BROYAL v. NORTH CAROLINA DOC
Filing
13
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 6/26/2018. 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. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
PHILLIP WAYNE BROYAL,
)
)
)
)
)
)
)
)
)
Petitioner,
v.
ERIC A. HOOKS,
Respondent.
1:17CV834
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner of the State of North Carolina, seeks
a
writ
of
habeas
“Petition”).
judgment.
corpus
pursuant
(Docket Entry 1.)
to
28
U.S.C.
§
2254
(the
Respondent has moved for summary
(Docket Entries 9, 10.)
For the reasons that follow,
the Court should grant Respondent’s Motion for Summary Judgment.
I.
Background
In January 2015, a jury in the Superior Court of Chatham
County
found
Petitioner
guilty
of
intentional
child
abuse
inflicting serious bodily injury, four counts of taking indecent
liberties with a child, and two counts of statutory sex offense
(all as an habitual felon).
Entry
10-4
at
52;
Docket
(See Docket Entry 1, ¶¶ 1-6; Docket
Entry
10-5
at
1-6.)1
After
a
presentencing investigation (see Docket Entry 10-5 at 7-9), and
1
The Petition consists of 16 pages of a standard form (Docket Entry 1),
followed by pages of materials from Petitioner’s underlying state criminal cases
(see Docket Entry 1-1).
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 10-2 to 10-11), the authenticity of which Petitioner has not
contested (see Docket Entries dated Jan. 29, 2018, to present). This Memorandum
Opinion cites to those items by the page number in their CM/ECF footers.
based on the multiple aggravating factors found by the jury (see
id. at 1, 3, 5), the trial court imposed two, consecutive life
sentences without the possibility of parole for the statutory sex
offense convictions (see id. at 28-36), as well as consecutive
prison
sentences
of
159
to
251
months
for
the
child
abuse
conviction (see id. at 18-21), and 138 to 226 months for the
consolidated indecent liberties convictions (see id. at 22-26).
Additionally, the trial court ordered that Petitioner, if released,
submit to lifetime satellite-based monitoring (see id. at 27, 37),
and,
after
a
hearing,
deemed
Petitioner
a
“sexually
violent
predator” (id. at 38-40).
Petitioner appealed to the North Carolina Court of Appeals and
received appointed appellate counsel.
16(e); Docket Entry 10-5 at 41-43.)
(See Docket Entry 1, ¶¶ 9,
The North Carolina Court of
Appeals affirmed, North Carolina v. Broyal, No. COA16-21, 791
S.E.2d 665 (table), 2016 WL 4608201 (Sept. 6, 2016) (unpublished),
and the North Carolina Supreme Court denied Petitioner’s petition
for discretionary review (“PDR”), North Carolina v. Broyal, 369
N.C. 197, 793 S.E.2d 698 (2016).
Petitioner
Petition.
subsequently
(Docket Entry 1.)
instituted
this
action
via
his
Respondent then filed the instant
Motion and Supporting Brief (Docket Entries 9, 10), and, despite
notification
of
his
right
to
respond
(see
Docket
Entry
11),
Petitioner failed to file any response (see Docket Entries dated
Jan. 29, 2018, to present).
-2-
II. Facts
On
direct
appeal,
the
North
Carolina
Court
of
Appeals
summarized the trial evidence as follows:
[Petitioner] is the father of the victim, “Alice.”[FN]
Alice’s mother was just thirteen when Alice was born.
[Petitioner] was a few years older. [Petitioner] lived
with Alice and her mother for six months following
Alice’s birth.
Alice’s mother and [Petitioner] later
separated because [Petitioner] impregnated two other
girls during the time they lived together.
After that separation, [Petitioner] did not have any
contact with Alice for many years.
Alice’s mother
remarried and Alice considered her stepfather to be her
father because she had no knowledge of [Petitioner].
In 2008, when Alice was nine years old, [Petitioner’s]
sister reached out to Alice through Facebook. Shortly
after this contact, Alice’s mother took her to meet
[Petitioner].
Alice’s mother did not know that
[Petitioner] was a registered sex offender until after
this initial visit, when Franklin County [Department of
Social Services (“DSS”)] removed Alice from her because
of the visit with [Petitioner]. Alice’s mother later
signed a safety plan agreeing to keep Alice away from
[Petitioner], and regained custody as a result.
When
Alice was eleven, [Petitioner] began to write Alice from
prison and they continued to correspond during the
remainder of [Petitioner’s] incarceration.
After [Petitioner] was released from prison, he and Alice
would talk on the phone. They later began meeting at the
home of one of [Petitioner’s] friends. Alice’s mother
was not aware of these meetings. [Petitioner] gave Alice
marijuana and they would smoke it together when they met.
