ALI v. SAPPER

Filing 11

MEMORANUDM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 7/13/2018. 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. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ABDULKADIR SHARIF ALI,
Petitioner,
v.
ERIC A. HOOKS,
Respondent.

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1:17CV1034

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 4, 5.) For the reasons that follow, the

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

Background

On August 8, 2014, a jury in the Superior Court of Guilford
County found Petitioner, along with his co-defendant Ali Mahamed
Sheikh, guilty of attempted robbery with a dangerous weapon,
conspiracy to commit robbery with a dangerous weapon, assault with
a

deadly

weapon

inflicting

serious

injury,

and

first

degree

burglary in cases 13 CRS 100094, 100098, 10099, and 14 CRS 24118.
(See Docket Entry 1, ¶¶ 1, 2, 4-6; see also Docket Entry 5-6 at 3138; Docket Entry 5-13 at 815-28.)1

The trial court sentenced

Petitioner and his co-defendant Sheikh to identical sentences of

1
Respondent attached to his brief in support of his instant Motion
documents from Petitioner’s state criminal proceedings (see Docket Entries 5-2
to 5-13), the authenticity of which Petitioner has not contested (see Docket
Entries 6, 8, 9). This Memorandum Opinion cites to those items by the page
number in their CM/ECF footers.

(1) 59 to 83 months in prison for their respective, consolidated
robbery convictions; (2) 59 to 83 months, served consecutively, for
their respective burglary convictions; and (3) 23 to 40 months,
served consecutively, for their respective assault convictions.
(See Docket Entry 1, ¶ 3; see also Docket Entry 5-6 at 41-46, 5156; Docket Entry 5-13 at 840-41, 853-54).
Petitioner appealed to the North Carolina Court of Appeals,
and retained appellate counsel.

(See Docket Entry 1, ¶¶ 8, 9,

16(e); Docket Entry 5-6 at 65-66, 68.) The North Carolina Court of
Appeals found no error in Petitioner’s convictions and sentences,
State v. Sheikh, No. COA-15-688, 786 S.E.2d 433 (table), 2016 WL
1744651, at *2 (May 3, 2016) (unpublished), the North Carolina
Supreme Court denied Petitioner’s petition for discretionary review
(“PDR”), State v. Sheikh, 369 N.C. 39 (2016),2 and the United
States Supreme Court denied Petitioner’s petition for a writ of
certiorari, Ali v. North Carolina, ___ U.S. ___, 137 S. Ct. 1218
(2017).
Next, Petitioner, still proceeding through appellate counsel,
filed a MAR with the trial court.

(Docket Entry 5-12.)

While

Petitioner’s MAR remained pending with the trial court, Petitioner,
through counsel, instituted this action via his Petition.
Entry 1.)

(Docket

Thereafter, Respondent filed the instant Motion and

Supporting Brief.

(Docket Entries 4, 5.)

Shortly thereafter, the

2
In that same order, the North Carolina Supreme Court additionally allowed
Petitioner’s Motion to Amend Petition for Discretionary Review. Sheikh, 369 N.C.
at 39.

-2-

trial

court

denied

Petitioner’s

MAR.

(Docket

Entry

9-1.)3

Petitioner subsequently responded in opposition to Respondent’s
instant Motion (Docket Entries 6, 8, 9), and Respondent replied
(Docket Entry 10).
II. Facts
On

