United States District Court, W.D. North Carolina, Charlotte Division
FRANK D. WHITNEY, Chief District Judge.
THIS MATTER comes before the Court on Respondent's Motion for Summary Judgment. (Doc. No. 7).
On August 29, 2011, Kevin Andrew Powell, a prisoner of the State of North Carolina, was found guilty by a jury in Mecklenburg County Superior Court of second-degree murder. (Doc. No. 8-17 at 24: Trial Tr.; Doc. No. 8-23 at 20: Record on Appeal). The trial court sentenced Petitioner as a Prior Record Level II offender in the presumptive range to 189 to 236 months of imprisonment. (Doc. No. 8-23 at 24). Petitioner was represented by Eric Bach at trial. Petitioner appealed his convictions to the North Carolina Court of Appeals through counsels Dianne Jones McVay and Chiege O. Kalu Okwara.
On December 2, 2011, before settling the record on appeal, Petitioner, through counsel, filed a motion for appropriate relief ("MAR") in the North Carolina Court of Appeals. (Doc. No. 8-18). On December 13, 2011, the State filed a response, and on December 15, 2011, the North Carolina Court of Appeals dismissed the MAR. (Doc. Nos. 8-19; 8-20). Petitioner then filed a direct appeal with the North Carolina Court of Appeals and on October 2, 2012, the court affirmed Petitioner's conviction and sentence in a published opinion. State v. Powell, ___ N.C.App. ___, 732 S.E.2d 491 (2012). Petitioner did not seek discretionary review from the North Carolina Supreme Court.
On July 8, 2013, Petitioner filed a pro se MAR with the Mecklenburg County Superior Court. (Doc. No. 8-27). On July 12, 2013, the MAR was denied. (Doc. No. 8-28). On July 31, 2013, Petitioner filed a pro se petition for writ of certiorari with the North Carolina Court of Appeals. (Doc. No. 8-29). The State filed a response on August 12, 2013, and on August 15, 2013, the court denied the petition. (Doc. Nos. 8-30; 8-31). On August 28, 2013, Petitioner placed his petition in the prison system for mailing, and the petition was stamp-filed by this Court on September 3, 2013. (Doc. No. 1 at 1; 14). Petitioner brings the following alleged grounds for relief in the petition: (1) the State failed to disclose exculpatory evidence and permitted false testimony; (2) Petitioner received ineffective assistance of counsel on the ground that his trial counsel failed to call certain fact witnesses to testify; (3) Petitioner is actually innocent and the State failed to present sufficient evidence of his guilt; and (4) Petitioner received ineffective assistance of counsel on the ground that his trial counsel failed to object when the State improperly vouched for a witness' credibility.
On November 26, 2013, Respondent filed the pending motion for summary judgment. (Doc. No. 7). On December 4, 2013, this Court entered an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), granting Plaintiff fourteen days to respond to the summary judgment motion. (Doc. No. 9). On January 13, 2014, Petitioner filed a response to the summary judgment motion. (Doc. No. 12).
The North Carolina Court of Appeals summarized the facts from Petitioner's trial as follows:
The evidence presented at trial tended to show the following: On 10 March 2007, Latarshia Grant, the girlfriend of the victim, Jamarr Linell Flowers, dropped Flowers off at his home around 9:00 p.m. Grant returned to Flowers's home between 10:30 and 11:00 p.m. and noticed that "the wood off the door was gone." When she pushed through the door, Grant saw Flowers lying dead on the floor. Grant immediately called 911.
When law enforcement officers arrived, they observed that Flowers had been shot six times at close range. Law enforcement officers also found a mobile phone on the floor next to Flowers that did not belong to him. Through their investigation of the murder, law enforcement officers determined that the phone belonged to Defendant's employer and that the employer had given the phone to Defendant. Law enforcement officers later determined that Defendant received a call from his girlfriend at 10:40 p.m. and that the call was transmitted to Defendant's phone by a cell phone tower located less than one mile from Flowers's home.
Thereafter, Defendant was interviewed by law enforcement officers and admitted that the phone was his, but denied that he had been at the crime scene. After his interview, Defendant was arrested. At trial, State's witness Etoyi Blount testified that, while sharing a jail cell with Defendant and several other men following Defendant's arrest, Blount heard one of the men ask Defendant how police had "caught" Defendant for Flowers's murder:
And [Defendant] had told him that-[Defendant] told him that the police had found his phone, or either he wouldn't be in jail if the police hadn't found his phone. And then the guy asked [Defendant], Well, how did the police get your phone? And [Defendant] said, I must have dropped it after I killed him.
Following the presentation of evidence, the trial court instructed the jury on both first- and second-degree murder. Thereafter, the jury returned a verdict of guilty of second-degree murder, and the trial court sentenced Defendant, as a Level II offender, to 189-236 months imprisonment. State v. Powell, ___ N.C.App. ___, 732 S.E.2d 491, 493 (2012).
II. STANDARD OF REVIEW
A. Summary Judgment Standard
Summary judgment is appropriate in those cases where there is no genuine dispute as to any material fact, and it appears that the moving party is entitled to judgment as a matter of law. FED. CIV. P. 56(c)(2); United States v. Lee, 943 F.2d 366, 368 (4th Cir. 1991). Any permissible inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). Where, however, the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
B. Section 2254 Standard
In addition to the motion for summary judgment standard set forth above, this Court must also consider the Petition for Writ of Habeas Corpus under the requirements set forth in ...