,
Strickland.
claim
dismissal
Petitioner’s
assumes
of
his
cannot
that
North
habitual
felon
make)
the
ineffective
Carolina
law
charge
upon
dismissal of his first failure to register charge, but the North
Carolina Court of Appeals rejected that assumption in connection
with Petitioner’s direct appeal, see Fraley, 2013 WL 4007078, at *3
(“[Petitioner] argues that the trial court lacked jurisdiction to
sentence him as an habitual felon because the habitual felon
indictment was ancillary to the substantive charge and should have
been dismissed at the time the initial indictment for failure to
register was dismissed. We disagree.”), as Petitioner has conceded
(see Docket Entry 10 at 12 (“The [North Carolina Court of Appeals]
judges made errors in my opinion. . . .
indictment
stood
alone
after
[my
first
The habitual felon
failure
to
register
indictment was dismissed] which is against the law.”). Even if the
North Carolina Court of Appeals misconstrued North Carolina law on
this point, “[i]t is beyond the mandate of federal habeas courts,
[] to correct the interpretation by state courts of a state’s own
laws.”
In
Sharpe v. Bell, 593 F.3d 372, 383 (4th Cir. 2010).
the
words
of
another
court
faced
with
an
analogous
situation:
8
(...continued)
the Superior Court, however, makes no reference to Petitioner’s proffered
amendment of his MAR, but instead refers only to the original MAR and its double
jeopardy and jurisdictional claims. (See Docket Entry 4-2 at 38.) As a result,
the Court should review Ground Three de novo (i.e., by applying Strickland
directly, rather than through the additional prism of Section 2254(d)).
-16-
The [state appellate court] already has told us how the
issues would have been resolved under [] state law had
[Petitioner’s counsel] done what [Petitioner] argues [his
counsel] should have done — objected to the [continued
pendency of the habitual felon charge].
It is a
fundamental principle that state courts are the final
arbiters of state law, and federal habeas courts should
not second-guess them on such matters. Accordingly, with
regard to this claim, [Petitioner] cannot establish
either deficient performance by [his counsel] or
prejudice.
Herring v. Secretary, Dep’t of Corr., 397 F.3d 1338, 1354-55 (11th
Cir. 2005) (internal citations and quotation marks omitted).
In sum, Ground Three lacks merit.
V.
CONCLUSION
Petitioner’s habeas claims all fail as a matter of law.
IT IS THEREFORE RECOMMENDED that Respondent’s Motion for
Summary Judgment (Docket Entry 7) 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 6, 2015
-17-
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