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Johnson v. Perry

United States District Court, E.D. North Carolina, Western Division

November 7, 2014

FRANK PERRY, Respondent.


JAMES C. DEVER, III, Chief District Judge.

Kenis Ray Johnson ("Johnson"), a state inmate, seeks a writ ofhabeas corpus pursuant to 28 U.S. C.§ 2254 [D.E. 1]. On January 24, 2014, the court reviewed the petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and allowed the petition to proceed [D.E. 4], and the clerk served respondent with the petition [D.E. 5]. On March 3, 2014, respondent answered the petition [D.E. 6] and moved for summary judgment [D.E. 10]. Pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam), the court notified Johnson about the motion for summary judgment, the consequences of failing to respond, and the response deadline [D.E. 9]. On March 20, 2014, Johnson responded in opposition [D.E. 12]. As explained below, the court grants respondent's motion for summary judgment.


Before addressing the merits of the petition, the court begins by briefly reciting the crime which led to Johnson's conviction and sentence. Johnson

was arrested in a "buy-bust sting operation" conducted by the Onslow County Sheriff's Office. An informant, Joshua Burgess (Mr. Burgess), called Detective Vishaud Samlall (Detective Samlall) of the Onslow County Sheriff's Office on 17 July 2009 to inform Detective Samlall that he could set up a deal the following day to buy Vicodin pills from [Johnson]. Detective Samlall authorized the deal and the following morning, he met with Mr. Burgess and several officers of the Onslow County Sheriff's Office, including Sergeant Robert Ides (Sergeant Ides). In preparation for the operation, the officers searched Mr. Burgess and his vehicle; the searches revealed no drugs or money. The officers then equipped Mr. Burgess with a "button camera[, ]" a small camera made to look like a button and worn in place of a button on a person's clothing. Mr. Burgess was to use the button camera to record audio and video of the anticipated drug purchase. The officers also issued $350.00 of "buy money" to Mr. Burgess to purchase 180 Vicodin pills from [Johnson]. