GOVAN v. SOLOMON
Filing
11
MEMORANDUM OPINION AND RECOMMENDATIONsigned by MAG/JUDGE L. PATRICK AULD on 2/1/2017. RECOMMENDED that Respondent's Motion for Summary Judgment (Docket Entry 4 ) be granted, that the Petition (Docket Entry 1 ) be denied, and that Judgment be entered dismissing this action. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARK DWAYNE GOVAN,
Petitioner,
v.
GEORGE T. SOLOMON, Director,
N.C. Dept. of Public Safety,
Respondent.
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1:16cv670
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner of the State of North Carolina, seeks
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Entry 1 (the “Petition”).)
(Docket
On March 21, 2014, in the Superior
Court of Randolph County, a jury found Petitioner guilty of robbery
with a dangerous weapon in case number 07 CRS 56709.
1,
2,
5,
6;
Transcript).)1
see
also
Docket
Entry
5-10
at
(See id., ¶¶
240-41
(Trial
The trial court sentenced Petitioner to 80 to 105
months imprisonment.
(Docket Entry 1, ¶ 3; Docket Entry 5-10 at
257.) Petitioner appealed (see Docket Entry 1, ¶ 8), but the North
Carolina Court of Appeals found no prejudicial error, State v.
Govan, No. COA14-999, 772 S.E.2d 13 (table), 2015 WL 1201413 (N.C.
App. Mar. 17, 2015), appeal dismissed and discretionary review
denied, State v. Govan, No. 140P15, 776 S.E.2d 197, 197 (N.C.
1
Pin cites refer to the page number(s) in the footer appended
to the document upon docketing in the CM/ECF system.
2015).
Petitioner subsequently submitted his instant Petition to
this Court (Docket Entry 1), Respondent moved for summary judgment
(Docket Entry 4), and Petitioner responded in opposition (Docket
Entries 9, 10).2
The Court should enter judgment for Respondent.
FACTS
The facts underlying Petitioner’s conviction, as summarized by
the North Carolina Court of Appeals, appear as follows:
Brian Walker (“Walker”) testified that at approximately
6:00 p.m. on 1 October 2007, he drove his employee,
Sequoia Brand (“Brand”), home from work. When Walker
stopped his truck near Brand’s home in High Point, he
counted out and paid Brand approximately eighty-five
dollars for his work that day. After he drove off, Walker
noticed a four-door Saturn driving in the opposite
direction. Walker turned down a few side streets to exit
Brand’s neighborhood and meet up with his younger
brother, Adam, for an evening run. When Walker stopped
his truck to turn onto the main road, he was surprised to
see the Saturn right behind his bumper.
Walker further testified that as he proceeded for ten
miles toward Adam’s apartment, the Saturn followed his
truck closely, “close enough for him to notice.” At one
point during the commute, when both vehicles were stopped
at an intersection, the driver of the Saturn got out and
walked toward Walker’s truck. Walker saw him approach,
grew concerned, and “peeled on off.” Walker continued on
for a few miles before turning into Adam’s apartment
complex parking lot. Walker did not see Adam’s car in the
parking lot and called him. Adam informed Walker that “Me
and mama’s eating at Barbecue Joe’s.” Annoyed, Walker
2
Petitioner originally filed a “Motion Opposing Respondent’s
Motion for Summary Judgment” (Docket Entry 7) and “Brief in
Support” (Docket Entry 8). Upon realizing that he did not sign and
date those documents (see Docket Entry 9-1 at 1), Petitioner filed
a signed and dated “Motion Opposing Respondent’s Motion for Summary
Judgment” (Docket Entry 9) and “Brief in Support” (Docket Entry
10).
-2-
pulled his truck into a parking spot and asked Adam
“Bring me, you know, chicken or whatever. Bring me
something.”
Then, Walker testified, he watched the Saturn turn into
the parking lot, drive past his truck, turn around at the
end of the lot, and then park right next to Walker’s
truck. Four men immediately exited the Saturn. Walker
thought, “well, this ain’t good.” Walker continued to
speak with Adam and kept an eye on the four men “just
standing around” the outside of the Saturn[.] Soon one
man approached the driver’s side of Walker’s truck and
another approached the passenger’s side. Walker held his
cell phone in his left hand; in his right, he gripped his
.40 caliber Smith & Wesson.
Walker testified that once he flipped closed his cell
phone, one man grabbed Walker’s left arm, shouting “give
me your mother-fu-” and [“]we gonna this and that and
another.” The man opened the driver’s side door and tried
to yank Walker out of the truck. Walker gave up his phone
and, during the struggle, noticed the man’s “eyes get
big” when he spotted Walker’s gun. The man shouted: “He’s
got a gun; he’s got a gun.”
Walker got shot instantly one, two, three times from an
unknown direction, stumbled out of his truck, shot at the
man who grabbed his cell phone, watched that man and two
others sprint off, and then fired two shots at
[Petitioner], whom he saw “jumping in the front seat” of
the Saturn. [Petitioner] was hit twice and bent over as
he asked: “What did you shoot me for? I didn’t do
anything.” Walker slumped back into his driver’s seat and
ordered [Petitioner] to “get on the ground.” [Petitioner]
laid on the pavement and waited with Walker for medical
assistance to arrive.
Walker also read to the jury a signed statement he
provided to police a few days after the incident.
Concerning what transpired after Walker parked at Adam’s
apartment complex, Walker’s statement was read as
follows:
When I pulled in, I was waiting on my little
brother, Adam Walker, who lives in the 200
building, to eat barbecue from Barbecue Joe’s.
As soon as I hung up, those guys pulled in the
-3-
next—pulled in next to my driver’s door and
all four got out. They were walking around,
talking about[] —
. . . .
They were walking around, talking about
switching drivers, and I felt something wasn’t
right. My window was down and one of them came
to my window and grabbed me, yelling for my
phone. I gave him the phone and pulled my gun.
My door came open because he was about to pull
me from the truck.
Once they saw my gun, they were yelling, “He’s
got a gun,” and then I heard shots. I didn’t
know I was shot in the back. I felt blood
running and heard more shots, so I started
shooting back.
The guy that was there with me shot was not
the shooter or the one at my window. As soon
as I heard—as soon as I heard I had a gun, he
ran to the driver’s side of their car and I
thought he was getting a gun.
Detective Anthony Cugino (“Detective Cugino”) of the
Archdale Police Department arrived at the scene just
prior to emergency medical services (“EMS”). Detective
Cugino testified that he saw Walker inside of his truck
and [Petitioner] outside of the Saturn, both suffering
from gunshot wounds. EMS arrived and tended to Walker and
[Petitioner]. Detective Cugino spoke briefly with Walker
and learned that multiple suspects had fled the scene on
foot. Detective Chris Jones (“Detective Jones”) arrived
shortly after, and the detectives conducted a protective
sweep of the area. Soon after, the detectives were
approached by an off-duty Deputy Sheriff with Guilford
County and directed toward where the suspects fled.
Detective Jones stayed at the crime scene while Detective
Cugino pursued the suspects.
Detective Cugino testified that once he arrived, he found
three black males—Demetrius, Chris, and [Petitioner]’s
brother, Anthony—who all met Walker’s descriptions.
Detective Cugino then exited his vehicle, drew his
weapon, and ordered the suspects on the ground. Demetrius
-4-
and Anthony complied and assumed a prone position. Chris
went behind a large tree, and Detective Cugino heard a
“sound like a metal object, something hitting metal”
coming from that direction. Chris then came out from
behind the tree and assumed a prone position. Detective
Cugino detained Demetrius, Anthony, and Chris and took
them to the station for questioning.
Detective Sergeant David F. Jones (“Sergeant Jones”) of
the Archdale City Police Department was the lead
investigator on the case. Sergeant Jones testified that
he arrived at the crime scene a few hours after the
shootings. After gathering information from the other
detectives, Sergeant Jones examined the crime scene and
went to investigate the “metal clanging” sound Detective
Cugino
reported.
Sergeant
Jones
discovered
a
semiautomatic nine-millimeter handgun with its hammer
pulled back “as if it was ready to shoot or had already
fired” bullets that leave shell casings identical to the
three found at the crime scene. A few days later, after
[Petitioner] had been released from the hospital,
Sergeant Jones interviewed [Petitioner] at his residence
in High Point. During this interview, [Petitioner]
provided and signed the following written statement:
Demitrius came to my house and picked me and
my brother up. We rode around High Point for a
while. Then we went and pick [sic] up Chris.
Chris said he need a lick and Demetrius said
Chris had a gun, but I never seen [sic] the
gun. Then we seen [seen] a man in a black
truck. He let some man out. Demitrius went to
talk to the dude.
Then we was [sic] riding behind the truck for
a long time. Then we got to some apartment and
parked right beside the truck. Chris got out
and went somewhere. I was sitting in the car.
Demetrius and my brother got out. Demetrius
came to my door and told me to drive. I got
out and walked around to the driver’s seat.
Then I heard Demetrius say, “Get his phone.”
Then I heard gunshots [phonetic]. I looked up.
My brother and Demetrius was [sic] running.
