CLINTON v. STEIN

Filing 10

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 7/10/2018. 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 without issuance of a certificate of appealability. It is ORDERED that Petitioner's Motion for Appointment of Counsel (Docket Entry 9 ) is DENIED. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
REGINALD DEVORE CLINTON,
Petitioner,
v.
ERIC A. HOOKS,
Respondent.

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1:17CV794

MEMORANDUM OPINION, ORDER, 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 4, 5.) For the reasons that follow, the

Court should grant Respondent’s Motion for Summary Judgment.
I.

Background

On March 18, 2015, a jury in the Superior Court of Forsyth
County found Petitioner guilty of attempt to obtain property by
false pretenses in case 12 CRS 58153 (see Docket Entry 1, ¶¶ 1, 2,
5; see also Docket Entry 5-2 at 57, Docket Entry 5-12 at 255-56),1
whereupon Petitioner pled guilty to habitual felon status in case
13 CRS 138 (see Docket Entry 1, ¶¶ 3, 6; see also Docket Entry 5-2
at 58-61, Docket Entry 5-12 at 259-65), and the trial court

1
The Petition consists of 15 pages of a standard form, followed by seven
pages of materials from Petitioner’s underlying state criminal cases.
(See
Docket Entry 1.) This Memorandum Opinion cites to the standard form portion of
the Petition by paragraph and to the remainder of the Petition 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 his instant
Motion documents from Petitioner’s state criminal proceedings (see Docket Entries
5-2 to 5-12), the authenticity of which Petitioner has not contested (see Docket
Entries 7, 8). This Memorandum Opinion cites to those items by the page number
in their CM/ECF footers.

sentenced Petitioner to 103 to 136 months in prison (see Docket
Entry 1, ¶ 3; see also Docket Entry 5-2 at 64-66).
Petitioner appealed to the North Carolina Court of Appeals,
and received appointed appellate counsel.

(See Docket Entry 1,

¶¶ 8, 9, 16(e); Docket Entry 5-2 at 67-68.) Petitioner’s appellate
counsel submitted a brief under Anders v. California, 386 U.S. 738
(1967) (Docket Entry 5-3), deeming himself “unable to identify an
issue with sufficient merit to support a meaningful argument for
relief on appeal” (id. at 11), and “request[ing] [the Court of
Appeals] to conduct a full examination of the record on appeal for
possible prejudicial error and to determine whether [Petitioner’s
appellate

counsel]

overlooked

any

justiciable

issue”

(id.).

Petitioner then submitted a pro se brief asserting multiple claims
of ineffective assistance of trial counsel.

(Docket Entry 5-4).

The North Carolina Court of Appeals “fully examined the record to
determine whether any issues of arguable merit exist[ed,]” did not
“find

any

possible

prejudicial

error[,]

and

conclude[d]

that

[Petitioner’s] appeal [wa]s wholly frivolous,” State v. Clinton,
No. COA15-1105, 789 S.E.2d 568 (table), 2016 WL 3395521, at *2
(June 21, 2016) (unpublished).
dismissed

Petitioner’s

The Court of Appeals additionally

ineffective

assistance

“claims

without

prejudice to [Petitioner’s] right to raise them in a motion for
appropriate relief [(“MAR”)] in the trial court,” id.

Petitioner

thereafter

the

neither

sought

discretionary

review

in

North

Carolina Supreme Court (see Docket Entry 1, ¶ 9(g)), nor petitioned

-2-

the United States Supreme Court for a writ of certiorari (see id.,
¶ 9(h).
Next, Petitioner filed a MAR with the Forsyth County Superior
Court, asserting claims of ineffective assistance against his
pretrial counsel, his trial counsel, and his appellate counsel.
(Docket Entries 5-6, 5-7.)2

The trial court denied Petitioner’s

MAR, ruling that “[Petitioner] was in a position to adequately
raise [on direct appeal] the[] issues and perhaps other grounds
underlying [Petitioner’s MAR] but did not do so” and, alternatively
that “any such grounds or issues, if so raised, were previously
determined upon the merits in such proceedings.”
at 21.)

(Docket Entry 1

The North Carolina Court of Appeals denied Petitioner’s

subsequent request for certiorari review of the denial of his MAR
(id. at 22).
Petitioner then instituted this action via his Petition.
(Docket Entry 1.)

Thereafter, Respondent filed the instant Motion

and Supporting Brief (Docket Entries 4, 5), as to which Petitioner
responded in opposition (Docket Entries 7, 8), and moved for
appointment of counsel (Docket Entry 9).
II. Facts
On

direct

appeal,

the

North

Carolina

Court

of

Appeals

summarized the trial evidence as follows:
The [s]tate’s evidence at trial tended to show that on 12
August 2012, Mary Leigh was working as a customer service
manager at a Food Lion located in Winston-Salem, North

2
On September 23, 2014, the trial court granted Petitioner’s motion to
withdraw his pretrial counsel, and appointed Petitioner’s trial counsel. (See
Docket Entry 5-6 at 25-30, Docket Entry 5-7 at 1-20.)

