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Foust v. Gray

United States District Court, W.D. North Carolina, Charlotte Division

March 4, 2014

LEWIS GRAY, Administrator, Carteret Correctional Institution, Respondent.


ROBERT J. CONRAD, Jr., District Judge.

THIS MATTER is before the Court on consideration of Respondent's motion to dismiss the federal habeas petition filed by Petitioner pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Court finds that Petitioner has failed to state any meritorious claims for relief, and his § 2254 petition will therefore be denied and dismissed.


Petitioner is presently a prisoner of the State of North Carolina. According to the record, Petitioner was charged with breaking and entering, one count of possession of stolen goods, and one count of larceny after breaking and entering. The underlying offense conduct was set forth in an affidavit prepared by an officer with the Charlotte Mecklenburg Police Department (CMPD). The affidavit alleged that on June 22, 2011, Petitioner was observed on a video surveillance camera illegally entering a warehouse at Macoser, Inc. wherein he stole two boxes containing equipment which included a Fluke digital multimeter, a Fluke handheld oscilloscope, and an AC/DC probe which were reportedly worth in excess of $3, 000.

Det. Dickinston of the CMPD was assigned to the case and during his investigation he visited a business called the Tool King to determine whether any of those items had been sold there. Shannon Scott, an employee of Tool King, identified Petitioner from a copy of his driver's license and noted that Petitioner was a regular customer. (Doc. No. 1-1 at 4: Scott Statement). Mr. Scott informed the detective that he had purchased a Fluke multimeter and a Fluke scope from Petitioner on June 22. Mr. Scott explained that the scope had already been sold but the detective was able to take possession of the multimeter as evidence and present it to an employee of Macoser, Inc., Wesley Goodnight, who was then able to positively identify the item as the one that had just been stolen. (Doc. No. 1-1 at 4: 6: Warrant Affidavit).

Petitioner was charged in connection with the alleged theft. After securing counsel, the State presented Petitioner with a plea offer which provided that the charges of larceny after breaking and entering and a charge of being a habitual felon would be dismissed if Petitioner agreed to plead guilty to breaking and entering and possession of stolen goods. The offer carried a recommended term of consecutive sentences of 19-23 months' imprisonment, which was in the aggravated range, for a total term of 38 to 46 months, and the offer would expire on the date of Petitioner's arraignment. In addition, the State explained in the offer that if it was not accepted then the State would proceed to trial on all charges and seek the maximum sentence of 276 to 350 months in prison. (Doc. No. 1-1 at 11-12).

Petitioner accepted the offer and later appeared with counsel and entered his guilty pleas on December 7, 2011. Petitioner was placed under oath and acknowledged that the charges had been explained to him by his attorney and that he understood each and every element of the charges. Petitioner averred that he had discussed the possible defenses to the charges and that he was satisfied with the services of his attorney. Petitioner expressed his understanding that he was expressly waiving his right to plead not guilty and proceed to trial where the State would have the burden of proving his guilt beyond a reasonable doubt. Petitioner admitted that he was in fact guilty of the conduct charged and Petitioner's pleas of guilty were accepted after the court found that his pleas were knowingly and voluntarily entered. (Doc. No. 8-2: Transcript of Plea; Doc. No. 8-3: Judgment and Commitment). Petitioner was sentenced in accordance with the plea agreement and he did not file a direct appeal. Instead he filed a motion for appropriate relief (MAR) in the Mecklenburg County Superior Court, which was dated April 2, 2012.

In the MAR, Petitioner argued that his right to due process was violated, that he received ineffective assistance of counsel, and that his plea was unlawfully induced and therefore not voluntarily entered. (Doc. No. 1 at 2; Doc. No. 8-4: MAR). On April 11, 2012, the superior court entered an order summarily denying the MAR and Petitioner filed a petition for a writ of certiorari with the North Carolina Court of Appeals, and an amended petition that were each denied. (Doc. No. 8-5: MAR Order; Doc. No. 8-9). Next, Petitioner filed a "Motion to Vacate" his sentence in superior court, and again maintained that his convictions were illegally obtained. However, no action was taken on the motion to vacate as he had already filed a MAR which had been denied. This federal habeas petition follows and Petitioner's claims for relief will be addressed in turn below.


Under the Anti-terrorism and Effective Death Penalty Act (AEDPA), 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 ...

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