Then the dude looks at the car and seen [sic]
me and start [sic] shooting. I got hit two
times. Then I got—then I got out, looking for
-5-
help. Seen [sic] Chris was looking around for
Demetrius and I told him to help me, I’d been
shoot [phonetic]. Then Chris walked up to the
man’s truck and start [sic] shooting. Then he
ran, and me and the dude were trying to get
help for ourselves.
Sergeant Jones further testified that based on his
training and experience, the term “lick” means to “obtain
something . . . in a criminal way, whether it be a
robbery, whether it be stealing, whether it be drugs.”
Specifically, the State elicited the following exchange:
Q. Sergeant Jones, going back to the term
“need a lick,” have you heard that terminology
before throughout your career in police work?
A. Yes, I have. “Need”—
Q. Go ahead.
A. “need a lick”—
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
A. —“got a lick,” “gonna get a lick,” all of
those are terms that’s been provided to me in
my training and experience through the years
of obtaining witness and suspect statements to
where someone’s meaning to obtain something in
a—in a criminal way, whether it be a robbery,
whether it be stealing, whether it be drugs.
Govan, 2015 WL 1201413, at *1-4 (internal brackets, except as to
“[phonetic],” omitted) (ellipses in original).
GROUNDS FOR RELIEF
The Petition asserts two grounds for relief:
(1) the State
obtained his conviction through insufficient evidence of robbery
with a dangerous weapon based upon a theory of acting in concert,
-6-
in violation of due process (Docket Entry 1, ¶ 12 (Ground One)),
and (2) the trial court’s refusal to submit a lesser-included
offense instruction to the jury on assault with a deadly weapon
violated
his
constitutional
rights
(id.
Two)).3
(Ground
Petitioner’s response opposing summary judgment also raises a
constitutional
challenge
to
his
deficiencies in his indictment.
conviction
based
on
alleged
(Docket Entry 10 at 4-9.)
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
.
.
.
is
now
codified
at
28
The
U.S.C.
§
2254(b)(1).” 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.”).
3
The Petition sets out Grounds One and Two on pages attached
to the standard Section 2254 form.
-7-
Moreover, this Court must apply a highly deferential standard
of review in connection with any habeas claim “adjudicated on the
merits in State court proceedings,” 28 U.S.C. § 2254(d).4
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
must
either
arrive
at
“a
conclusion opposite to that reached by [the United States Supreme]
Court
on
materially
a
question
of
law”
indistinguishable
or
from
“confront[]
facts
a
[United
relevant
that
are
States]
Supreme Court precedent and arrive[] at a result opposite” thereto.
Williams v. Taylor, 529 U.S. 362, 405 (2000).
A state-court
decision “involves an unreasonable application” of United States
Supreme Court precedent “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.”
that
Id. at 407; see also id. at 409–11 (explaining
“unreasonable”
does
not
4
mean
merely
“incorrect”
or
Section 2254(d) applies even where the state court ruling
does not cite federal law. Early v. Packer, 537 U.S. 3, 8 (2002).
-8-
“erroneous”).
Finally, this Court must presume the correctness of
state-court findings of fact unless clear and convincing evidence
rebuts them.
28 U.S.C. § 2254(e)(1).
Here, the record confirms that Petitioner raised Grounds One
and Two in his direct appeal to the North Carolina Court of Appeals
(Docket Entry 5-5; see also Docket Entry 1, ¶ 9), and that the
North Carolina Court of Appeals denied those claims on the merits,
Govan, 2015 WL 1201413.
As a result, this Court may not grant
habeas relief on Grounds One and/or Two unless Petitioner satisfies
his heavy burden under Section 2254(d).
See Cullen v. Pinholster,
563 U.S. 170, 181 (2011) (observing that, “[i]f an application
includes a claim that has been adjudicated on the merits in State
court proceedings,” 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
“the petitioner carries the burden of proof” (internal citations
and quotation marks omitted)).
DISCUSSION
I. Ground One
The Petition first alleges violations of Petitioner’s due
process rights, in that the State obtained his conviction by
insufficient evidence based upon a theory of acting in concert.
(Docket Entry 1, ¶ 12 (Ground One).)
-9-
In particular, Ground One
alleges that the State’s “evidence relied upon the theory of acting
in concert, however, their evidence failed to show that Petitioner
was an active participant alone with a number of codefendants whom
actually committed said robbery crime.”
(Id.)
According to
Petitioner, “the facts of this case only show[] Petitioner being
presen[t] at said robbery event, though acquainted with said
alleged codefendants, [and] the State prosecution still failed to
prove beyond a reasonable doubt that Petitioner played an active
role in said robbery.”
further
contends
that
(Docket Entry 10 at 10.)
the
trial
court’s
refusal
Ground One
to
dismiss
Petitioner’s robbery with a dangerous weapon charge violated due
process because
“participated
in
“there
was
the
theft
no
of
evidence
the
[he] had
victim[’s]
contributed to the victim’s injuries.
a
firearm,”
property,”
or
(Docket Entry 1, ¶ 12
(Ground One).)
