HAIZLIP v. VALLIERE
Filing
11
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 01/14/2019, that Respondent's Motion for Summary Judgment (Docket Entry 5 ) be granted and that judgment be entered against Petitioner in this action without issuance of a certificate of appealability.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DWAYNE DEMONT HAIZLIP,
Petitioner,
v.
JOSEPH VALLIERE,
Respondent.
)
)
)
)
)
)
)
)
)
1:18CV187
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner of the State of North Carolina, seeks
a writ of habeas corpus via 28 U.S.C. § 2254.
(Docket Entry 1.)
For the reasons that follow, this Court should deny relief.
I.
Background
After a jury found Petitioner guilty of trafficking in 200
grams or more, but less than 400 grams, of cocaine by possession
and
by
transportation
in
cases
11CRS87052
and
12CRS24119,
Petitioner pleaded guilty to attaining habitual felon status in
case 11CRS24787, and the Superior Court of Guilford County entered
a consolidated judgment imposing a term of 127 to 162 months in
prison.
(Id., ¶¶ 1, 3-6; see also Docket Entry 6-3 at 26-35.)1
The North Carolina Court of Appeals affirmed.
State v. Haizlip,
No. COA12-1289, 228 N.C. App. 140 (table), 746 S.E.2d 21 (table),
2013
WL
3049129
(Jun.
18,
2013)
(unpublished).
Thereafter,
Petitioner neither sought review in the North Carolina Supreme
1
Throughout this Recommendation, pin citations to page numbers refer to
the page numbers in the footer appended to those materials at the time of their
docketing in the CM/ECF system.
Court (Docket Entry 1, ¶ 9(g)), nor filed a petition for certiorari
in the United States Supreme Court (id., ¶ 9(h)).
Approximately four years after the Court of Appeals denied
Petitioner’s direct appeal, Petitioner filed a pro se motion for
appropriate relief (“MAR”) in the trial court (Docket Entries 6-7,
6-8; see also Docket Entry 1, ¶¶ 10, 11(a)(1)-(6)), which that
court
denied
(Docket
¶ 11(a)(7), (8).)
Entry
6-9;
see
also
Docket
Entry
1,
Petitioner then filed a pro se certiorari
petition with the Court of Appeals seeking review of his MAR’s
denial (Docket
Entries
6-10,
6-11;
see
also Docket
Entry 1,
¶ 11(b)(1)-(6)), which that court summarily denied (Docket Entry 612; see also Docket Entry 1, ¶ 11(b)(7), (8)).
Petitioner subsequently instituted this action by filing a
form
Petition
under
28
U.S.C.
§
2254.
Respondent has moved for summary judgment.
also
Docket
Entry
6
(Respondent’s
Petitioner has responded.
(Docket
Entry
1.)
(Docket Entry 5; see
summary
judgment
brief).)
(Docket Entry 8 (stating, in document
entitled “Response to Respondent’s Motion for Summary Judgment,”
that Petitioner
material
fact,”
“agrees
but
that
there
contends,
for
are
no genuine
reasons
issues
“shown
in
of
the
accompanying Supporting Brief, . . . that the Motion for Summary
Judgment filed by [] Respondent should be denied and [s]ummary
[j]udgment be entered in favor of [] Petitioner”); see also Docket
Entry 9 (Supporting Brief of Petitioner).)
-2-
II.
On
direct
appeal,
the
Facts
North
Carolina
Court
of
Appeals
summarized the trial evidence as follows:
On 7 September 2011, Greensboro police conducted
surveillance of a house to investigate a complaint of
drug activity. [Petitioner] and several others attempted
to flee in a vehicle parked outside of the house. The
officers pursued the vehicle.
When the car finally
stopped, [Petitioner] continued to flee on foot.
The
officers eventually located and arrested [Petitioner].
After detaining [Petitioner], the officers called in a
K-9 unit to search his flight path. A bag containing
five smaller plastic bags filled with white powder was
found along [Petitioner’s] flight path.
The officers
submitted the white powder and the bags to the State
Bureau of Investigation (SBI), and an SBI agent testified
that the white powder was 248.2 grams of cocaine.
Haizlip, 2013 WL 3049129, at *1.
III.
Grounds for Relief
The Petition raises three grounds for relief:
(1) “The enactment of the mandatory Drug Trafficking sentence
is protected by [a] ‘Liberty Interest[]’ emanating from the Due
Process of Law Clause of the 14th Amendment” (Docket Entry 1, ¶ 12
(Ground
One))
and,
“[p]ursuant
to
N.C.
