Morton v. State of North Carolina
Filing
12
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 05/19/2017, that Respondent's Motion for Summary Judgment (Docket Entry 9 ) 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. (Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ASKIA J. MORTON,
)
)
)
)
)
)
)
)
)
Petitioner,
v.
FRANK L. PERRY,
Respondent.
1:16CV1028
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.)
(Docket
On March 12, 2015, Petitioner pled guilty in the
Superior Court of Person County to felony sale and delivery of
marijuana, felony conspiracy to sell and deliver marijuana, and
felony sex offender on child premises in cases 12 CRS 1751 and 14
CRS 5217, respectively.
(See Docket Entry 1, ¶¶ 1-2, 4-6; see also
Docket Entry 10-2 (plea transcript); Docket Entry 10-3 (judgment
and commitment forms).)
The trial court sentenced Petitioner, in
accordance with the plea agreement, to three consecutive terms of
20 to 33 months’ imprisonment.
Docket Entries 10-2, 10-3.)
appeal.
(See Docket Entry 1, ¶ 3; see also
Petitioner did not pursue a direct
(See Docket Entry 1, ¶¶ 8, 9.)1
Petitioner
subsequently
filed
a
pro
se
“Motion
to
Run
Concurrent Sentences” (Docket Entry 10-4 (capitalization omitted));
1
Although Petitioner checked the “Yes” box in response to the question,
“Did you appeal from the judgment of conviction?” (Docket Entry 1, ¶ 8), his
response to the next question on the Section 2254 form requesting appeal details
makes clear that he mischaracterized his motion for appropriate relief in the
state trial court as an “appeal” (see id., ¶ 9).
however, so far as the record reflects, the state trial court did
not rule on that motion.
Thereafter, Petitioner filed a pro se
motion for appropriate relief (“MAR”) (see Docket Entry 1, ¶ 9;
Docket Entry 10-5), which the trial court summarily denied (see
Docket Entry 1, ¶ 9(c), (g)(3); Docket Entry 10-6).
The North
Carolina Court of Appeals then rejected Petitioner’s certiorari
petition.
(See
(certiorari
Docket
petition);
Entry
1,
Docket
¶
9(h);
Entry
Docket
10-9
Entry
(order
10-7
denying
certiorari).)2
Petitioner next submitted his instant Petition to this Court.
(Docket Entry 1.)
Respondent moved for summary judgment both on
statute of limitation grounds and on the merits (Docket Entries 9,
10), but Petitioner did not respond (see Docket Entries dated Oct.
31, 2016, to the present), despite notice from the Clerk of Court
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th cir. 1975)
(Docket Entry 11).
For the reasons that follow, the Court should
grant Respondent’s instant Motion.3
I. Grounds for Relief
Petitioner raises two grounds for relief in his Petition: (1)
“[t]he sentencing in the plea of [c]onspiracy to sales/delivery of
a schedule VI substance is inaccurate in comparison of the statue
2
Although Petitioner indicated that he filed a petition for certiorari in
the United States Supreme Court (see Docket Entry 1, ¶ 9(h)), the subsequent
details of that filing Petitioner provided make clear he referred to his
certiorari petition filed in the North Carolina Court of Appeals (see id.,
¶ 9(h)(1)-(4)).
3
Because the undersigned recommends denial of the Petition on its merits,
no need exists to reach Respondent’s timeliness arguments.
-2-
[sic] versus plea agreement” (see Docket Entry 1 at 5); and (2) “it
was [i]neffective [a]ssistance of [c]ounsel for [Petitioner’s]
attorney to not discover the sentencing error in the State’s plea
which caused an inaccurate sentence to be served” (id. at 6).
II. 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);
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.”).
III. Discussion
Ground One
In Ground One, Petitioner contends that the trial court erred
by issuing a 20 to 33 month sentence for Petitioner’s guilty plea
to felony conspiracy to sell and deliver marijuana.
Entry 1 at 5.)
(See Docket
More specifically, Petitioner asserts that “[t]he
statue [sic] for [c]onspiracy states upon conviction that the
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offense of [c]onspiracy is to be one sentencing class lower than
[the] felony committed.”
(Id. (citing N.C. Gen. Stat. § 14-
2.4(a)).) Thus, Plaintiff argues that, because he also pled guilty
to felony sale and delivery of marijuana, a Class H felony, the
trial court should have issued a sentence on the conspiracy count
corresponding to a Class I felony. (Id.) According to Petitioner,
“[t]he maximum presumptive range of sentencing for a [p]rior
[r]ecord [l]evel of 18+ points at Class I is 8-10 months, not the
20-30 [sic] months given at sentencing.”
