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Miller v. Hardee

United States District Court, E.D. North Carolina, Western Division

February 14, 2014

LARRY MILLER, Petitioner,
v.
MICHAEL HARDEE, Respondent.

ORDER

LOUISE W. FLANAGAN, District Judge.

This matter came before the court on respondent's motion for summary judgment (DE 6) pursuant to Federal Rule of Civil Procedure 56, to which petitioner responded. Also before the court is petitioner's motion to compel (DE 9). In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants respondent's motion and denies petitioner's motion.

STATEMENT OF CASE

On July 7, 2010, petitioner was convicted, following a jury trial, in the New Hanover County Superior Court of first-degree burglary and felony larceny. Resp't's Mem. Ex. 1, p.16. Petitioner was sentenced to a term of one hundred forty-six (146) to one hundred eighty-five (185) months' imprisonment for the first-degree burglary conviction and arrested judgment on the felony larceny conviction. Id . Ex. 1, pp. 17-19. Petitioner subsequently filed a notice of appeal, and the court of appeals found no error. Id . Ex. 4.

On August 12, 2011, petitioner filed a pro se motion for appropriate relief ("MAR") in the New Hanover County Superior Court. Pet. Attach. 1, pp. 17-41. The superior court denied petitioner's MAR on January 12, 2012. Resp't's Mem. Ex. 5.

On June 15, 2012, petitioner filed a pro se petition for a writ of certiorari in the court of appeals. Pet. Attach. 1, pp. 42-61. On July 3, 2012, the court of appeals denied petitioner's certiorari petition. Resp't's Mem. Ex. 6.

On November 26, 2012, petitioner filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง2254. Petitioner alleges the following grounds for relief: (1) there was insufficient evidence to support his conviction for felonious burglary; (2) he was not convicted through an impartial jury; and (3) he received ineffective assistance of counsel. Respondent subsequently moved for summary judgment, and the motion was fully briefed.

STATEMENT OF FACTS

The facts as summarized by the North Carolina Court of Appeals are as follows:

On 3, April 2009, Barbara Hines ("Hines") was staying at the Best Western Coastline Inn ("the Best Western") in Wilmington, North Carolina. At approximately 11:30 p.m., Hines went to her suite and prepared for bed. Hines placed her pocketbook, watch and jewelry on a chest near the end of her bed. Inside her pocketbook were her checkbook, credit cards, keys, camera, and glasses. She then went to sleep.
When Hines awoke the next morning, she went to get her watch, and discovered that it was missing. Hines then noticed that her pocketbook was also missing. She walked to the front room of the suite, and found that the chain lock, which she had attached the night before, had been broken off the door and left dangling. Hines called the front desk and reported that someone had broken into her room. The Best Western's general manager, Jacqueline Hodge ("Hodge"), then alerted law enforcement of the burglary.
Officer Fred Clark ("Officer Clark") of the Wilmington Police Department ("WPD") responded to the call and arrived at the Best Western sometime between 6:30 and 6:45 a.m. Hines told Officer Clark that her room had been broken into and gave him a list of items that had been taken. Meanwhile, Hodge retrieved videotape footage from the Best Western which showed an unknown man in a stairwell holding a purse. Hodge assisted police in printing out still images from the videotape. The photographs were all time stamped from 3 April 2009, from between the hours of 1:00 and 3:00 a.m. Hines later viewed the videotape and identified her purse, which she described as "orange and bulky."
Detective Jason Oakes of the WPD reviewed the still images from the videotape, attached the photographs to an email and sent it to all WPD personnel. His immediate supervisor, Sergeant A.S. Hayes, viewed one of the photographs and recognized ...

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