United States District Court, W.D. North Carolina, Statesville Division
FRANK D. WHITNEY, Chief District Judge.
THIS MATTER is before the Court on an initial review of Petitioner's federal habeas petition which he filed pursuant to 28 U.S.C. § 2254. (Doc. No. 1).
Petitioner is a prisoner of the State of North Carolina who was convicted by a Catawba County jury on August 22, 2012, on one felony count of possession of a weapon by a prisoner, and two misdemeanor counts which included communicating threats and carrying a concealed weapon (Case No. 11CRS54311). The jury also convicted Petitioner on one count of being a habitual felon (Case No. 12CRS1147). Petitioner was sentenced to a term of 120 to 153 months' imprisonment and he attempted to file a direct appeal, however his effort to file the appeal from his criminal judgment was hampered by the fact that he failed to meet the requirements of filing a proper notice of appeal under North Carolina law. The North Carolina Court of Appeals summarized his effort as follows:
Defendant sought to enter a pro se written notice of appeal from the judgment entered against him by completing a form made available to him in the jail, which form was filed with the trial court the day following the entry of judgment. However, the form that defendant used to appeal to this Court was a form indicating only that the signing inmate intended to give notice of appeal from district court to superior court. Additionally, although he indicated his intent to appeal from convictions for "possess weapon [sic] by prisoner, concealed weapon, habitual felon, " defendant correctly identified only one of the two file numbers indicated on the judgment from which he purportedly seeks to appeal. Moreover, the record does not reflect that defendant's purported notice of appeal was served upon the district attorney's office. Because defendant concedes that, for these reasons, his written notice of appeal does not conform to the requirements for giving notice of appeal from a judgment in a criminal action, see N.C. R. App. P. 4, he petitions this Court to issue a writ of certiorari to allow review of his appeal. See N.C. R. App. P. 21(a)(1) ("The writ of certiorari may be issued... to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action...."). In our discretion, we allow defendant's petition for writ of certiorari.
State v. Hill , 741 S.E.2d 911, 914 ( N.C. Ct. App. 2013), disc. rev. denied, 747 S.E.2d 577 ( N.C. 2013).
After granting the certiorari petition, the court of appeals then examined Petitioner's appellate arguments which included a challenge to the unanimity of the jury verdict on the communicating threats charge, a challenge to the trial court's denial of his motions to dismiss the communicating threats charge, and the charge of carrying a concealed weapon. The court found each argument to be without merit and affirmed his convictions and sentence in all respects.
According to his verified § 2254 petition, on October 2, 2013, Petitioner filed a motion for appropriate relief (MAR) in the Catawba County Superior Court and contended that he received ineffective assistance of counsel under the Sixth Amendment. Specifically, Petitioner argued the following:
1. Counsel failed to object to his prior judgments;
2. Counsel failed to object to prejudicial jury instructions;
3. Counsel failed to object to the wrong case numbers; and
4. Counsel failed to file a direct appeal;
On January 6, 2014, the superior court denied each of these claims after finding that they were without merit. (5:14-cv-88, Doc. No. 1-3: Order). And on March 5, 2014, the North Carolina Court of Appeals denied Petitioner's petition for a writ of certiorari to review the superior court's order of denial. ...