Gen.
Stat.
[§]
90-
95(h)(3)b., Trafficking in 200-400 grams of cocaine requires a
mandatory sentence of 70-84 months, in spite of any other provision
of law except substantial assistance[ but t]he state increased []
Petitioner’s mandatory sentence to 127-162 months by using the
Habitual Felon Act” (id., ¶ 12(Ground One)(a));
(2)
“The
use
of
the
Habitual
Felon
Act
to
enhance
the
mandatory Punishment for Petitioner[’]s Drug Trafficking sentence
violates the Petitioner[’]s Fair Notice rights, emanating from the
-3-
Due Process Clause of the 14th Amendment” (id., ¶ 12 (Ground Two));
and
(3) “Petitioner[’]s [t]rial and [a]ppellate attorney[]s both
rendered him an ineffectiveness [sic] assistance of counsel by not
asserting
the
mandatory
sentence
for
[Petitioner’s]
Drug
Trafficking is protected by Liberty Interest[ a]nd [] Petitioner
was not put on Fair Notice by the [North Carolina] legislature, in
that the Habitual Felon Act could be used under Chapter 90 Article
5
as an
exception
to enhance
the mandatory
Drug
Trafficking
sentence” (id., ¶ 12 (Ground Three)(a)).
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. . . .
The exhaustion doctrine . . . is now
codified at 28 U.S.C. § 2254(b)(1).”
U.S. 838, 842 (1999).
O’Sullivan v. Boerckel, 526
In addition, this Court must apply a highly
deferential standard of review in connection with any habeas claim
“adjudicated on the merits in State court proceedings,” 28 U.S.C.
§ 2254(d).
More specifically, the Court may not grant relief on
any such habeas claim unless the underlying state court decision on
the
merits
“was
contrary
to,
or
involved
an
unreasonable
application of clearly established Federal law, as determined by
-4-
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.”
§
2254(e)(1)
(establishing,
in
Id.; see also 28 U.S.C.
federal
habeas
proceedings,
presumption of correctness as to state court factual findings,
subject to rebuttal only by “clear and convincing evidence”).
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
materially
question
of
law”
indistinguishable
or
from
“confront[]
facts
a
[United
relevant
that
are
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 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”); see also Cullen v. Pinholster,
563 U.S. 170, 181 (2011) (holding that Section 2254(d) imposes “a
difficult to meet and highly deferential standard . . ., which
demands that state-court decisions be given the benefit of the
doubt”
and
that
a
“petitioner
carries
the
burden
(internal citations and quotation marks omitted)).
-5-
of
proof”
V.
Discussion
A. Grounds One and Two2
Via Grounds One and Two, Petitioner contends that the trial
court’s application of the Habitual Felon Act, N.C. Gen. Stat.
§§
14-7.1,
et
seq.,3
to
increase
Petitioner’s
mandatory
drug
trafficking sentence under N.C. Gen. Stat. § 90-95(h)(3)b. from 70
to 84 months to 127 to 162 months in prison violated both a
“‘Liberty Interest[]’” (Docket Entry 1, ¶ 12 (Ground One)), and his
“Fair Notice rights, emanating from the Due Process Clause of the
14th Amendment” (id., ¶ 12 (Ground Two)).
In support of those
arguments, Petitioner relies primarily on the language of Section
2
Because Grounds One and Two of the instant Petition both challenge the
constitutionality of trial court’s habitual felon enhancement of Petitioner’s
mandatory drug trafficking sentence, this Recommendation will address them
together. Of note, Petitioner raised the substance of Grounds One and Two in a
direct appeal of other drug-related convictions, and the North Carolina Court of
Appeals denied that appeal on the merits, this Court denied Petitioner’s
subsequent Section 2254 Petition on the merits, the United States Court of
Appeals for the Fourth Circuit dismissed his appeal, and the United States
Supreme Court denied certiorari. See State v. Haizlip, No. COA13-1286, 235 N.C.
App. 425 (table), 763 S.E.2d 927 (table), 2014 WL 3824248, at *6-7 (Aug. 5, 2014)
(unpublished), review denied, 367 N.C. 796, 766 S.E.2d 660 (2014); Haizlip v.