-3-

Carolina.
That afternoon,[Petitioner], dressed in a
purple suit, approached the customer service counter and
attempted to cash a check worth $499.31 payable to
“Reginald Clinton.” The check was issued by Wachovia
Bank and listed Atlantic Coast Dining as the account
holder.
[Petitioner] provided Ms. Leigh with a photo
identification card in the name of Reginald Clinton. Ms.
Leigh noticed that the numbers on the top and bottom of
the check did not match.
Believing the check to be
fraudulent, she called the police.
Shortly after 4:00 p.m. on 12 August 2012, Officer K.J.
Neff with the Winston-Salem Police Department received a
report of an individual attempting to cash a fraudulent
check at a Food Lion. When Officer Neff arrived at the
Food Lion, [Petitioner] was still in the store. Officer
Neff spoke with [Petitioner], who told him the Food Lion
employees were profiling him, and that the check was a
valid payroll check for work he did for Tyson Foods
issued to him through Samaritan Ministries.
While
Officer Neff was making phone calls in order to verify
the authenticity of the check, [Petitioner] exited the
store, leaving the check and photo identification card
behind.
Officer Neff obtained [Petitioner’s] phone
number from the records of the Winston-Salem Police
Department and called [Petitioner]. However, other than
a brief telephone conversation informing [Petitioner]
that he had his identification card, Officer Neff was
unable to speak further with [Petitioner].
During his investigation, Officer Neff discovered that
the account number on the check belonged to the
Evangelical Holiness and Missionary Association and not
to Atlantic Coast Dining as the check indicated. The
Evangelical Association informed Officer Neff that
[Petitioner] was not associated with the church and that
there was no reason for [Petitioner] to have a check with
the church’s account number on it. Officer Neff also
spoke
with
the Assistant
Director
of
Samaritan
Ministries, who told Officer Neff that he did not know
[Petitioner] and that [Petitioner] never worked for
Samaritan Ministries. At trial, Officer Neff testified
that the address on the check listed for “Reginald
Clinton” did not exist in Winston-Salem and did not match
the address on the photo identification card or the
address on file with the police department.
[Petitioner] testified in his defense that he did not
attempt to cash a check at the Food Lion, did not own a
purple suit, and had never seen Officer Neff or Ms. Leigh
before “in [his] life.” [Petitioner] further testified
that his son had access to his photo identification card
-4-

and the capability
computer.

of

making

false

checks

on

the

Clinton, 2016 WL 3395521, at *1-2.
III.

Grounds for Relief

Petitioner presents three grounds for habeas relief.
Docket Entry 1, ¶ 12.)

(See

Specifically, he alleges:

1) ineffective assistance of pretrial counsel in that pretrial
counsel (A) “failed to meet with Petitioner to discuss the case”
(id., ¶ 12 (GROUND ONE)(a)); (B) “fail[ed] to return multiple calls
from Petitioner resulting in loss of [the] state’s pre-indictment
plea offer of 12-24 mon[ths]” (“2012 Plea Offer”) (id.); and (C)
“failed to offer Petitioner’s March 25, 2013 plea offer from [the]
state with [a] sentence recommendation in [the] mitigated [range]”
(“2013 Plea Offer”) (id.);
2) ineffective assistance of trial counsel in that trial
counsel (A) “failed to investigate Petitioner’s case” (id., ¶ 12
(GROUND

TWO)(a));

(B)

“failed

to

prepare

and

consult

with

Petitioner on trial strategy” (id.); (C) “provided erroneous advice
to Petitioner” (id.); (D) knowingly withheld evidence favorable to
Petitioner” (id.); and (E) “failed to properly examine witnesses
after Petitioner repeatedly instructed [his trial counsel] to do
so” (id.); and
3)

ineffective

assistance

of

appellate

counsel

in

that

appellate counsel (A) “failed to file the agreed upon proposed
record of appeal” (id., ¶ 12, (GROUND THREE)(a)); (B) filed a brief
under

Anders

v.

California,

386

U.S.

738

(1967),

“against

Petitioner’s wishes and after repeated letters from Petitioner
-5-

instructing [appellate] counsel not to file [an] [Anders] brief”
(id.); and (C) “violated Petitioner’s right to assist Petitioner in
basic functions of a criminal proceeding” (id.).
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);

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.”).
V.

Discussion

A. Standard of Review
Ordinarily, 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 [s]tate
court proceedings,” 28 U.S.C. § 2254(d). Under such circumstances,
the Court may not grant relief unless a state court decision on the
merits “was contrary to, or involved an unreasonable application of

-6-

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. However, as explained below, the
deferential standard of review under Section 2254(d) does not apply
in this case, because Petitioner’s ineffective assistance claims
have

not

been

“adjudicated

on

the

merits

in

[s]tate

court

proceedings,” id.
As

discussed

above,

the

Court

of

Appeals

dismissed

Petitioner’s ineffective assistance “claims without prejudice to
[Petitioner’s] right to raise them in a [MAR] in the trial court,”
Clinton, 2016 WL 3395521, at *2 (emphasis added).

In his MAR,

Petitioner

against

raised

ineffective

assistance

claims

his

pretrial, trial, and appellate counsel. (Docket Entries 5-6, 5-7.)
The

trial

court

then

denied

Petitioner’s

MAR,

ruling

that

“[Petitioner] was in a position to adequately raise [on direct
appeal]

the[]

issues

and

perhaps

other

grounds

underlying

[Petitioner’s MAR] but did not do so” and, alternatively that “any
such grounds or issues, if so raised, were previously determined
upon the merits in such proceedings.”

