Wilson v. Thorton

Filing 3

ORDER denying 1 Petition for Writ of Habeas Corpus; granting 2 MOTION (Sealed - Participants) to Proceed in forma pauperis; and Court declines to issue a certificate of appealability. Signed by Chief Judge Frank D. Whitney on 8/04/2017. (Pro se litigant served by US Mail.) (ejb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:17-cv-00203-FDW
DAVID MICHAEL WILSON,

)
)
Petitioner,
)
)
vs.
)
)
CYNTHIA D. THORTON,
)
)
Respondent.
)
____________________________________)

ORDER

THIS MATTER is before the Court upon Petitioner David Michael Wilson’s pro se
Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Also before the
Court is Petitioner’s Motion to proceed in forma pauperis. (Doc. No. 2.)
I.

BACKGROUND

Petitioner is a prisoner of the State of North Carolina who, on December 15, 2011, was
convicted by a Buncombe County Superior Court jury of first-degree sex offense with a child,
taking indecent liberties with a child, and attaining habitual felon status. State v. Wilson, 737
S.E.2d 190, 2013 WL 432768, at *1 (N.C. Ct. App. 2013) (unpublished). The court sentenced
Petitioner to a minimum of 483 months and a maximum of 589 months imprisonment. Id.
Petitioner filed a direct appeal, and on February 5, 2013, the North Carolina Court of Appeals
issued an opinion concluding that no error had occurred at trial. Id. at *3.
In 2014, Petitioner filed one or more motions for appropriate relief (“MAR”) in
Buncombe County Superior Court, which ultimately resulted in relief on his habitual felon
conviction. See State’s Resp. to Pet’r’s Oct. 1, 2015 Cert. Pet. ¶ 3, State v. Wilson, No. P15-759

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(N.C. Ct. App. filed Oct. 14, 2015).1 Petitioner was resentenced on December 5, 2014, to a
minimum of 444 months and a maximum of 547 months imprisonment.2 He did not appeal his
new judgment.
Petitioner filed another MAR in Buncombe County Superior Court in August 2015; it
was denied on September 15, 2015. See Pet’r’s Oct. 1, 2015 Cert. Pet. 2, 46, id. The North
Carolina Court of Appeals denied the petition on October 16, 2015. See State’s Resp. to Pet’r’s
Dec. 1, 2016 Cert. Pet. ¶ 7, id. (filed Dec. 13, 2016). Thereafter, Petitioner filed at least one
more unsuccessful MAR in Buncombe County Superior Court, id. at ¶¶ 8-10, followed by
unsuccessful petitions for review in the North Carolina appellate courts, see e.g., State v. Wilson,
797 S.E.2d 302 (N.C. 2017) (Mem) (dismissing notice of appeal); State v. Wilson, 797 S.E.2d
289, 290 (N.C. 2017) (Mem) (dismissing petition for discretionary review); State v. Wilson, 787
S.E.2d 28 (N.C. 2016) (Mem) (dismissing petition for discretionary review of certiorari).
On May 19, 2017, Petitioner filed a § 2254 petition for writ of habeas corpus, which this
Court dismissed without prejudice on May 31, 2017, because it did not comply with Rule 2(c) of
the Rules Governing Section 2254 Cases in the United States District Courts.3 See Wilson v.
Thornton, 1:17-cv-00133-FDW (W.D.N.C.), Doc. Nos. 1, 3. Shortly thereafter, Petitioner filed
another § 2254 habeas petition, which the Court dismissed without prejudice on July 7, 2017,

The parties’ state-court pleadings cited herein are available at the North Carolina Supreme Court and Court of
Appeals Electronic Filing Cite and Document Library. See https://www.ncappellatecourts.org/.
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2

This information is from records maintained by the North Carolina Department of Public Safety, which are
available at http://webapps6.doc.state.nc.us/opi/offendersearch.do?method=view.
3

Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts requires a petitioner to
specify all the grounds for relief available to him and to state the facts that support each ground for relief. Id., 28
U.S.C.A. foll. § 2254. Petitioner merely listed a partial procedural history of his state proceedings and did not state
any grounds for relief. See Wilson v. Thornton, 1:17-cv-00133-FDW (W.D.N.C.), Doc. No. 1.

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because it also did not comply with Rule 2(c).4 See Wilson v. Thornton, 1:17-cv-00165-FDW
(W.D.N.C.), Doc. Nos. 1, 3, 4.
In its order dismissing the second habeas petition, the Court warned Petitioner that if he
filed a third habeas petition that did not comply with Rule 2(c), the Court would review the
petition on the merits, regardless of its deficiencies. See id. at Doc. No. 4. On July 26, 2017,
Petitioner filed the instant § 2254 Petition.
II.

STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), as construed by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 374-91
(2000), this Court may grant habeas relief on a claim of constitutional error only if the state
court’s adjudication of a claim “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” § 2254(d)(1), or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding,” § 2254(d)(2). 5 It is not
clear whether Petitioner raised the substance of his single habeas claim in the state courts, or, if
he did raise it, whether the state court addressed the claim on the merits. Consequently, the
Court will conduct a more lenient de novo review.

