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Ellis v. Neely

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

May 20, 2014

LASHAUN DIANTEA ELLIS, Petitioner,
v.
RICHARD NEELY Administrator, Lanesboro Correctional Institution, Respondent.

ORDER

FRANK D. WHITNEY, Chief District Judge.

THIS MATTER comes before the Court on Respondent's Motion for Summary Judgment on Petitioner's 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus, (Doc. No. 6).

I. BACKGROUND

Pro se Petitioner Lashun Diantea Ellis is a prisoner of the State of North Carolina, who, on May 2, 2012, in Caldwell County Superior Court, pled guilty to robbery with a dangerous weapon and was sentenced to 58-79 months imprisonment, in case 11 CRS 53437.[1] (Doc. Nos. 7-2; 7-3; and 7-4). Petitioner was represented by Bruce L. Cannon and did not appeal. Petitioner dated a pro se motion for appropriate relief ("MAR") April 29, 2013, and filed it in Caldwell County Superior Court on May 16, 2013. (Doc. No. 7-5). On May 17, 2013, the MAR Court denied the MAR. (Doc. No. 7-6). On June 7, 2013, Petitioner filed a pro se certiorari petition in the North Carolina Court of Appeals. (Doc. No. 7-7). On June 20, 2013, the state filed a response. (Doc. No. 7-8). On June 24, 2013, certiorari was denied by order witnessed June 25, 2013. (Doc. No. 7-9).

Petitioner dated his pro se federal habeas application form November 14, 2013, and submitted it to the Eastern District of North Carolina on or about November 22, 2013. The Eastern District subsequently transferred the petition to this Court, and it was stamp-filed in this Court on December 5, 2013. See (Doc. No. 1-1). In his sole ground for relief, Petitioner contends that his indictment was fatally defective because it did not contain a plain and concise factual statement and did not correctly identify the victim of the robbery for which Petitioner was convicted.

Respondent filed the pending summary judgment motion on January 24, 2013. (Doc. No. 6). On the same day, the Court entered an Order in accordance with Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975). (Doc. No. 8). Petitioner did not file a response to the summary judgment motion, and the time to do so has expired. Thus, the motion is ripe for disposition.

II. STANDARD OF REVIEW

A. Summary Judgment Standard

Summary judgment is appropriate 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. R. 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, 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 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 ...

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