GRIFFIN v. SOLOMON
Filing
30
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 07/14/2017, that Respondent's Motion for Summary Judgment (Docket Entry 19 ) be granted, that the Petition (Docket Entry 1 ) be denied, and that Judgment be entered dismissing this action without issuance of a certificate of appealability. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GREGORY A. GRIFFIN,
)
)
)
)
)
)
)
)
)
Petitioner,
v.
GEORGE SOLOMON,
Respondent.
1:15CV694
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner of the State of North Carolina, seeks
a
writ
of
habeas
“Petition”).
judgment.
corpus
pursuant
(Docket Entry 1.)
to
28
U.S.C.
§
2254
(the
Respondent has moved for summary
(Docket Entries 19, 20.)
For the reasons that follow,
the Court should grant Respondent’s Motion for Summary Judgment.
I.
Background
On May 9, 2013, a jury in the Superior Court of Cabarrus
County found Petitioner guilty of the offenses of breaking and
entering and of possessing burglary tools (both as an habitual
felon), whereupon the Superior Court imposed two, concurrent prison
sentences of 146 to 185 months.
(See Docket Entry 1, ¶¶ 1-6;
Docket Entry 4-5 at 64, 70, 74-77.)1
Petitioner appealed to the
1
The Petition consists of 10 pages of a standard form, followed by 46
pages of materials from Petitioner’s underlying state criminal case(s) (see
Docket Entry 1), with additional such documents appended as Exhibit A (see Docket
Entry 1-1) and Exhibit B (see Docket Entry 1-2). This Memorandum Opinion cites
to the standard form portion of the Petition by paragraph and to the remainder
of the Petition, as well as Exhibits A and B, by the page number in the footer
appended to those materials at the time of their docketing in the CM/ECF system.
Respondent also attached to his brief in support of an earlier motion to dismiss
documents from Petitioner’s state criminal proceedings (see Docket Entries 4-2
to 4-21), the authenticity of which Petitioner has not contested (see Docket
(continued...)
North Carolina Court of Appeals and received appointed appellate
counsel.
(See Docket Entry 4-5 at 83-85.)
Court of Appeals affirmed.
The North Carolina
North Carolina v. Griffin, No. COA13-
1093, 233 N.C. App. 239 (table), 2014 WL 1384371 (Apr. 1, 2014)
(unpublished).2
Petitioner (acting pro se) then forwarded to the
Supreme Court of North Carolina a “Notice of Appeal” (Docket Entry
4-14 at 9), which that court dismissed, North Carolina v. Griffin,
367 N.C. 506, 759 S.E.2d 101 (2014).
Next, Petitioner filed a Motion for Appropriate Relief (“MAR”)
with the Cabarrus County Superior Court.
(Docket Entry 4-17),
which that court denied and dismissed (Docket Entry 4-18 at 2-3).
Thereafter, the North Carolina Court of Appeals denied Petitioner’s
request for certiorari review of the denial/dismissal of his MAR.
(Docket Entry 4-21 at 2.)
Petitioner
Petition.
subsequently
(Docket Entry 1.)
instituted
this
action
via
his
Respondent filed a Motion to Dismiss
or, in the Alternative, Motion for More Definite Statement (Docket
Entries 3, 4), and Petitioner responded (Docket Entries 6, 7).3
1
(...continued)
Entries 6, 7). This Memorandum Opinion cites to those items by the page number
in their CM/ECF footers.
Hand-written portions of Petitioner’s filings
frequently feature all capital letters, but (for ease of reading) this Memorandum
Opinion employs standard capitalization conventions when quoting such filings.
2
Prior to the above-referenced ruling by the North Carolina Court of
Appeals, Petitioner submitted numerous pro se motions, all of which the North
Carolina Court of Appeals rejected. (See Docket Entry 4-8 at 3-4.) Petitioner
then filed with the Supreme Court of North Carolina a “Petition for Discretionary
Review under N.C.G.S. 7A-31” as to various of those motions. (Docket Entry 4-9
at 4-9.) The Supreme Court of North Carolina denied that petition on April 10,
2014. North Carolina v. Griffin, 367 N.C. 498, 757 S.E.2d 899 (2014).
3
Petitioner’s Amendment Response to State’s Answer includes detailed
factual allegations as to the four grounds set forth in the Petition. (See
(continued...)
-2-
The Court (per United States District Judge Loretta C. Biggs)
denied
Respondent’s
Respondent’s
Motion
alternative
to
Motion
Dismiss,
for
More
and
denied
Definite
as
moot
Statement.
(Docket Entry 17.)
Respondent then filed the instant Motion for Summary Judgment
and supporting Brief (Docket Entries 19, 20), Petitioner responded
(Docket Entry 22), and Respondent replied (Docket Entry 23).4
II. Facts
On
direct
appeal,
the
North
Carolina
Court
of
Appeals
summarized the trial evidence as follows:
In the early morning hours of 2 April 2010, Christopher
Andrew Shoe, Douglas Harwood, and a third employee were
stocking shelves inside a closed Bi-Lo grocery store in
Kannapolis. As Shoe worked near the front of the store,
he heard loud popping noises coming from the front door.
After calling out to the other employees that something
was happening, Shoe went to the customer service desk
about twenty feet from the front door.
From that
location, Shoe could see a man he later identified as
[Petitioner] prying open the door with what appeared to
be a long metal screwdriver.
Shoe saw [Petitioner]’s
face in the crack of the doorway as the door popped open
and the store alarm began to sound.
On hearing the
alarm, [Petitioner] ran across the store parking lot,
3
(...continued)
Docket Entry 7 at 2-7.) That filing also adds a new “Ground V: Violation of
Petitioners [sic] . . . right to a [sic] impartial jury” (id. at 7), with
supporting factual allegations (see id. at 7-8).
The undersigned construed
Petitioner’s Amendment Response to State’s Answer as a motion to amend his
Petition under Federal Rule of Civil Procedure 15(a)(1) (see Docket Entry 13 at
4 n.4), which added Ground V to the Petition.
