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Mabe v. Whitener

United States District Court, W.D. North Carolina, Statesville Division

May 15, 2014

KEITH WHITENER, et al., Defendants.


FRANK D. WHITNEY, Chief District Judge.

THIS MATTER is before the Court on an initial review of Plaintiff's pro se complaint that was filed pursuant to 42 U.S.C. § 1983. (Doc. No. 1).


Plaintiff is a prisoner of the State of North Carolina following his conviction in Forsyth County Superior Court on one count of first-degree burglary, two counts of assault on a female, and counts of larceny of a motor vehicle, communicating threats, and interfering with emergency communications. Plaintiff was sentenced on July 2, 2009, and his projected release date is January 4, 2024. Plaintiff's convictions and sentence were upheld on appeal to the North Carolina Court of Appeals. State v. Mabe , 697 S.E.2d 524 ( N.C. Ct. App. 2010) (unpublished table decision), disc. rev. denied, 702 S.E.2d 505 ( N.C. 2010).

On or about March 21, 2012, Plaintiff filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the Middle District of North Carolina in an effort to challenge his 2009 state judgment. On February 7, 2013, the district court denied the § 2254 petition after concluding that Plaintiff's claims were without merit. Mabe v. Whitener, No. 1:12-CV-277-CCE-LPA, 2013 WL 492498 (M.D. N.C. 2013), appeal dismissed, 532 F.Appx. 326 (4th Cir. July 5, 2013).


Pursuant to 28 U.S.C. § 1915(A)(a), "The court shall review... a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." Following this initial review the "court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint- (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted." Id . § 1915A(b)(1). In conducting this review, the Court must determine whether the complaint raises an indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios. Neitzke v. Williams , 490 U.S. 319, 327-28 (1989).

A pro se complaint must be construed liberally. Haines v. Kerner , 404 U.S. 519, 520 (1972). However, the liberal construction requirement will not permit a district court to ignore a clear failure to allege facts in the complaint which set forth a claim that is cognizable under federal law. Weller v. Dep't of Soc. Servs. , 901 F.2d 387, 391 (4th Cir. 1990).


Plaintiff contends that he is being denied access to the state court and he is being denied adequate access to legal representation or resources.[1]

A. Access to the Courts

Plaintiff was convicted in 1989 in Stokes County Superior Court within the Middle District on one count of breaking or entering (88CRS001989) and one count of larceny after breaking or entering (88CRS001989) and he was sentenced to five years in prison. (Doc. No. 1-1 at 2). Plaintiff asserts that he is actually innocent of the 1989 convictions because he was 17-years old at the time he was charged and the house that he was charged with breaking into was owned by his legal guardians and he apparently was residing in the home at the time of the offenses.

Plaintiff argues that Defendant Dalton has refused to respond to his inquiries or acknowledge his motion for appropriate relief (MAR) that he filed in an effort to challenge the 1989 convictions. On or about December 7, 2011, Plaintiff filed a motion for appointment of counsel in the Middle District. In his motion, it appeared that Plaintiff was seeking legal assistance in presenting his claim of actual innocence in his challenge the 1989 convictions. Plaintiff states that the MAR was filed with the Stokes County Clerk of Superior Court in October 2010 and it was denied because he mailed the State's copy of the MAR "to his court mailbox rather than his post office box. Therefore, Plaintiff resubmitted the MAR to the Superior Court on February 15, 2011 and the Court simply refused to acknowledge it or respond to any inquiry." (Case No. 1:11-cv-01076-TDS-LPA, Doc. No. 1 at 2).

Plaintiff's motion was referred to a U.S. Magistrate Judge and he issued a Memorandum and Recommendation (M&R). The court found that it was unclear whether Plaintiff was moving for the appointment of counsel to represent him in federal court or in the state courts and noted that counsel could not be appointed to assist him with filing a challenge in state court. The court then found that Plaintiff's motion would be construed as a § 2254 petition because he was seeking to attack the 1989 state convictions. The court recommended that the motion be dismissed without prejudice because Plaintiff did not include the necessary filing fee and he had not filed for relief on the proper federal habeas forms. ( Id., Doc. 2: Order and Recommendation, filed Dec. 13, 2011). Plaintiff filed an objection to the M&R and argued that his motion should have been construed as a request for relief under § 1983 rather than as a petition for habeas relief. Plaintiff stated that he intended to file for federal habeas relief from the 1989 convictions ...

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