LINDSAY v. CASTELLOE

Filing 10

ORDER, MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 03/09/2016; that Petitioner's Motion for the Appointment of Counsel (Docket Entry 9 ) be DENIED. RECOMMENDED that Respondents Motion for Summary Judgment (Docket Entry 5 ) be GRANTED, that the Petition (Docket Entry 1 ) be DISMISSED, and that Judgment be entered dismissing this action. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

THEODUS LINDSAY, JR.,
Petitioner,
V

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1:15CV106

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TOMMY CASTELLOE,,
Respondent,

ORDER. MEMORANDUM OPINION AND RECOMMENDATION OF
UNITED STATES MAGISTRATE IUDGE
Petitioner, a prisoner of the state of Notth Carohna, seeks a writ of habeas corpus
putsuant to 28 U.S.C. S 2254. pocket Entry 1.) Respondent has filed an Answer Q)ocket

E.tt

y 4), a

Motion for SummaryJudgment pocket Entry 5), and

a

Supporting Brief (Docket

Entry 6). Petitioner filed a Response in Opposition to Defendant's Motion fot Summary
Judgment (Docket Entry 7) andSupporting Brief (Docket Entry 8). Also before the Court is

Petitioner Motion

fot Appointment of Counsel. Q)ocket Entry 9.) This mattet is now

prepated fot a ruling.

Procedural Background
On May 1.0,201.2, in the Superiot Court of Cabartus County, Plaintiff was convicted
after trial by

j"ry of felonious breaking or enteting, and assault with a deadly weapon with

intent to kill inflicting serious injury. (Docket Entry 6-5, Ex. 4 at 5.) He was sentenced to 7296 months imprisonment.

(Id)

On Apdl 16, 201,3, the North Carohna Court of Appeals
1

('NCCO,A,") dismissed Petitioner's appeal in part and found no plain etror in part. State u.
Undsay No. CO,A.I2-1,31,9,201,3WL1,61,61,01, (\f.C. App. Apr. 16,201,3) (unpublished). On

April 11,2014, Petitioner filed a motion for apptoptiate relief ("MÂR") through counsel in
the Superior Court of Cabarus County. Q)ocket Entry 6-2, Att. C at36-50.)

A"

evidentiary

heating on October 1,2014 was held befote the Honotable W. Erwin Spainhout. (Docket

E.rry 6-9, Ex. 7.) On November 13,2014,Judge Spainhout denied the M,\R on the merits.
(Docket Ent y L-1, Ex.

1,

at 1,-4.) On January 28,201,5, Petitioner ûled a certiotari petition in

the NCCOA which was denied on February 1,5,2015. Q)ocket Entry 6-2,F;x. 1. at2-1,5;
Docket Entty 6-11, Ex. 9.) Lastly, Petitioner submitted the instant petition onJanuary 29,
2015. (Docket Entry 1.)

Factual Background
The NCCOA summarized the facts from Petitioner's case as follows:
The evidence ptesented attial tended to show the following. Defendant and
I(aren Lindsay ("Mr. Lindsay") were matriedin 1.994. Defendant was empioyed
by the postal service and had served in the U.S. Army. Ms. Lindsay worked at
Pass & Seymout Electrical Wiring Devices and Supplies with Elliot Hunt ("Mt.
Hunt"). Defendant and Ms. Lindsay eventually separated, and on 21 ,A.ugust
2009 Ms. Lindsay moved out of the madtal home. Ms. Lindsay moved into a
house neat Mt. Hunt's residence.

In September 2009, Ms. Lindsay and Mr. Hunt engaged in a sexual relationship.
After her home was burglatized, Ms. Lindsay began staying some nights at Mr.
Hunt's home. Duting this time, Defendant hoped to save his martiage and
teconcile wrth Ms. Lindsay. On the motning of 7 October 2009, Defendant
and Ms. Lindsay discussed taking a trip to Las Vegas together. Ms. Lindsay told
Defendant that she would need time to think about it and agreed to have lunch
with Defendant latet in the week.