Petitioner’s second habeas petition contained only a single conclusory statement as a ground for relief: “There
[was] no [evidence] at all no [penetration] no [bruises] around her [vagina][.]” Pet. 5, Wilson v. Thornton, 1:17-cv00165-FDW (W.D.N.C.), Doc. No. 1.
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With a few exceptions not applicable here, AEDPA also requires that a § 2254 petition be filed within one year of
the date on which the judgment became final by the conclusion of direct review or the expiration of the time for
seeking such review. 28 U.S.C. § 2244(d)(1)(A). It is clear the Petition is untimely under § 2244(d)(1)(A). A
district court may not, on its own motion, dismiss a habeas petition as untimely, however, unless the petitioner had
notice of the statute of limitations and addressed the issue. See Hill v. Braxton, 277 F.3d 701, 706-707 (4th Cir.
2002). Petitioner had notice of the statute of limitations, but he did not address it. (Pet. 13-14.)

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III.

DISCUSSION

Petitioner asserts, without elaboration or supporting facts, that “there [was] no evidence
at all[,] no penetration[,] no bruises around her vagina[.]” (Pet. 5, Doc. No. 1.) Petitioner’s
claim appears to be that there was insufficient evidence to convict him of either first-degree sex
offense with a child or taking indecent liberties with a child.
A person challenging the sufficiency of the evidence to support a conviction does so
under the Due Process Clause of the Fourteenth Amendment. See Jackson v. Virginia, 443 U.S.
307, 318 (1979) (invalidating a conviction under the Due Process Clause when “the record
evidence could [not] reasonably support a finding of guilt beyond a reasonable doubt”). “On
sufficiency review, a reviewing court makes a limited inquiry tailored to ensure that a defendant
receives the minimum that due process requires: a ‘meaningful opportunity to defend’ against
the charge against him and a jury finding of guilt ‘beyond a reasonable doubt.’” Musacchio v.
United States, 136 S. Ct. 709, 715 (2016) (quoting Jackson, 443 U.S. at 314–315). The court
considers “only the ‘legal’ question ‘whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’” Id. (quoting Jackson, 443 U.S. at 319 (emphasis in the
original)).
Under North Carolina law, “[a] person is guilty of sexual offense with a child if the
person is at least 18 years of age and engages in a sexual act with a victim who is a child under
the age of 13 years.” N.C. Gen. Stat. § 14-27.4A (2008), recodified at § 14-27.28 (2015). A
“sexual act” is defined, in relevant part, as “the penetration, however slight, by any object into
the genital or anal opening of another person's body[.]” N.C. Gen. Stat. § 14-27.1. (2006),
recodified at § 14-27.20 (2015). A person is guilty of taking indecent liberties with a child if,
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“being 16 years of age or more and at least five years older than the child in question, he either:”
(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties
with any child of either sex under the age of 16 years for the purpose of arousing
or gratifying sexual desire; or
(2) Willfully commits or attempts to commit any lewd or lascivious act upon or
with the body or any part or member of the body of any child of either sex under
the age of 16 years.
N.C. Gen. Stat. § 14-202.1. There is no requirement that the State prove injury, like bruising,
under either statute.
Petitioner’s “claim,” such as it is, concerns only the “act” element of each offense. At
trial, the State presented the following relevant evidence:
On 14 May 2012, the victim went to defendant's home to watch the age-appropriate
movie “Bring it On.” During the movie, defendant requested that the victim sit on
his lap. When she did, he “kept touching [her] bottom,” and “[h]e went up [her]
pants and down [her] underwear” with his finger. When the victim made an excuse
to leave, defendant said, “Don't tell anybody.” The victim reported the incident to
her mother who then alerted the authorities.
Wilson, 737 S.E.2d at *1. The victim also testified that Petitioner put his finger in her vagina.
See Trial Tr. 187, Pet’r’s Oct. 1, 2015 Cert. Pet. 22, Wilson, No. P15-759 (N.C. Ct. App.). The
victim’s testimony was corroborated by “the victim's mother, the social worker, Christine
Nicholson, Deputy Philip Conner, and Detective Ann Levi [who] testified that the victim had
informed him/her that defendant put his finger in her vagina[.]” Wilson, 737 S.E.2d at *1.
Viewing the evidence summarized above in the light most favorable to the prosecution,
the Court concludes that a rational juror could have found beyond a reasonable doubt that
Petitioner engaged in a sexual act with the victim. See §§ 14-27.1, 14-27.4A; Jackson, 443 U.S.
at 319. The Court also concludes that, when viewed in the light most favorable to the
prosecution, a rational juror could have found beyond a reasonable doubt that Petitioner took, or
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attempted to take, “immoral, improper, or indecent liberties” with the victim or that he
“committed, or attempted to commit” a “lewd or lascivious act upon or with the body or any part
or member of the body of” the victim. See § 14-202.1; Jackson, 443 U.S. at 319.
Petitioner has not demonstrated that the evidence presented at trial was insufficient for a
rational juror to find him guilty beyond a reasonable doubt of either offense of conviction.
Accordingly, Petitioner’s claim fails, and his habeas Petition shall be denied.
IT IS, THEREFORE, ORDERED that:
1. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 1) is
DENIED;
2. Petitioner’s Motion to Proceed in forma pauperis (Doc. No. 2) is GRANTED; and
3. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the Court declines
to issue a certificate of appealability as Petitioner has not made a substantial showing
of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,
537 U.S. 322, 336-38 (2003) (in order to satisfy § 2253(c), a petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong); Slack v. McDaniel, 529 U.S. 474, 484
(2000) (holding that when relief is denied on procedural grounds, a petitioner must
establish both that the correctness of the dispositive procedural ruling is debatable,
and that the petition states a debatably valid claim of the denial of a constitutional
right).
Signed: August 4, 2017

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