United States District Court, W.D. North Carolina, Statesville Division
KEVIN D. GRAY, Petitioner,
PATSY L. CHAVIS, Administrator, Tabor Correctional Institution, Respondent.
FRANK D. WHITNEY, Chief District Judge.
THIS MATTER is before the Court on an initial review of Petitioner's federal habeas petition filed pursuant to 28 U.S.C. § 2254. See Rule 4 of the Rules Governing Section 2254 Cases. For the reasons that follow, Petitioner's Section 2254 petition will be denied and dismissed.
Petitioner is presently a prisoner of the State of North Carolina following his conviction in Lincoln County Superior Court on one count of second-degree kidnapping and one count of second-degree rape. Petitioner was sentenced to a term of 46 to 65 months on the kidnapping conviction and a consecutive term of 133 to 169 months' imprisonment on the rape conviction. The trial court entered judgment on January 31, 2003 and Petitioner noted an appeal to the North Carolina Court of Appeals.
On appeal, the appellate court summarized the evidence presented at Petitioner's trial:
Lieutenant Dean Abernathy (Lieutenant Abernathy) of the Lincolnton Police Department testified that at approximately 3:30 a.m. on 29 July 2001, he received a telephone call from his sergeant informing him of an alleged rape. Lieutenant Abernathy went to Gaston Memorial Hospital, where he spoke with S.E.H. Lieutenant Abernathy testified that S.E.H. told him that at approximately 9:30 p.m. on 29 July 2001, she heard a knock at her door. She opened the door and saw a white male standing in the doorway. She told Lieutenant Abernathy that the man forced his way into the house and pushed her onto a couch in the living room. She also told him that the man grabbed her from the couch and forced her into an adjoining bedroom where the man shook her until she passed out. S.E.H. told Lieutenant Abernathy that when she awoke, the man was "raping her anally[, ]" and that the man continued the attack, "raping her anally and vaginally."
Lieutenant Abernathy testified that S.E.H. told him that the man then put her in the bedroom closet for about forty-five minutes. When the man took her out of the closet, he placed a pillowcase over her head and took her into the bathroom where he put her into the shower and said that he "was going to wash the evidence off." Lieutenant Abernathy testified that S.E.H. told him that the man then sexually assaulted her again, anally and vaginally. Lieutenant Abernathy further stated that S.E.H. said that before the man left her apartment, he took the bed sheets, the towels he had used in the bathroom, and a bottle of window cleaner. He used the window cleaner and one of the towels to wipe off the door.
Lieutenant Abernathy testified that he interviewed S.E.H. a second time on 30 July 2001 at the Lincolnton Police Department. Over Defendant's objection, Lieutenant Abernathy testified that in this second interview, S.E.H. told him that the man told her he was a criminology major at North Carolina State University, that he knew computers, and that he could trace telephone calls. S.E.H. also testified at trial and her testimony echoed Lieutenant Abernathy's in most respects, but did not include Defendant's statements regarding his college major, knowledge of computers, or his ability to trace telephone calls. S.E.H. also testified that when Defendant entered her house he told her he had a gun and that she "was going to do what he said." S.E.H. testified that after Defendant forced her to her bedroom, he choked her with his left arm until "everything went black."
At the close of the State's evidence, Defendant moved to dismiss the second-degree kidnapping charge. The trial court denied Defendant's motion.
Defendant testified at trial and denied that any nonconsensual sexual contact had taken place. Defendant also presented other evidence unrelated to this appeal. At the close of Defendant's evidence, he renewed his motion to dismiss the kidnapping charge.
On appeal, Defendant argues (1) that the trial court erred by denying his motion to dismiss on the grounds that the State failed to prove an asportation separate and apart from the rape itself; and (2) that the trial court erred by overruling Defendant's objection to the admission of portions of Lieutenant Abernathy's testimony as non-corroborative hearsay. We find no error.
State v. Gray , 646 S.E.2d 442, 2007 WL 1928682 ( N.C. Ct. App. July 3, 2007) (unpublished table decision).
The court of appeals affirmed Petitioner's judgment in all respects and he did not seek further review of his judgment until he filed a motion for appropriate relief (MAR) in the Lincoln County Superior Court on February 14, 2014, which the superior court denied by order entered on February 25, 2014. (5:14-cv-69, Doc. No. 1 at 3). On March 24, 2014, the court of appeals denied the petition for a writ of certiorari to review the decision of the trial court. State v. Gray, No. P14-197 ( N.C. Ct. App. 2014). ( Id., Doc. No. 1-1 at 4). Petitioner avers that he placed his § ...