United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
L. PATRICK AULD, Magistrate Judge.
Petitioner, a prisoner of the State of North Carolina, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in connection with the consolidated prison sentence of 335 to 411 months he received in the Superior Court of Rowan County, after a jury found him guilty of four child sex crimes in case numbers 00 CRS 13545-13547 and 13549. (Docket Entry 2, ¶¶ 1-6; see also id. at 56.) On direct appeal, the North Carolina Court of Appeals found no error and the North Carolina Supreme Court denied review. State v. Poteat, No. COA07-511, 187 N.C.App. 813 (table), 654 S.E.2d 84 (table), 2007 WL 4393229 (Dec. 18, 2007) (unpublished), cert. denied, 362 N.C. 686, 671 S.E.2d 331 (2008). Petitioner then filed (and amended) a Motion for Appropriate Relief ("MAR") in the trial court. (Docket Entry 2 at 23-38, 60-73; see also id., ¶ 11(a) (1)-(5).) Following denial of that MAR (as amended) (id. at 114-17; see also id., ¶ 11(a) (7) & (8)), the North Carolina Court of Appeals refused certiorari and the North Carolina Supreme Court declined review (id. at 118-19; see also id., ¶ 11(d), 12(Ground One) (d) & (e), (Ground Two) (d) & (e), (Ground Three) (d) & (e), (Ground Four) (d) & (e), (Ground Five) (d) & (e), Ground Six(d) & (e), (Ground Seven)(d) & (e)). Subsequently, Petitioner commenced this action, whereupon Respondent moved for summary judgment (Docket Entry 5) and Petitioner responded (Docket Entry 10). The parties consented to disposition of this case by a United States Magistrate Judge. (See Docket Entry 12.) For the reasons that follow, the Court will grant summary judgment to Respondent.
I. Factual Background
On direct appeal, the North Carolina Court of Appeals summarized the facts of this case as follows:
The evidence tends to show that on at least four occasions, beginning when she was eleven years old, B.B. was sexually abused by the twenty-two-year-old [Petitioner], her stepfather. The first sexual episode occurred in November 1995, when B.B. stayed home from elementary school one day, because she was sick. B.B. lay on her mother's bed near the bathroom and [Petitioner] started massaging her. She testified "he held my arms back, my legs and he started getting closer to my vagina." B.B. continued, "I was about to fall asleep and I felt his penis between my legs and it woke me." B.B. got out of bed and went into the bathroom because she did not feel well. [Petitioner] followed her and gave her medicine which made B.B. feel dizzy. [Petitioner] suggested that he should give B.B. a bath, which he advised would aid her sweating and sickness. After the bath, B.B. went back to bed and pretended that she was asleep. She stated that [Petitioner] then "gave me oral sex and put my panties back on. Then, I pretended like I woke up."
B.B. further testified that in late 1996, when she was twelve years old, [Petitioner] "came home early from work and went to my bedroom and started grabbing me, touching me, and rubbing me and he stuck his finger in me." She also stated that "eventually [Petitioner] had sex with me." B.B.'s mother walked in while [Petitioner] was having sex with her. When B.B.'s mother entered the room, [Petitioner] immediately pulled his pants back on and walked out. B.B.'s mother asked her about the incident and B.B. gave her mother her diary, in which she had written about numerous incidents of [Petitioner's] sexual abuse. Her mother became tremendously upset, and held "a pistol at [Petitioner's] head and said, Let's talk.'"
In early 1997, approximately two months later, B.B. testified that [Petitioner] took her into her bedroom, "unclothed [her] and had sex with [her]." She further stated "I felt funny this time because I actually had my eyes open but I tried not to look."
[Petitioner] and B.B.'s mother separated in September 1997, but [he] still visited B.B.'s home "a few times after that." B.B. testified that in November 1997, [Petitioner] came back "into her room and he started touching [her] again." B.B. also testified that [Petitioner] "started rubbing up [her] legs and chest, " and [he] "put his finger in [her], moved [her] down to the floor, and put his mouth on [her] again." Then, [he] "had sex with [her]."
At trial, another young lady testified that when she was five years old, [Petitioner] gave her and her brother a bath, after which [Petitioner] touched her vagina. [Petitioner] then unzipped his pants and showed her his penis. Because of this incident, [Petitioner] had previously been convicted of indecent liberties.
Poteat, 2007 WL 4393229, at *1-2 (internal brackets and ellipses omitted).