Poole, No. 1:15CV417, 2016 WL 225664, at *2-7 (M.D.N.C. Jan. 19, 2016)
(unpublished), recommendation adopted, slip op. (M.D.N.C. Mar. 25, 2016)
(Schroeder, J.), appeal dismissed, 669 F. App’x 673 (4th Cir. 2016), cert.
denied, ___ U.S. ___, 137 S. Ct. 1824, 2017 WL 915419 (Apr. 24, 2017).
As
Respondent argues, although in the “above cited cases, Petitioner characterized
his claims as a violation of the ‘rule against leni[t]y,’ they are still the same
basic underlying claims, i.e., [that] due process prohibits the enhancement of
his mandatory drug trafficking sentences by the habitual felon law.” (Docket
Entry 6 at 3.)
3
In North Carolina, an “habitual felon” means “[a]ny person who has been
convicted of or pled guilty to three felony offenses in any federal court or
state court in the United States or combination thereof.”
N.C. Gen. Stat.
§ 14-7.1. “[W]hen one who has already attained the status of an habitual felon
is indicted for the commission of another felony, that person may then be also
indicted in a separate bill as being an habitual felon.” State v. Allen, 292
N.C. 431, 433, 233 S.E.2d 585, 587 (1977). “Being an habitual felon is not a
crime but is a status the attaining of which subjects a person thereafter
convicted of a crime to an increased punishment for that crime.” Id. at 435, 233
S.E.2d at 588.
-6-
90-95(h),
which
he
contends
reflects
the
state’s
“mandatory
directive” (Docket Entry 9 at 3) regarding the maximum sentence
allowed for trafficking in 200 to 400 grams of cocaine (id. at 23).4
According to Petitioner, the MAR court (and/or the North
Carolina Court of Appeals), in denying the parallel claims in his
MAR, “blatant[ly] disregard[ed]” precedent from the United States
Court of Appeals for the Fourth Circuit in Prieto v. Clark, 780
F.3d 245, 248 (4th Cir. 2015) (noting that, “[i]n the late 70s and
early 80s, the [United States Supreme] Court broadly defined statecreated interests, holding that any mandatory state directive
created a state law liberty interest triggering procedural Due
Process protections” (in turn citing Hewitt v. Helms, 459 U.S. 460
(1983), Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442
U.S. 1 (1979))).
(Docket Entry 9 at 5.)
Petitioner further asserts that the introductory language of
Section 90-95(h), “[n]otwithstanding any other provision of law,
the following provisions apply except as otherwise provided in
[Article
5,
the
North
Carolina
Controlled
Substances
Act,]”
bolsters his position, because “[t]he [North Carolina] Legislature
did not include the habitual felon sentence . . . as an exception
4
Section 90-95(h) provides as follows:
Any person who . . . transports[] or possesses 28 grams or more of
cocaine . . . shall be guilty of a felony . . . known as
“trafficking in cocaine” and if the quantity of such substance or
mixture involved . . . [i]s 200 grams or more, but less than 400
grams, such person shall be punished as a Class F felon and shall be
sentenced to a minimum term of 70 months and a maximum term of 84
months in . . . prison.
N.C. Gen. Stat. § 90-95(h) (2011) (emphasis added).
-7-
that gives the state sentencing court the authority to impose a
habitual felon sentence despite the mandatory term of 70 to 84
months for 200 to 400 grams of cocaine.”
(Id. at 3 (quoting N.C.
Gen. Stat. § 90-95(h) (2011) (emphasis added)); see also id. at 4
(noting that “the habitual felon statutes do not apply because
[they are] not provided in Article 5 Chapter 90” but rather in
“Article 2A Chapter 14 in the general laws of [North Carolina]”
(internal quotation marks omitted)).) Thus, Petitioner argues that
Section 90-95(h) “does not put [] Petitioner . . . on Fair Notice
[] that the [H]abitual [F]elon [A]ct can be used as an exception to
enhance his mandatory Drug Trafficking sentence.”
(Id. at 10; see
also id. at 10-13 (citing United States v. Batchelder, 442 U.S.
114, 123 (1979), Memphis Light, Gas & Water Div. v. Craft, 436 U.S.
1, 13 (1978), Wolff v. McDonnell, 418 U.S. 539, 563-64 (1974),
Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973), Morrissey v. Brewer,
408 U.S. 471, 486-87, 489 (1972), and Mullane v. Central Hanover
Trust Co., 339 U.S. 306, 314 (1950)).)