On the afternoon of 7 October.2009, Ms. Lindsay and Mr. Hunt were at Mt.
Hunt's residence. Mr. Hunt heard a sound and went to the ftont room of the
house, whete he found Defendant standing in the living room. Once inside,
2

Defendant asked to speak with Ms. Lindsay. Ms. Lindsay heard the sound of
her husband's voice and walked into the living room.

Mr. Hunt testified that he decided to leave the toom to allow Defendant and
Ms. Linds^y àn oppottunity to speak, but befote he could leave, Defendant
attacked him with a shatp object. Mt. Hunt testified the men stuggled and
fought, ultimately ending up on the floor. The fight lasted apptoximately thitty
seconds before Defendant ran out the doot.

Defendant testified that he did not attack Mt. Hunt, but rathet that Mr. Hunt
began the fight by walking up to Defendant and punching him. Defendant
claimed that he fell back and grabbed a nearby knife in the living room. Fearing
fot his life, Defendant swung the knife at Mr. Hunt to create space between the
two men in order to escape.
A neighbor heard the altercation and called the police. After the fight, Mt. Hunt
was taken to the emergency room where he was üeated fot lacerattons across
the left side of his face, ear, chest, and abdomen. Latet that evening, Defendant
was atrested fot breaking or enteting, assault with a deadly weapon wrth the
intent to kill inflicting serious injury, and maiming. Defendant was indicted fot
these offenses on 2 November 2009.
201,2, Defendant was found g"ilty of bteaking ot entering and
a deadly weapon with the intent to kill inflicting sedous injury, and

On 10 May
assault

with

wâs sentenced to 72-96 months imptisonment.

Undv1,201,3 WL 16161.01., atx1.-2 (footnote omitted).

Petitioner's Claims
Petitioner's sole issue before the Court is whethet defense counsel was ineffective by

informing the jury that Petitioner, upon advice of counsel, invoked his trifth Âmendment right
to remain silent. Q)ocket Entty 1, $12; Docket E.ttty 8 at 1-5.)1

1

Petitioner claims that he received ineffective assistance of counsel from his trial and appellate
counsel. (Docket E ttry 1, $11.) However, Petitionet does not allege what appellate counsel did or
did not do that constituted ineffective assistance. (1/.)
3

Standard of Review
!Øhere â state trial court adjudicated a petitionet's claims on their merits, this Court

must apply 28 U.S.C. $ 2254(d)'s highly deferential standard of review to such claims. Callen
u. Piruhohter,563

U.S. 1,70,1.81. Q011). That statute ptecludes habeas telief in cases where

a

state court has considered a claim on its metits unless the decision was contrafy to or involved

an unreâsonable application of cleady established fedetal law as set out by the United States
Supreme Court or the state court decision was based on an unreasonable detetmination of the

facts. Id.

^t

1.8L-82.

A

state coutt decision is "conttary

to" Supteme Couft precedent if it

either "arrives at a conclusion opposite to that rcached by fthe Supteme] Court on a question
of law" or "confronts facts thatarc materially indistinguishable ftom

a

precedent and arives at a result opposite" to that of the Supreme

Coutt. ll/illiams u. Tallor,

529 U.S. 362,405 (2000).

Court law

"if

A

televant Supreme Court

state decision "involves an unreasonable application"

the state court identifies the cottect governing legal

de

of Supreme

from fthe Supteme]

Court's cases but unreasonably applies it to the facts of the particulat state prisoner's case."
Id. at 407 . "IJnreasonable" does not mearr just "incorrect" or "erfoneous" and the court must

judge the teasonableness ftom an objective standpoint. Id. at 409-1,2. State court factual
findings are presumptively correct unless rebutted by clear and convincing evidence. 28 U.S.C.
$ 225a(e)(1).

This standard applies below.

Discussion
Petitioner's only argument is that his trial attorney was ineffective because he informed
the jury that Petitioner invoked his

rþht to remain silent. (Docket Entty

1, $12; Docket

Etttry

8 at 1-5.) Petitioner states, in his Petition, that during the "cross-examination of
4

[the]

investigating officer, counsel asked officer, 'on advice of counsel, fwhether Petitioner did or]

.

