United States District Court, W.D. North Carolina, Asheville Division
FRANK D. WHITNEY, Chief District Judge.
THIS MATTER comes before the Court on Respondent's Motion for Summary Judgment, (Doc. No. 10), and on Petitioner's Motion to Appoint Counsel, (Doc. No. 8).
Pro se Petitioner is a prisoner of the State of North Carolina who pled guilty on February 18, 2013, in Cleveland County Superior Court to first-degree kidnapping, assault inflicting serious injury, and assault by strangulation, and was sentenced to consecutive terms of 88-115 months and 21-26 months suspended for 60 months, in cases 11 CRS 52678-79, and 2325. See (Doc. Nos. 11-2; 11-3). Petitioner was represented by John D. Church at trial and Petitioner did not appeal. On September 27, 2013, Petitioner filed a pro se motion for appropriate relief ("MAR") in Cleveland County Superior Court. (Doc. No. 1-1 at 1). On October 2, 2013, the MAR Court denied the MAR. (Id. at 7-8). On October 29, 2013, Petitioner filed a pro se certiorari petition in the North Carolina Court of Appeals. (Id. at 9-13). On November 14, 2013, the North Carolina Court of Appeals denied the petition for certiorari. (Doc. No. 11-4).
Petitioner placed the petition in the prison system for mailing on November 22, 2013, and it was stamp-filed in this Court on December 30, 2013. (Doc. No. 1). On February 18, 2014, and March 12, 2014, Petitioner filed motions to amend, essentially setting forth additional arguments supporting his original grounds for relief contained in his federal habeas application form. (Doc. Nos. 4; 5). This Court granted the motions on March 18, 2014. (Doc. No. 6). On March 31, 2014, Respondent filed the pending motion for summary judgment. (Doc. No. 10). On April 3, 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. 12). On April 10, 2014, Petitioner filed a response to the summary judgment motion. (Doc. No. 13). Petitioner brings the following grounds for relief in his petition: (1) he received ineffective assistance of counsel because his lawyer did not respond or discuss his case, did not advise him or inform him of the evidence, did not send him for outside evaluations, and threatened him to take a plea or go to trial that day knowing that counsel was unprepared to defend him; (2) the prosecutor intentionally delayed calendaring a hearing on the pending appeal of Petitioner's prior conviction for violating a domestic protective order, knowing that Petitioner had already served the sentence on that conviction; (3) Petitioner's state and federal constitutional right to a jury trial was denied because he completed serving his 150-day sentence on the domestic protective order violation conviction even though his appeal was pending and this charge was dismissed; and (4) to gain a tactical advantage, the prosecutor would not hear Petitioner's pending appeal and would not calendar a hearing and this would have made all the difference in the world to the outcome of a trial on the convictions Petitioner challenges in this action.
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 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 (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 ...