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. 6), and on Petitioner's Motion to Stay, (Doc. No. 9).
Petitioner is a prisoner of the State of North Carolina who, on March 27, 2008, in Mecklenburg County Superior Court, pled guilty to three consolidated counts of armed robbery, two consolidated counts of armed robbery, three consolidated counts of second-degree kidnapping, and two consolidated counts of second-degree kidnapping, and was sentenced, pursuant to the exact terms of his plea bargain, to two consecutive terms of 82-108 months, plus two consecutive terms of 27-42 months imprisonment, in cases 06 CRS 237936, 40, 42, 46, 60, 64, 71, 90, 235503, 05. See (Doc. Nos. 7-2; 7-3; 7-4). Petitioner was represented by Norman Butler and did not appeal. On or about August 21, 2013, Petitioner filed a pro se motion for appropriate relief ("MAR") in Mecklenburg County Superior Court. (Doc. No. 7-5). On September 4, 2013, the MAR Court denied the MAR. (Doc. No. 7-6). On November 18, 2013, Petitioner filed a pro se certiorari petition in the North Carolina Court of Appeals, which petition was dismissed on November 26, 2013. (Doc. No. 7-7; 7-9).
Petitioner placed the petition in the prison system for mailing on December 19, 2013, and it was stamp-filed in this Court on December 21, 2013. In his sole ground for relief, Petitioner contends that because a prior conviction for misdemeanor larceny that was used to enhance his sentence to prior record level III has been vacated, he is entitled to re-sentencing at his new, prior record level, and the failure to do so violates due process. Respondent filed the pending motion for summary judgment on January 28, 2014. (Doc. No. 6). On January 29, 2014, this Court entered an Order pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975), granting Petitioner fourteen days to respond to the summary judgment motion. (Doc. No. 8). On February 18, 2014, Petitioner filed a motion to stay the petition to allow him to exhaust his claim in state court. (Doc. No. 9).
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 28 U.S.C. § 2254. Section 2254(d) provides that:
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 ...