Smith v. Cooper

Filing 9

ORDER granting 6 Motion for Summary Judgment. Petitioners petition for habeas corpus will be DENIED and DISMISSED. Court declines to issue a Certificate of Appealability. Signed by District Judge Robert J. Conrad, Jr on 3/4/2014. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:13-cv-73-RJC
DAVID L. SMITH,

)
)
Petitioner,
)
)
v.
)
)
ROY COOPER,
)
)
Respondent.1
)
____________________________________)

ORDER

THIS MATTER is before the Court on consideration of Respondent’s motion for
summary judgment on the claims presented by Petitioner in his petition for a writ of habeas
corpus, filed pursuant to 28 U.S.C. § 2254. For the reasons that follow, Respondent’s motion for
summary judgment will be granted and Petitioner’s Section 2254 petition will be denied and
dismissed.
I.

BACKGROUND
Petitioner is presently a prisoner of the State of North Carolina who was sentenced in

Mecklenburg County Superior Court on May 4, 2011, following his entry of guilty pleas to one
charge of attaining the status of habitual felon and one charge of possession of stolen goods.
Petitioner’s counsel negotiated a plea agreement with the State in advance of the sentencing
hearing. In exchange for his agreement to plead guilty to the above charges, the State would
agree to dismiss five additional charges and the parties agreed to a sentence of 87-114 months.

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As explained by the State in its response, on the date the response was filed, the Petitioner was housed at
Lumberton Correctional Institution, where his custodian is Brad A. Perritt. (Doc. No. 7 at 1 n.1). Accordingly,
Superintendent Perritt is the proper respondent in this case. See Rule 2(a) of the Rules Governing Section 2254
Cases.

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During his plea hearing, Petitioner was present with counsel and placed under oath.
Petitioner acknowledged that his lawyer had explained the nature and elements of each charge
and that he was satisfied with his attorney’s services. Petitioner averred that he understood the
elements of the charges and the potential penalties were explained by the Court. On the habitual
felon charge, Petitioner faced a maximum term of 228 months’ imprisonment, and on the
possession of stolen goods charge he faced a maximum term of 30-months. Petitioner averred
that he understood that he could elect to plead not guilty and face a jury trial where the State
would have the burden of proving his guilt beyond a reasonable doubt. Petitioner admitted that
he was pleading guilty pursuant to the terms of the plea agreement which expressly provided that
he agreed to admit his status as a habitual felon and that the parties agreed that he would be
sentenced to a term in the mitigated range of 87-114 months. Petitioner’s pleas of guilty were
accepted after the Court found that they were knowingly and voluntarily entered. Petitioner,
Petitioner’s counsel and the State signed the plea agreement and it was accepted by the Court.
Petitioner was sentenced in accordance with the terms of the plea agreement. (Doc. No. 7-2:
Transcript of Plea; Doc. No. 7-3: Judgment and Commitment).
On December 20, 2011, Petitioner filed a motion for appropriate relief (MAR) in the
Mecklenburg County Superior Court.2 In the MAR, Petitioner challenges the legality of his
conviction on the charge for possession of stolen goods contending that the indictment failed to
properly allege each element of the crime. Petitioner argued that the indictment contained a
“fatal flaw” and his conviction on that charge should be vacated. (Doc. No. 13: MAR). On

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In his habeas petition, Petitioner states that he appealed to the North Carolina Court of Appeals and raised a claim
of ineffective assistance of counsel, however Petitioner provides no indication regarding the disposition of the
appeal. (Doc. No. 1 at 2).

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December 23, 2011, the superior court summarily denied the MAR. (Doc. No. 14). Apparently
Petitioner was unaware that the state court denied his MAR and he later filed a petition for a writ
of mandamus with the court of appeals seeking an order forcing the superior court to act on his
MAR that was later denied. (Doc. Nos. 5 and 7).
In this federal habeas proceeding, Petitioner raises several claims of ineffective assistance
of counsel which will be addressed in turn below. The State has responded to the § 2254 petition
and raises several defenses in support of summary dismissal. The Court notified Petitioner,
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), of his obligation in responding
to the motion for summary judgment and he was provided thirty days to file a response. (Doc.
No. 8). The Order was mailed to Petitioner by the Clerk and there is no indication that the Order
was returned as undeliverable. The thirty-days have since expired and to date Petitioner has
presented no response.
II.