4
Petitioner filed a sur-reply without leave of Court. (Docket Entry 24.)
This Court’s Local Rules do not allow sur-replies. See M.D.N.C. LR7.3. In
addition, Petitioner has filed two requests to amend/supplement Grounds Two and
Four of the Petition with additional factual allegations. (Docket Entries 25,
26.)
However, Respondent did not move to strike the sur-reply (see Docket
Entries dated Nov. 23, 2016, to present), and has not responded to Petitioner’s
requests to amend/supplement his Petition (see Docket Entries dated Nov. 29,
2016, to present).
Even considering the substance of those documents, none
changes the basis of the undersigned’s Recommendation.
-3-
jumped into a van, and drove away down South Cannon
Boulevard.
Harwood testified that he had come to the front of the
store when Shoe called out to him. From a distance of
about ten feet, Harwood saw a man wearing a plaid hooded
jacket and jeans prying open the front door with a
screwdriver. Harwood saw the face of the man whom he
later identified as [Petitioner] and, after the alarm
sounded and [Petitioner] fled in a red van, Harwood
called 911.
Several officers with the Kannapolis Police Department,
including Timothy Lafferty and Steven Webb, responded to
the 911 call, and a red Ford Aerostar van was stopped a
few minutes later on South Cannon Boulevard, about a mile
and a half from the grocery store. After removing the
driver and passenger from the van, the officers searched
the
cargo
area.
They
found,
inter
alia,
a
fifty-five-gallon trash can, a large screwdriver, and a
duffel bag filled with plastic bags of clothing which
still had price tags and security sensors attached.
Harwood, who was still on the phone with a 911 operator,
was told that police “had him [the perpetrator] in
custody already.” Webb picked up Shoe and Harwood from
the grocery store and drove them in a patrol car to the
location where the van had been stopped.
Shoe and
Harwood identified [Petitioner], who was standing behind
the red van, as the man who had pried open the door.
Harwood was also able to identify the van as the vehicle
in which [Petitioner] had fled the grocery store parking
lot.
Shoe testified that he had been shown two men
during the show-up, one of whom he identified as the
perpetrator.
Harwood testified that he had seen only
[Petitioner] at the show-up.
Griffin, 2014 WL 1384371, at *1 (footnote omitted).
III.
Grounds for Relief
Petitioner has presented five grounds for habeas relief. (See
Docket
Entry
13
at
4
(analyzing
Docket
Entries
1,
7).)
Specifically, he has alleged:
1) ineffective assistance of trial and appellate counsel, (A)
because trial counsel “failed to file timely motions for discovery
and/or move for subpoenas for surveillance tapes, or witnesses who
-4-
initiated the investigation of the case and were responsible for
evidence of surveillance . . .[,] [and] fail[ed] to suppress
evidence of an illegal search” (Docket Entry 7 at 2), and (B)
because appellate counsel “settled [the] record on appeal, and
filed [Petitioner’s]
brief
without
[his]
knowledge,
agreement
and/or informed consent of the issues that made-up the settled
record, and appeal brief[,] . . . [and] mislead [sic] [Petitioner]
into believing that preserved issues from trial concerning video
tapes, and discovery issues would be included in the brief[] so
that the issues could be raised in a post-conviction proceeding”
(id.);
2) violation of “due process” and/or “equal protection,” as a
result of (A) “the [trial] judge’s assumption that a key piece of
evidence [i.e., a surveillance video tape] no longer existed, based
on a [sic] unsubstantiated, alledged [sic] and assumed phone call
by the State,” (B) “the prosecutor[’s] state[ment] that he had no
idea where the tape is, or if, it was saved, destroyed, or . . .
what the outcome of the tape is [and that he had not] sought to get
the tape,” (C) “the prosecutor[’s] knowing[] use[ of] staged
testimony in order to elicit, and introduce fabricated evidence,
and testimony in order to conceal evidence of an illegal search,
and misrepresent the actions of [law enforcement officers],” (D)
the
trial
judge’s
continuance,
in
“deni[al
order
to
of
defense]
determine
the
counsel’s
motion
truth
the
of
for
matter
[regarding the existence of a surveillance video tape],” and (E)
the “prosecutor[’s] question[ing of] it’s [sic] witness extensively
-5-
concerning what was/wasn’t on a particular tape” (id. at 3-4
(“Ground Two”));
3) “[v]iolation of Petitioner’s right against an unreasonable
search and seizure” (id. at 5 (“Ground Three”));
4) “[v]iolation of Petitioner’s right for failure to disclose
favorable evidence,” arising from the fact that Petitioner and his
trial counsel “made a total of 4 motion[s]/request[s] for discovery
of
video
surveillance,
and
witnesses
responsible
for
the
surveillance, the States [sic] response to the request, and the
fact that the State elicited evidence of what’s depicted on the
requested evidence, (that was not produced) from a State’s witness”
(id. at 6-7 (“Ground Four”)); and
5) “[v]iolation of Petitioner[’]s [federal constitutional]
right to a [sic] impartial jury” (id. at 7 (“Ground Five”)).
IV. 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
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);
-6-
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.”).5
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
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.”
5
The Court may deny a claim on the merits despite a lack of exhaustion.
See 28 U.S.C. § 2254(b)(2).
-7-
Id. at 407; see also id. at 409–11 (explaining that “unreasonable”
does not mean merely “incorrect” or “erroneous”).
V.
Discussion
A. Procedural Default
As an initial matter, Respondent maintains that Grounds Two
through Five of the Petition face a procedural bar.
Entry 20 at 2-3.)
(See Docket
According to Respondent, the MAR court, “[i]n
addition to finding no merit, . . . found that except for ‘some of
the ineffective assistance of counsel claims, the grounds or issues
alleged in [Petitioner’s] [MAR] could have been raised at trial or
[Petitioner] was in a position to adequately raise such grounds or
issues in the previous [direct] appeal to the North Carolina Court
of Appeals, but did not do so.’”