(Docket Entry 1 at 21.)

In

the petition for a writ of certiorari Petitioner filed with the
North Carolina Court of Appeals, he alleged only that the trial
court improperly denied his MAR on procedural default grounds and,
thus, erroneously failed to consider the merits of his ineffective
assistance claims (see Docket Entry 5-8 at 5-12), and did not
independently raise any ineffective assistance claims (see id. at

-7-

2-14).

The

Court of Appeals

summarily denied

his petition.

(Docket Entry 1 at 22.)
In other words, contrary to the MAR court’s order, Petitioner
did not find himself “in a position to adequately raise” his
ineffective assistance claims on direct appeal (Docket Entry 1 at
21), as the Court of Appeals dismissed (without prejudice) as
premature the ineffective assistance claims Petitioner raised, see
Clinton, 2016 WL 3395521, at *2, and no reasonable basis exists for
concluding that the Court of Appeals would have considered the
merits of any additional ineffective assistance claims against his
pretrial and trial counsel.

Moreover, Petitioner obviously could

not have raised his ineffective assistance of appellate counsel
claim on direct appeal.
court’s

order

(Docket

Furthermore, and contrary to the MAR
Entry

1

at

21),

none

of

Petitioner’s

ineffective assistance claims were considered by the Court of
Appeals on the merits, see Clinton, 2016 WL 3395521, at *2.
Subsequently, the Court of Appeals, in ruling on Petitioner’s
certiorari petition, considered only whether the trial court erred
in denying the MAR on procedural grounds, rather than the substance
of Petitioner’s ineffective assistance claims.
5-8 at 5-12.)

(See Docket Entry

Thus, no state court ever adjudicated Petitioner’s

ineffective assistance claims on the merits. Accordingly, no state
court adjudication exists to which this Court owes deference under
2254(d), and the Court should consider Petitioner’s instant claims
under a de novo standard of review.

See Gordon v. Braxton, 780

F.3d 196, 202 (4th Cir. 2015) (“[T]he state court’s decision must

-8-

qualify as an ‘adjudicat[ion] on the merits’ to trigger AEDPA
deference.

If it does not so qualify, review in the federal courts

is de novo.” (quoting Winston v. Pearson, 683 F.3d 489, 499 (4th
Cir. 2012)) (internal citation omitted)); see also Hudson v. Hunt,
235 F.3d 892, 895 (4th Cir. 2000).
B. Merits
1. Ground One - Ineffective Assistance of Pretrial Counsel
In Ground One, Petitioner contends that his pretrial counsel
failed him in that counsel (A) “failed to meet with Petitioner to
discuss the case” (Docket Entry 1, ¶ 12 (GROUND ONE)(a)); (B)
“fail[ed] to return multiple calls from Petitioner resulting in
loss of [the] state’s [2012 Plea Offer] of 12-24 mon[ths]” (id.);
and (C) “failed to offer Petitioner’s [2013 Plea Offer] from [the]
state with [a] sentence recommendation in [the] mitigated [range]”
(id.).

All of those contentions fall short.

The Fourth Circuit has described the United States Supreme
Court authority governing ineffective assistance claims as follows:
In order to establish an ineffective assistance of
counsel claim . . ., [a petitioner must] establish that
his “counsel’s representation fell below an objective
standard of reasonableness,” measured by the “prevailing
professional norms,” [Strickland v. Washington, 466 U.S.
668, 688 (1984)], and “that there is a reasonable
probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different,” id. at 694.
“Unless a [petitioner] makes
both showings, it cannot be said that the conviction or
. . . sentence resulted from a breakdown in the adversary
process that renders the result unreliable.” Id. at 687.
In determining whether counsel’s performance was
deficient, “[i]t is all too tempting for a [petitioner]
to second guess counsel’s assistance after conviction or
adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved
-9-

unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable.”
Id. at 689.
Hence, “court[s] must indulge a strong presumption that
counsel’s conduct falls within the wide range of
reasonable professional assistance . . . [and] that,
under the circumstances, the challenged action might be
considered sound trial strategy.”
Id. (internal
quotation marks omitted).
Similarly, in evaluating whether [a petitioner] has shown
actual prejudice from any such deficient performance, it
is insufficient for the [petitioner] “to show that the
errors had some conceivable effect on the outcome of the
proceeding,” because “[v]irtually every act or omission
of counsel would meet that test.” Id. at 693. Rather,
a “reasonable probability” that the result would have
been different requires “a probability sufficient to
undermine confidence in the outcome.” Id. at 694. When
challenging a conviction, “the question is whether there
is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting
guilt.” Id. at 695.
Fisher v. Lee, 215 F.3d 438, 446–47 (4th Cir. 2000) (internal
parallel citations omitted). Moreover, “[s]urmounting Strickland’s
high bar is never an easy task. . . .

Even under de novo review,

the

representation

standard

for

deferential one.”

judging

counsel’s

is

a

most

Harrington v. Richter, 562 U.S. 86, 105 (2011)

(internal quotation marks omitted).
Regarding Petitioner’s first ineffective assistance sub-claim
against his pretrial counsel, Petitioner alleges that counsel
admitted at the hearing on Petitioner’s motion to withdraw counsel
that, in the two years since his appointment as counsel, he had met
with Petitioner on only one occasion.

