Hernandez v. Bell

Filing 11

ORDER: 1) The 10 Amended Petition for Writ of Habeas Corpus is DISMISSED. 2) The Petitioner's 8 Motion to Compel is DENIED. 3) The Court declines to issue a certificate of appealability. 4) The Clerk of Court is directed to substitute Erik A. Hooks, Secretary of the North Carolina Department of Public Safety, as the respondent. Signed by Chief Judge Martin Reidinger on 9/6/2021. (Pro se litigant served by US Mail.) (maf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
3:19-cv-00392-MR
FERNANDO HERNANDEZ,

)
)
Petitioner,
)
)
vs.
)
)
ERIK A. HOOKS, Secretary of
)
Department of Public Safety,1
)
)
Respondent.
)
)
________________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court upon initial review of the Amended
Petition for Writ of Habeas Corpus filed on January 6, 2021 pursuant to 28
U.S.C. § 2254 by Fernando Hernandez (“the Petitioner”). [Doc. 10]. Also
before the Court is the Petitioner’s Motion to Compel, filed on January 6,
2021. [Doc. 8].

1

Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District
Courts requires that “the petition must name as respondent the state officer who has
custody” of the petitioner. Rule 2(a), 28 U.S.C. foll. § 2254. North Carolina law mandates
that the Secretary of the Department of Public Safety is the custodian of all state inmates
and has the power to control and transfer them. See N.C. Gen. Stat. § 148-4 (2017) (“The
Secretary of Public Safety shall have control and custody of all prisoners serving sentence
in the State prison system[.]”). Accordingly, Erik A. Hooks, the current Secretary of Public
Safety, is the proper respondent in this action.

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I.

BACKGROUND

The Petitioner is a prisoner of the State of North Carolina. On or about
July 31, 2019, the Petitioner filed a “Motion to Dismiss” in the Eastern District
of North Carolina, seeking the dismissal of his state court convictions from
Mecklenburg County, North Carolina. [Doc. 1]. Specifically, the Petitioner
claimed that the Mecklenburg County Superior Court lacked subject matter
jurisdiction over him because he is a sovereign citizen who has not signed
any contract or other obligation that binds him to the maritime or admiralty
jurisdiction of the North Carolina courts. [Doc. 1]. The matter was transferred
to this Court on August 9, 2019. [Doc. 3].
On December 8, 2020, this Court entered an Order following its initial
review of the Motion to Dismiss. [Doc. 7]. The Court noted that such claims
by pro se litigants under the discredited “sovereign citizen” theory are
universally considered to be without merit. See United States v. White, 480
F. App'x 193, 195 (4th Cir. 2012)(finding “no merit in [the] claim that the
district court lacked jurisdiction over his prosecution because his ancestors
had been illegally seized and brought to the United States”). However,
construing the motion liberally, the Court found that the Petitioner appeared
to be attempting to challenge his state convictions as violating his

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constitutional rights and may have intended to bring an action pursuant to 28
U.S.C. § 2254. [Doc. 7 at 3-4].
The Court explained that it would recharacterize the Petitioner’s
communication as an attempt to file a petition pursuant to 28 US.C. § 2254
and provide the Petitioner with the opportunity to advise the Court within
thirty (30) days whether he agreed or disagreed with the recharacterization.
[Doc. 7 at 3-6]. The Court advised that if the Petitioner failed to respond to
the Court’s Order or agreed to have the motion recharacterized as a § 2254
petition, the Court would consider the motion pursuant to § 2254 deemed
filed as of the date the original motion was filed. [Id. at 5]. If the Petitioner
agreed to have the motion considered as a § 2254 petition, the Court advised
that it would provide a time within which an amended petition may be filed.
[Id.]
The Petitioner did not directly respond to the Court’s December 8, 2020
Order to advise whether he agreed or disagreed with the Court’s
recharacterization of his Motion to Dismiss as a § 2254 petition. However,
on January 6, 2021, the Petitioner filed an Amended Petition for Writ of
Habeas Corpus, using the appropriate form pleading for § 2254 petitions.
[Doc. 10]. As such, the Court will treat the filing of the Amended Petition as
Petitioner’s agreement to this Court’s recharacterization of his initial motion
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as an attempt to seek § 2254 relief and the Amended Petition will supersede
his prior filing.2
II.