. . did not make any statement [the] evening þe was interogated].' Officer tesponded that
after consulting with counsel, defendant did not make a statement." Q)ocket E.ttty 1, S12.)
,{,t trial, the specific questioning by Petitionet's attorney of State's witness, Detective l(evin

Pfistet wâs âs follows:

a
A

a

And thete at the shedffs department, someone advised him of
his rights, to make a statement or not; is that correct?
When he got there, we'd asked him if he wanted to speak with us
and he said he prefetred to talk to an attotney. And we inquired
if he had an âttorney and he said yes. And we asked if he'd like
fot us to call them and he gave us the name; and we, in turn,
called the attotney for him. Yes, sir.
And then on advice of counsel, Mr. Lindsay did not make any
statement that evening?

A

Cotrect. We had ptovided him and his attorney a conference
room to speak with each other and then the attorney came out
and said he didn't wish to speak with us at that time.

pocket E.rt y 6-7 ,F;x. 5 at 1,62-1,63). Petitioner testified during his case-in-chief. On
cross-examination, the ptosecutor asked the foilowing questions relating to Petitioner's
decision not to talk to the police

a

A

a
,4.

a

,\

You said that you only - you never talked to the police.
I went down-I turned myself in so, yes, ma'am, I talked to the
police.
What defense counsel btought out thtough Detective Pfistet was
they wanted to talk to you, but you didn't talk to them.
I have the right to remain silent.
I'm just And I chose to remain silent. I was under sttess. I was under
deptession. I MR. RUSSELL: Objection, Your Honot. He doesn't have to
explain that.
MR. MCNAIRY: I didn't ask him to explain it. I just asked him
the question.
No futher questions.
MR. RUSSELL: No othet questions, Yout Honor.
5

THE COURT: ,\ll right. Step down.
(Id. at21,7-21,8.)

Petitioner sole argument is that his attotney should not have infotmed the jury (through

his questioning of the State's witness) that Petitioner exetcised his dght to temain silent.2
Petitioner's claim fails. To prove ineffective assistance of counsel generally, a petitioner must
establish, Frst, that his attorney's performance fell below a teasonable standatd
âttorneys and, second, that he suffered prejudice as result.

See

fot

defense

Strickland u. IY/ashington,466U.S.

668, 667 -696 (1984). Unsupported, conclusory allegations do not entitle a petitioner to relief.
See Nic,ëercon u. I-.ee, 971,

F.2d 11.25,'11,36 (4th Ctr. 1992),

Angel0ne,166 F.3d 255 (4th Cir. 1999).

deficient performance.

abrog'n on oîher groands recog'd, Yeatt¡

a.

A petitionet bears the butden of afftmatively showing

See Spencer u. Murca1,

18 F.3d 229,233 (4th Cir. 1,994). Ptejudice

requires a showing of a reasonable probability that but for counsel's unprofessional etrors, the

result of the proceeding would have differed. Stric/<lønd,466 U.S.
standard described above also applies

^t

694.

The Strickland

to claims that appellate counsel was ineffecttve.

I-nwrence u. Bran,Þ,er,517 F.3d 700, 708-09 (4th

See

Cir. 2008).

Applying the two-prong test, the MAR court found that Petitioner had not met his

burden. The MAR court did find that "[t]he decision to elicit the testimony fconcerning
Petitioner's decision to exercise his dght to remain silent] was without the ptior knowledge or
consent of the defendant" and that "[t]here was no teasonable basis or explanation fot defense

counsel to ask the questions fconcerning Petitioner's decision to exetcise his right to remain

'Petitioner does not challenge the prosecutor's cross-examination of Petitioner on this point
being error.
6

as

silent]." (Docket E,ntry 1-1 at2.) l7hile, at most, the M-AR court's finding may taise questions
as

to whether counsel performance "fell below a reasonable standard for defense attoÍneys,"

Strickland,466 U.S. at 667 -688, what is abundantly cleat is that Petitioner has failed to show
that prejudice resulted from any deficient performan ce. Id.