(Id. (quoting Docket Entry 4-18
at 2, and citing N.C. Gen. Stat. § 15A-1419(a)(3) (listing as
grounds for denial of MAR that “[u]pon a previous appeal the
defendant was in a position to adequately raise the ground or issue
underlying the present motion but did not do so”)) (emphasis added
by Respondent).)
“Federal habeas review of a state prisoner’s claims that are
procedurally
defaulted
under
independent
and
adequate
state
procedural rules is barred unless the prisoner can show cause for
the default and demonstrate actual prejudice as a result of the
alleged violation of federal law, or prove that failure to consider
the claims will result in a fundamental miscarriage of justice.”
McCarver v. Lee, 221 F.3d 583, 588 (4th Cir. 2000).
Moreover, the
Fourth Circuit “ha[s] consistently held that § 15A-1419(a)(3) is an
-8-
independent and adequate state ground for purposes of procedural
default.”
Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008).
Accordingly, Petitioner must show either cause and actual prejudice
or a miscarriage of justice, in order to proceed with Grounds Two
through Five.
Petitioner alleges that “a procedural default determination
[and] ruling should be excused,” because his appellate counsel
provided ineffective assistance.
Docket Entry 7 at 2.)
(Docket Entry 22 at 8; see also
“In some circumstances, a defendant may
establish cause [for procedural default] if he was represented by
counsel whose performance was constitutionally ineffective under
the standards established in Strickland v. Washington, 466 U.S. 668
(1984).”
Fowler v. Joyner, 753 F.3d 446, 460 (4th Cir. 2014)
(internal parallel citations omitted).
Here, however, Petitioner
has not shown constitutionally deficient representation by his
appellate counsel.
Petitioner
presented
the
substance
of
his
appellate
ineffective assistance claim to the state trial court in his MAR.
(See Docket Entry 4–17 at 8-9, 29-31, 87-109.)
That court denied
that claim on the merits as follows:
With regard to [Petitioner’s] claim that he received
ineffective assistance of counsel regarding appellate
issues in the case, the supporting material that
[Petitioner] submitted with the current MAR under
consideration does not support his contention.
(Docket Entry 4–18 at 2.)
Under these circumstances, this Court
must apply Section 2254(d)’s highly deferential standard of review
-9-
to
Petitioner’s
parallel
ineffective
assistance
of
appellate
counsel claim.
In order to prove ineffective assistance of appellate counsel,
Petitioner must satisfy the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984).
See Smith v. Murray, 477 U.S.
527, 535–36 (1986) (applying Strickland standard to claim of
appellate ineffective assistance); Bell v. Jarvis, 236 F.3d 149,
164
(4th
Cir.
2000)
(en
banc)
(same).
More
specifically,
Petitioner must show that (1) his appellate counsel’s performance
fell below an objective standard of reasonableness; and (2) the
deficient performance prejudiced Petitioner, i.e., a reasonable
probability that, but for his appellate counsel’s unprofessional
errors, the result of the proceeding would have changed.
See
Strickland, 466 U.S. at 678–88, 694. Further, “counsel is strongly
presumed
to
have
rendered
adequate
assistance
and
made
all
significant decisions in the exercise of reasonable professional
judgment.”
Id. at 690.
Courts likewise presume that appellate
counsel “decided which issues were most likely to afford relief on
appeal.”
Pruett v. Thompson, 996 F.2d 1560, 1568 (4th Cir. 1993).
Moreover, the United States Supreme Court has cautioned that
“[s]urmounting 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.”
562
U.S.
Further,
86,
105
“[w]here
(2011)
the
(internal
issue
is
Harrington v. Richter,
quotation
whether
the
marks
state
omitted).
court
has
unreasonably applied Strickland standards to a claim of ineffective
-10-
assistance of counsel, . . . double deference is required. . . .”
Lavandera–Hernandez v. Terrell, No. 1:12–cv–553, 2013 WL 1314721,
at *4 (M.D.N.C. Mar. 28, 2013) (Schroeder, J.) (unpublished)
(internal quotation marks omitted); see also Harrington, 562 U.S.
at 105 (“The standards created by Strickland and § 2254(d) are both
highly deferential and when the two apply in tandem, review is
doubly so.” (internal citations and quotation marks omitted)).
Accordingly, when the Court’s examination of an ineffective
assistance claim proceeds under Section 2254(d), “[t]he question is
whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.”
Harrington, 526 U.S. at 105;
see also Cullen v. Pinholster, 563 U.S. 170, 181 (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)).
In other words, “under the dual,
overlapping lenses of [Section 2254(d)] and Strickland [the Court
must] ask[ ] the following question: Was the [MAR court]’s holding
incorrect to a degree that its conclusion was so lacking in
justification that it was an error well understood and comprehended
in
existing
disagreement?”
law
beyond
any
possibility
for
fairminded
Moore v. Hardee, 723 F.3d 488, 496 (4th Cir. 2013)
(internal brackets, ellipses, and quotation marks omitted).
Under
this exacting standard, the Court concludes that the MAR court’s
-11-
denial of this ineffective assistance claim did not contradict or
unreasonably apply Strickland.
Here, Petitioner asserts the ineffectiveness of his appellate
counsel because appellate counsel “settled [the] record on appeal,
and filed [Petitioner’s] brief without [his] knowledge, agreement
and/or informed consent of the issues that made-up the settled
record, and appeal brief[,] . . . [and] mislead [sic] [Petitioner]
into believing that preserved issues from trial concerning video
tapes, and discovery issues would be included in the brief[] so
that the issues could be raised in a post-conviction proceeding.”
(Docket Entry 7 at 2.)
In essence, Petitioner maintains that his
appellate counsel failed him by declining to argue the substance of
Grounds Two through Five on appeal.
(See Docket Entry 7 at 2 (“The
reason why the[] issues [in Ground One] were not raised on direct
appeal is my appellate attorney disregarded my concerns, settled
the record, and filed the brief without my agreement or knowledge
of the settled issues.”); see also id. at 3, 4, 5, 6, 7, 8 (“These
issues were not briefed on direct appeal for the same reasons given
for Ground [One].”).)