STANDARD OF REVIEW

Habeas relief may be granted to a state prisoner if the state court's last
adjudication of a claim on the merits “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[.]” 28 U.S.C.
§ 2254(d)(1). The petitioner 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.” Woods v. Donald, 135 S. Ct. 1372,
1376 (2015) (quoting Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770,
178 L.Ed.2d 624 (2011)).
Alternatively, relief may be granted to a state prisoner if the state
court's last adjudication of a claim on the merits “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)(2).

See Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001)(“an amended
pleading ordinarily supersedes the original and renders it of no legal effect”).
2

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III.

DISCUSSION
A.

Amended Petition for Writ of Habeas Corpus

The Petitioner seeks to challenge his March 21, 2014 conviction from
the Mecklenburg County Superior Court for Trafficking Schedule 1
(Principal), to which he pleaded guilty and was sentenced to imprisonment
for a term of 70 to 93 months. [Doc. 10 at 1]. The Petitioner states that he
sought appellate review from the North Carolina Court of Appeals in 2019,
as well as post-conviction review of his judgment of conviction in state court.
However, the Petitioner provides insufficient information regarding the dates
or nature of the state post-conviction proceedings. [Id. at 2-5].3
The Petitioner attempts to raise two grounds in his petition. However,
neither ground sets forth any valid claim of relief. In ground one, the
Petitioner lists a series of laws and statutes but includes no facts to support
any claim. [Doc. 10 at 5]. As stated in the standard of review, a claim for
habeas relief pursuant to 28 U.S.C. § 2254 must be based on a state court’s
misapplication of federal law. In the narrative Petitioner attaches to his
Motion he cites to many alleged violations of various North Carolina statutes.

28 U.S.C. § 2254 petitions have a one-year statute of limitations, which may be tolled
during the pendency of a properly filed state court post-conviction action. 28 U.S.C. §
2244(d)(1)-(2). The Petitioner seeks to challenge his 2014 conviction and states that he
sought post-conviction review in state court. However, because he provides insufficient
information regarding the dates or nature of his post-conviction proceedings, it appears
that his petition may be untimely filed.
3

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[Doc. 10 at 2-4]. However, he presents no discernable federal violation,
much less one that is “clearly established.”
Similarly, in ground two, the Petitioner lists several legal provisions but
incudes no factual allegations or description of his claim. [Doc. 10 at 7]. The
Petitioner attaches various documents to his petition, including copies of
pleadings from state court proceedings. However, none of these
attachments appear to support or shed light on the Petitioner’s claims. It is
therefore impossible for the Court to discern the basis under which the
Petitioner seeks relief or whether any such claims have merit.
Rule 2(c) of the Rules Governing Section 2254 Cases requires a
petitioner to specify all the grounds for relief available to him and to state the
facts that support each ground for relief. Rule 2(c), 28 U.S.C.A. foll. § 2254.
Rule 4 of the Rules Governing Section 2254 Cases directs the district court
to dismiss a habeas petition when it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief. Rule 4, 28
U.S.C.A. foll. § 2254. See also Wolfe v. Johnson, 565 F.3d 140 (4th Cir.
2009).
The Petitioner’s habeas petition is deficient as it fails to specify any
valid grounds for habeas relief and supporting facts. Because his claims are

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vague, conclusory, and unsupported by any factual allegations, the
Petitioner’s habeas petition is subject to dismissal.
B.

Motion to Compel

On January 6, 2021, the Petitioner filed a pleading titled “Motion to
Compel.” [Doc. 8]. The pleading lists various statutory code provisions and
legal terms. However, the pleading does not specify what relief the Petitioner
seeks from the Court, nor does it set forth any factual allegations or
supporting legal argument. [Doc. 8]. As such, the motion is without merit
and shall be denied.
IT IS, THEREFORE, ORDERED that:
1. The Amended Petition for Writ of Habeas Corpus [Doc. 10] is
DISMISSED.
2. The Petitioner’s Motion to Compel [Doc. 8] is DENIED.
3. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases,
the Court declines to issue a certificate of appealability. as the
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); Slack v. McDaniel, 529 U.S. 474, 484
(2000).

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4. The Clerk of Court is directed to substitute Erik A. Hooks, Secretary
of the North Carolina Department of Public Safety, as the
respondent in this action.
Signed: September 6, 2021,
2021

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