THIS MATTER comes before the Court upon Petitioner Marshall McNeil's ("Petitioner") Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. No. 1); Respondent Lewis Smith's ("Respondent") Answer and Motion for Summary Judgment (Doc. Nos. 5, 6 and 7); Petitioner's Traverse and Response to Respondent's Motion for Summary Judgment (Doc. Nos. 11 and 12); Petitioner's Motion to Suspend Certain Provisions of Rules 28 U.S.C. § 2254 (Doc. No. 13); and Petitioner's Opposition (Doc. No. 16).
The North Carolina Court of Appeals summarized the facts as follows: In this case, the State's evidence tended to show that on 12 January 2006, at approximately 2:44 a.m., Union County Deputy Sheriff Billy Joe Osteen responded to a call that someone was ringing doorbells in The Reserves housing development. Upon entering the development, Deputy Osteen proceeded to the first stop sign and saw defendant running out of the fog holding a screwdriver in his hand. Deputy Osteen exited his vehicle and told defendant to drop the screwdriver. Defendant was out of breath, wet, and covered in mud. After securing the screwdriver, Deputy Osteen asked defendant to identify himself and what he was doing in the development at 3:00 a.m. Defendant stated his name and told the deputy that he was delivering appliances. However, upon further questioning by the deputy, defendant was unable to provide the name of the company for whom he was making the delivery or the delivery address. The deputy asked defendant to direct him to the vehicle. The deputy secured defendant in the back of his patrol vehicle and traveled about two hundred feet to a red pickup truck. Deputy Osteen exited his vehicle and observed that the truck's rear axle was mired in mud in the front yard of a house under construction. There was mud on the gas pedal, brake pedal, seats, and steering wheel. Deputy Osteen observed a washer and refrigerator under a blue tarp in the back of the pickup truck. The deputy noticed that the water hoses on the washing machine had been cut.
Subsequently, Deputy Osteen deemed it necessary to check the house. Upon entering the house, Deputy Osteen observed an area in the garage where the washer had been located. He saw two pieces of hose attached to hot and cold water spigots remaining where they had been cut. There was a dolly in the garage and muddy wheel tracks leading to the front door. There was no one inside the house. Detective Lynn Yow with the Union County Sheriff's department arrived on the scene at approximately 4:00 a.m. She observed cut lines on the washing machine and cut plumbing lines outside the wall of the house that internally connect the washing machine. The water line connected to the refrigerator was pulled from the wall and the water line to the ice maker in the refrigerator was also pulled from the wall. There was mud on the kitchen floor, laundry room, and throughout the floor leading to the front door. There was mud throughout the house. Detective Yow testified that a box cutter, screwdriver and tire tool were recovered inside the red pickup truck.
On April 1, 2008, Petitioner was convicted after trial by jury of possession of burglary tools, pled guilty to achieving the status of habitual felon, and was sentenced to 127 to 162 months' imprisonment. Id. at *1. On appeal, Petitioner argued that the trial court erred in denying his motion to dismiss the charge of possession of burglary tools due to insufficient evidence. Id. On July 7, 2009, the North Carolina Court of Appeals affirmed. Id. The Supreme Court of North Carolina denied discretionary review on January 28, 2010. 692 S.E.2d 390 (N.C. 2010).
On May 28, 2010, Petitioner filed a Motion for Appropriate Relief ("MAR") with the Union County Superior Court. (Doc. No. 7-9). That court denied Petitioner's MAR on July 14, 2010. (Doc. No. 7-10). On August 23, 2010, Petitioner filed his first certiorari petition in the North Carolina Court of Appeals. (Doc. No. 7-11). On September 7, 2010, the North Carolina Court of Appeals dismissed the petition for certiorari. (Doc. No. 7-13). On November 8, 2010, Petitioner filed a corrected certiorari petition in the North Carolina Court of Appeals which was denied on November 22, 2010. (Doc. Nos. 15-2 and 15-4).
On December 7, 2010 Petitioner submitted a Petition to this Court under 28 U.S.C. § 2254 alleging that (1) there was insufficient evidence of each essential element of the offense charged; (2) the trial court lacked jurisdiction to enter judgment on the habitual felon charge due to a defective indictment; and (3) his counsel was ineffective for failing to challenge the habitual felon indictment. (Doc. No. 1).
A. Summary Judgment Standard
Summary judgment is appropriate in those cases 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(a); 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, disposition by summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
In addition to the summary judgment standard set forth above, the Court must consider this Petition under the particular standards governing the review of habeas corpus petitions. First, 28 U.S.C. § 2254 requires a petitioner to exhaust the remedies available to him in the state courts before filing a writ of habeas corpus in the federal courts. 28 U.S.C. § 2254(b)(1)(A). Section 2254's exhaustion requirement demands that a petitioner give "the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." Larry v. Branker, 552 F.3d 356, 366 (4th Cir. 2009) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). This "one full opportunity" includes filing petitions for discretionary review when that review is part of the ordinary appellate procedure in the state. See id. In North Carolina, a petitioner may satisfy § 2254's exhaustion requirement by directly appealing his conviction to the North Carolina Court of Appeals and then petitioning ...