STANDARD OF REVIEW
A.

Summary Judgment Standard

Summary judgment is appropriate where there is no genuine dispute as to any material
fact, and it appears that the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c)(2); United States v. Lee, 943 F.2d 366, 368 (4th Cir. 1991). Any permissible inferences
to be drawn from the underlying facts must be viewed in the light most favorable to the party
opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587-88 (1986). Where, however, the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party, summary judgment is appropriate. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248-49 (1986).

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B.

Section 2254 Standard

In addition to the motion for summary judgment standard set forth above, this Court must
also consider the requirements set forth in 28 U.S.C. § 2254, which provides in relevant part, that
an application for a writ of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of the claim—
(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d); see also Tice v. Johnson, 647 F.3d 87, 103 (4th Cir. 2011).
A claim is considered “adjudicated on the merits” when it is “substantively reviewed and
finally determined as evidenced by the state court’s issuance of a formal judgment or decree. . .”
Young v. Catoe, 205 F.3d 750, 755 (4th Cir. 2000) (quoting Thomas v. Davis, 192 F.3d 445, 455
n.2 (4th Cir. 1999)). A state court adjudication is “contrary to” clearly established federal law
only if “the state court arrives at a conclusion opposite to that reached by [the United States
Supreme] Court on a question of law or if the state court decides a case differently than [the
United States Supreme] Court has on a set of materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 412-13 (2000). “It is not enough for us to say that, confronted with the
same facts, we would have applied the law differently; we can accord [the petitioner] a remedy
only by concluding that the state court’s application of the law in his case was objectively
unreasonable.” See Tice, 647 F.3d at 103 (citing Williams v. Ozmint, 494 F.3d 478, 483-84 (4th
Cir. 2007)). “[W]e will not discern an unreasonable application of federal law unless ‘the state
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court’s decision lies well outside the boundaries of permissible differences of opinion.’” Id. at
108 (quoting Goodman v. Bertrand, 467 F.3d 1022, 1028 (7th Cir. 2006)).
III.

DISCUSSION
Petitioner contends that his trial counsel was ineffective: (1) by coercing him into signing

the plea agreement and in failing to explain properly the potential term of imprisonment he faced
upon conviction of the habitual status offense (Ground 1); and (2) in failing to challenge the
charge of possession of stolen goods and in providing erroneous advice regarding the charge.
Petitioner maintains that had these errors not occurred, the outcome of his criminal proceeding
would have been different because he would not have pled guilty to the habitual felon charge
(Ground 2). In addition, Petitioner maintains that he was actually innocent of the charge of
possession of stolen goods and had his counsel properly contested the charge, he would have
elected to plead not guilty and taken his case to trial (Ground 3). (Doc. No. 1 at 5).
In order to state a claim for ineffective assistance of counsel, the petitioner bears the
burden of demonstrating both that his counsel’s performance was deficient and that he suffered
prejudice from the performance. See Strickland v. Washington, 466 U.S. 668, 688 (1984). In the
context of a guilty plea, Petitioner must also show that there is “a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would have instead insisted on going
to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
A.

Guilty Plea (Ground 1)

First, the Court notes that Petitioner states that “upon information and belief” his trial
counsel coerced him into entering a guilty plea without fully explaining the consequences of the
decision. This is a conclusory statement as it does little to support Petitioner’s assertion that he

