United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
Petitioner, a state inmate, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter came before the court on the motion for summary judgment (DE 26) pursuant to Federal Rule of Civil Procedure 56 of respondent F. Taylor ("respondent"), which was fully briefed. Also before the court is petitioner's motion to appoint counsel and request for an extension of time (DE 33). The issues raised are ripe for adjudication. For the following reasons, the court grants respondent's motion for summary judgment and denies petitioner's motions.
STATEMENT OF CASE
On January 26, 2010, petitioner, in the New Hanover County Superior Court, was convicted of felony possession of stolen goods and was sentenced to ten (10) to twelve (12) months imprisonment. State v. Barnhill, No. COA10-1000, 2011 WL 2206717, *1 (June 7, 2011) (unpublished). Petitioner's sentence was consecutive to a one hundred nine (109) to one hundred thirty-three (133) month term of imprisonment for a separate offense that petitioner was serving. Id.
The North Carolina Court of Appeals subsequently granted petitioner a writ of certiorari and granted petitioner a belated appeal. Id . On June 7, 2011, the court of appeals issued an opinion finding no error. Id . On August 25, 2011, the North Carolina Supreme Court denied petitioner's petition for discretionary review and, on April 12, 2012, the supreme court dismissed petitioner's petition for discretionary review. See State v. Barnhill , 365 N.C. 342, 717 S.E.2d 380 (2011), State v. Barnhill , 724 S.E.2d 531 (2012).
On December 28, 2011, petitioner filed a pro se motion for appropriate relief ("MAR") in the New Hanover County Superior Court, which was denied on January 12, 2012. Pet. (DE 1) Attach., pp. 26-27. On March 30, 2012, petitioner filed a pro se petition for a writ of certiorari in the North Carolina Court of Appeals. Resp't's Mem. Ex. 7. Petitioner's certiorari petition was dismissed on March 30, 2012. Pet. Attach., p. 22.
On June 14, 2012, petitioner filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and then he filed a motion to amend his petition. The court subsequently reviewed petitioner's pleadings, found them to be unclear, and directed petitioner to file an amended petition. Petitioner was instructed that his amended petition would constitute his petition in its entirety, and informed petitioner that it would not review his other filings to glean any misplaced claims. Petitioner filed his amended petition on November 13, 2012, asserting the following claims: (1) ineffective assistance of trial counsel; (2) preclusion from the opportunity to notify family members and witnesses to be present at trial to testify; (3) failure of the court and defense attorney to notify petitioner about the consequences of his sentence; and (4) failure to prove the crime of felon in possession of stolen goods. Respondent filed a motion for summary judgment, which was fully briefed.
STATEMENT OF FACTS
The facts as summarized by the North Carolina Court of Appeals are as follows:
On the evening of 20 September 2008, Anthony Barnhill (defendant) and Keith Drakeford (Drakeford) were driving around looking for a house to break into so they could "[get] some money[.]" Defendant and Drakeford broke into the residence of Troy Sheffield (Sheffield) and Douglas Fox (Fox) on Wrightsville Avenue in Wilmington. The two stole a Samsung television, a Dell laptop computer, an X-Box game console, a digital camera, an I-Pod, speakers, video games, CDs, and DVDs belonging to Sheffield. Two televisions, a watch, noise cancelling headphones, and $2, 500.00 in cash were stolen from Fox. On 25 September 2008, defendant and Drakeford were arrested at the scene of another alleged break-in. A search warrant was executed on 26 September 2008 and Wilmington police detectives searched defendant's apartment. Detectives found Sheffield's Samsung television and Dell laptop computer in defendant's apartment.
Defendant was indicted on charges of second-degree burglary, felony larceny, and felony possession of stolen goods. On 21 January 2010, a jury found defendant guilty of felony possession of stolen goods, but could not reach a unanimous verdict as to the other two charges. The trial court determined that defendant was a prior record level IV for felony sentencing purposes and sentenced him to ten to twelve months imprisonment. The sentence was to begin at the expiration of a sentence defendant was currently serving.
Barnhill, 2011 WL 2206717 at *1.
A. Motion to Appoint Counsel
Petitioner requests that the court appoint him counsel to assist him with litigating this action. There is no constitutional right to counsel in habeas corpus actions. Pennsylvania v. Finley , 481 U.S. 551, 555 (1987). Under 18 U.S.C. § 3006A(a)(2)(B), a court may appoint counsel in a habeas corpus proceeding if it determines that "the interests of justice so require." At this point, the court does not perceive issues of great legal complexity, and therefore the interests of justice do not mandate the appointment of counsel. Accordingly, petitioner's motion is DENIED.
B. Motion for an Extension of Time
Petitioner requests an extension of time to submit unidentified documents that plaintiff believes will be forthcoming from his family to "show and prove that property and restitution still held against [him] was already paid in full or handled due to [his] family either paying cash or having items returned." (DE 33). To the extent petitioner seeks an extension of time to prove that he has satisfied a portion of the restitution amount that he currently owes, such claim is not cognizable pursuant to § 2254. See Bulsa v. South Carolina, No. 8:07-0816, 2007 WL 4352750, at *3 (D.S.C. Dec. 10, 2007) ("[A] fine-only conviction is not enough of a restraint on liberty to constitute custody' within the meaning of the habeas corpus statutes...."); Washington v. Smith , 564 F.3d 1350, 1351 (7th Cir. 2009) ("Washington's attack on counsel's handling of the restitution amount simply does not state a cognizable claim for relief under § 2254.") (citation omitted); Obado v. New Jersey , 328 F.3d 716, 717 (3d Cir. 2003) ("[A] fine-only conviction is not enough of a restraint on liberty to constitute custody' within the meaning of the habeas corpus statutes.") Based upon the foregoing, petitioner's request for an extension of time is DENIED.
B. Motion for Summary ...