(Id.)
Ground One fails
on its merits.
As an initial matter, Respondent asserts that Petitioner “did
not raise [in his MAR] the specific claim of sentencing error that
he raises in his Ground for Relief (1).”
4.)
(See Docket Entry 10 at
In order to exhaust his state court remedies, a petitioner
must allow “the State the opportunity to pass upon and correct
alleged violations of its prisoners’ federal rights . . . [by]
fairly present[ing] his claim in each appropriate state court,
thereby alerting that court to the federal nature of the claim.”
Jones v. Sussex I State Prison, 591 F.3d 707, 712 (4th Cir. 2010)
(internal quotation marks and ellipses omitted) (quoting Baldwin v.
Reese, 541 U.S. 27, 29 (2004)).
He also “must raise his claim
before every available state court, including those courts . . .
whose review is discretionary.” Id. at 713 (citing O’Sullivan, 526
U.S. at 847).
Petitioner raised two claims in his MAR regarding improper
sentencing, but the MAR claims differ materially from Ground One of
-4-
the Petition.
(Compare Docket Entry 10-5 at 3-4, 12, with Docket
Entry 1 at 5.)
In the MAR, Petitioner alleged that (1) the state
trial court
issued
an
improper
sentence,
not
because
of
the
operation of N.C. Gen. Stat. § 14-2.4(a) as alleged in Ground One
here (see Docket Entry 1 at 5), but because the sentence failed to
correspond
to
constituted
the
an
quantity
aggravated
of
marijuana
sentence
at
issue
without
the
and,
thus,
required
corresponding judicial and/or jury fact-finding (see Docket Entry
10-5 at 3, 12); and (2) the state failed to file an information
concerning Petitioner’s prior convictions before his guilty plea
and, thus, the state trial court lacked jurisdiction to impose an
enhanced sentence (see id. at 4, 12).
Thus, Respondent correctly
argues that Petitioner did not raise the substance of Ground One in
the state courts, which means he did not exhaust his state court
remedies as required by 28 U.S.C. § 2254(b)(1)(A).
Respondent further argues that, if Petitioner returned to the
state courts to exhaust this claim through another MAR, he would
face mandatory imposition of the procedural bar.
(Docket Entry 10
at 4 (citing N.C. Gen. Stat. § 15A-1419(a)(1) and (b), and Breard
v. Pruett, 134 F.3d 615 (4th Cir. 1998)).)
Where, as here, a
habeas petitioner would find his unexhausted claim subject to a
mandatory
procedural
bar
if
he
returned
to
state
court
for
exhaustion, a federal procedural bar to habeas review arises.
Breard, 134 F.3d at 619 (citing Coleman v. Thompson, 501 U.S. 722,
735 n.1 (1991)).
In light of that procedural bar, Petitioner must
demonstrate either cause and prejudice for his procedural default
-5-
or must establish that this Court’s refusal to address his claim
will result in a miscarriage of justice.
See Longworth v. Ozmint,
377 F.3d 437, 447-48 (4th Cir. 2004).
Although Petitioner did not file a response to the instant
summary judgment motion (see Docket Entries dated Oct. 31, 2016, to
the present), he included the following explanation in his Petition
for his failure to raise the substance of Ground One in his MAR:
There was a misunderstanding in the argument of the [MAR]
in that it was first believed that an aggravated sentence
had been applied instead of a presumptive sentence. Once
that was discovered, it became clear that it was not the
aggravation at issue but that the sentencing for the
class of offense was inaccurate.
(Docket Entry 1 at 5.)
Assuming, arguendo, that Petitioner’s
above-quoted explanation constituted an attempt to show cause
sufficient to excuse his procedural default, such an attempt fails.
“[T]he cause standard requires the petitioner to show that
some objective factor external to the defense impeded [his] efforts
to raise the claim in state court . . . [such as] interference by
officials that makes compliance with the State’s procedural rule
impracticable [or] a showing that the factual or legal basis for a
claim was not reasonably available . . . .”
McClesky v. Zant, 499
U.S. 467, 493–94 (1991) (internal brackets, citations, ellipses,
and quotation marks omitted) (emphasis added).
Here, Petitioner’s
alleged mistake as to the type of sentence the state trial court
imposed does not qualify as an “objective factor external to the
defense,” McClesky, 499 U.S. at 493-94.