A court later granted [Petitioner] supervised visitation
with Alice after a custody hearing.
The visitation
initially happened during the day but, at Alice’s
request, these visits became overnight.
The visits
started out well. However, at some point Alice began
coming home from the visits, going straight to her room,
and locking her door. She would not talk to her parents.
When Alice would spend the night, she, [Petitioner],
[Petitioner’s] girlfriend would all sleep together in
double bed because it was the only place to sleep in
house.
Alice slept between [Petitioner] and
girlfriend, and [Petitioner] would ask Alice if
-3-
and
one
the
his
she
wanted him to hold her while she fell asleep.
Alice
would comply, and thought nothing of it because
[Petitioner’s] girlfriend was in the bed with them.
On the night of 15 December 2012, after smoking “[a]
couple of bowls” of marijuana with [Petitioner] and his
girlfriend, Alice fell asleep on the bed while
[Petitioner] returned to work. She was asleep when he
returned. Alice woke because her vagina was hurting.
She realized that there were fingers inside her vagina
and that [Petitioner] was kissing her on her lips, and
using his tongue. Alice tried to roll over and scoot
away from him so that he would stop. After she fell back
asleep, she awakened again when he was “trying to do it
again.”
This time he had her “pants pulled somewhat
down,” had his hands on her butt and under her clothes on
her breasts, and had his fingers “in the same area” as
before.
The second time, her vagina was “burn[ing],”
“hurting,” and “felt like it was swelled [sic].” She
rolled over again and tried to get him to stop.
Alice was afraid to tell anyone what happened because
[Petitioner] threatened that “if one of his kids had ever
put him in jail that . . . he would hurt them.”
[Petitioner] told Alice this before and after the
incident. Instead of telling her mother, Alice began to
make excuses to not visit [Petitioner].
It was a
dramatic change from before the incident, when Alice had
always been very excited to visit [Petitioner]. Alice
ultimately told her step-cousin what happened and, at her
step-cousin’s insistence, then told her mother.
Following
the sexual
assaults, Alice
often
had
nightmares. She was unable to sleep, and would wake up
crying. Her grades declined from A’s and B’s to almost
all F’s. She would break down crying anytime she thought
of what happened. She lost 20–25 pounds in three or four
months because she stopped eating regularly. She got in
a fight at school and was charged with simple assault.
She started cutting her wrists and legs with a razor
blade “or anything sharp [she] could find” because she
said it helped her feel better when she could feel
something besides the depression and pain.
Alice was
hospitalized and diagnosed with Post–Traumatic Stress
Disorder (PTSD) and she continues to suffer serious
psychological consequences from the crime.
[FN]
[The Court of Appeals] use[d] a pseudonym to protect
the victim’s identity.
Broyal, 2016 WL 4608201, at *1-2.
-4-
III.
Ground for Relief
Petitioner presents one ground for habeas relief. (See Docket
Entry 1, ¶ 12.)
Specifically, he alleges that the trial court
erred by “introduc[ing] [] testimony that [Petitioner] [wa]s a
registered sex offender.”
(Id., ¶ 12 (GROUND ONE).)
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
In Ground One, Petitioner contends that the trial court erred
by “introduc[ing] [] testimony that [Petitioner] [wa]s a registered
sex offender.”
(Id., ¶ 12 (GROUND ONE).)
In the area on the
Section 2254 form below Ground One requesting “[s]upporting facts”
Petitioner merely wrote that “[t]he [district attorney] told the
-5-
[j]udge that [Petitioner] was a sex offender.”
(Id., ¶ 12 (GROUND
ONE)(a).)
Respondent maintains that the Petition faces a procedural bar,
“because Petitioner failed to raise [the substance of Ground One]
in federal constitutional terms on direct appeal”
(See Docket
Entry 10 at 4 (emphasis added) (citing Duncan v. Henry, 513 U.S.
364 (1995), and Mallory v. Smith, 27 F.3d 991, 994-95 (4th Cir.
1994)).)
According to Respondent, Sections 15A-1419(a)(3) and (b)
of the North Carolina General Statutes bar Petitioner’s claim,
because he “was in [an] adequate position to have raised [the
substance of Ground One in federal constitutional terms] on direct
appeal but did not do so[,]” and has neither shown cause and
prejudice nor fundamental miscarriage of justice to excuse his
default.
(Id. at 5 (citing N.C. Gen. Stat. §§ 15A-1419(a)(3) &
(b),
Breard
and
v.
Pruett,
134
F.3d
615
(4th
Cir.
1998)).)
Additionally, Respondent maintains that Petitioner’s claim meets a
“procedural[] bar[] for a second reason[,]” i.e., “he failed to
raise it in his PDR to the [North Carolina Supreme Court].”