II. Petitioner's Claims
The Petition identifies the following seven grounds for relief:
1) the indictment in case number "00 CRS 13549" was "[i]nvalid" and "[u]nconstitutional" because it alleged a "statutory sex offense with a child 13, 14, or 15 years old [but]... [i]n the pleading the state's theory was at the time of the offense (11-22-97) the victim was under the age of 13" (Docket Entry 2, ¶ 12(Ground One) (a) (emphasis in original));
2) the trial court "[c]onstructively [a]mended the [i]ndictment" in case number "00 CRS 13545" in an "[u]nconstitutional" manner when it "instructed the jury the [sic] could convict if at the time of the alleged offense the victim was 13 years old... directly contradict[ing] the theory stated in the pleading that at the time of the alleged offense the victim was under 13 years old" (id., ¶ 12(Ground Two) (a));
3) the trial court "[u]nconstitutional[ly]" allowed the indictment in case number "00 CRS 13547" to go to the jury with an instruction "that to convict the alleged victim [must] ha[ve] not passed her 12th Birthday by Even a moment'... [despite the fact that the] victim testified at trial the alleged offense was after she was 12 Nov-Dec' [sic] 1996 and [the] other alleged offense covered in [the] indictment was [in] early 1997" (id., ¶ 12 (Ground Three) (a) (emphasis in original));
4) the indictment in case number "00 CRS 13549" was "[i]nvalid" and "[u]nconstitutional" because it "allege[d] at the time of the offense [Petitioner] was more than four years but less than six years older than the victim...[, ] a C class felony[, but he]... was convicted of being more than 6 years older than [the] victim which is a B1 class felony" (id., ¶ 12 (Ground Four) (a) (emphasis in original));
5) in case number "00 CRS 13549, " the trial court "[c]onstructive[ly] [a]mend[ed]" the indictment in "[u]nconstitutional" fashion by "instruct[ing] the jury that in order to convict they must find that at the time of the alleged offence [sic] [Petitioner] was more than 6 years older than the victim... contradict[ing] the indictment which says [he] was more than 4 years but less than 6 years older than the victim" (id., ¶ 12 (Ground Five) (a));
6) Petitioner received "[i]neffective [a]ssistance of trial and appellate counsel" because his "[t]rial attorney never objected to the invalid indictments, constructive amendments or to the Plain error where [Petitioner] was convicted after trial evidence proved he was not guilty according to the charge given to the jury ([in case number] 00CRS13547)... [and his] [a]ppellate [c]ounsel waited 5 years to file the appeal and... ignor[ed] [his] repeated request to argue the issues listed in this [P]etition" (id., ¶ 12 (Ground Six) (a)); and
7) Petitioner's "[c]onviction [was] obtained by use of a coerced or illegally obtained confession... [in that] [d]uring the interview with [a] [d]etective  [Petitioner] told her that [he] wished to have an attorney... [and she] then said [he] was being incooperative [sic] and [he] need[ed] to cooperate with her investigation[, ]...offered a lesser charge in exchange for [him] giving an incriminating confession without an attorney[, ]... [and] continued to question [him] and take a statement... [which was used] against [him] at trial... [despite the fact that she] never read [his] rights and [he] said I wish to have an attorney'" (id., ¶ 12(Ground Seven) (a)).
III. Habeas Standards
Federal courts "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that [the person] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (emphasis added). Further, "[b]efore a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition. The exhaustion doctrine is now codified at 28 U.S.C. § 2254 (b) (1)." O'Sullivan v. Boerckel , 526 U.S. 838, 842 (1999).
In addition, when a petitioner has exhausted state remedies, this Court must apply a highly deferential standard of review in connection with habeas claims "adjudicated on the merits in State court proceedings, " 28 U.S.C. § 2254(d). More specifically, the Court may not grant relief unless a state court decision on the merits "was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or... was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id . A state court decision qualifies as "contrary to" Supreme Court precedent if it either arrives at "a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite" to the Supreme Court. Williams v. Taylor , 529 U.S. 362, 406 (2000). A state court decision "involves an unreasonable application" of Supreme Court law "if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407; see also id. at 409-11 (explaining that "unreasonable" does not mean merely "incorrect" or "erroneous"). Finally, this Court must presume state court findings of fact correct unless clear and convincing evidence rebuts them. 28 U.S.C. § 2254(e) (1).
The record confirms that, in his MAR (as amended), Petitioner raised the claims now asserted in Grounds Two through Six of the Petition (see Docket Entry 2 at 23-28, 30-32, 60-63, 69-70) and the trial court denied them on the merits (see id. at 114-17). As a result, this Court may not grant habeas relief on Grounds Two through Six unless Petitioner satisfies his heavy burden under Section 2254(d). See Cullen v. Pinholster, ___ U.S. ___, ___ 131 S.Ct. 1388 , 1398 (2011) ("If an application includes a claim that has been adjudicated on the merits in State court proceedings, § 2254(d)... [imposes] a difficult to meet and highly deferential standard..., ...