Petitioner’s contentions fail.
As an initial matter, correspondence between Petitioner and
his appellate counsel (see Docket Entry 4-17 at 87-88, 90-106)
belies Petitioner’s assertion that his appellate counsel “mislead
[sic]
[him]
into
believing
that
preserved
issues
from
trial
concerning video tapes, and discovery issues would be included in
the [appellate] brief” (Docket Entry 7 at 2 (emphasis added)).
Petitioner’s appellate counsel sent Petitioner a letter, prior to
-12-
filing the brief, which provided the following information to
Petitioner:
I had a meeting with three other experienced attorneys in
my office to discuss your case. We all agreed that this
office has insufficient information to argue ineffective
assistance of counsel in your direct appeal . . . .
. . .
I will not brief numbers 2, 4, 5, 6, 9, 15, 16, 17, 18,
19, and 20 [in the list of proposed issues in the settled
record on appeal (see Docket Entry 4-5 at 89-90)]. The
law is against us on these issues. I have not made any
decisions about the other issues. I am still researching
the other issues and working on your brief.
(Docket Entry 4-17 at 91 (emphasis added).)
Thus, before filing
the brief, Petitioner’s appellate counsel advised Petitioner that
she
would
not
argue
that
(1)
Petitioner
“was
denied
his
constitutional right to effective assistance of counsel by trial
counsel’s failure to file a timely motion for discovery” (Docket
Entry 4-5 at 90 (issue 21) (emphasis added));6 (2) “[t]he trial
court erred by denying [Petitioner’s] motion for a continuance
until it could be determined whether a surveillance videotape of
the break-in existed” (id. at 89 (issue 4) (emphasis added)); and
(3) “[t]he trial court committed plain error by admitting testimony
about the
contents
of
a
surveillance
videotape
that
was
not
produced or introduced in evidence” (id. at 90 (issue 15) (emphasis
6
Petitioner’s appellate counsel did include in the brief an argument in
the alternative that, if the Court of Appeals did not find plain error in the
trial court’s admission of the witnesses’s show-up and in-court identification
of Petitioner, then Petitioner’s trial counsel provided ineffective assistance
by failing to move to suppress that evidence. (See Docket Entry 4-6 at 43.) The
Court of Appeals dismissed that claim without prejudice, finding that, “[i]n
general, claims of ineffective assistance of counsel should be considered through
[MARs] and not on direct appeal.” Griffin, 2014 WL 1384371, at *9.
-13-
added)).
(Docket Entry 4-17 at 91.)
Moreover, Petitioner’s
appellate counsel made clear that she had not made any decisions
about whether she would brief the issue of whether “[t]he trial
court erred by denying [Petitioner’s] motion for sanctions for a
discovery violation” (id. at 89 (issue 3) (emphasis added)).
(Docket Entry 4-17 at 91.)
Thus, Petitioner’s claim that his
appellate counsel misled him fails as a matter of law.
To the extent Petitioner claims that appellate counsel’s
failure to obtain Petitioner’s agreement regarding the record on
appeal and/or the issues on appeal in and of itself constitutes
ineffective assistance, that claim also fails. Appellate counsel’s
choice of which issues to raise on appeal constitutes a virtually
unassailable strategic decision left to counsel’s discretion.
See
Jones v. Barnes, 463 U.S. 745, 751-52 (1983). Thus, counsel labors
under no obligation to raise on appeal every non-frivolous issue
requested by a defendant.
See id. (stating that no decision “of
this Court suggests . . . that the indigent defendant has a
constitutional
right
to
compel
appointed
counsel
to
press
nonfrivolous points requested by the client, if counsel, as a
matter of professional judgment, decides not to present those
points”).
Moreover, Petitioner’s contention that his appellate counsel
failed him by not raising the substance of Grounds Two through Five
on appeal similarly fails.
In that regard, Petitioner must show
that his “appellate counsel failed to present significant and
obvious issues on appeal.”
Gray v. Greer, 800 F.2d 644, 646 (7th
-14-
Cir.
1986).
In
other
words,
Petitioner
can
overcome
the
presumption of effective assistance of counsel only by showing that
the omitted issues clearly possess more merit than those actually
raised on appeal.
Here,
performance
Id.
Petitioner
by
his
falls
appellate
far
short
counsel.
of
showing
deficient
In
correspondence
to
Petitioner, his experienced appellate counsel carefully and clearly
explained her reasoning for raising more meritorious issues and
omitting others unlikely to succeed:
I received your letter today and will try to answer your
questions.
First, I am not allowed to file a brief longer than 35
pages. As I have tried to explain previously, there are
significant legal weaknesses with every one of the
possible issues. I selected issues for the brief that I
felt have the best chance of success. Because you told
me you were not the perpetrator, I decided the theme of
the brief should be that the witnesses identified the
wrong person. I selected the issues that I thought fit
best into this overall theme.
I had three reasons for not including the issue about the
motion for sanctions. The first reason is that, at the
time the motion was heard, no one knew what was on the
tape. Since you could not show the court that the tape
would have helped you, the law required you to show the
state acted in bad faith by not preserving it.
Very
little information was presented to the court about what
happened with the tape. There was no evidence about bad
faith. The trial court found there was no bad faith.
There was no way for me to argue on appeal that the state
acted in bad faith and the trial court was wrong, because
there is nothing in the transcript that shows bad faith.
Legally, it takes more than not preserving the tape to
establish bad faith.
The second reason I did not raise this issue is that,
even if the trial court had found bad faith, the decision
whether to impose sanctions is discretionary. You asked
the court to dismiss the charges, but the court did not
have to do it even if [s]he believed the state acted in
bad faith. I am not aware of any case where a trial
-15-
court has dismissed a case because of discovery
violations. The Court of Appeals would not say the trial
court erred by not dismissing the charges.
The third reason I did not raise this issue is that, at
trial, Mr. Shoe testified he watched the tape and it was
too blurry to make out the person who broke in the door.