^t

692-94. The MÂR Court stated:

Defense counsel's error in eliciting the questions fconcerning Petitionet's
decision to exercise his right to temain silent] was harmless beyond a teasonable
doubt because of the overwhelming evidence against the defendant. The
defendant cut the victim 10 ot l.L times on the victim's neck, eat, shouldet, and
side, under his arm, across his chest. The eat was left in two or three pieces
prior to plastic surgery. Another wound ran from the victim's ear to his mouth
as having been cut completely through, causing the victim to almost choke from
blood, and making it difficult for him to form words while being tteated. The
wounds were potentially life threatening. Â neighbor saw the defendant enter
the home where the assault occurred, and she saw him leave after the assault.
Boots were found at the defendant's home that were positive for the human
blood. The defendant testified at trial that he did enter the home in question,
and that the victim "beat the crap" out of the defendant; that he fell back on a
chair and then used a knife to swing at the victim. Photographs of the defendant
after the altercalon showed only a small scratch or two on his back and a small
abrasion on his lip, and there was no othet injury. The defendant admitted
causing the injuties to the victim. Identification was not an issue.
(Docket Entty 1-1 at 2-3.) The MAR Court ultimately concluded as a mattet

of law the

following:
1. Defense counsel's ettot in asking the questions . . . was hatmless beyond a
reasonable doubt, and the error was not prejudicial to the defense. The ertor
was not so serious as to depdve the defendant of a far ttial. Sttickland v.
Washington, 466 U.S. 668,687 (1984).

2.There is no reasonable probability that, but for the error, the result of the ttial
before the jury would have been diffetent. State v. Btaswell. 312 N.C. 553
(1e8s).

In light of the overwhelming evidence of the defendant's guilt, the defendant
cannot show that there is a teasonable probability that the outcome of the tdal
would have been different if the fotegoing questions had not been asked. State
v. Braxton, 352 N .C. 158 (2000), cert. Denied,121S. Ct. 890 Q001); State v. Ellis.
130 N.C. App. 596, 599 (1988).
3.

1

All constifutional effors do not require teversal. Instead, a genenl tule, such
errors should be evaluated against a harmless error standatd. Under that
standard, the error will require reversal unless the court is convinced beyond a
reasonable doubt that it did not contribute to the vetdict obtained-as in the case
4.

sub judice. Chapman v. Califotnia, 386 U.S. 18 (1'967);United States v. Hastings.
461 U.S. 499 (1,983); Nedet v. United States. 527 U.S.1, 18 (1999).
Qd.

at3.)
Giving deference to the State court's determinations, the MAR Court's findings of fact

and conclusions of law were not unreasonable. Fowler

-

Jo1ner,753 tr.3d 446,457 (4th Cir.

13 S. Ct. 1,530, L91 L. F,ð. 2d 562 (201.5). As stated above,

U.S.

201,4) ært. denied,

u.

-,

there was overwhelming evidence of Petitioner's guilt, such that this Court cânnot conclude

that but for any effor on the part of Petitionet's

tial

counsel, the results would have been

different here. Strickland,466 U.S. at 692-694. "In conducting federal habeas teview, a federal
court is limited to deciding whether a conviction violated the Constitution, laws, ot treatises

of the United States." E¡nlle

in

u.

MñJairq502 U.S. 62,68 (1991) (citations omitted). "It is only

citcumstances impugning fundamental faitness

or inftinging specific constitutional

protections that a fedetal question is ptesented." Grandler

u.

North Carolina,283 F.2d798,802

(4th Cir. 1960). Such circumstances are absent here. The resolution of this matter by the State

is neither conftairy to, nor an unreasonable application of cleady established fedetal law, nor
was it based on an unreasonable detetmination of the facts.

Petitioner cites Do/e u. Ohi0,426U.5.61,0 (1,976), to suppot his argument. (Docket

Entry 6-5.) However, that case is distinguishable ftom the instânt case. In Do/e, the
prosecutor sought to impeach the defendants on cross-examination by using their silence aftet
they had been atrested and given their Miranda watnings. Dqtle,426 at 61,3-1,6. Here, it was

8

Petitioner's lwn attorney that brought befote the jury the fact

of Petitioner's decision to

exetcise his right to remain silent.