(Id.
at 6 (citing O’Sullivan, 526 U.S. at 847).)
In order to exhaust his state court remedies, Petitioner must
allow “‘the [s]tate 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 omitted) (quoting Baldwin v.
-6-
Reese, 541 U.S. 27, 29 (2004)).
“Fair presentation” means that
“both the operative facts and the controlling legal principles”
behind a specific federal habeas claim were “presented face-up and
squarely.”
Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)
(emphasis added).
“[O]rdinarily a state prisoner does not ‘fairly
present’ a claim to a state court if that court must read beyond a
petition or a brief (or a similar document) that does not alert it
to the presence of a federal claim.”
Baldwin, 541 U.S. at 32.
Petitioner must also “raise his claim before every available state
court, including those courts . . . whose review is discretionary.”
Jones, 591 F.3d at 713 (emphasis added) (citing O’Sullivan, 526
U.S. at 847).
Here, Petitioner’s claim faces a procedural bar on
three separate bases.
First, although Petitioner challenged on direct appeal the
trial court’s admission of evidence regarding Petitioner’s status
as a registered sex offender, he relied entirely on state law in
making that argument, and did not frame the issue in federal
constitutional terms:
The [s]tate presented evidence that [Petitioner] was a
registered sex offender and had been in prison,
presumably for some sort of sex crime. This was plain
error.
. . .
This case is controlled by State v. Martinez, 21[2] N.C.
App. 661, 711 S.E.2d 787 (2011), and State v. Giddens,
199 N.C. App. 115, 681 S.E.2d 504 (2009). In Martinez,
a statutory rape case, a social worker testified that the
complainant had made a prior accusation against the
defendant and DSS substantiated abuse. 212 N.C. App. at
666, 711 S.E.2d at 789.
This [c]ourt found this
testimony to be improperly admitted and ordered a new
trial. Id. The Martinez panel court relied on Giddens.
-7-
In Giddens, the testimony was from a social worker that
DSS had substantiated abuse. 199 N.C. App. at 119, 681
S.E.2d at 507.
This [c]ourt found admission of this
testimony to be improper and constituted plain error.
199 [N.C. App.] at 123, 681 S.E.2d at 509.
(Docket Entry 10-6 at 19-20 (emphasis added).)2
Moreover, the North Carolina Court of Appeals, in turn,
clearly interpreted Petitioner’s claim as one relying on state law:
[Petitioner] next argues that the trial court committed
plain error in allowing the [s]tate to present evidence
that he was a registered sex offender and that he had
been in prison. [Petitioner] argues that the [s]tate used
this evidence to substantiate Alice’s allegations of
sexual abuse. Again, as explained below, we disagree.
. . . [Petitioner] did not object to this evidence at
trial and we review it for plain error.
State v.
Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 846 (1995).
[Petitioner] argues that the trial court should have
excluded this evidence of his status and past criminal
activity, presumably under Rule 403 of the North Carolina
Rules of Evidence. Rule 403 states in pertinent part
that, “[a]lthough relevant, evidence may be excluded if
its probative value is substantially outweighed by the
danger of unfair prejudice.” N.C. R. Evid. 403. But it
is well-settled that “evidence, not part of the crime
charged but pertaining to the chain of events explaining
the context, motive, and set-up of the crime, is properly
admitted if linked in time and circumstance with the
charged crime.” State v. Agee, 326 N.C. 542, 548, 391
S.E.2d 171, 174 (1990).
Here, the evidence establishing that [Petitioner] was a
registered sex offender and had served time in prison was
introduced
as
necessary
background
to
explain
[Petitioner’s] relationship with his daughter. The jury
heard this evidence to understand why Alice was living
with her mother and visiting her father in the restricted
way that she did. Even if an objection had been made to
this evidence, the trial court would have been well
2
Even if the Court of Appeals could have “read beyond [Petitioner’s] brief
. . . that d[id] not alert it to the presence of a federal claim[,]” Baldwin, 541
U.S. at 32, the two cases cited by Petitioner in that brief relied upon state law
to reach their respective holdings, see Martinez, 212 N.C. App. at 664-66, 711
S.E.2d at 789-90; Giddens, 199 N.C. App. at 120-23, 681 S.E.2d at 507-09.
-8-
within its sound discretion to overrule the objection.
Accordingly, we find no error, and certainly no plain
error, in the trial court’s admission of this evidence.
Broyal, 2016 WL 4608201, at *4 (emphasis added).
Thus, Petitioner did not present “face-up and squarely” to the
Court of Appeals any federal “controlling legal principles” to
support his claim that the trial court improperly admitted evidence
of his status as a registered sex offender, Baker, 220 F.3d at 289.