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was in fact subject to coercive behavior during the plea negotiations and during his plea
proceedings and this claim could be dismissed for that reason alone. See Nickerson v. Lee, 971
F.2d 1125, 1136 (4th Cir. 1992) (“In order to obtain an evidentiary hearing on an ineffective
assistance of counsel claim . . . a habeas petitioner must come forward with some evidence that
the claim might have merit. Unsupported, conclusory allegations do not provide sufficient
ground . . . to require an evidentiary hearing . . .”), cert. denied, 507 U.S. 923 (1993), abrogated
on other grounds by, Gray v. Netherland, 518 U.S. 165-66 (1996). See also Zettlemoyer v.
Fulcomer, 923 F.2d 284, 301) (“bald assertions and conclusory allegations do not provide
sufficient ground . . . to require an evidentiary hearing . . .”).
Petitioner’s argument in favor of relief under Strickland depends on a finding that his
guilty plea was not knowing and voluntary. The Court finds that the record demonstrates that his
contention regarding the validity of his guilty plea is without merit. The sworn statements of a
defendant during a plea hearing, where the court is responsible for assessing the truthfulness of
his answers “constitute a formidable barrier in any subsequent collateral proceedings”, and
“carry a strong presumption of verity. The subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary dismissal, as are contentions that in the face of
the record are wholly incredible.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). “Thus, in the
absence of extraordinary circumstances, the truth of sworn statements made during [a plea
hearing] is conclusively established, and a district court should, without holding an evidentiary
hearing, dismiss [a habeas proceeding] without holding an evidentiary hearing.” United States v.
Lemaster, 403 F.3d 216, 221 (4th Cir. 2005) (citing Blackledge, 431 U.S. at 79 n.19).
During his plea proceeding, Petitioner was placed under oath and answered every

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question posed by the state court and the record shows that he expressed an understanding of the
elements of the charges against him, which he averred had been explained to him by his counsel,
and Petitioner expressed that he understood the proceedings. In addition, the transcript of plea
form demonstrates that the actual sentence to which the parties agreed would apply to the
habitual felon charge and this was explained to Petitioner. There is no question that the term of
imprisonment was written in plain language, and the form was signed by Petitioner thus evincing
his understanding of the terms to which he was offering his solemn agreement and his
knowledge of the sentence that would be imposed upon his conviction. For these reasons, the
Court finds that Petitioner’s plea was both knowing and voluntary and this claim will be denied.
B.

Failure to Investigate or Contest (Ground 2)

This argument is without merit for the reasons stated above, namely, that Petitioner
agreed that his attorney explained the elements of the possession of stolen goods charge and that
he fully understood the nature and elements of the charge and that he was satisfied with the
services of his attorney. Further, Petitioner solemnly admitted that he was in fact guilty of the
charge. Petitioner’s late remorse that he chose to enter a guilty plea to the charge fails to support
a claim under Strickland and it will be denied.
C.

Actual Innocence

Petitioner raised the substance of this claim in his MAR. It is well understood that a valid
plea of guilty represents an admission to the material elements of a crime. McCarthy v. United
States, 394 U.S. 459, 466 (1969). As this Court has noted, during his plea hearing Petitioner
admitted under oath that he understood each element of the crimes charged, that he was satisfied
with the services of his attorney and that he was in fact guilty of the crimes charged. Moreover, a

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valid guilty plea may waive any non-jurisdictional defects which are alleged to have preceded
the acceptance of the plea. Tollett v. Henderson, 411 U.S. 258, 267 (1973).
In Tollett, the Supreme Court found that a valid guilty plea generally bars federal review
of claims relating to the possible constitutional violations occurring prior to the entry of the plea.
The Court found that “[w]hen a criminal defendant has solemnly admitted in open court that he
is in fact guilty of the offense with which he is charged, he may not thereafter raise independent
claims relating to the deprivation of constitutional rights that occurred prior to the entry of the
guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by
showing that” he received advice which could support a claim of ineffective assistance of
counsel. Id.
Petitioner has clearly failed to carry this burden as he does not present any reasonable
argument as to how his counsel’s alleged errors caused him prejudice when it was he that
knowingly and voluntarily offered his solemn admission of guilt to the elements of the
possession offense. Moreover, Petitioner has failed to demonstrate that the state court’s
adjudication of this claim was contrary to controlling Supreme Court precedent or represented an
unreasonable application of the facts of his case. See 28 U.S.C. § 2254(d).
IV.

CONCLUSION
For the reasons discussed herein, the Court finds that Petitioner has failed to present any

meritorious claims for relief and his § 2254 petition will be denied.
IT IS, THEREFORE ORDERED that:
1.

Respondent’s motion for summary judgment is GRANTED. (Doc. No. 6).

2.

Petitioner’s petition for habeas corpus will be DENIED and DISMISSED. (Doc.

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No. 1).
IT IS FURTHER ORDERED that 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); MillerEl 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).
The Clerk of Court is directed to close this civil case.
IT IS SO ORDERED.

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