To resolve a sufficiency-of-the-evidence claim of this sort,
a habeas court generally must determine “whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443
U.S. 307, 319 (1979) (emphasis in original).
As part of that
review, the Court “must consider circumstantial as well as direct
evidence, and allow the government the benefit of all reasonable
inferences
from
the
facts
proven
-10-
to
those
sought
to
be
established.”
Cir. 1982).
United States v. Tresvant, 677 F.2d 1018, 1021 (4th
Furthermore, “circumstantial evidence may support a
verdict of guilty, even though it does not exclude every reasonable
hypothesis consistent with innocence.”
United States v. George,
568 F.2d 1064, 1069 (4th Cir. 1978).
In addition, because Petitioner presented the claim in Ground
One on direct appeal and the North Carolina Court of Appeals denied
relief on the merits (see Docket Entry 1, ¶ 9), this Court must
apply Section 2254(d). Taking the dictates of Section 2254(d) into
account,
the
determination
key
question
that
the
becomes
evidence
was
“whether
a
sufficient
state
to
court
support
a
conviction was an objectively unreasonable application of the
standard enunciated in Jackson.” Williams v. Ozmint, 494 F.3d 478,
489
(4th
Cir.
2007)
(internal
brackets
and
quotation
marks
omitted).
In addressing the claim now presented in Ground One, the North
Carolina Court of Appeals stated:
[W]e must review the “sufficiency of the evidence to
support a conviction with respect to the theory of guilt
upon which the jury was instructed.” State v. Wilson, 345
N.C. 119, 123, 478 S.E.2d 507, 510 (1996) (citation
omitted). Because the State tried [Petitioner] for
robbery with a dangerous weapon under the theory of
acting in concert, “the State need not prove that the
defendant committed any act which constitutes an element
of the crime with which he is charged.” State v. Cox, 303
N.C. 75, 86, 277 S.E.2d 376, 383 (1981) (citation
omitted). Rather, the State’s evidence need only address
whether [Petitioner] acted in concert in the commission
of the offense and, therefore, need only “be sufficient
-11-
to support a finding that [Petitioner] was present,
actually or constructively, with the intent to aid the
perpetrators in the commission of the offense should his
assistance become necessary and that such intent was
communicated to the actual perpetrators.” State v.
Sanders, 288 N.C. 285, 290–91, 218 S.E.2d 352, 357
(1975).
Our Supreme Court has concluded that “a person is
constructively present during the commission of a crime
if he is close enough to provide assistance if needed and
to encourage the actual execution of the crime.” State v.
Gaines, 345 N.C. 647, 675–76, 483 S.E.2d 396, 413 (1997)
(citation omitted). Furthermore, “the communication or
intent to aid, if needed, does not have to be shown by
express words of the defendant but may be inferred from
his actions and from his relation to the actual
perpetrators.” Sanders, 288 N.C. at 291, 218 S.E.2d at
357. It is true that “a defendant’s mere presence at the
scene of the crime does not make him guilty even if he
sympathizes with the criminal act and does nothing to
prevent it.” State v. Capps, 77 N.C. App. 400, 402–03,
335 S.E.2d 189, 190 (1985). However, it is equally true
that an individual’s service as a “get away” driver meets
the constructive presence required for purposes of an
armed robbery conviction. See, e.g., State v. Pryor, 59
N.C. App. 1, 9, 295 S.E.2d 610, 616 (1982).
Here, the State presented sufficient evidence from which
the fact finder could determine that [Petitioner]’s
actions exceeded “mere presence” at the scene of the
crime. The State showed that [Petitioner] and his brother
were picked up from his residence by Demetrius, who then
picked up Chris, which comprised the four men identified
as being involved in the robbery. Walker’s testimony
places [Petitioner] in the Saturn that closely followed
behind Walker’s truck for approximately ten miles.
Furthermore, the evidence shows that [Petitioner] was in
the Saturn when Demetrius approached Walker’s truck while
both vehicles were stopped at an intersection.
[Petitioner]’s written statement to Sergeant Jones
reveals that he was a passenger in the Saturn when he
learned that Chris had a gun and needed a “lick.”
[Petitioner] recognized that they were “riding behind
Walker’s truck for a long time.” [Petitioner] admitted
-12-
that after the Saturn parked next to Walker’s truck,
Demetrius
told [Petitioner]
to
drive,
and that
[Petitioner] got out and walked over toward the driver’s
seat. Furthermore, Sergeant Jones testified that “lick”
is slang for, among other things, obtaining money
illegally, such as by way of robbery.