direct

appeal,

the

North

Carolina

Court

of

Appeals

summarized the trial evidence as follows:
On 19 November 2013, [the victim] traveled to Greensboro,
North Carolina, on a business trip. He left his hotel
room that evening and went to Christie’s Cabaret, where
he had a few drinks and paid for private dances with the
club’s employees. After spending much of his time with
one of the club’s dancers, Jessica Salinas, he invited
her to his hotel room after she got off work. While Ms.
Salinas was talking with [the victim] at the club, she
noticed he had a lot of cash with him.
After their conversation ended, Salinas discussed with
two of her co-workers, Sommer Painter and Heaven
Shoffner, her intention to rob [the victim] in his hotel
room after she got off work. Painter told Salinas she
knew someone who could rob [the victim] and split the
money with them. Painter testified that this person was
[co-]defendant Sheikh who was her drug dealer.
After the three dancers left work, they went to Painter’s
apartment, where they arrived around 3:15 a.m. or shortly
thereafter.
Shoffner eventually left with Salinas to
drive Salinas to [the victim’s] hotel room.
[Cod]efendant Sheikh arrived later with [Petitioner], whom
he introduced to Painter as his cousin. Painter came up
with a plan to drive to [the victim’s] hotel room, where
Salinas
would
let
the
[co-defendant Sheikh
and
Petitioner] in to commit the robbery. After about 10 or
15 minutes had passed, Shoffner returned to Painter’s
apartment. Painter and [co-]defendant Sheikh then drove
in his car to [the victim’s] hotel, with [Petitioner]
following in a different car. Painter and Salinas were
communicating through text messages at that time,

3
On the same day, the trial court also denied Petitioner’s “Motion for
Order Designating a Superior Court Judge from Outside Guilford County to Consider
[Petitioner’s] [MAR].” (Docket Entry 10-1 at 4-5.)

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planning for the robbery upon [co-defendant Sheikh and
Petitioner’s] arrival at [the victim’s] hotel.
When Salinas first arrived at [the victim’s] hotel, she
went to a side entrance where she propped a door open to
allow [co-defendant Sheikh and Petitioner] to enter.
Once inside [the victim’s] room, she went to the bathroom
to exchange text messages with Painter, letting her know
that she was ready to let [co-defendant Sheikh and
Petitioner] into the hotel room.
When [co-defendant
Sheikh and Petitioner] arrived at the hotel, they
proceeded to [the victim’s] room, and Salinas came out of
the bathroom to unlatch the door. The two men, with [co]defendant Sheikh wearing a clown mask, but [Petitioner]
undisguised, then pushed their way into the hotel room.
Although the room was dark, [the victim] testified that
he could see [co-defendant Sheikh and Petitioner]
standing next to the bed where he was laying.
[The
victim] claimed he heard a gun click, causing him to jump
off the bed and tussle with the man with the gun. During
the struggle, the man hit [the victim] in the head with
the gun, causing the clip of the gun to fall on the
floor. [The victim] managed to get away to the hotel
lobby where he told the receptionist to call the police
— he left a trail of blood from his hotel room. Because
[the victim] had hidden most of his cash inside his boot,
the two assailants only managed to take a duffel bag
containing [the victim’s] clothes from the room.
After
the
robbery,
[co-]defendant[]
Sheikh
and
[Petitioner] ran out of the hotel, but [Petitioner] fell
and “dropped a bunch of stuff” on his way to the car in
which he had arrived. That car sped off as soon as he
jumped inside.
[Co-d]efendant Sheikh, “covered in
blood,” got into his car where Painter was waiting. Once
inside the car, he told Painter that he had struck [the
victim] in the head with his gun, causing the clip to
fall out. Salinas meanwhile exited the hotel and hid in
some nearby woods until Shoffner picked her up. When
Salinas arrived back at Painter’s apartment, [co]defendant Sheikh was there with a bloody mask and a
duffel bag containing clothes.
After police investigated the incident, they determined
that Salinas was the dancer who had visited [the
victim’s] hotel room. After arresting and questioning
Salinas, she implicated Painter and Shoffner, and the two
other women were also eventually arrested. Each dancer
was charged with armed robbery, conspiracy to commit
armed robbery, burglary, and assault with a deadly weapon
inflicting serious injury. During their interrogations,
Salinas, Painter, and Shoffner were able to collectively
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identify [co-]defendant[] Sheikh and [Petitioner] in
photo lineups. As part of the women’s plea arrangements,
each dancer pled guilty to only conspiracy to commit
armed robbery. [Co-d]efendant[] Sheikh and [Petitioner]
were also eventually arrested and indicted for assault
with a deadly weapon inflicting serious injury [],
robbery with a dangerous weapon, first degree burglary,
and conspiracy to commit robbery with a dangerous weapon.
Sheikh, 2016 WL 1744651, at *1-2.
III.