Moreover, well-settled
authority holds that ignorance of the law, even on the part of a
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pro se petitioner, does not qualify as cause to excuse default.
See Holloway v. Smith, No. 95–7737, 81 F.3d 149 (table), 1996 WL
160777,
at
*1
(4th
Cir.
Apr.
8,
1996)
(unpublished)
(“[The
petitioner] does not meet the cause and prejudice standard because
unfamiliarity with the law and his pro se status do not constitute
adequate justification to excuse his failure to present the claim
earlier . . . .”); Wilson v. Johnson, No. 1:08CV794 (LMB/TRJ), 2009
WL 2243708, at *3 (E.D. Va. July 22, 2009) (unpublished) (“Courts
universally hold that the fact that a petitioner is untrained in
the law or unfamiliar with a court’s procedural rules does not
provide a basis for establishing cause.”). Accordingly, Petitioner
has not shown cause sufficient to excuse procedural default of
Ground One.4
Finally, even if Petitioner had properly exhausted this claim,
it could not succeed. The North Carolina Controlled Substances Act
contains a provision that “any person who . . . conspires to commit
any [controlled substance offense] is guilty of an offense that is
the same class as the offense which was the object of the . . .
conspiracy and is punishable as specified for that class of offense
and prior record or conviction level in Article 81B of Chapter 15A
of the General Statutes.”
N.C. Gen. Stat. § 90-98.
Thus, because
Petitioner pled guilty to felony sale and delivery of marijuana
under
N.C.
conspiracy
Gen.
to
Stat.
sell
§
and
90-95(a)(1),
deliver
a
Class
marijuana
H
felony,
charge,
to
the
which
4
A court need not consider the issue of prejudice in the absence of cause.
See Kornahrens v. Evatt, 66 F.3d 1350, 1359 (4th Cir. 1995).
-7-
Petitioner also pled guilty, properly qualified as a separate Class
H felony under N.C. Gen. Stat. § 90-98.
(See Docket Entry 10-2.)
As Petitioner also pled guilty to a third Class H felony, sex
offender on child premises (see Docket Entry 1, ¶¶ 5, 6; Docket
Entry 10-2), he received three consecutive 20 to 33 month sentences
in accordance with the North Carolina Structured Sentencing Act and
his plea agreement, (see Docket Entries 10-2, 10-3; see also N.C.
Gen. Stat. § 15A-1340.17(c), (d)).
Petitioner’s reliance on N.C. Gen. Stat. § 14-2.4(a) misses
the mark.
(See Docket Entry 1 at 5.)
That statute provides:
“Unless a different classification is expressly stated, a person
who is convicted of a conspiracy to commit a felony is guilty of a
felony that is one class lower than the felony he or she conspired
to commit.”
N.C. Gen. Stat. § 14-2.4(a) (emphasis added).
The
emphasized introductory clause makes clear that Section 14-2.4(a)
does not apply where “a different classification is expressly
stated,” id., and Section 90-98 expressly states that conviction of
conspiracy to commit a controlled substance offense results in the
same class of offense as conviction of the underlying offense, N.C.
Gen. Stat. § 90-98. Simply put, Section 14-2.4(a)’s provision that
“a person who is convicted of a conspiracy to commit a felony is
guilty of a felony that is one class lower than the felony he or
she conspired to commit” does not apply to Petitioner’s sentence.
N.C. Gen. Stat. § 14-2.4(a).
In sum, Ground One fails as procedurally barred and on the
merits.
-8-
Ground Two
In his second and final ground for relief, Petitioner asserts
that his trial counsel provided ineffective assistance by failing
to discover the sentencing error Petitioner alleged in Ground One.
(Docket Entry 1 at 6-7.)
Ground Two provides no basis for relief.
As discussed in the preceding subsection, Petitioner’s claim that
trial court erred by issuing a 20 to 33 month sentence for
Petitioner’s guilty plea to felony conspiracy to sell and deliver
marijuana lacks merit.
Accordingly, Petitioner’s trial counsel
could not have provided ineffective assistance for failing to
object to such a sentence.
See Oken v. Corcoran, 220 F.3d 259, 269
(4th Cir. 2000) (“[C]ounsel was not constitutionally ineffective in
failing to object . . . [when] it would have been futile for
counsel to have done so . . . .”).
IV. Conclusion
Petitioner has not shown a valid basis for habeas relief.
IT IS THEREFORE RECOMMENDED that Respondent’s Motion for
Summary Judgment (Docket Entry 9) 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
May 19, 2017
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