Petitioner also faults the MAR court (and/or the Court of
Appeals) for relying on State v. Eaton, 210 N.C. App. 142, 707
S.E.2d 642, review denied, 365 N.C. 202, 710 S.E.2d 25 (2011), in
denying the parallel claims in his MAR, because “[t]he Eaton court
cite[d] no authority for [its holding], arbitrarily affirming in
its discreation [sic] an habitual felon sentence, despite the
mandatory
state
directive
prescribed
by
the
[North
Carolina]
Legislature” (Docket Entry 9 at 5-6), and “contradict[ed] the
declarations in” three prior Court of Appeals decisions (id. at 6-8-
7).
Petitioner further maintains that the North Carolina Court of
Appeals’s opinion in Eaton “was contrary to, or an unreasonable
application of, clearly established federal law as determined by
the Supreme Court of the [United States].”
(Id. at 8 (citing
Prieto, Hewitt, Greenholtz, Hicks, Fetterly v. Paskett, 997 F.2d
1295, 1300 (9th Cir. 1993), Lambright v. Steward, 167 F.3d 447, 482
(9th Cir. 1999), Ballard v. Estelle, 937 F.2d 453, 456 (9th Cir.
1991)).)
Petitioner’s arguments fall short.
In moving for summary judgment, Respondent argues that the MAR
court correctly “adjudicat[ed] and deni[ed] [Petitioner’s instant
claims] on the merits.”
6-9).)
(Docket Entry 6 at 5 (citing Docket Entry
Thus, Respondent contends that this Court should deny
relief “under the highly deferential standards of review, contained
in 28 U.S.C. § 2254(d) and (e).”
(Id. at 6.)
Petitioner’s
response
specifically
contest
in
opposition
does
not
the
applicability of Section 2254(d) and (e) (see Docket Entry 9), but
he does fault the MAR court (and/or the Court of Appeals) for “not
address[ing] the Fair Notice argument” in his MAR (id. at 11).
However, the lack of express discussion of Petitioner’s fair notice
argument by those courts does not render Section 2254(d) and (e)
inapplicable, because, “[w]hen a state court rejects a federal
claim without expressly addressing that claim, a federal habeas
court must presume that the federal claim was adjudicated on the
merits[, and] . . . [that] presumption is a strong one that may be
rebutted only in unusual circumstances.”
Johnson v. Williams, 568
U.S. 289, 301 (2013); see also Harrington v. Richter, 562 U.S. 86,
-9-
99 (2011) (“When a federal claim has been presented to a state
court and the state court has denied relief, it may be presumed
that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to the
contrary.”).
Petitioner has not rebutted that presumption.
(See
Docket Entries 1, 8, 9.)
Further, Petitioner has misconstrued the habeas standard of
review set forth in Section 2254(d) by contending that the North
Carolina Court of Appeals’s opinion in Eaton “was contrary to, or
an unreasonable application of, clearly established federal law as
determined by the Supreme Court of the [United States].”
Entry 9 at 8.)
whether
the
(Docket
Under Section 2254(d), this Court must evaluate
state
court(s)
that
adjudicated
the
merits
of
Petitioner’s underlying habeas claims contradicted or unreasonably
applied clearly established Federal law as determined by the
Supreme Court of the United States.
the
Court
must
examine
the
MAR
28 U.S.C. § 2254(d).
court’s
decision
Thus,
denying
Petitioner’s parallel habeas claims (and/or the Court of Appeals’
order denying Petitioner’s certiorari petition seeking review of
his MAR’s denial) to determine whether those courts contravened or
unreasonably applied clearly established federal law.
Additionally, to the extent Petitioner contends that the MAR
court (and/or the Court of Appeals) erred by relying on Eaton,
because “[t]he Eaton court cite[d] no authority for [its holding]”
(id. at 5-6) and/or “contradict[ed] the declarations in” three
prior Court of Appeals decisions (id. at 6-7), such a contention
-10-
“rests solely upon an interpretation of [state] case law and
statutes, [and] it is simply not cognizable on federal habeas
review.”
Wright v. Angelone, 151 F.3d 151, 157 (4th Cir. 1998).
Indeed, the MAR court relied on Eaton (and the Court of Appeals’
2014 Haizlip decision denying Petitioner’s direct appeal of other
drug trafficking offenses) in rejecting Petitioner’s argument “that
drug trafficking offen[der]s are not subject to enhanced sentencing
as habitual felons pursuant to N.C.[ Gen. Stat.] section 14-7.6
because of the sentencing language set forth in N.C.[ Gen. Stat.]
section 90-95(h).”
