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Castevens v. Perry

United States District Court, M.D. North Carolina

May 7, 2014

MICHAEL DEAN CASTEVENS, Petitioner,
v.
FRANK L. PERRY, [1] Respondent.

MEMORANDUM OPINION AND ORDER

L. PATRICK AULD, Magistrate Judge.

Petitioner, a prisoner of the State of North Carolina, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket Entry 2.) In the Superior Court of Chatham County, Petitioner pled guilty, pursuant to North Carolina v. Alford , 400 U.S. 25 (1970), to assault with a deadly weapon with intent to kill inflicting serious injury in case 11 CRS 50022. (Docket Entry 2, ¶¶ 1, 2, 4-6; see also Docket Entry 6, Ex. 1.) The trial court sentenced Petitioner pursuant to the terms of his plea bargain to 66 to 89 months in prison. (Docket Entry 2, ¶ 3; see also Docket Entry 6, Exs. 1-4.) Petitioner did not pursue a direct appeal. (Docket Entry 2, ¶ 8.)

Petitioner did file a pro se motion for appropriate relief ("MAR") with the trial court (Docket Entry 6, Ex. 5), which that court summarily denied. (Docket Entry 7, Ex. 6.) Petitioner thereafter submitted a second pro se MAR to the trial court (Docket Entry 6, Ex. 7), which appears to be merely a photocopy of his first MAR (and bears its prior submission date) (id. at 6), except that he attached copies of the second page of the Felony Judgment Findings of Aggravating and Mitigating Factors (Structured Sentencing) form in his underlying criminal case and a purported signed statement from "Lynn Castevens" (id. at 7-8). The trial court summarily denied the second MAR. (Docket Entry 6, Ex. 8.) Subsequently, Petitioner filed a pro se "Motion for Appeal in said cases" with the trial court. (Docket Entry 6, Ex. 9.) The trial court also summarily denied that motion. (Docket Entry 6, Ex. 10.) Petitioner then filed a third pro se MAR with the trial court (Docket Entry 6, Ex. 11), which that court summarily denied (Docket Entry 6, Ex. 12). The record before the Court does not demonstrate that Petitioner ever filed a petition for certiorari with the North Carolina Court of Appeals seeking review of the denial of his state court post-conviction filings.

Petitioner subsequently submitted his instant Petition to this Court (Docket Entry 2), which he dated as signed on July 9, 2012 (id. at 15), [2] and which the Court stamped as filed on July 11, 2012 (id. at 1).[3] Respondent moved for summary judgment on the merits (Docket Entry 5) and Petitioner responded by filing, past the response deadline, (1) a notarized "confession" by the victim, Petitioner's brother, Millard Lynn Castevens, dated October 3, 2012, declaring that, "[d]ue to my own negligence and I was drinking alcohol, I fell on the knife" and that "[i]t was no one else's fault" (Docket Entry 9 at 2); (2) a Declaration and Request to Proceed In Forma Pauperis (Docket Entry 12); (3) a "Motion to Amend habeas corpus" (Docket Entry 13); and (4) a letter from his mother, Mary Castevens, dated March 10, 2014, stating that, although she did not witness the assault, she did not think Petitioner stabbed the victim and urging the Court to "check [a] phone call from [Petitioner] to [the victim]" (Docket Entry 14 at 1).

In regards to the "confession" of Millard Lynn Castevens (Docket Entry 9) and the letter from Mary Castevens (Docket Entry 14), these documents both post-date Petitioner's post-conviction filings in state court, such that the state trial court could not have considered them in ruling on Petitioner's MARs. Further, as discussed below, the highly deferential standard of review under 28 U.S.C. § 2254(d) applies to the claims in the Petition (other than the portion of Claim One that alleges ineffective assistance of counsel in conclusory fashion). As such, this Court cannot consider either the "confession" or the letter in evaluating such claims. See Cullen v. Pinholster, ___ U.S. ___, ___ , 131 S.Ct. 1388, 1398 (2011) (holding "that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits").

With respect to Petitioner's Declaration and Request to Proceed In Forma Pauperis (Docket Entry 12), the record reflects that Petitioner filed a similar request at the outset of this action (Docket Entry 1), which request the Court granted (Docket Entry 3). Accordingly, the Court denies Petitioner's second such request as moot.

In Petitioner's "Motion to amend habeas corpus" (Docket Entry 13), Petitioner seeks to amend the instant Petition in the following ways:

1) Amend Respondent['s] name to Frank Perry, Secretary of Public Safety.
2) Amend request for sua sponte not to be dismissed.
3) Amend that the Honorable James Hardin did not allow due process and let the new evidence be brought forth in his courtroom that proved my innocence.
4) Amend that Kaley Taber District Attorney of Chatham County did not reopen my case after receiving the new evidence that proved my innocence.
5) Amend request for an [sic] court appointed attorney to help with my appeal.
6) Amend that the victim has been denied to speak to the Honorable Jame[s] Hardin and explain innocence of Petitioner.
7) Amend that the victim had been denied to speak with District Attorney Katy Taber and explain ...

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