(See Docket Entry 8 at 4

(citing Docket Entry 5-7 at 9).) Moreover, Petitioner asserts that
his pretrial “counsel was removed by the [trial] court for his
ineffectiveness.”

(Id.)

-10-

As an initial matter, the trial court did not remove pretrial
counsel

for

“ineffectiveness,”

but

rather

because

Petitioner

indicated he did not wish to remain represented by pretrial counsel
going forward.

(See Docket Entry 5-7 at 15-16.)

Furthermore, to

the extent Petitioner alleges that pretrial counsel’s alleged
failure to communicate with Petitioner during the pretrial period
constitutes an independent ground of ineffective assistance, such
a claim fails, as Petitioner “has provided ‘no explanation how
additional meetings with his counsel, or longer meetings with his
counsel, would have led to new or better theories of advocacy or
otherwise

would

have

created

a

reasonable

probability

of

a

different outcome,’” Lenz v. Washington, 444 F.3d 295, 303 (4th
Cir. 2006) (quoting Hill v. Mitchell, 400 F.3d 308, 325 (6th Cir.
2005)) (internal quotation marks omitted). As a result, Petitioner
has not shown prejudice under Strickland’s second prong. See
Bowling v. Parker, 344 F.3d 487, 506 (6th Cir. 2003) (“[T]he mere
fact that counsel spent little time with [petitioner] is not enough
under

Strickland,

without

evidence

of

prejudice

or

other

defects.”).3
In Petitioner’s second and third ineffective assistance subclaims

against

pretrial

counsel,

Petitioner

asserts

that

his

pretrial counsel “fail[ed] to return multiple calls from Petitioner
resulting in loss of [the] state’s [2012 Plea Offer] of 12-24

3
Moreover, to the extent Petitioner ties his pretrial counsel’s alleged
failure to communicate and meet with Petitioner to purported loss of opportunity
to accept favorable plea offers, for the reasons described below, that argument
also fails.

-11-

mon[ths,]” and “failed to offer Petitioner’s [2013 Plea Offer] from
[the] state with [a] sentence recommendation in [the] mitigated
[range].”

(Docket Entry 1, ¶ 12 (GROUND ONE)(a); see also Docket

Entry 8-1 at 1 (copy of 2013 Plea Offer).)

Petitioner maintains

that he “was prejudiced by the loss of the opportunity to accept or
deny the pleas[,] . . . [because] the loss of the opportunity
caused the imposition of a more severe sentence.”

(Docket Entry 8

at 5.)
“[A]s

a

general

rule,

defense

counsel

has

the

duty

to

communicate formal offers from the prosecution to accept a plea on
terms and

conditions

that

may

be

favorable

Missouri v. Frye, 566 U.S. 134, 145 (2012).

to

the accused.”

However, even if a

petitioner establishes that his counsel failed to communicate a
plea offer, the petitioner must still establish prejudice.

In

other words:
[A] [petitioner] must show that, but for the ineffective
[assistance]
of
counsel, there
is
a
reasonable
probability that . . . the [petitioner] would have
accepted the plea[,] [that] the prosecution would not
have
withdrawn
it
in
light
of
intervening
circumstances[], that the [trial] court would have
accepted its terms, and that the conviction and sentence,
or both, under the offer’s terms would have been less
severe than under the judgment and sentence that in fact
were imposed.
Lafler v. Cooper, 566 U.S. 156, 164 (2012) (emphasis added).
Here, the record belies Petitioner’s contention that his
pretrial counsel failed him with regard to both the 2012 Plea Offer
and the 2013 Plea Offer.

At the September 23, 2014, hearing on

Petitioner’s motion to withdraw pretrial counsel, the following

-12-

colloquoy took place between Petitioner, pretrial counsel, and the
trial court:
PETITIONER:

I was offered a plea back in November of
[20]12 . . . . And if I didn’t take the
plea before Christmas, I would get the
habitual felon.

. . .
[Pretrial counsel] said he notified me
that that’s what the [district attorney]
had intended to do, and he did not notify
me of that.
TRIAL COURT:

Well, then when did you find out about
it?

PETITIONER:

When I got in the courtroom.

TRIAL COURT:

When?

PETITIONER:

I don’t even remember when.
were – in November.

TRIAL COURT:

Of 2013?

PETITIONER:

Of 2012.

When – there

. . .
COUNSEL:

Your Honor, this was originally in
district court, in preliminary court –

. . .
– where [a district attorney] made a
prior-to-indictment
offer
that
[Petitioner] plead guilty to attempt to
obtain property by false pretenses, Class
H. The [s]tate would agree to an active
sentence at the lowest end of the
mitigated range. This would be a 12- to
24-month
active
[sentence]
as
[Petitioner] appears to be a Record Level
6
for
felony
sentencing
purposes.
Further, the [s]tate would agree not to
pursue
a
habitual
felon
indictment
against [Petitioner].
. . .
-13-

TRIAL COURT:

Okay. That’s why it’s not in the file –
because it was before the case even made
it to superior court. Okay.
But you chose not to accept that?

PETITIONER:

Right.