Grounds for Relief

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

(See

Specifically, he alleges:

1) the trial court “violated Petitioner’s right to Due Process
by

engaging

in

independent

investigation

before

imposing

a

sentence, without knowledge of Petitioner” (id., ¶ 12 (GROUND
ONE)); and
2) “[t]he [North Carolina] Court of Appeals used the incorrect
standard to evaluate Petitioner’s contentions set forth in Ground
One” (id., ¶ 12 (GROUND TWO)).
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

.

.

.

is
-5-

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.”).4
When a petitioner has exhausted state remedies, this Court
must apply a highly deferential standard of review in connection
with habeas claims “adjudicated on the merits in State court
proceedings,” 28 U.S.C. § 2254(d).

More specifically, the Court

may not grant relief unless a state court decision on the merits
“was contrary to, or involved an unreasonable application of
clearly established Federal law, as determined by the Supreme Court
of the United States; or . . . was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.”

Id.

To qualify as “contrary to”

United States Supreme Court precedent, a state court decision
either must arrive at “a conclusion opposite to that reached by
[the

United

States

Supreme]

Court

on

a

question

of

law”

or

“confront[] facts that are materially indistinguishable from a
relevant [United States] Supreme Court precedent and arrive[] at a
result opposite” to the United States Supreme Court.

Williams v.

Taylor, 529 U.S. 362, 406 (2000). A state court decision “involves
an unreasonable application” of United States Supreme Court case
law “if the state court identifies the correct governing legal rule
from [the United States Supreme] Court’s cases but unreasonably

4
The Court may deny a claim on the merits despite a lack of exhaustion.
See 28 U.S.C. § 2254(b)(2).

-6-

applies it to the facts of the particular state prisoner’s case.”
Id. at 407; see also id. at 409–11 (explaining that “unreasonable”
does not mean merely “incorrect” or “erroneous”).
V.

Discussion

In Ground One, Petitioner contends that the trial court
“violated

Petitioner’s

independent

right

investigation

knowledge of Petitioner.”

to

before

Due

Process

imposing

a

by

engaging

sentence,

in

without

(Docket Entry 1, ¶ 12 (GROUND ONE)(a).)5

In particular, Petitioner asserts that, under “clearly established
federal constitutional law, decided by the United States Supreme
Court, . . . the self-initiated investigation by the trial judge
into unrelated files entitles [] Petitioner to a new sentencing
hearing, whether or not [the trial judge] actually based his
sentencing decision on the information he saw.” (Docket Entry 8 at
2 (citing Tumey v. Ohio, 273 U.S. 510 (1927)).)
Via Ground Two, Petitioner contends that the North Carolina
Court of Appeals unreasonably applied Tumey in denying his parallel
claim on direct appeal by requiring Petitioner to show that the
trial court actually relied on improper information in sentencing
Petitioner.

(See Docket Entry 1, ¶ 12 (GROUND TWO); see also

Docket Entry 8 at 2-4.)
Carolina

Court

of

According to Petitioner, the North

Appeals’s

subjective

standard

“entitle[s]

[Petitioner] to subpoena [the trial judge] and ask him on the

5
As both Ground One and Ground Two assert error arising out of the trial
court’s alleged consideration of improper information at sentencing (see Docket
Entry 1, ¶ 12 (GROUND ONE) & (GROUND TWO)), this Recommendation will discuss
those grounds together.

-7-

witness stand[] what his sentence decision was based on” (Docket
Entry

8

at

unnecessary

3),

but

“the

confrontations

objective
between

standard

lawyers

of

and

Tumey

avoids

judges”

(id.).

Petitioner requests that the Court remand this matter to the North
Carolina Court of Appeals to “take a second look at the Due Process
issue.”

(Id. at 4.)

Those contentions fall short.

