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. 5), as to Petitioner's petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254.
Petitioner is a North Carolina state prisoner who, on December 5, 2012, in Gaston County Superior Court, pled guilty to robbery with a dangerous weapon and was sentenced to 100-129 months of imprisonment, in case 11 CRS 55377. See (Doc. Nos. 6-2; 6-3; 6-4). Petitioner was represented by Robert H. Lutz and did not appeal. At the time of the Gaston County robbery conviction that he challenges here, Petitioner had already been convicted on August 3, 2012, of robbery with a dangerous weapon in Lincoln County and was sentenced to 75-99 months of imprisonment. The trial court ordered Petitioner's sentence on the Gaston County robbery conviction to run concurrently with the sentence on the Lincoln County robbery conviction. See (Doc. No. 6-3 at 3).
On June 13, 2013, Petitioner filed in Gaston County Superior Court a pro se motion for appropriate relief ("MAR") and a motion for preparation of a stenographic transcript. (Doc. Nos. 6-5; 6-6). On July 16, 2013, the MAR Court summarily denied the MAR on the merits, as well as the motion for preparation of a stenographic transcript. (Doc. Nos. 6-7; 6-8). On August 12, 2013, Petitioner filed a pro se certiorari petition in the North Carolina Court of Appeals. (Doc. No. 6-9). On August 19, 2013, the state filed a response. (Doc. No. 6-10). On August 21, 2013, certiorari was denied. (Doc. No. 6-11). Petitioner placed his petition in the prison system for mailing on December 19, 2013, and it was stamp-filed in this Court on December 27, 2013. On January 14, 2014, Petitioner filed another pro se certiorari petition in the North Carolina Court of Appeals, this time seeking a belated direct appeal. (Doc. No. 6-12). On January 22, 2014, the state filed a response. (Doc. No. 6-13). On January 24, 2014, certiorari was again denied. (Doc. No. 6-14).
Finally, Petitioner has attached to his response to the summary judgment motion an order dated January 13, 2014, in which the Gaston County Superior Court granted an MAR filed by Petitioner on October 8, 2013. (Doc. No. 8 at 14). In the MAR, Petitioner had argued, among other things that, on the day he was arrested for the Gaston County bank robbery, he was in custody for the bank robbery in Lincoln County, and that he should have received credit for time served as to one of the robberies. See (Doc. No. 6-5 at 15-16). The MAR Court granted the MAR in part, stating that "the Motion does set forth probable grounds for the relief requested, in that the record reflects Defendant/Petitioner is in essence serving more than one sentence for the same crime, which occurred in two counties." The MAR Court noted that the prosecutor had consented to relief on the MAR, and the MAR Court stated that Petitioner "shall receive 479 days of jail credit for the Gaston County case only." (Doc. No. 8 at 14).
Respondent filed the pending summary judgment motion in this action on April 14, 2014. (Doc. No. 5). On April 15, 2014, the Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of his obligation to respond to the summary judgment motion. (Doc. No. 7). On April 28, 2014, Petitioner submitted a Reply to the summary judgment motion. (Doc. No. 8). Petitioner contends in the petition that: (1) his conviction was obtained in violation of due process; (2) his guilty plea is invalid as a matter of law in violation of his Fifth, Sixth, and Fourteenth Amendment rights; (3) at sentencing, the prosecution breached an oral plea agreement in violation of his Fifth, Sixth, and Fourteenth Amendment rights; and (4) he received ineffective assistance of counsel.
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 ...