(Docket Entry 6-9 at 2.)
In Eaton, which also concerned “a defendant convicted of drug
trafficking and subject to enhanced sentencing as an habitual
felon,” the Court of Appeals concluded that North Carolina’s drug
trafficking statute and its habitual felon statute “complement each
other and address different means of enhancing punishment,” and
deemed
reasonable
the
assumption
that
the
North
Carolina
legislature “meant to further enhance drug traffickers who are also
habitual felons.”
Eaton, 210 N.C. App. at 151, 707 S.E.2d at 649.5
More specifically, the Court of Appeals held that, “under the
interpretation of the relevant statutory provisions that [it]
believe[d] to be appropriate, a drug trafficker who is not an
habitual felon would be subject to enhanced sentencing pursuant to
N.C. Gen. Stat. § 90–95(h)(4), while a drug trafficker who has also
5
The drug trafficking offense in Eaton involved an opiate, see Eaton, 210
N.C. App. at 144, 707 S.E.2d at 644, a class of drug covered by Paragraph (4) of
North Carolina’s drug trafficking statute, see N.C. Gen. Stat. § 90-95(h)(4).
As documented in Section I, Petitioner’s drug trafficking offenses involved
cocaine, such that Paragraph (3) of North Carolina’s drug trafficking statute
attached, see N.C. Gen. Stat. § 90-95(h)(3).
-11-
attained habitual felon status would be subject to even more
enhanced sentencing pursuant to N.C. Gen. Stat. § 14–7.6.”
210 N.C. App. at 151-52, 707 S.E.2d at 649; see also
Eaton,
Haizlip, 2014
WL 3824248, at *6 (“disagree[ing]” with Petitioner’s “conten[tion]
that
N.C.
Gen.
Stat.
§
90-95(h)(3),
which
criminalizes
the
trafficking of cocaine, includes a mandatory sentence that may not
be enhanced” (citing and quoting Eaton, 210 N.C. App. at 144, 14952, 707 S.E.2d at 644, 647-49)).6
The MAR court’s (and/or the
Court of Appeals’s) reliance on Eaton’s (and Haizlip’s) holding
that two North Carolina statutes complement, rather than conflict
with, each other must stand, because it
“is not the province of a
federal habeas court to reexamine state-court determinations on
state-law questions,” Estelle v. McGuire, 502 U.S. 62, 67–68
(1991).7
6
North Carolina’s Structured Sentencing Act “creates felony sentences
strictly contingent on two factors: the designated ‘class of offense’ and the
offender’s ‘prior record level.’” United States v. Simmons, 649 F.3d 237, 240
(4th Cir. 2011) (en banc) (quoting N.C. Gen. Stat. § 15A-1340.13(b)). In North
Carolina, drug crimes generally are “subject to Structured Sentencing. See N.C.
Gen. Stat. §§ 15A-1340.10 to 15A-1340.33 (2007); N.C. Gen. Stat. § 90-95(a)(1)
(2007). . . . [However, a separate] legislatively prescribed mandatory minimum
sentence [applies to] the controlled substance trafficking offenses contained in
N.C. Gen. Stat. § 90-95(h)(1)-(4b).” State v. Austin, No. COA08-1382, 197 N.C.
App. 402 (table), 677 S.E.2d 13 (table), 2009 WL 1525256, at *2 (June 2, 2009)
(unpublished), review denied, 363 N.C. 583, 682 S.E.2d 391 (2009). In that
sense, North Carolina’s drug trafficking statute imposes an “enhanced” sentence.
Conversely, “[t]he Habitual Felon Act elevates the convicted person’s status
within Structured Sentencing so that the person is eligible for longer minimum
and maximum sentences.” State v. Parks, 146 N.C. App. 568, 572, 553 S.E.2d 695,
698 (2001), review denied, 355 N.C. 220, 560 S.E.2d 355 (2002).
7
The MAR court (and/or the Court of Appeals) did not act unreasonably by
adhering to the Court of Appeals’s previously espoused view that, rather than
conflicting (because both contain “mandatory” language), North Carolina’s drug
trafficking statute and its habitual felon statute “complement each other,”
Eaton, 210 N.C. App. at 151, 707 S.E.2d at 649. To the contrary, as the Court
of Appeals pointed out, “as a matter of public policy, it is reasonable to assume
that the legislature intended to further enhance the sentences of drug
traffickers who are also habitual felons rather than ignoring their habitual
(continued...)