(Docket Entry 5-7 at 2-6 (emphasis added).)
On the first day of trial, March 16, 2015, during a hearing on
Petitioner’s motion to reduce bond, Petitioner made the following
statements to the trial court:
[T]he first time I had a court date was on [September 17,
2012] or something like that. And at that time, my very
first appearance in the courtroom, I asked for an
attorney.
They give me an attorney.
And on my next
court date, which was September of the same year, 2012,
I met [pretrial counsel] in the courtroom.
On that day, there was an offer from the [district
attorney] – which was not this particular [district
attorney], I might add – of an active sentence of 12 to
24 months, and if I didn’t take it before Christmas, then
I would be charged as a habitual felon again. That was
the plea. I rejected the plea.
(Docket Entry 5-12 at 50-51 (emphasis added); see also Docket Entry
5-8 at 26 (reflecting Petitioner’s statement in his MAR that,
“[a]fter consulting with family and [his] employer [regarding
whether to accept the 2012 Plea Offer,] [Petitioner] attemp[ted] to
contact [pretrial] counsel multi[p]le[] times, ways and days by
leaving urgent messages with counsel’s secretary[,] [] by appearing
in-person at counsel’s office on three consecutive days[,] [and by]
le[aving] repeated messages on counsel’s voice service[,] [and
that]

counsel

failed

to

return

[Petitioner’s]

calls[,]”

but

neglecting to contend that Petitioner wished to accept the 2012
Plea Offer).)

-14-

The

above-quoted

discussions

establish

that

Petitioner’s

pretrial counsel in fact notified Petitioner of the 2012 Plea Offer
in a courtroom in either September or November 2012, prior to the
expiration of that offer at the end of December 2012, and that
Petitioner rejected the 2012 Plea Offer.

Thus, Petitioner has not

“show[n] that, but for the ineffective [assistance] of counsel,
there [wa]s a reasonable probability that . . . the [petitioner]
would have accepted the plea,”

Lafler, 566 U.S. at 164 (emphasis

added).
Concerning the 2013 Plea Offer, the following discussion took
place between Petitioner and the trial court at the September 23,
2014, hearing on Petitioner’s motion to withdraw pretrial counsel:
TRIAL COURT:

[T]his is clocked in March 1st of 2013
. . . . [I]t says there’s a letter from
[a district attorney] who is not the
[district attorney] who is here today.
But the [former district attorney] had
signed this that at the first setting of
March 25, 2013, if you entered a plea of
guilty and admit[ted] your status as a
habitual felon, they would . . .
recommend a sentence in the mitigated
range.

PETITIONER:

I’ve never heard of that one.

. . .
I’ve never heard of that ever.
. . .
TRIAL COURT:

[T]he first plea offer in superior court
was the one that I talked about a few
moments ago – that it would be habitual
felon in the mitigated range. Okay.
But I gather from what you have said that
you wanted a trial in this case all
along?
-15-

PETITIONER:
(Docket

Entry

5-7

Yes.
at

4-6

(emphasis

added).)

Thus,

even

if

Petitioner could establish that pretrial counsel never communicated
the 2013 Plea Offer to him, Petitioner’s ineffective assistance
claim still fails because, as the language emphasized above makes
clear, he has not shown that “there [wa]s a reasonable probability
that . . . [he] would have accepted the plea,”

Lafler, 566 U.S. at

164 (emphasis added).
In sum, Petitioner’s first ground for relief fails as a matter
of law.
2. Ground Two - Ineffective Assistance of Trial Counsel
Via Ground Two, Petitioner alleges that his trial counsel
provided ineffective assistance in that counsel (A) “failed to
investigate Petitioner’s case” (Docket Entry 1, ¶ 12 (GROUND
TWO)(a)); (B) “failed to prepare and consult with Petitioner on
trial

strategy”

(id.);

(C)

“provided

erroneous

advice

to

Petitioner” (id.); (D) “knowingly withheld evidence favorable to
Petitioner” (id.); and (E) “failed to properly examine witnesses
after Petitioner repeatedly instructed [his trial counsel] to do
so” (id.)4
In regards to ineffective assistance of trial counsel subclaim (A), Petitioner maintains that his trial counsel “failed to

4
Petitioner did not provide any facts in support of his contention that
trial counsel “knowingly withheld evidence favorable to Petitioner” (Docket Entry
1, ¶ 12 (GROUND TWO)(a); see also Docket Entry 8), and, thus, that contention
fails as conclusory, see Cano v. United States, Nos. 1:05CR354–4, 1:09CV321, 2009
WL 3526564, at *3 (M.D.N.C. Oct. 22, 2009) (unpublished), recommendation adopted,
slip op. (M.D.N.C. Dec. 29, 2009); see also Nickerson v. Lee, 971 F.2d 1125, 1136
(4th Cir. 1992), abrogation on other grounds recognized, Yeatts v. Angelone, 166
F.3d 255, 266 n.4 (4th Cir. 1999).

-16-

make any attempt to contact, locate, or interview” three witnesses
“who could verify that Petitioner was in a church service [on the
day of the underlying offense] from 4 pm until after 7 pm.”
(Docket Entry 8 at 7.)

