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Cearley v. Perry

United States District Court, M.D. North Carolina

September 26, 2014

JACKIE RAY CEARLEY, Petitioner,
v.
FRANK L. PERRY, Respondent.

ORDER

WILLIAM L. OSTEEN, Jr., District Judge.

This matter is before this court for review of the Memorandum Opinion, Order, and Recommendation ("Recommendation") filed on June 11, 2014, by the Magistrate Judge in accordance with 28 U.S.C. § 636(b). (Doc. 36.) In the Recommendation, the Magistrate Judge recommends that Respondent's Motion for Summary Judgment (Doc. 5) be granted, that Petitioner's Motion for Partial Summary Judgment (Doc. 15) and Motion for Judgment on the Pleadings (Doc. 31) be denied, that the Petition (Doc. 1) be denied, and that Judgment be entered dismissing this action without issuance of a certificate of appealability. The Recommendation was served on the parties to this action on June 11, 2014. (Doc. 37.) Petitioner filed timely objections (Doc. 38) to the Recommendation.

This court is required to "make a de novo determination of those portions of the [Magistrate Judge's] report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). This court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the [M]agistrate [J]udge.... [O]r recommit the matter to the [M]agistrate [J]udge with instructions." Id.

Petitioner raises a number of objections to the Magistrate Judge's Recommendation.[1] This court has appropriately reviewed the portions of the Recommendation to which objection was made and has made a de novo determination which is in accord with the Magistrate Judge's Recommendation. This court therefore adopts the Recommendation.

However, the court's analysis of one of Petitioner's objections warrants further explanation. Petitioner objects to the Magistrate Judge's finding that one of Petitioner's Ineffective Assistance of Counsel claims was procedurally barred because it was not exhausted in state court. (Petitioner's Objs. (Pet'r's Objs. (Doc. 38) ¶ 14; Recommendation (Doc. 36) at 12-13.) A claim is procedurally barred in a § 2254 petition if the petitioner has not "fairly presented" the claim to the state court before petitioning the federal court on the issue. Jones v. Sussex I State Prison , 591 F.3d 707 (4th Cir. 2010). To meet this presentment requirement, "both the operative facts and the controlling legal principles must be presented to the state court." Baker v. Corcoran , 220 F.3d 276, 289 (4th Cir. 2000). In his § 2254 petition, Petitioner claims that his trial counsel did not provide effective assistance when he chose not to call Trooper Mathis to the stand to testify about the dangerous nature of the intersection where Petitioner had his accident. (Petitioner's Petition for Writ of Habeas Corpus (Doc 1) ¶ 12.) Although this claim was not specifically made in Petitioner's Motion for Appropriate Relief (MAR) or amended MAR, Petitioner made the general claim that his trial counsel provided ineffective assistance by not calling more witnesses to the stand to speak about the danger of the intersection. Additionally, the superior court that heard his MAR took testimony from Trooper Mathis on the danger of the intersection. (Respondent's Br., Ex. 11 (Doc. 6-13) at 37-38.)

As a result, Petitioner argues that the issue was fairly presented to the state court. Assuming without finding that this claim is not procedurally barred, the failure to call Trooper Mathis to the stand fails for the same reasons as Petitioner's other claims of Ineffective Assistance of Counsel - his trial counsel exercised professional judgment and chose to forego putting on any evidence so that he could have the last word with the jury. (Recommendation (Doc. 36) at 13-18.)[2] This court, like the Magistrate Judge, finds that this claim does not entitle Petitioner to relief.

IT IS THEREFORE ORDERED that the Magistrate Judge's Recommendation (Doc. 36) is ADOPTED. IT IS FURTHER ORDERED that Respondent's Motion for Summary Judgment (Doc. 5) is GRANTED, that Petitioner's Motion for Partial Summary Judgment (Doc. 15) and Motion for Judgment on the Pleadings (Doc. 31) are DENIED, that the Petition (Doc. 1) is DENIED, and that this action is DISMISSED. A Judgment dismissing this action will be entered contemporaneously with this Order. Finding no substantial issue for appeal concerning the denial of a constitutional right affecting the conviction, nor a debatable procedural ruling, a certificate of appealability is not issued.


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