This is the only evidence in the record about what was on
the tape. I believe the Court of Appeals would say that
loss or destruction of the tape did not prejudice you
because the evidence showed the tape would not have
helped you.
. . .
Unfortunately, all of the legal issues in your case are
pretty weak, so I made the best arguments I could make in
35 pages. I believe the strongest issue in the brief is
Argument I because it is preserved and because Mr. Shoe’s
testimony was the strongest evidence against you. We
cannot add any more issues to the brief. We have used up
our 35 pages. We cannot make a Brady argument because we
cannot show the court that the tape would have helped
you.
(Docket
Entry
4-17
at
93-94
(emphasis
added).)
Counsel’s
correspondence thus makes clear that she carefully considered many
different issues for appeal, and ultimately chose those with the
best chance of success. Accordingly, Petitioner has not shown that
his “appellate counsel failed to present significant and obvious
issues on appeal.”
Gray, 800 F.2d at 646; see Smith v. South
Carolina, 882 F.2d 895, 899 (4th Cir. 1989) (“‘[W]innowing out
weaker arguments on appeal and focusing on those more likely to
prevail, far from evidence of incompetence, is the hallmark of
effective appellate advocacy.’” (quoting Smith v. Murray, 477 U.S.
527, 536 (1986) (in turn quoting Jones, 463 U.S. at 751-52)) (some
internal quotation marks omitted)).
Moreover, appellate counsel filed a thorough, well-argued, and
professional brief with the Court of Appeals. (See Docket Entry 4-16-
6.)
Indeed, the Court of Appeals agreed with appellate counsel
that the identification of Petitioner by the two Bi-Lo store
employees amounted to an impermissibly suggestive show-up, but
ultimately concluded that “the totality of circumstances establish
that impermissibly suggestive show-up procedures did not create a
‘substantial
likelihood
of
irreparable
misidentification.’”
Griffin, 2014 WL 1384371, at *8-9 (quoting State v. Rawls, 207 N.C.
App.
415,
424,
700
S.E.2d
112,
118
(2010)).
Under
such
circumstances, the MAR court reasonably applied clearly established
federal law in determining that Petitioner had not shown that his
appellate counsel rendered deficient performance by declining to
argue the substance of Grounds Two through Five on appeal.7
Furthermore, in light of the strong to overwhelming evidence
against
Petitioner
resulting
from
performance.
his
at
trial,
appellate
he
also
cannot
counsel’s
show
prejudice
allegedly
deficient
As the Court of Appeals noted in describing the
strength of the evidence against Petitioner, “[t]wo witnesses
positively identified [Petitioner] as the man they saw prying open
the door with a screwdriver and then fleeing in a van, and
7
In the alternative, for the reasons well-stated in Respondent’s brief
(see Docket Entry 20 at 3-19), Grounds Two through Five lack merit, particularly
when viewed through the lens of Section 2254(d) deference.
Accordingly,
appellate counsel could not have rendered deficient performance by failing to
argue meritless issues on appeal. See, e.g., Ellison v. United States, Nos.
3:07CR30RJC, 3:10CV207RJC, 2013 WL 2480654, at *3 (W.D.N.C. June 10, 2013)
(unpublished) (“[A]ny arguments made by counsel along the lines suggested by [the
p]etitioner would have been futile. Therefore, [the p]etitioner has failed to
establish a prima facie claim of ineffective assistance of counsel.”); Walker v.
United States, Civ. No. WDQ–10–2739, Crim. No. WDQ–07–0146, 2011 WL 4103032, at
*3 (D. Md. Sept. 9, 2011) (unpublished) (ruling that, where an argument “would
have been futile[, a defendant’s] appellate counsel was not ineffective for
failing to raise it”).
-17-
[Petitioner] was quickly stopped in a van nearby in possession of
a screwdriver like that used to pry open the door.”
Id. at *6; see
also id. at *4 (“After careful review of all the evidence at trial,
we conclude that, even assuming arguendo that admission of the
challenged
testimony
was
error,
[Petitioner]
fails
to
show
prejudice.”); Woods v. Schwartz, 589 F.3d 368, 378 (7th Cir. 2009)
(finding no prejudice under Strickland because “two eyewitnesses is
very strong evidence of guilt”).
In sum, because the MAR court did not unreasonably determine
that Petitioner’s appellate ineffective assistance claim lacked
merit, Petitioner has not demonstrated cause sufficient to excuse
his procedural default with regards to Grounds Two through Five.
B. Merits of Ground One (Ineffective Assistance of Trial Counsel)
Via
Ground
One,
Petitioner
brings
claims
of
assistance of both his trial and appellate counsel.
ineffective
As discussed
above in the context of evaluating whether cause existed to excuse
Petitioner’s procedural default, the MAR court reasonably applied
clearly established federal law in determining that Petitioner’s
appellate ineffective assistance claim lacked merit.
(See Docket
Entry 4-18 at 2.) Regarding Petitioner’s ineffective assistance of
trial counsel claim, Respondent does not contend that a procedural
bar exists (see Docket Entry 20 at 3 n.2), because the MAR court
found only that “some of the ineffective assistance of counsel
claims . . . could have been raised . . . in the previous appeal to
the North Carolina Court of Appeals,” without specifying which
claims Petitioner could not have raised (Docket Entry 4-18 at 2
-18-
(emphasis
added)).
Accordingly,
the
Court
should
address
Petitioner’s trial counsel ineffective assistance claim on the
merits.
Petitioner
presented
his
ineffective
assistance of trial counsel claim to the MAR court.
(See Docket
Entry 4–17 at 4-5, 25-29.)
the
substance
of
Despite the summary nature of the
denial (see Docket Entry 4–18 at 2), that order qualifies as an
adjudication on the merits, Cullen, 563 U.S. at 187 (“Section
2254(d) applies even where there has been a summary denial.”).