Walker’s trial testimony places [Petitioner] outside of
the Saturn “just standing around” with the three other
men who exited the Saturn after parking next to Walker.
Walker’s written statement places [Petitioner] with the
three men “walking around, talking about switching
drivers,” before Demetrius grabbed Walker’s arm and
initiated the robbery. Walker’s written statement
provided that as soon as the men discovered that Walker
had a gun, [Petitioner] “ran to the driver’s side of
their car and Walker thought [Petitioner] was getting a
gun.” Walker later testified that after he got shot three
times in the back, he turned and saw [Petitioner]
“jumping in the front seat of the car” or already in the
driver’s seat of the car.
We find, when viewed in the light most favorable to the
State, there was sufficient evidence to support the
elements of robbery with a dangerous weapon under a
theory of acting in concert, such that whether
[Petitioner] actually acted in concert with Demetrius and
Chris in robbing Walker was appropriately a question for
the jury. Therefore, the trial court did not err in
denying [Petitioner]’s motion to dismiss.
Govan, 2015 WL 1201413, at *5-6 (internal brackets and ellipses
omitted).
The North Carolina Court of Appeals’s resolution of
Petitioner’s sufficiency-of-the-evidence claim was not contrary to,
or
an
unreasonable
application
of,
established
United
States
Supreme Court precedent.
Petitioner cites Fiore v. White, 531 U.S. 225 (2001), for the
proposition
that
the
“Due
Process
Clause
of
the
Fourteenth
Amendment forbids a State to convict a person of a crime without
-13-
proving the elements of that crime beyond a reasonable doubt,” id.
at 228-29.
involved
(See Docket Entry 10 at 9-10 (citing Fiore).)
the
question
of
“whether
Pennsylvania
Fiore
c[ould],
consistently with the Federal Due Process Clause, convict [the
defendant] for conduct that its criminal statute, as properly
interpreted, d[id] not prohibit.”
Fiore, 531 U.S. at 228.
In
Fiore, the United States Supreme Court reasoned that, because
Pennsylvania presented no evidence to prove a basic element of the
crime
charged,
the
defendant’s
constitutional requirements.
conviction
failed
to
satisfy
Id. at 229.
In this case, the North Carolina Court of Appeals provided a
detailed summary of the evidence that sufficed to support a finding
beyond a reasonable doubt that Petitioner was present at the scene
of the robbery with the intent to aid Demetrius and Chris in the
robbery, as required by North Carolina law to establish guilt
pursuant to the acting in concert theory.
at
*5-6.
Thus,
unlike
the
case
cited
Govan, 2015 WL 1201413,
by
Petitioner,
where
Pennsylvania failed to prove beyond a reasonable doubt each element
of the crime charged, Fiore, 531 U.S. at 229, here, “when viewed in
the light
most
favorable
to
the State,
there
was
sufficient
evidence to support the elements of robbery with a dangerous weapon
under a theory of acting in concert, such that whether [Petitioner]
actually acted in concert with Demetrius and Chris in robbing
Walker was appropriately a question for the jury,” Govan, 2015 WL
-14-
1201413, at *5.
The United States Supreme Court’s holding in
Fiore, thus, does not establish that the North Carolina Court of
Appeals’s adjudication of the claim now presented in Ground One was
contrary to, or an unreasonable application of, established United
States Supreme Court precedent.
Finally, the North Carolina Court
of Appeals did not base its decision on unreasonably determined
facts.5
Accordingly, Ground One falls short under Section 2254(d).
II. Ground Two
Ground Two challenges the trial court’s denial of Petitioner’s
request for submission to the jury of a lesser-included offense of
assault with a deadly weapon.
(Docket Entry 1, ¶ 12 (Ground Two).)
According to the Petition, “there was evidence that the person who
was trying to steal the victim’s mobile phone did not have a
firearm nor threaten the victim by the use of a firearm, an
essential element of robbery.”
(Id.)
Therefore, Ground Two
asserts that the trial court should have instructed the jury on the
5
Indeed, Petitioner’s summary judgment response does not even
attempt to identify any record evidence establishing that the North
Carolina Court of Appeals engaged in any unreasonable fact-finding,
and, instead, simply asserts in conclusory fashion that “the facts
of this case only shows [sic] Petitioner being presence [sic] at
said robbery event, though acquainted with said alleged
codefendants . . . .” (Docket Entry 10 at 10.) “In light of the
deference to the state court decision required by § 2254(d), these
conclusory assertions are plainly inadequate for Petitioner to
prevail . . . .”