Furthermore, because the Court of Appeals would have had to “read
beyond [Petitioner’s] brief . . .
that d[id] not alert it to the
presence of a federal claim[,]”
Petitioner “d[id] not ‘fairly
present’ [his federal] claim to [that] state court,” Baldwin, 541
U.S.
at
32.
procedural
Accordingly,
bar.
See
Petitioner’s
Breard,
134
F.3d
Ground
at
615
One
faces
(noting
a
that
“procedural default also occurs when a habeas petitioner fails to
exhaust available state remedies and ‘the court to which the
petitioner would be required to present his claims in order to meet
the exhaustion requirement would now find the claims procedurally
barred’” (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1
(1991)));
see
also
N.C.
Gen.
Stat.
§§
15A-1419(a)(3)
&
(b)
(requiring denial of claim by MAR court when the petitioner could
have raised the claim on direct appeal but did not do so); Lawrence
v. Branker, 517 F.3d 700, 714 (4th Cir. 2008) (deeming N.C. Gen.
Stat. §§ 15A-1419(a)(3) and (b) generally adequate and independent
state grounds precluding federal habeas review).
Second, Petitioner’s trial counsel objected neither to the
prosecutor’s discussion of Petitioner’s status as a registered sex
-9-
offender in the opening statement and closing argument (see Docket
Entry 10-11 at 276, 754, 756), nor to testimony from multiple
witnesses regarding that status (see id. at 289, 290, 397-98, 414,
549, 560). As a result, the Court of Appeals reviewed Petitioner’s
assignment of error contesting the admission of such discussion and
testimony for plain error, Broyal, 2016 WL 4608201, at *4.
“Where
a petitioner fails to comply with a state procedural requirement,
such as the requirement of contemporaneous objection at trial to
preserve an issue for appeal, and the failure provides adequate and
independent grounds for the state court’s denial of relief, federal
review of the issue will also be barred where the state has
expressly relied on procedural default.”
3:07cv290,
2010
WL
5092247,
at
*
11
Byers v. Hathaway, No.
(W.D.N.C.
Sept.7, 2010)
(unpublished) (citing, inter alia, Coleman, 501 U.S. at 722, Harris
v. Reed, 489 U.S. 255 (1989), Murray v. Carrier, 477 U.S. 478
(1986), and Wainwright v. Sykes, 433 U.S. 72 (1977)). Accordingly,
the Court of Appeals’ plain error review of Petitioner’s sexoffender-based claim results in an additional basis for procedural
default of that claim.
See Daniels v. Lee, 316 F.3d 477, 487–88
(4th Cir. 2003) (finding federal habeas claim procedurally barred
where the petitioner failed to object at trial, resulting in plain
error review of claim in North Carolina Supreme Court); Hinkle v.
Randle, 271 F.3d 239, 244 (6th Cir. 2001) (“We have held that [a]
contemporaneous objection rule . . . bars federal habeas review
absent a showing of cause and prejudice . . . .
-10-
Moreover, we view
a state appellate court’s review for plain error as the enforcement
of a procedural default.”).
Third,
Petitioner
neither
challenged
the
prosecution’s
discussion in opening and closing of Petitioner’s status as a
registered sex offender, nor the testimony of multiple witnesses
regarding such status, in his PDR to the North Carolina Supreme
Court.
(See Docket Entry 10-9.)
As Petitioner must “raise his
claim before every available state court, including those courts
. . . whose review is discretionary.”
Jones, 591 F.3d at 713
(emphasis added), Petitioner’s failure to assert the sex offenderbased
claim
in
his
PDR
results
in
an
additional
basis
for
procedural default of that claim, see O’Sullivan, 526 U.S. at 847
(holding that, to fully exhaust state remedies, “state prisoners
[must] file [PDRs] when that review is part of the ordinary
appellate review procedure in the [s]tate”).
Furthermore,
Petitioner
did
not
file
any
response
to
Respondent’s instant Motion (see Docket Entries dated Jan. 29,
2018, to present), and, thus, has shown neither cause and prejudice
nor a fundamental miscarriage of justice sufficient to excuse his
default, see McCarver v. Lee, 221 F.3d 583, 588 (4th Cir. 2000)
(“Federal habeas review of a state prisoner’s claims that are
procedurally
defaulted
under
independent
and
adequate
state
procedural rules is barred unless the prisoner can show cause for
the default and demonstrate actual prejudice as a result of the
alleged violation of federal law, or prove that failure to consider
the claims will result in a fundamental miscarriage of justice.”).
-11-
In
sum,
Petitioner’s
lone
claim
faces
a
procedural
bar
precluding this Court’s review.
VI. Conclusion
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
June 26, 2018
-12-
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