United States District Court, W.D. North Carolina, Asheville Division
BREYON D. MIDDLEBROOKS, Petitioner,
DUANE TERRELL, Administrator, Marion Correctional Institution, Respondent.
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. 4).
Pro se Petitioner Breyon Middlebrooks is a prisoner of the State of North Carolina, who, on December 18, 2003, in Cleveland County Superior Court, was convicted after trial by jury of attempted armed robbery and first-degree murder under the felony murder rule, in cases 01 CRS 8796, and 56766. The trial court arrested judgment on the attempted armed robbery conviction and sentenced Petitioner to life imprisonment without parole for first-degree murder. On March 3, 2004, Petitioner filed a pro se motion for appropriate relief ("MAR") in Cleveland County Superior Court. The trial court noted that Petitioner's appeal was then pending, so the case was no longer in the trial court's jurisdiction, and the MAR was forwarded to Petitioner's appellate counsel so she could consider the arguments for incorporation into the appellate brief. On November 1, 2005, the North Carolina Court of Appeals filed an unpublished opinion finding no error, and on January 26, 2006, the North Carolina Supreme Court dismissed Petitioner's notice of appeal to that court and denied Petitioner's petition for discretionary review. State v. Middlebrooks , 174 N.C.App. 367, 620 S.E.2d 734 (2005), review denied, 360 N.C. 294, 629 S.E.2d 280 (2006).
Petitioner was represented at trial by Calvin Edward Coleman and on appeal by Constance E. Widenhouse. On October 12, 2010, Petitioner filed a pro se MAR in Cleveland County Superior Court. (Doc. No. 5-9). On October 13, 2010, the MAR Court summarily denied the MAR. (Doc. No. 5-10). On November 12, 2010, Petitioner filed a pro se certiorari petition in the North Carolina Court of Appeals. (Doc. No. 5-11). On November 29, 2010, the state filed a response. (Doc. No. 5-12). On December 1, 2010, certiorari was denied. (Doc. No. 5-13).
On June 12, 2012, Petitioner filed an MAR through counsel Christopher C. Fialko, in Cleveland County Superior Court, and on July 26, 2012, a supplemental supporting brief. (Doc. Nos. 5-14; 5-15). On September 5, 2012, the MAR Court summarily denied the MAR. (Doc. No. 5-16). On July 23, 2013, Petitioner filed a certiorari petition through counsel M. Gordon Widenhouse, Jr., and counsel Fialko. (Doc. No. 5-17). On August 5, 2013, the state filed a response. (Doc. No. 5-18). On August 6, 2013, certiorari was denied. (Doc. No. 5-19).
On August 9, 2013, Petitioner filed his federal habeas application form and supporting documents in this Court, through counsels Fialko and Widenhouse. As his sole ground for relief in the petition, Petitioner contends that his federal and state constitutional rights to confront the witnesses against him were violated when the prosecution relied on the results of laboratory analysis of gunshot residue offered through the testimony of an analyst who neither performed nor witnessed the testing. Specifically, Petitioner contends that this was a violation of constitutional rights as held in the Supreme Court decision of Bullcoming v. New Mexico , 131 S.Ct. 2705 (2011), decided on June 23, 2011.
Respondent filed the pending summary judgment motion and the Petitioner filed a response to the summary judgment motion, and Respondent has filed a reply. (Doc. Nos. 10; 11).
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 ...