Indeed, at the MAR headng, Petitioner's counsel testified that the reason fot asking
this line of questioning to Detective Pfister was strategic ttíal planning.3 (Docket Entry 6-9,

Ex. 7

^t

28-31..) Even a conclusion that defense counsel's questions and the follow-up

questioning by the prosecutot was error, such

erot

was harmless. The Foutth Circuit has

recognized the harmless error standard set forth ínBrecht

u.

Abrahan¿¡0n,507 U.S. 619 (1993).

"Under that standard, an errot is harmless unless it had a substantial and injudous effect ot
influence in determining the jury's verdict." Fowler u. Jo1ner,753 F3d

^t

459 (citation and

quotations omitted). Applyr"g the Brecþt standard, under the facts of this case, specifically
taking into account the overwhelming evidence against Petitioner of his assault with a deadly
weapon with intent to kill inflicting setious bodily injury and breaking or enteting chatges, any

such ertot by defense counsel was hatmless. Goþhin u. Bran,ëer,519 F.3d 1.68,1,91 (4th Cit.

2008) (fìnding, based upon overwhelming evidence, that

it is highly unlikely "that

the jury

would have declined to convict fdefendant] of fitst-degtee mutder absent" any potential ertot

in admitting his confession); IYard
evidence

of

[defendant's] guilt

u. French,165

F.3d 22,*5 n.5 (4th Cir. 1998) (table) ("The

. . . simply was overwhelming."). The highly differential

:

A trial counsel's strategy and tactics c tty ãpresumption of teasonableness as to performance under
thefirstprongof Strickland. SeeUnitedSøn¡u.Roane,378F.3d 382,404 (4thCfu.2004) (citingStricklønd,
466 U.S. at 689) ("Under the first prong of Strickland, we apply a 'strong presumption' that a Îr.ial
counsel's strâtegy and tactics fall 'within the wide nnge of reasonable ptofessional assistance )"); see
also Hall a. Vasbinder,563 F.3d 222,237 (6th Cir. 2009) ('Although ultimately unsuccessful, defense
counsel's strategy, including raising the matter of [defendant's] silence, was not constitutionally
deficient."). Even if this Court were to find that the MA.R court unreasonably concluded that defense
counsel erred, the ultimate finding of harmless errot should not be distutbed.
9

standards of Strickland and S2254(d), and the decision by the MAR reviewing court is a high

bar which Petitioner has failed to overcome. Thus, Respondent's motion should be granted.

Motion for Appointment of Counsel
Petitioner has also filed

a

Motion for the,tppointment of counsel. Q)ocket Entry 11.)

In view of the undersigned's Recommendation and the absence of exceptional circumstances
warranting appointment of counsel, no basis exists to grant this motion. Consequently, this

motion is denied.
other groands,

See lN/hi¡enant u.

Yøan,739 F.2d 1.60, 165 (4th Cir. 1,984), abrogated

iru

part

on

Møllard u. Unìted States Dist. Ct. þr S.D. Iowa,490 U.S. 296 (1989).

Conclusion
Petitioner's habeas claim lacks metit. Petitionet has failed
state's resolution

of his claim was contf

established federal law

^ry

to demonstrate that the

to or an unfeasonable application of

cleady

ot was based on an unreasonable detetmination of the facts. An

evidentiary headng is not warranted in this matter.

IT IS THEREFORE ORDERED
Counsel Q)ocket Entty 9) be

that Petitioner's Motion fot the Appointment

of

DENIED.

IT IS THEREFORE RECOMMENDED that Respondents Motion for

Summary

Judgment Q)ocket Entry 5) be GRANTED, that the Petition (Docket Entty 1) be

DISMISSED, and thatJudgment be entered dismissing this action.

U
March 9,201,6
Durham, North Caroltna

10

teÍ
oe
States Magistrate Judge