Sturgis v. Toole, No. CV 111-040, 2012 WL
2862031, at *5, (S.D. Ga. May 14, 2012), recommendation adopted,
2012 WL 2862047 (S.D. Ga. July 11, 2012).
-15-
lesser-included offense of assault with a deadly weapon, and that
failure
to
violation.
do
so
(Id.)
amounted
to
a
constitutional
due
process
Petitioner raised the trial court’s denial of
his requested lesser-included offense instruction on direct appeal
(id., ¶ 9) and the North Carolina Court of Appeals denied that
claim on the merits, Govan, 2015 WL 1201413, at *6-7.6
The United States Supreme Court noted in Beck v. Alabama, 447
U.S. 625 (1980), that it has “never held that a defendant is
entitled to a lesser included offense instruction as a matter of
due process.”
States
Id. at 637.
Supreme
Court
Nor has research revealed any United
precedent
since
Beck
requiring
a
lesser-included offense instruction as a matter of due process.
Both prior to and following Beck, the federal courts of appeals
have disagreed about whether and/or when due process requires
provision of a lesser-included offense instruction.
See Tata v.
Carver, 917 F.2d 670, 671–72 (1st Cir. 1990) (citing and discussing
cases).
Assuming, arguendo, that the Court agreed with the general
proposition
that
due
process
might
require
a
lesser-included
offense instruction in some instances, the various rules enunciated
6
Although the North Carolina Court of Appeals relied on state
law to deny the claim at issue, see Govan, 2015 WL 1201413, at *67, its decision remains an adjudication on the merits, see Johnson
v. Williams, ___ U.S. ___, ___, 133 S. Ct. 1088, 1094-96 (2013);
see also Cullen, 563 U.S. at 187 (“Section 2254(d) applies even
where there has been a summary denial.”).
-16-
around the country and discussed in Tata foreclose any conclusion
that Beck “clearly established” such a rule. Therefore, the statecourt decision in Petitioner’s appeal qualifies as neither contrary
to nor an unreasonable application of United States Supreme Court
authority.7
Further, applying a rule deeming due process to
require a lesser-included offense instruction in this case would
contravene the United States Supreme Court’s statement in Teague v.
Lane, 489 U.S. 288 (1989), that “habeas corpus cannot be used as a
vehicle to create new constitutional rules of criminal procedure”
absent very limited circumstances not present here, id. at 316.
See Leary v. Garraghty, 155 F. Supp. 2d 568, 574 & n.2 (E.D. Va.
2001) (citing Robinson v. North Carolina Att’y Gen., No. 99–7530,
238 F.3d 414 (table), 2000 WL 1793060 (4th Cir. Dec. 7, 2000)).
In summary, the United States Supreme Court has never held
that the United States Constitution requires the lesser-included
offense instruction that Petitioner contends the trial court should
have given; lower court disagreement confirms the absence of any
“clearly
established”
United
States
Supreme
Court
precedent
requiring such action; and Teague bars application of any such
7
Additionally, Petitioner’s summary judgment response does
not even address the claim identified in Ground Two, much less
develop any argument that the denial of that claim by the North
Carolina Court of Appeals involved any unreasonable fact-finding.
(See Docket Entry 10 at 1-11.)
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requirement in this case.
These reasons, either together or
separately, oblige the Court to reject Ground Two.
To the extent Petitioner contends that the omission from the
jury instructions of a lesser-included offense option amounted to
an error in state law, he could obtain federal habeas relief only
by
showing
that
the
North
Carolina
Court
of
Appeals
acted
unreasonably by not ruling that the instructions given “so infected
the
entire
process.’”
trial
that
the
resulting
conviction
violates
due
Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting
Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
Petitioner cannot
make that showing because the trial court committed no error under
state
law
instruction.
in
refusing
Petitioner’s
lesser-included
offense
As the North Carolina Court of Appeals explained:
It is well settled that “an instruction on a
lesser-included offense must be given only if the
evidence would permit the jury rationally to find
defendant guilty of the lesser offense and to acquit him
of the greater.” State v. Millsaps, 356 N.C. 556, 561,
572 S.E.2d 767, 771 (2002) (citation omitted). However,
“where the State’s evidence is positive as to each
element of the offense charged and there is no
contradictory evidence relating to any element, no
instruction on a lesser included offense is required.”
State v. Thomas, 325 N.C. 583, 594, 386 S.E.2d 555, 561
(1989) (citation omitted).