Moreover, Petitioner asserts that trial

counsel “failed to go interview or investigate Petitioner’s son,
who was in custody with multiple pending obtaining property by
false pretense charges as well as two identity theft charges.”
(Id.)
Concerning the three purported alibi witnesses, Petitioner has
not even provided the names of the individuals, much less produced
affidavits or other statements from the individuals attesting to
Petitioner’s whereabouts on the day of the offense in question (or
provided a reasonable explanation as to why, given that Petitioner
remained out on bond pending his trial date, he could not have
procured their attendance at trial).
identified

the

church

at

which

he

Moreover, Petitioner has not
attended

the

service,

or

otherwise explained how these unnamed individuals could “verify”
that Petitioner attended church from 4:00 p.m. until after 7:00
p.m. on the day in question.

Put another way, Petitioner “has

provided only conclusory allegations which meet neither the error
nor the prejudice prong of the Strickland analysis.”

Cano v.

United States, Nos. 1:05CR354–4, 1:09CV321, 2009 WL 3526564, at *3
(M.D.N.C. Oct. 22, 2009) (unpublished), recommendation adopted,
slip op. (M.D.N.C. Dec. 29, 2009); see also Nickerson v. Lee, 971
F.2d 1125, 1136 (4th Cir. 1992) (“In order to obtain an evidentiary
hearing on an ineffective assistance claim — or, for that matter,

-17-

on any claim — a habeas petitioner must come forward with some
evidence that the claim might have merit. Unsupported, conclusory
allegations do not entitle a habeas petitioner to an evidentiary
hearing.”), abrogation on other grounds recognized, Yeatts v.
Angelone, 166 F.3d 255, 266 n.4 (4th Cir. 1999).
As to the alleged failure of Petitioner’s trial counsel to
interview Petitioner’s son in custody, Petitioner has not shown the
requisite prejudice under Strickland.

As the trial court noted

during the hearing on September 23, 2014, on Petitioner’s motion to
withdraw pretrial counsel, Petitioner could not compel his son to
testify against his own interests:
TRIAL COURT:

[Y]ou’re wanting to present some evidence
that it’s your son that did it?

PETITIONER:

Absolutely.

TRIAL COURT:

Okay.
Do you realize that even if
[pretrial counsel] or any attorney issued
a subpoena or had your son brought from
jail here, he would not have to testify?

PETITIONER:

Wouldn’t matter to me.

TRIAL COURT:

Do you realize he could not be made to
testify?

PETITIONER:

I can’t make him testify.
him testify.

TRIAL COURT:

So – but is that what you’re wanting?

PETITIONER:

What – I want something brought to the
front to show that what I’m saying is
true.

(Docket Entry 5-7 at 7-8.)

. . .

I can’t make

Nor has Petitioner shown that his son

would have testified at all, let alone favorably to Petitioner. In
sum, Petitioner has failed to demonstrate that his trial counsel’s

-18-

failure to interview Petitioner’s son would have had any impact on
the outcome of Petitioner’s case.
Next, Petitioner alleges that his trial counsel “failed to
prepare and consult with Petitioner on trial strategy.”
Entry 1, ¶ 12 (GROUND TWO)(a).)

(Docket

Beyond reiterating his earlier,

meritless contention that his trial counsel provided ineffective
assistance by failing to interview alibi witnesses and Petitioner’s
son, Petitioner merely alleges that trial counsel “made no attempt
to formulate a defense at all” and filed only one motion with the
trial court.

(Docket Entry 8 at 8.)

Petitioner has made no

attempt to identify the defenses or motions that trial counsel
should have pursued.

(See Docket Entries 1, 8.)

Such “conclusory

allegations . . . meet neither the error nor the prejudice prong of
the Strickland analysis.”

Cano, 2009 WL 3526564, at *3; see also

Nickerson, 971 F.2d at 1136 (“In order to obtain an evidentiary
hearing on an ineffective assistance claim — or, for that matter,
on any claim — a habeas petitioner must come forward with some
evidence that the claim might have merit. Unsupported, conclusory
allegations do not entitle a habeas petitioner to an evidentiary
hearing.”).
In Petitioner’s third ineffective assistance sub-claim against
trial counsel, Petitioner argues that “[c]ounsel provided erroneous
advi[c]e when counsel told Petitioner on the second day of trial,
that the only way for Petitioner to establish his side of the story
was to take the stand and testify on his own behalf.” (Docket Entry
8

at

9.)

Petitioner

additionally

-19-

contends

that

he

felt

so

dissatisfied “with counsel’s performance and refusal to question
state witnesses that[] he reluctantly agree[d] to testify.”

(Id.)

As an initial matter, Petitioner has failed to show, given
that he could not compel his son to testify against his own
interests, how Petitioner could possibly have presented his theory
that his son committed the offense in question to the jury absent
his own testimony.

Indeed, trial counsel elicited testimony that

Petitioner’s son had access to Petitioner’s identification card and
Wells Fargo bank account (see Docket Entry 5-12 at 160), and
successfully argued, over the state’s objection, for the admission
of Petitioner’s testimony that, prior to the underlying offense,
his son owned a computer containing check writing software (see id.
at 160-68).
Moreover, the trial transcript belies Petitioner’s contention
that he felt reluctance about testifying in his own behalf, or that
he based such a decision on dissatisfaction with his trial counsel:
TRIAL COURT:

You understand in this case – you’ve
already had a chance to speak to your
attorneys about that you have an absolute
right to testify or not testify in your
case? Do you understand that, sir?

PETITIONER:

I do.