Thus, this Court must apply Section 2254(d)’s highly deferential
standard of review to Petitioner’s parallel ineffective assistance
of trial counsel claim. Further, “[w]here the issue is whether the
state court has unreasonably applied Strickland standards to a
claim of ineffective assistance of counsel, . . . double deference
is required. . . .” Lavandera–Hernandez, 2013 WL 1314721, at *4
(internal quotation marks omitted); see also Harrington, 562 U.S.
at 105 (“The standards created by Strickland and § 2254(d) are both
highly deferential and when the two apply in tandem, review is
doubly so.” (internal citations and quotation marks omitted)).
Petitioner alleges that his trial counsel (1) “failed to file
timely
motions
for
discovery
and/or
move
for
subpoenas
for
surveillance tapes, or witnesses who initiated the investigation of
the case and were responsible for evidence of surveillance” (Docket
Entry 7 at 2); and (2) “fail[ed] to suppress evidence of an illegal
-19-
search” (id.)8
The MAR court did not unreasonably apply Strickland
in determining that Petitioner’s allegations lacked merit.
(See
Docket Entry 4-18 at 2 (“There is no merit to [Petitioner’s
MAR].”).)
With regard to Petitioner’s contention that his trial counsel
rendered ineffective assistance by failing to file timely motions
for discovery and/or subpoena the surveillance tapes or witnesses
with responsibility over the tapes, Petitioner can show neither
deficient
performance
performance,
nor
Petitioner’s
prejudice.
own
factual
Concerning
averments
belie
contention that his trial counsel acted deficiently.
admits
in
his
MAR
that
“defense
attorney
James
deficient
his
Petitioner
Exum
made
a
discovery request for surveillance tapes of the crime in April
8
To the extent Petitioner bases his ineffective assistance of trial
counsel claim on counsel’s failure to (A) “subpoena lead investigating [officers]
who initiated the investigation of [Petitioner’s criminal] case, as well as the
[officers] who prepared the evidence report . . . [and] testified before the
grand jury concerning the evidence that supported the indictment” (Docket Entry
22 at 12); and (B) “instruct [Petitioner] to request hybrid representation” (id.
at 7), the Court should not reach such claims. Petitioner did not raise those
claims in his MAR (see Docket Entry 4-18) and thus they remain unexhausted.
Moreover, if Petitioner now attempted to raise such claims in a second MAR, they
would face a procedural bar. See N.C. Gen. Stat. § 15A-1419(a)(1) (listing as
“grounds for the denial of a [MAR] . . . [u]pon a previous [MAR], [Petitioner]
was in a position to adequately raise the ground or issue underlying the present
motion but did not do so”); see also Breard v. Pruett, 134 F.3d 615, 619 (4th
Cir. 1998) (“A procedural default also occurs when a habeas petitioner fails to
exhaust available state remedies and ‘the court to which the petitioner would be
required to present his claims in order to meet the exhaustion requirement would
now find the claims procedurally barred.’ ” (quoting Coleman v. Thompson, 501
U.S. 722, 735 n.1 (1991))); Bacon v. Lee, 225 F.3d 470, 476 (4th Cir. 2000)
(quoting Section 15A–1419(a)(1) and stating: “We have consistently held that this
provision constitutes an independent and adequate state ground that may give rise
to procedural default of federal habeas claims.”). Moreover, Petitioner has
failed to make any arguments that could overcome such default, see McCarver, 221
F.3d at 588 (“Federal habeas review of a state prisoner’s claims that are
procedurally defaulted under independent and adequate state procedural rules is
barred unless the prisoner can show cause for the default and demonstrate actual
prejudice as a result of the alleged violation of federal law, or prove that
failure to consider the claims will result in a fundamental miscarriage of
justice.”). (See Docket Entries 1, 7, 22, 24-26.)
-20-
2010” (Docket Entry 1 at 40), i.e., within the same month as
Petitioner’s arrest (see Docket Entry 4-5 at 5).
further
admits
that
the
state
responded
to
Petitioner
trial
counsel’s
discovery request with a memorandum dated May 10, 2010, indicating
that one
of
the investigating
officers
“spoke with
the Loss
Prevention head of Bi-Lo and he had already checked his tapes and
that there is a glare from the outside lights in the parking lot
and that you can not [sic] make out anything.”
(Docket Entry 1-1
at 22 (emphasis added); see also Docket Entry 1 at 40.)
Although Petitioner found such a response an “unsatisfactory
hearsay letter” (Docket Entry 1 at 40), he concedes that trial
counsel “made another request [for the tapes] after [a different
assistant district attorney] took over the case” (id. (emphasis
added); see also Docket Entry 4-2 at 30).
Moreover, the new
assistant district attorney apparently advised trial counsel that
the tapes no longer existed.
(See Docket Entry 4-2 at 31 (“[The
state has] given us the impression all along that [the surveillance
tape evidence] does not exist.”); see also Docket Entry 1-2 at 26
(trial counsel’s notation that “[l]oss prevention says they keep
videos for 30 days,” and that counsel “made a timely request BUT
they don’t have it”).) Under such circumstances, no reason existed
for trial counsel to attempt to subpoena surveillance tapes that no
longer existed.
See Moody v. Polk, 408 F.3d 141, 151 (4th Cir.
2005) (holding that “[c]ounsel is not required to engage in the
filing of futile motions”).
-21-
The record additionally reflects that trial counsel filed and
argued a motion for sanctions, asking for dismissal of the charges
against Petitioner, arising out of the state’s failure to produce
the tapes, and moved for a continuance of the trial to allow the
state more time to determine whether or not the tapes still
existed. (See Docket Entry 1-1 at 20-21; see also Docket Entry 4-2
at 18-38.) The above-described sequence of events do not establish
objectively unreasonable performance by Petitioner’s trial counsel.
See Merritt v. Hoke, No. 2:10CV47, 2010 WL 5621296, at *16 (N.D.W.