-12-
In a similar vein, Petitioner misses the mark by arguing that
the MAR court (and/or the Court of Appeals), in denying the
parallel claims in his MAR, “blatant[ly] disregard[ed]” precedent
from the Fourth Circuit in Prieto.
(Docket Entry 9 at 5.)
As
discussed above, Petitioner bears the burden to show the existence
of clearly established United States Supreme Court precedent on
point.
See 28 U.S.C. § 2254(d).8
Moreover, although the language
from Prieto upon which Petitioner relies, i.e., “[i]n the late 70s
and early 80s, the [United States Supreme] Court broadly defined
state-created interests, holding that any mandatory state directive
created a state law liberty interest triggering procedural Due
Process protections,” in turn relies on two United States Supreme
Court decisions (Docket Entry 9 at 5 (quoting Prieto, 780 F.3d at
248 (in turn citing Hewitt and Greenholtz))), those cases (and
Prieto) address the circumstances under which state laws governing
prison
administration
create
liberty
interests
under
the
Due
Process Clause for inmates challenging the conditions of their
confinement, see Hewitt, 459 U.S. at 466-72; Greenholtz, 442 U.S.
7
(...continued)
felon status for sentencing purposes.” Id. at 152, 707 S.E.2d at 649; see also
Parke v. Raley, 506 U.S. 20, 26-27 (1992) (“Statutes that punish recidivists more
than first offenders have a long tradition in this country that dates back to
colonial times. . . . States have a valid interest in deterring and segregating
habitual criminals.”). Nor, as the Court of Appeals indicated, does common sense
favor construing North Carolina’s sentencing laws to subject lower-level drug
offenders (i.e., those not involved with trafficking-level amounts of drugs) to
enhanced sentencing as habitual felons, but to immunize higher-level drug
traffickers (i.e., those involved with larger amounts of drugs) from such
enhancement when they qualify as habitual felons. See Eaton, 210 N.C. App. at
152, 707 S.E.2d at 649.
8
For the same reason, Petitioner’s citations to Fetterly, Lambright, and
Ballard, three cases from the United States Court of Appeals for the Ninth
Circuit, fail to meet his burden under Section 2254(d). (See Docket Entry 9 at
6, 8.)
-13-
at 11-12; Prieto, 780 F.3d at 248-55.
Furthermore, Petitioner
ignored significant language after his quoted excerpt in Prieto
wherein the Fourth Circuit observed that, “[i]n an effort to
eliminate the resultant ‘[p]arsing’ of state statutes to find
rights by ‘negative implication,’ the [United States Supreme] Court
corrected course in Sandin v. Conner, 515 U.S. 472, 481-81 []
(1995)[, and] added a second requirement for establishing a liberty
interest warranting constitutionally adequate protection” and, “[a]
decade later, in Wilkinson v. Austin, 545 U.S. 209 [] (2005), . .
. noted that the ‘touchstone of th[is] inquiry . . . is not the
language
of
the
regulations
regarding
th[e]
conditions
[of
confinement],’ but whether their application imposed ‘atypical and
significant hardship . . . in relation to the ordinary incidents of
prison life.’” Prieto, 780 F.3d at 249 (emphasis added).
Hewitt,
Greenholtz,
and
Prieto
do
not
constitute
Thus,
clearly
established federal law that would govern this Court’s review of
Petitioner’s collateral challenge under Section 2254(d).
Petitioner’s citation to Batchelder in support of his fair
notice argument fares no better.
(See Docket Entry 9 at 10, 13.)9
9
The other cases Petitioner cites to bolster his fair notice contentions
(see Docket Entry 9 at 10-13) do not constitute clearly established federal
constitutional commands regarding state court sentencing practices and thus lack
applicability to Section 2254(d), see Memphis Light, Gas & Water Div., 436 U.S.
at 14 (holding utility company’s
notification procedure not “reasonably
calculated” to inform customers of opportunity to contest their bills); Wolff,
418 U.S. at 564 (setting forth due process requirements for inmates accused of
disciplinary infractions); Gagnon, 411 U.S. at 782 (deeming probationer “entitled
to a preliminary and a final revocation hearing, under the conditions specified
in Morrissey”); Morrissey, 408 U.S. at 488–89 (deciding minimum requirements of
due process for parolees subject to revocation); Mullane, 339 U.S. at 320 (ruling
that “notice [by publication] of judicial settlement of accounts . . . [wa]s
incompatible with the requirements of the Fourteenth Amendment as a basis for
adjudication depriving known persons whose whereabouts are also known of
(continued...)