The elements of the crime of robbery with a firearm or
other dangerous weapon are as follows: “(1) the unlawful
taking or an attempt to take personal property from the
person or in the presence of another (2) by use or
threatened use of a firearm or other dangerous weapon
(3) whereby the life of a person is endangered or
threatened.” State v. Olson, 330 N.C. 557, 566, 411
S.E.2d 592, 597 (1992) (citation omitted). “To be found
-18-
guilty of robbery with a dangerous weapon, the
defendant’s threatened use or use of a dangerous weapon
must precede or be concomitant with the taking, or be so
joined by time and circumstances with the taking as to be
part of one continuous transaction.” Id. (citation
omitted). However, “where a continuous transaction
occurs, the temporal order of the threat or use of a
dangerous weapon and the taking is immaterial.” Id.
(citation omitted).
[Petitioner] challenges the second element of robbery
with a dangerous weapon and argues that “there was
evidence from which the jury could have reasonably
concluded that the robbery of Walker’s cell phone was not
occasioned by the use or threatened use of a firearm.”
[Petitioner]’s contention is that “Walker never saw the
man who shot him from behind and he was only fired at
after drawing his own gun.”
It is true that the record indicates that Demetrius
initiated the robbery without the use of a dangerous
weapon; however, the record shows that Chris’s use of the
gun while Demetrius tried to rob Walker was one
continuous
transaction,
so
joined
in
time
and
circumstances as to be inseparable. Therefore, the
temporal order of events is of no consequence, and the
State presented substantial evidence of every element of
robbery with a dangerous weapon. Because [Petitioner]
presented no evidence, those elements were not negated.
Therefore, we find no error in the trial court’s denial
of [Petitioner]’s request to instruct the jury on the
lesser-included offense of assault with a deadly weapon.
Govan, 2015 WL 1201413, at *6-7 (internal brackets omitted).
Because the trial court did not contravene state law in denying
Petitioner’s request to give a lesser-included offense instruction,
the jury instructions did not so infect Petitioner’s trial with
unfairness as to result in a conviction that violates due process.
Ground Two also fails for this reason.
-19-
III. New Claim(s)
In his summary judgment response, Petitioner asserts, for the
first time, that his indictment for robbery with a dangerous weapon
violated his constitutional rights, because it “did not allege that
[he] acted in concert with any other persons or codefendants”
(Docket Entry 10 at 6 (emphasis in original)) and did “not specify
nor contain[] any co-defendants for which [he] was to ha[ve] been
in concert with” (id. at 4), thus making “said indictment as
variant
to
the
facts
or
elements
of
this
case
or,
in
the
alternative, . . . [making] said concert theory invalid” (id. at
5).
Notably, Petitioner did not raise any such claim(s) on direct
appeal (see Docket Entry 1, ¶ 9(f); see also Docket Entries 5-2, 54, 5-5, 5-7, 5-8), or in a separate motion for appropriate relief
(see Docket Entry 1, ¶ 10).
As a result, Petitioner did not
exhaust his state-court remedies regarding any such claim(s).
See
Howard v. Lassiter, No. 1:12CV453, 2013 WL 5278270, at *2 n.3
(M.D.N.C. Sept. 18, 2013) (“Petitioner has failed to exhaust his
state court remedies . . . as he did not raise [this claim] on
direct appeal or via [motion for appropriate relief] in the state
courts.” (citing cases)), recommendation adopted, 2013 WL 5461847
(M.D.N.C. Sept. 30, 2013), appeal dismissed, No. 13–7663, 2014 WL
265541 (4th Cir. Jan. 24, 2014).
The Court thus presently may not
grant habeas relief on any claim(s) alleging deficiencies in
-20-
Petitioner’s indictment, 28 U.S.C. § 2254(b)(1);8 however, such
claim(s) “may be denied on the merits, notwithstanding the failure
of [Petitioner] to exhaust [state-court] remedies,” 28 U.S.C. §
2254(b)(2) (emphasis added).
With respect to the merits of such unexhausted claim(s), “the
Fifth Amendment requirement of indictment by grand jury does not
apply to the states.”
Cir. 2002).
Hartman v. Lee, 283 F.3d 190, 195 n.4 (4th
Therefore, Petitioner lacks any right cognizable in a
federal habeas action to complain “that an indictment’s charges may
not be
itself.”
broadened
through amendment
except
by
the
grand
jury
Barbe v. McBride, 477 F. App’x 49, 51 (4th Cir. 2012)
(internal quotation marks omitted). Petitioner thus may proceed on
an
indictment-related
challenge
only
to
vindicate
the
rights
guaranteed by the Fourteenth Amendment’s “Due Process [Clause] and
the Sixth Amendment require[ment of] notice that is sufficient to
allow a reasonable defendant to prepare for trial.”
Stroud v.
Polk, 466 F.3d 291, 297 (4th Cir. 2006).
