United States District Court, E.D. North Carolina, Western Division
SYLVESTER E. HARDING, III, Petitioner,
UNNAMED RESPONDENT and SANDRA THOMAS, Respondents.
LOUISE W. FLANAGAN, District Judge.
This matter came before the court on respondent's second motion for summary judgment (DE 38) pursuant to Federal Rule of Civil Procedure 56, to which petitioner responded. Also before the court is petitioner's unopposed motion for summary judgment (DE 42). In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants respondent's motion, but denies petitioner's motion.
STATEMENT OF CASE
The court has extensively detailed the procedural posture of this action in its August 21, 2013, order. For ease of reference, a pertinent portion of the statement of the case set forth in that order is restated here:
On May 12, 2010, petitioner was convicted in the Cumberland County Superior Court of possession with intent to manufacture, sell, or deliver cocaine, felonious maintaining a vehicle used for keeping or selling a controlled substance, misdemeanor driving while license revoked, and displaying a fictitious registration plate. State v. Harding, [No. COA11-161 , 2011 WL 3891789 ( N.C. App. Sept. 6, 2011) (unpublished)]. Petitioner also pleaded guilty to having attained the status of habitual felon. Id . Petitioner then was sentenced to a term of ninety-three (93) to one hundred twenty-one (121) months imprisonment. Id . Upon petitioner's motion for reconsideration, the trial court vacated its judgment and re-sentenced him to a mitigated range sentence of eighty-two (82) to one hundred eight (108) months imprisonment. Id . Petitioner then filed a notice of appeal. Id.
On September 6, 2011, the North Carolina Court of Appeals entered an order reversing petitioner's conviction for maintaining a vehicle for the keeping or selling of controlled substances, but found no error as to the remainder of petitioner's conviction and sentence. Id . On November 9, 2011, the North Carolina Supreme Court denied petitioner's pro se petition for discretionary review. State v. Harding , 365 N.C. 362, 718 S.E.2d 394 (2011). Petitioner subsequently was re-sentenced to a term of eighty-two (82) to one hundred eight (108) months imprisonment. Resp't's Mem. Ex. 7.
On February 10, 2012, petitioner filed a pro se motion for appropriate relief ("MAR") in the North Carolina Supreme Court. Resp't's Mem. Ex. 9. The Supreme court dismissed petitioner's MAR. Id.
On March 16, 2012, petitioner filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. [On March 26, 2012, Magistrate Judge William A. Webb entered an order of deficiency notifying petitioner that his original habeas petition filed on March 16, 2012, was not on the proper form. The court provided petitioner with the correct form and directed him to correct the deficiency. Petitioner complied and filed his petition on the correct form on April 2, 2012.] Petitioner alleges the following grounds for relief: (1) he received ineffective assistance of counsel; (2) he was subjected to an unlawful search and seizure in violation of the Fourth Amendment to the United States Constitution; (3) he was subjected to "raced based policing" in violation of his right to due process pursuant to the Fourteenth Amendment to the United States Constitution; and (4) he was subjected to misconduct by the state because it produced a witness who made misleading statements. Petitioner subsequently filed a motion to amend his complaint [to supplement the claims he asserted in his habeas petition] and a motion for summary judgment.
On July 3, 2012, respondent filed a motion for summary judgment, arguing that petitioner failed to fully and properly exhaust his administrative remedies.... The matter was fully briefed. Petitioner subsequently filed two petitions for a writ of mandamus and a motion for an evidentiary hearing.
On February 15, 2013, the court entered an order granting petitioner's motion to amend, denying as premature petitioner's motion for an evidentiary hearing, and denying his petitions for a writ of mandamus. The court also denied without prejudice the respective motions for summary judgment filed by both petitioner and respondent. The court, in its order, also determined that petitioner failed to exhaust his state court remedies for his habeas claims. Accordingly, the court allowed petitioner the opportunity to file a motion to stay this action while he exhausts his state court remedies.
On February 28, 2013, petitioner filed his motion to stay, and the issue was fully briefed. Petitioner thereafter filed a motion for summary judgment, a motion for a telephone or video conference, motions to supplement, and a motion for a writ of assistance.
On August 21, 2013, the court entered an order in which it reconsidered its prior determination that petitioner failed to exhaust his state court remedies, and found that petitioner presented evidence to suggest that he exhausted his state court remedies. As a result, the court denied as moot petitioner's motion to stay. The court also granted petitioner's motion to supplement, but denied his remaining motions.
On August 29, 2013, respondent filed a motion for summary judgment again arguing that petitioner failed to exhaust his administrative remedies. Alternatively, respondent contends that petitioner's claims are without merit. The motion was fully briefed. Petitioner subsequently filed a motion for summary judgment, to which respondent did not respond.
STATEMENT OF FACTS
The facts as summarized by the North Carolina Court of Appeals are as follows:
The State's evidence tended to show that, at about 1:00 a.m. on 17 December 2008, Fayetteville Police Officer Allison Brown observed defendant, whom she had previously cited for driving while license revoked, driving a Hummer vehicle affixed with a dealer's registration tag. When defendant drove into a McDonald's parking lot, a woman exited her vehicle and entered defendant's vehicle. Shortly thereafter, the officer initiated a traffic stop of defendant's vehicle and subsequently seized a small "baggy" containing a white powdery substance from both defendant and from the woman. After a field test of the contents of the two bags indicated a positive result for cocaine, Officer Brown packaged the white powder found on the person of the woman and of defendant. The officer then brought the two packages to the evidence locker room at the police department and marked, sealed, and initialed each package. The bags were subsequently delivered to the State Bureau of Investigation ("SBI") where an SBI chemist tested the white powder in each of the bags and determined that the powder was cocaine.
Defendant was indicted for possession with intent to manufacture, sell, or deliver cocaine, felonious maintenance of a vehicle to keep or sell a controlled substance, misdemeanor driving while license revoked, and displaying a fictitious registration plate, and was issued a special indictment for attaining habitual felon status. Defendant moved to suppress the evidence seized by the officers at the scene, which the trial court denied. The case was heard before a jury, which returned guilty verdicts on each of the four charged offenses; defendant pled guilty to attaining habitual felon status. On 12 May 2010, the court entered a judgment sentencing defendant to a minimum term of 93 months and a maximum term of 121 months imprisonment. Upon defendant's motion for reconsideration, the court heard evidence in mitigation of defendant's sentence. As a result, the trial court vacated its judgment and entered a new judgment with the mitigated sentence of 82 months to 108 months imprisonment. Defendant gave written notice of appeal.
Harding , 2011 WL ...