Va. Nov. 19, 2010) (unpublished) (finding no ineffective assistance
where trial counsel filed motion to compel to obtain zip drive
containing surveillance tape, and, after finding zip drive blank,
contacted state and second co-defendant’s counsel in attempt to
recover surveillance footage, and noting that “[i]t was also
reasonable
for
[the
p]etitioner’s
counsel
to
rely
on
the
representations of the State that all evidence had been turned
over,
and
it
too
had
a
blank
copy
of
the
zip
drive”),
recommendation adopted in pertinent part, rejected in part on other
grounds, 2011 WL 198104 (N.D.W. Va. Jan. 18, 2011).
Additionally,
Petitioner
cannot show
his
trial
counsel’s
failure to obtain copies of the surveillance tapes prejudiced him.
The record reflects that lights from the parking lot produced a
glare on the surveillance video that precluded Bi-Lo’s head of Loss
Prevention from “mak[ing] out anything.” (Docket Entry 1-1 at 22.)
Shoe’s trial testimony further confirmed the poor quality of the
video:
-22-
[STATE:]
Would you describe for the jury like what the
video showed, or what the quality was like or
anything?
[SHOE:]
The video quality is very, very, very poor.
You could not see, no. You visually could not
see who it was coming through the door. You
would be able to tell if it was a white male,
or a black male, or a Hispanic male. You’d be
able to tell a race, but you would not be able
to tell features.
[STATE:]
How is it, is the camera out of focus?
[SHOE:]
Yes, sir, it’s very blurry and it’s black and
white.
(Docket Entry 4-3 at 68.)
Thus, Petitioner cannot demonstrate a
reasonable probability that, had his trial counsel obtained the
surveillance
changed.
tapes,
the
result
of
the
proceeding
would
have
See Strickland, 466 U.S. at 678–88, 694.
Finally,
Petitioner
asserts
that
his
counsel
provided
ineffective assistance by failing to move to suppress the items of
evidence
obtained
Petitioner’s van.
by
law
enforcement
from
the
search
of
(See Docket Entry 7 at 2; Docket Entry 22 at 13-
15.) In that regard, Petitioner maintains that, when officers drew
their guns, handcuffed Petitioner, and placed him in a patrol car,
Petitioner
“ha[d]
been
seized
[and]
under
custodial
requiring 4th amendment const[itutional] protections.”
arrest
(Docket
Entry 22 at 14 (citing Brendlin v. California, 551 U.S. 249, 255
(2007), and Oliveria v. Mayer, 23 F.3d 642, 645-46 (2d Cir.
1994)).)
According to Petitioner, when an officer “raised the
tailgate [of Petitioner’s van] and started looking for anything
that could basically tie [Petitioner and his companion Reginald
Watson] to the Bi[-]Lo deal, or any criminal activity,” that
-23-
officer “exceeded the scope of [Terry v. Ohio, 392 U.S. 1 (1968)].”
(Docket Entry
22
at 14.)
Further,
Petitioner
contends that
“[s]earches incident to arrest conducted immediately before formal
arrest are valid only if probable . . . cause to [arrest] existed
prior to the search,” and claims that, in his case, officers
obtained probable cause to arrest from the warrantless search
itself, rendering the search “unjustifiable.”
(Id. (citing Smith
v. Ohio, 494 U.S. 541, 543 (1990)).)
The trial testimony establishes that, at about 4:45 a.m. on
April 2, 2010, Officer Timothy Lafferty of the Kannapolis Police
Department “heard the call go out that there was an attempted
breaking or entering . . . at the Bi-Lo on South Cannon” and “that
it was a red type minivan, and they had left southbound on South
Cannon Boulevard.”
(Docket Entry 4-3 at 106.)
Lafferty indicated
that he saw a red van with two occupants in the front seats heading
southbound on South Cannon as he was driving on the northbound side
(id. at 108, 128), but that he did not know if the van had other
occupants (id. at 131).
He also observed two other patrol cars
with their blue lights activated tailing that van, and he “crossed
the median on foot to assist with the felony vehicle stop.”
at 107.)
(Id.
When Lafferty reached the stopped van, described as “a
red Ford Aerostar, probably late ‘80’s or early ‘90’s,” Lafferty
saw that “Sergeant Lear and Officer Brown ha[d] their issued
sidearms out beginning verbal commands.”
(Id. at 108.)
Lafferty
noticed “some obstructions . . . through the back window” of the
van, and “later learned it was a large trash can.”
-24-
(Id. at 122.)
The officers handcuffed the driver and the passenger of the van,
and conducted patdowns of their clothing which yielded no weapons.
(Id. at 157.)
Officer
Steven
Webb
of
the
Kannapolis
Police
Department
testified that, when he arrived on the scene of the stop, Sergeant
Lear and Officers Brown and Lafferty had already detained the
driver of the van, and the passenger “was talking back towards the
officers,” and officers patted down and secured both suspects.
(Id. at 144.)
Officer Webb observed a trash can in the back of the
van, which he found “suspicious” (id.) due to the common usage of
such trash cans in retail thefts (id. at 157).
Webb recalled
officers advising Petitioner and his companion that “they [were
not] in custody, but they were being detained for their safety and
[the officers’s safety].”
(Id. at 144.)
At that point in time, Webb, Brown, and Lear raised the back
tailgate of the van and “started looking through the van” (id.) for
items “that could basically tie them to the Bi-Lo deal or to any
criminal activity” (id. at 145) and to “[m]ake sure there [wasn’t
anybody] hiding back in the back part of [the van]” (id. at 162).
Webb testified:
“At the beginning it’s just a safety thing.
That’s the only thing we’re concerned about is our safety and their
safety.
So
at
the
beginning,
although
we
want
to
preserve
evidence, we want to make sure there’s nobody in there with a gun
or something like that.
163.)
So we just do a clear sweep.”
(Id. at
The officers found a black duffel bag with clothing inside
that still had tags and security sensors from the store attached,
-25-
a “huge trash can,” and “a large screwdriver.”
(Id. at 149.)
Webb
testified that he looked through the duffle bag “to make sure
there[] [were] no weapons, anything like that in there.”
(Id. at
162.)
Webb then drove to Bi-Lo and picked up eyewitnesses Shoe and
Harwood and brought them back to the scene of the stop for a showup identification of the suspects (id. at 145-47), a drive that
took “a minute, maybe two” (id. at 147.)