Petitioner bases his grounds for relief on the following
discussion between the trial court, Petitioner, and Petitioner’s
trial counsel:
T[RIAL] COURT: You indicated that – I looked at the court
file this morning, and of course our calendar, and there
appeared to be four other sets of charges pending. Are
they all being dismissed?
[PETITIONER’S TRIAL COUNSEL]: That’s my understanding
Your Honor.
. . .
[PETITIONER]: I’ve never victimized anyone man, never in
my life, never victimized anyone, man.
T[RIAL] COURT: Well, let me ask you this.
The
information during your closing and during the trial is
these defendants didn’t know each other, but it appears
they were arrested on the same day on the same charge, so
certainly they knew each other.
[PETITIONER’S TRIAL COUNSEL]: Acquaintances, Your Honor.
They’re acquaintances.
T[RIAL] COURT: Well, there’s also evidence – you’ve just
indicated he is a U.S. citizen, and again I’m just trying
to reconcile what I saw in the files – I look at it while
I’m waiting for the jury to speak – and it said that he
was being investigated by some federal agents. Do you
know anything about that?
[PETITIONER]: Confusion with this Ali, confusion with
this Ali gentleman, man.
[PETITIONER’S TRIAL COUNSEL]: I don’t know anything about
that, Your Honor. I’ve not received any contact either
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from [Immigration and Naturalization Services] or someone
else that there’s a detainer that is pending or -[PETITIONER]: That’s the gentleman that was just
sentenced, sir, it was not me. I brought documentation
to my lawyer about my naturalization back in 2003. They
keep confusing me with this fellow because of the names.
I’ve never wanted to victimize anyone, never have
victimized anyone, never will victimize anyone, and those
matters pending, the pending allegations that happened -T[RIAL] COURT: And it also said that he had multiple fake
IDs, and again, I just want to find out what that was
about. Do you know anything about that . . .?
[PETITIONER’S TRIAL COUNSEL]: No, Your Honor. I don’t
think he’s charged with identity theft, to my knowledge,
or anything to that effect. I do have a copy of his
naturalization certificate.
T[RIAL] COURT: I just wanted to try to reconcile what I’d
seen in the court file versus what you had indicated to
the jury.
(Docket Entry 5-13 at 847-48.)
Petitioner raised the substance of Ground One on direct appeal
(see Docket Entry 5-7 at 40-42; see also Docket Entry 5-9 at 5-9),
and the North Carolina Court of Appeals rejected his claim as
follows:
[Petitioner] argues that [] the trial court violated his
rights to due process by considering evidence in his
sentencing hearing that disturbed the presumption of
innocence . . . . We do not agree . . . .
While the trial court asked questions about information
he believed he saw in [Petitioner’s] court file,
[Petitioner] has failed to show that the trial court
actually based the sentence imposed on [Petitioner] on
any improper factor.

-9-

Sheikh, 2016 WL 1744651, at *8 (emphasis added).6

Petitioner

raised the substance of Ground Two in his PDR and amended PDR filed
in the North Carolina Supreme Court (see Docket Entry 5-10 at 1216, 28-34), which that court summarily denied, Sheikh, 369 N.C. at
39.
Plaintiff’s exclusive reliance on the United States Supreme
Court’s 1927 decision in Tumey in support of Ground Two ignores
multiple cases the Supreme Court has issued involving claims of
judicial bias in the years since Tumey.

Indeed, contrary to

Petitioner’s allegation that the North Carolina Court of Appeals
erred in requiring Petitioner to show that the trial court actually
relied on improper information in sentencing Petitioner (see Docket
Entry 1, ¶ 12 (GROUND TWO); see also Docket Entry 8 at 2-4), the
United

States

Supreme

Court

has

made

clear

situations give rise to a presumption of bias.

that

only

some

See Withrow v.

Larkin, 421 U.S. 35, 47 (1975) (“[V]arious situations have been
identified in which experience teaches that the probability of
actual bias on the part of the judge or decisionmaker is too high
to

be

constitutionally

tolerable.”).

More

specifically,

the

Supreme Court has identified three situations which give rise to s
presumption of bias: “(1) the decision maker has a direct personal,
substantial, and pecuniary interest in the outcome of the case; (2)
an adjudicator has been the target of personal abuse or criticism
6
Petitioner also raised the substance of Ground One in his MAR (see Docket
Entry 5-12), and the MAR court denied that claim on grounds of procedural default
and, alternatively, on the same grounds as the North Carolina Court of Appeals,
i.e., that Petitioner had “failed to show that the trial court actually based the
sentence imposed on [Petitioner] on any improper factor.” (Docket Entry 10-1 at
2 (emphasis added).)