TRIAL COURT:

The decision about whether or not to
testify should not be made by your
lawyer. Your lawyer is a very competent
lawyer, and he . . . should give you good
advice, and you should listen to your
lawyer, but when it comes to whether or
not you want to testify, that is a
decision that you should make on your
own, considering all the advice that your
attorney gives you; do you understand
that, sir?

-20-

PETITIONER:

I do.

TRIAL COURT:

And you understand that the decision is
yours and yours alone?

PETITIONER:

I do.

TRIAL COURT:

And if you decide not to testify, you
understand I will instruct the jury at
that time they are not to consider that
in any way regarding their decision if
you do not testify?
Do you understand
that?

PETITIONER:

I understand.

TRIAL COURT:

And what is your decision with regards to
whether or not you wish to testify?

PETITIONER:

I am going to testify on my behalf.
my life.

It’s

(Docket Entry 5-12 at 151-52 (emphasis added).)
Petitioner additionally contends that trial counsel “failed to
properly examine witnesses after Petitioner repeatedly instructed
[his trial counsel] to do so.”
TWO)(a).)

(Docket Entry 1, ¶ 12 (GROUND

In particular, Petitioner alleges that trial counsel

“failed to offer any expla[]nation to [Petitioner]” as to why trial
counsel would not question Ms. Leigh or Officer Neff regarding the
absence

of

any

“surveillance

footage

and

why

[Petitioner’s

identification] card was not introduced” into evidence.

(Docket

Entry 8 at 10.)5

5
Petitioner asserts that trial counsel “led Petitioner to believe that
[his identification card] and [the] surveillance footage w[ere] in evidence when
counsel knew beforehand that there was no such evidence.” (Docket Entry 8 at 10
(citing Docket Entry 5-12 at 219-20).)
Petitioner further contends that he
“refuse[d] to allow the trial to proceed without addressing the court concerning
his displeasure with counsel’s refusal to question state witnesses to discredit
their testimony.” (Id.) However, the transcript pages relied on by Petitioner
neither support Petitioner’s assertion that trial counsel “led Petitioner to
believe that [his identification card] and [the] surveillance footage w[ere] in
(continued...)

-21-

In

a

memorandum

Petitioner’s

trial

counsel

sent

to

Petitioner’s appellate counsel, trial counsel provided a sound
explanation as to why he did not question Ms. Leigh or Officer Neff
about the lack of surveillance footage or the whereabouts of
Petitioner’s identification card:
There was no surveillance video preserved (the officer
did not attempt to get it before the system overwrote the
footage, but there was no testimony about that). While
the officer retained [Petitioner’s identification] card
initially[,] it also was not produced at trial. Just
like with the surveillance footage[,] there was no
explanation of why it was not produced, but I think the
officer told me that the department sent the card to the
[Department of Motor Vehicles] when [Petitioner] did not
come pick it up.
. . .
[Petitioner] was constantly after me to ask the witnesses
why there was no surveillance footage and why
[Petitioner’s identification] card was not introduced.
I thought it was a bad idea since the explanations would
have seemed reasonable to the jury. Since the failure to
introduce those items was not explained, I felt we were
in a stronger position to argue to the jury that it
should consider the lack of any photographic evidence to
corroborate the identification testimony.
(Docket Entry 8-1 at 5-6 (emphasis added).)
Indeed, trial counsel stated in opening:
Now, Food Lion is a typical retail location. On these
days, most retail locations we’re all familiar with, have
surveillance systems; cameras watching everything the
customers and employees do. Yet, there’s no video, no

5
(...continued)
evidence,” nor reveal any expressions by Petitioner of his “displeasure with
counsel’s refusal to question state witnesses to discredit their testimony”
(Docket Entry 8 at 10). (See Docket Entry 5-12 at 219-20). Moreover, the Court
should view with skepticism Petitioner’s contention that the trial transcript
misquoted Petitioner as saying “he will do it” instead of “he won’t do it” in
response to the trial court’s statement that Petitioner’s trial counsel, rather
than Petitioner, must make the legal arguments in the case. (See Docket Entry
8 at 12; see also Docket Entry 5-12 at 220.)

-22-

still pictures, no hard physical evidence,
[Petitioner] was in the store that day.
(Docket Entry 5-12 at 98 (emphasis added).)

that

Trial counsel then

argued in closing:
May it please the Court, counsel, members of the jury,
the key to any credible story is corroboration.
[Petitioner] was the one in the Food Lion that day. Why
aren’t there pictures from the surveillance cameras? Go
out in public to the mall, to the store, an office
building, the courthouse and our every move is recorded
on camera. There was a camera system in the Food Lion,
so why isn’t there a picture of [Petitioner] in the Food
Lion? Because he wasn’t there.
Where’s the identification card that was presented?
According to Officer Neff, the police department held on
to the [identification card]. If the [identification]
card is not presented here in the court, how are you
supposed to know it was his identification card that was
used?
The check was seized, but where’s the
[identification card]? That’s something you should talk
about in the jury room.
(Docket Entry 5-12 at 222-23 (emphasis added).)