-14-
In Batchelder, the United States Supreme Court ruled that two
overlapping criminal statutes did not violate the fair notice
requirements of the Due Process Clause:
It is a fundamental tenet of due process that no one may
be required at peril of life, liberty or property to
speculate as to the meaning of penal statutes.
A
criminal statute is therefore invalid if it fails to give
a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden.
So too, vague
sentencing provisions may pose constitutional questions
if they do not state with sufficient clarity the
consequences of violating a given criminal statute.
The provisions in issue here, however, unambiguously
specify the activity proscribed and the penalties
available upon conviction. That this particular conduct
may violate both [t]itles does not detract from the
notice afforded by each. . . . So long as overlapping
criminal provisions clearly define the conduct prohibited
and the punishment authorized, the notice requirements of
the Due Process Clause are satisfied.
Batchelder, 442 U.S. at 123 (emphasis added and internal citations,
quotation marks, and brackets omitted).
Here, the applicable statutes provide notice of the potential
sentences at issue with the “sufficient clarity” that Batchelder
requires.
Id.
The Habitual Felon Act unambiguously provides:
When an habitual felon . . . commits any felony under the
laws of the State of North Carolina, the felon must, upon
. . . plea of guilty[,] . . . be sentenced at a felony
class level that is four classes higher than the
principal felony for which the person was convicted; but
under no circumstances shall an habitual felon be
sentenced at a level higher than a Class C felony.
9
(...continued)
substantial property rights”).
-15-
N.C. Gen. Stat. § 14-7.6 (emphasis added).10
As Petitioner’s drug
trafficking offenses constitute Class F felonies, see N.C. Gen.
Stat. § 90-95(h) (2011), attainment of habitual felon status would
subject Petitioner to sentencing as a Class C felon, see N.C. Gen.
Stat. § 14-7.6 (2009).
Coordinately,
North
Carolina’s
Structured
Sentencing
Act
unambiguously provides, for a Class C felony with Petitioner’s
prior record level of V (the calculation of which the Structured
Sentencing Act explains, see N.C. Gen. Stat. § 15A-1340.14 (2009),
and the attainment of which Petitioner did not contest (see Docket
Entry 6-3 at 32-33)), a mitigated range of 76 to 131 months, a
presumptive range of 101 to 162 months, and an aggravated range of
127 to 200 months in prison for each drug trafficking conviction.
See N.C. Gen. Stat. § 15A-1340.17(c), (e) (2009).11
Given the
clarity of these sentencing provisions, and notwithstanding the
10
On February 6, 2012, a grand jury issued a superseding indictment
finding probable cause that Petitioner qualified as an habitual felon under N.C.
Gen. Stat. § 17-7.1, putting Petitioner on notice of the applicability of the
enhanced sentencing provisions of the Habitual Felon Act. (See Docket Entry 6-3
at 11.)
After the jury found Petitioner guilty of both drug trafficking
offenses, Petitioner, proceeding with counsel, pleaded guilty to attaining
habitual felon status subject to sentencing as a Class C felon (see id. at 29),
and therein agreed that the trial court would “impose any terms deemed
appropriate[] for habitual felon status offense” (id. at 30 (emphasis added)).
Petitioner swore that he “enter[ed] []his plea of [his] own free will, fully
understanding of what [he was] doing,” and that he did not “have any questions
about what ha[d] just been said to [him] or about anything else connected to
[his] case.” (Id.)
11
In accordance with those sentencing provisions, the trial court
consolidated Petitioner’s convictions into one judgment and sentenced Petitioner
to 127 to 162 months’ imprisonment (see Docket Entry 6-3 at 32-35), which
remained in the presumptive range for a Class C felon with a prior record level
of V, see N.C. Gen. Stat. § 15A-1340.17(c) (listing 101 to 127 months as
presumptive minimum sentence range for Class C felon with prior record level V),
(e) (showing 162 months as maximum sentence for minimum sentence of 127 months)
(2009)).
-16-
language
of
reasonable
Section
90-95(h),
expectation
of
a
Petitioner
70
to
could
84 month
have
prison
had
no
sentence.