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from the party before him; and (3) a judicial or quasi judicial
decision maker has the dual role of investigating and adjudicating
disputes and complaints.” Buntion v. Quarterman, 524 F.3d 664, 672
(5th Cir. 2008) (quoting Bigby v. Dretke, 402 F.3d 551, 559 (5th
Cir. 2005) (in turn citing Aetna Life Ins. Co. v. Lavoie, 475 U.S.
813, 824-25 (1986), Withrow, 421 U.S. at 47, and In re Murchison,
349 U.S. 133, 139 (1955))).

Because Petitioner’s contention that

the trial court considered improper information during sentencing
does not fall within any of those three categories of presumptive
bias, the North Carolina Court of Appeals did not contradict or
misapply Tumey and its progeny merely by considering whether
Petitioner had shown that the trial judge had actually relied on
any improper information at sentencing. See Bigby, 402 F.3d at 560
(noting that,

because

no presumption

of

bias

arose

from the

defendant’s attack on trial judge, the court must “examine the
record for indications of actual bias on the part of the trial
judge” (emphasis added)).
Likewise,
contradict

or

the

North

Carolina

unreasonably

apply

Court
Tumey

of
and

Appeals
its

did

progeny

not
in

concluding that Petitioner failed to show that the trial court
actually relied on any improper factor.

Although the trial court

asked Petitioner’s trial counsel about the disposition of “four
other sets of charges pending” (Docket Entry 5-13 at 847), a trial
court’s consideration during sentencing of pending but unrelated
charges against a defendant does not violate due process, see
Potter v. Yukins, 6 F. App’x 295, 297 (6th Cir. 2001) (holding that

-11-

sentencing

“court

may

properly

consider

[a]

defendant’s

past

conduct in determining punishment, including evidence of crimes for
which the defendant has not yet been convicted”); Bourgeois v.
Whitley, 784 F.2d 718, 720 (5th Cir. 1986) (ruling that sentencing
court may properly consider evidence of crimes for which the
defendant has been indicted but not convicted).
Similarly, although the trial court inquired of Petitioner’s
trial counsel as to whether Petitioner “was being investigated by
some federal agents” (Docket Entry 5-12 at 847) and whether he
possessed

“multiple

fake

IDs”

(id.

at

848),

in

response,

Petitioner’s trial counsel indicated that he had no knowledge of
any detainer, that INS had not contacted him regarding Petitioner,
that

he

possessed

a

copy

of

Petitioner’s

naturalization

certificate, and that the state had not charged Petitioner with
identity theft (id.).

Petitioner also informed the trial court

that the information about a federal agent investigation pertained
to his co-defendant Sheikh.

(Id.)

At the conclusion of that

discussion, the trial judge stated that he “wanted to try and
reconcile

what

[he

had]

seen

in

the

court

file

versus

[Petitioner’s trial counsel] had indicated to the jury.”

what
(Id.)

Those circumstances, including particularly the fact that the trial
court allowed Petitioner and his trial counsel to clarify matters,
do not demonstrate any impropriety.
The Supreme Court has “acknowledge[d] that what degree or kind
of interest is sufficient to disqualify a judge from sitting
‘cannot be defined with precision.’”

-12-

Aetna Life Ins. Co. v.

Lavoie, 475 U.S. 813, 822 (1986) (quoting In re Murchison, 349 U.S.
133, 136 (1955)).

Thus, “[a]pplication of this vague standard,

when viewed through the deferential lens of Williams v. Taylor and
the [Antiterrorism and Effective Death Penalty Act of 1996],
necessarily leaves state courts considerable latitude to pronounce
rulings that do not contradict, and are reasonable applications of,
Murchison and Tumey.”
Cir. 2004).

Ryan v. Clarke, 387 F.3d 785, 793-94 (8th

In this case, Petitioner has fallen far short of

establishing that the North Carolina Court of Appeals (or for that
matter, the MAR court) contravened or unreasonably applied clearly
established authority from the United States Supreme Court.
Accordingly, Petitioner’s grounds for relief fail as a matter
of law.
VI. Conclusion
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.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 13, 2018

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