Officers activated a
patrol car’s spotlight to “make sure that there[] [was] adequate
lighting so they could get a good look at [the suspects,] [a]nd
. . . to . . . eliminate [the suspects] from being able to see the
person that’s identifying them for safety reasons.”
(Id. at 147.)
According to Lafferty, both Shoe and Harwood identified Petitioner
as the person who attempted to break into the Bi-Lo, and indicated
they felt 100 percent certain.
(Id. at 147-48.)
The officers
then arrested Petitioner and Watson, seized the items found during
the search of the van, and had the van towed and inventoried.
(See
Docket Entry 1-1 at 7-8, 18-19.)
The above-described trial evidence establishes that a motion
to suppress the evidence law enforcement obtained during a search
of the van would not have succeeded for three reasons.
First,
Petitioner has not established that, at the time of the van search,
officers had placed Petitioner under arrest.
Law enforcement
briefly detained Petitioner in handcuffs while conducting the
protective sweep of the van and waiting on Webb to bring the
eyewitnesses, just one to two minutes away, to the show up.
-26-
(Docket
Entry
4-3
at
145-47.)
Moreover,
officers
advised
Petitioner and Watson that “they [were not] in custody, but they
were being detained for their safety and [the officers’s safety].
(Id.
at
144.)
Under
such
circumstances,
Petitioner’s
detention did not rise to the level of an arrest.
brief
See United
States v. Griffin, 589 F.3d 148, 154 & n.8 (4th Cir. 2009) (noting
that, “[a]lthough [the petitioner] was restrained in the backseat
of the police vehicle at the time of the search, he was being
detained at that time solely pursuant to the Terry stop” and that
he “was not yet arrested at the time of search”).
Furthermore,
because the search constituted a protective sweep rather than a
search
incident
to
arrest,
the
Smith
case,
relied
upon
by
Petitioner, has no bearing.
Second, the scope of the officers’s search of the van did not
exceed the scope of Terry.
An officer may lawfully search “the
passenger compartment of an automobile, limited to those areas in
which a weapon may be placed or hidden, . . . if the police officer
possesses a reasonable belief based on ‘specific and articulable
facts which, taken together with the rational inferences from those
facts, reasonably warrant’ the officer[] in believing that the
suspect is dangerous and . . . may gain immediate control of
weapons.”
Michigan v. Long, 463 U.S. 1032, 1049 (1983) (quoting
Terry, 392 U.S. at 21).
nature
of
the
Given the time of the encounter, the
suspected
crime,
and
the
obstruction
of
the
officers’s view into the back of the van by the large trash can,
“the
officers
did
not
act
unreasonably
-27-
in
taking
preventive
measures to ensure that” the van did not contain other occupants
(or weapons such occupants could use).
Long, 463 U.S. at 1050.
Moreover, law enforcement’s discovery of the trash can, duffel bag
full of tagged clothing, and the screwdriver during the protective
search remains permissible, because, “[i]f, while conducting a
legitimate Terry search of the interior of the automobile, the
officer should . . . discover contraband other than weapons, he
clearly cannot be required to ignore the contraband, and the Fourth
Amendment does not require its suppression in such circumstances,”
id., and “police may examine the contents of any open or closed
container found within the passenger compartment,” id. at 1049.
Third, even if the trial court had found the officers’s search
of the van exceeded the permissible bounds of Terry, that court
would likely have ultimately denied the motion to suppress under
the inevitable discovery doctrine.
That doctrine permits the
admission of evidence which, although “in some sense the product of
illegal governmental activity[,] . . . ultimately or inevitably
would have been discovered by lawful means.”
U.S. 431, 444 (1984).
Nix v. Williams, 467
Here, officers obtained probable cause
sufficient to arrest Petitioner, wholly independent of the items
officers discovered during the protective sweep of the van, when
Shoe and Harwood both identified Petitioner as the perpetrator with
100 percent certainty.
(See Docket Entry 4-3 at 147-48.)
At that
point, law enforcement could have searched the van and found the
same evidence.
See Arizona v. Gant, 556 U.S. 332, 343 (2009)
(“[W]e also conclude that circumstances unique to the vehicle
-28-
context justify a search incident to a lawful arrest when it is
‘reasonable to believe evidence relevant to the crime of arrest
might be found in the vehicle.’” (quoting Thornton v. United
States, 541
U.S.
615, 632
(2004)
(Scalia,
J.,
concurring in
judgment)).
Moreover, “[p]olice officers frequently perform inventory
searches when they impound vehicles or detain suspects.”
United
States v. Hairston, 409 F. App’x 668, 670 (4th Cir. 2011).
“A
proper inventory search is merely an incidental administrative step
following arrest and preceding incarceration, conducted to protect
the arrestee from theft of his possessions, to protect the police
from false accusations of theft, and to remove dangerous items from
the arrestee prior to his jailing.”
United States v. Banks, 482
F.3d 733, 739 (4th Cir. 2007). Here, officers impounded the van in
which they stopped Petitioner, and conducted an inventory search of
its contents.
(See Docket Entry 1-1 at 18-19.)
Thus, even “if the
officer[s] had not conducted a search incident to arrest, . . . the
evidence in question would have [inevitably] been discovered” in
the inventory search.
Hairston, 409 F. App’x at 670.
In short, a motion to suppress the evidence officers found in
the van would have failed and thus trial counsel did not provide
deficient
performance
by
opting
against
pursuing
a
meritless
motion. See Moody, 408 F.3d at 151 (holding that “[c]ounsel is not
required to engage in the filing of futile motions”). Accordingly,
the MAR court did not unreasonably apply Strickland in denying
Petitioner’s parallel ineffective assistance claim.
-29-
VI. Conclusion
IT IS THEREFORE RECOMMENDED that Respondent’s Motion for
Summary Judgment (Docket Entry 19) be granted, that the Petition
(Docket Entry 1) be denied, 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
July 14, 2017
-30-
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