Under those

circumstances, Petitioner has shown neither deficient performance
nor prejudice with regard to trial counsel’s handling of witnesses
Leigh and Neff.
Simply put, Petitioner’s second ground for relief falls short.
3. Ground Three - Ineffective Assistance of Appellate Counsel
In Petitioner’s third and final ground for relief, he alleges
that appellate counsel provided deficient representation in that
counsel (A) “failed to file the agreed upon proposed record of
appeal” (Docket Entry 1, ¶ 12 (GROUND THREE)(a); (B) “filed [an]
[Anders] brief against Petitioner’s wishes and after repeated
letters from Petitioner instructing [appellate] counsel not to file
[an] [Anders] brief” (id.); and (C) “violated Petitioner’s right to

-23-

assist Petitioner in basic functions of a criminal proceeding”
(id.).6
In order to prove ineffective assistance of appellate counsel,
Petitioner must satisfy the standard set forth in Strickland.

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

reasonable

performance

probability

that,

prejudiced

but

for

his

Petitioner,
appellate

i.e.,

a

counsel’s

unprofessional errors, the result of the proceeding would have
changed. See Strickland, 466 U.S. at 678–88, 694. Consistent with
the “deferential” nature of the Strickland standard, Harrington,
562

U.S.

at

non-frivolous

105,
issue;

appellate
to

the

counsel
contrary,

need

not

forsaking

raise

every

reasonably

perceived weaker appeal issues to focus on a small number of
arguably stronger ones constitutes a mark of effective advocacy.
Jones v. Barnes, 463 U.S. 745, 750–54 (1983); Bell, 236 F.3d at

6
Although Petitioner alleged that his appellate counsel failed to file the
agreed upon proposed record of appeal” (Docket Entry 1, ¶ 12 (GROUND THREE)(a)),
and referenced in his brief opposing summary judgment an “Attached Proposed
Record of Appeal” (Docket Entry 8 at 12 (emphasis added)), the document attached
to his brief actually constitutes “Defendant’s Proposed Issues on Appeal” (Docket
Entry 8-1 at 7 (emphasis added)) which appellate counsel filed as part of the
record on appeal (see Docket Entry 5-2 at 72). Moreover, although Petitioner
contends that appellate counsel “violated Petitioner’s right to assist Petitioner
in basic functions of a criminal proceeding” (Docket Entry 1, ¶ 12 (GROUND
THREE)(a)), in support of that claim, Petitioner again alleged that appellate
counsel failed “to file the agreed upon record of appeal” and filed an “Anders
brief when non-frivolous issues existed” (Docket Entry 8 at 13). Thus, all three
of Petitioner’s sub-claims of ineffective assistance of appellate counsel boil
down to Petitioner’s opposition to appellate counsel’s filing of a brief under
Anders.

-24-

164. Moreover, “reviewing courts must accord appellate counsel the
presumption that he [or she] decided which issues were most likely
to afford relief on appeal.”

Bell, 236 F.3d at 164 (internal

quotation marks omitted); see also Evans v. Thompson, 881 F.2d 117,
124 (4th Cir. 1989) (declaring that counsel pursued sound strategy
when “he determined what he believed to be [the] petitioner’s most
viable arguments and raised them on appeal”).
Here, Petitioner’s appellate counsel notified Petitioner via
letter that, after counsel had “reviewed] the transcript of the
proceedings, the superior court file, and relevant law, [he was]
unable to identify any issue that will support a reversal on direct
appeal of the judgment and sentence in [Petitioner’s] case[,]” and
that he “ha[d] filed a brief in accordance with Anders[] and State
v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), asking the North
Carolina

Court

of

Appeals

to

review

the

transcript

of

[Petitioner’s] trial and the record on appeal on its own to
determine

whether

[Petitioner’s] case.”

[counsel]

has

overlooked

(Docket Entry 5-3 at 21.)

anything

in

Counsel further

explained that he “believe[d] that [Petitioner] would be better
served by a full review by the Court of Appeals than by an attempt
on [counsel’s] part to present an argument that has no meaningful
chance of success.”

(Id. at 22.)

In the face of that explanation from Petitioner’s appellate
counsel, Petitioner conclusorily argues that “non-frivolous issues
existed” among those listed in Petitioner’s proposed issues on
appeal that appellate counsel should have raised on direct appeal.

-25-

(Docket Entry 8 at 13.)

Petitioner has neither made an attempt to

identify which issues he believed his counsel should have raised,
nor provided any facts or legal arguments to show a reasonable
probability that such issues would have succeeded on appeal.

(See

Docket Entries 1, 8.) Under such circumstances, Petitioner has not
overcome the presumption that his appellate counsel “decided which
issues were most likely to afford relief on appeal.”

Bell, 236

F.3d at 164 (internal quotation marks omitted).
In short, the Court should reject Petitioner’s third ground
for relief.7
VI. Conclusion
All of Petitioner’s claims lack merit.
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 without issuance of a certificate of appealability.
IT IS ORDERED that Petitioner’s Motion for Appointment of
Counsel (Docket Entry 9) is DENIED.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

July 10, 2018

7
In view of the recommendation that Court deny the Petition, no
extraordinary circumstances exist warranting appointment of counsel for
Petitioner (see Docket Entry 9). See Whisenant v. Yuam, 739 F.2d 160, 163 (4th
Cir. 1984), abrogated in part on other grounds, Mallard v. United States Dist.
Ct. for S.D. Iowa, 490 U.S. 296 (1989).

-26-