That avenue provides little room for collateral attack in this
Court because “deficiencies in state court indictments are not
ordinarily a basis of federal habeas corpus relief unless the
deficiency makes the trial so egregiously unfair as to amount to a
8
Petitioner has not alleged and the record does not reflect
“an absence of available State corrective process; or [that]
circumstances exist that render such process ineffective to protect
[his] rights,” 28 U.S.C. § 2254(b)(1)(B). (See Docket Entry 10.)
-21-
deprivation of the [petitioner’s] right to due process.”
Ashford
v. Edwards, 780 F.2d 405, 407 (4th Cir. 1985) (emphasis added); see
also Locklear v. North Carolina, No. 1:07CV682, 2008 WL 4426167, at
*3 (M.D.N.C. Sept. 24, 2008) (“[C]laims of this type, i.e., those
alleging
deficiencies
in
state
court
indictments,
are
not
cognizable on federal habeas review, absent a showing that they
rendered the entire state court proceeding fundamentally unfair.”),
appeal dismissed, 393 F. App’x 122 (4th Cir. 2010).
Here, Petitioner contends that the trial court should not have
allowed the State to proceed under the theory of acting in concert,
because his indictment for robbery with a dangerous weapon did not
identify Demetrius or Chris (as coconspirators or codefendants), or
notify Petitioner that the State would rely on an acting in concert
theory to prove Petitioner’s culpability at trial.
10 at 4-9.)
(Docket Entry
However, Petitioner points to no evidence of any
prejudice, such as confusion over his charge or the elements that
the State carried the burden of proving.
(See id.)
Moreover,
Petitioner’s written statement (admitted into evidence at trial)
established his presence with Demetrius and Chris at the crime
scene, as well as his knowledge of their involvement in the
robbery.
(See Docket Entry 5-10 at 149-51.)
Petitioner
cannot
therefore
show
that
the
indictment’s
omission of Demetrius and Chris resulted in insufficient notice of
the crime charged or prejudiced his ability to effectively prepare
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for trial, as he knew of those persons’ involvement in the robbery
from its inception.
See, e.g., Clark v. Keller, No. 1:11CV542,
2013 WL 4589879, at *7 (M.D.N.C. Aug. 28, 2013) (“This court finds
it
difficult
to
believe
that
[the
p]etitioner
would
have
substantially altered his strategy had he been presented with an
ideal indictment, nor has [the p]etitioner offered any credible
explanation
of
an
alternate
strategy.
.
.
.
Under
these
circumstances, the variance between the indictment and the proof
did not make his trial so egregiously unfair as to amount to a
deprivation of due process.” (citing and quoting, inter alia,
Fawcett v. Bablitch, 962 F.2d 617, 618 (7th Cir. 1992), for the
proposition that a “defective state charging document does not
violate due process unless ‘inadequate notice leads to a trial with
an
unacceptable
risk
of
convicting
the
innocent’”
(internal
brackets omitted))), appeal dismissed, No. 13–7499, 2014 WL 487122
(4th Cir. Feb. 7, 2014).
Additionally,
to
the
extent
Petitioner
complains
of
any
purported violation of state law, this Court can afford him no
relief.
See Estelle, 502 U.S. at 67 (“We have stated many times
that federal habeas corpus does not lie for errors of state law.”
(internal quotation marks omitted)).
In any event, “[a]cting in
concert is not an essential element of robbery with a dangerous
weapon” under North Carolina law, and thus, need not be “included
in the indictment,” State v. Sanders, No. COA06-783, 181 N.C. App.
-23-
608 (table), 640 S.E.2d 446 (table), 2007 WL 329187, at *3 (Feb. 6,
2007) (citing State v. Westbrooks, 345 N.C. 43, 57, 478 S.E.2d 483,
492 (1996)); see also United States v. Span, 789 F.3d 320, 330 (4th
Cir. 2015) (“[A] defendant’s acting in concert with another is not
an essential element of robbery with a dangerous weapon [under
North Carolina law] and need not appear in the indictment.” (citing
State v. Small, 328 N.C. 175, 181, 400 S.E.2d 413, 416 (1991)).
Given these considerations, Petitioner’s constitutional claim(s)
regarding alleged deficiencies in his indictment fail(s) on the
merits.
CONCLUSION
Grounds One and Two fail as a matter of law under Section
2254(d), and, to the extent Petitioner attempts to raise (in his
summary judgment response) any claim(s) for relief based on alleged
deficiencies in his indictment (see Docket Entry 10 at 4-9), such
claim(s) fail(s) on the merits under Section 2254(b)(2).
IT IS THEREFORE RECOMMENDED that Respondent’s Motion for
Summary Judgment (Docket Entry 4) be granted, that the Petition
(Docket Entry 1) be denied, and that Judgment be entered dismissing
this action.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 1, 2017
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