Accordingly, Petitioner has not shown that the MAR court (and/or
Court of Appeals) contradicted or unreasonably applied Batchelder
by denying his parallel fair notice claim.
In sum, Grounds One and Two fail to demonstrate Petitioner’s
entitlement to habeas relief, because he has not shown that the MAR
court (and/or the Court of Appeals) unreasonably applied clearly
established federal law.
See generally White v. Wheeler, ___ U.S.
___, ___, 136 S. Ct. 456, 460 (2015) (“Under § 2254(d)(1), a state
prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” (internal
quotation marks omitted)); Schriro v. Landrigan, 550 U.S. 465, 473
(2007) (“The question under [Section 2254(d)] is not whether a
federal
court
believes
the
state
court’s
determination
was
incorrect but whether that determination was unreasonable — a
substantially higher threshold.”).
B. Ground Three
Lastly, Petitioner contends that his “[t]rial and [a]ppellate
attorney[]s both rendered him an ineffectiveness [sic] assistance
of
counsel
by
not
asserting
the
mandatory
sentence
for
[Petitioner’s] Drug Trafficking is protected by Liberty Interest[
a]nd [] Petitioner was not put on Fair Notice by the [North
Carolina] legislature, in that the Habitual Felon Act could be used
-17-
under Chapter 90 Article 5 as an exception to enhance the mandatory
Drug
Trafficking
sentence.”
(Docket
Entry
1,
¶
12
(Ground
Three)(a).) Petitioner raised the substance of Ground Three in his
MAR (and supporting Affidavit) (see Docket Entry 6-7 at 6, 27-36),
and the MAR court denied that claim on the merits (see Docket Entry
6-9 at 3-4).
Thus, Section 2254(d)’s highly deferential standard
governs this Court’s review of Petitioner’s instant parallel claim.
“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.”
Fisher v. Lee, 215 F.3d 438, 446–47 (4th Cir. 2000)
(internal parallel citations omitted). Further, “[w]here the issue
is whether the state court has unreasonably applied Strickland
standards to a claim of ineffective assistance of counsel, . . .
double deference is required.” Lavandera–Hernandez v. Terrell, No.
1:12CV553,
2013
WL
1314721,
at
*4
(M.D.N.C.
Mar.28,
2013)
(Schroeder, J.) (unpublished) (internal quotation marks omitted);
see also Harrington, 562 U.S. at 105 (“The standards created by
Strickland and § 2254(d) are both highly deferential, and when the
two apply in tandem, review is doubly so.” (internal citations and
quotation marks omitted)).
-18-
For the reasons discussed above, Grounds One and Two lack
merit. As such, Petitioner’s trial and appellate counsel could not
have performed deficiently by failing to raise such meritless
claims.
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 . . . .”); Ellison v. United States, Nos. 3:07CR30RJC,
3:10CV207RJC, 2013 WL 2480654, at *3 (W.D.N.C. June 10, 2013)
(unpublished) (“[A]ny arguments made by counsel along the lines
suggested by [the p]etitioner would have been futile.
Therefore,
[the p]etitioner has failed to establish a prima facie claim of
ineffective assistance of counsel.”); Walker v. United States, Civ.
No. WDQ–10–2739, Crim. No. WDQ–07–0146, 2011 WL 4103032, at *3 (D.
Md. Sept. 9, 2011) (unpublished) (ruling that where argument “would
have
been
futile
[a
defendant’s]
appellate
counsel
was
not
ineffective for failing to raise it”).
Simply put, Ground Three affords no basis for habeas relief.
VI.
Conclusion
Petitioner’s federal habeas claims fail as a matter of law
under Section 2254(d).12
12
Respondent alternatively has argued that Grounds One and Two lack merit
even under regular de novo review and qualify as non-cognizable (see Docket Entry
6 at 3-4, 7-8), as well as that the so-called Teague bar and the doctrine of
procedural default foreclose habeas relief (see id. at 4-6, 7). With regard to
Ground Three, Respondent contends in the alternative that Ground Three fails
under de novo review, and that a Teague bar applies. (Id. at 8.) Because the
Petition clearly falls short under Section 2254(d) (the applicability of which
Petitioner has not expressly contested), the Court need not address Respondent’s
alternative arguments.
-19-
IT IS THEREFORE RECOMMENDED that Respondent’s Motion for
Summary Judgment (Docket Entry 5) be granted and that judgment be
entered against Petitioner in this action without issuance of a
certificate of appealability.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 14, 2019
-20-
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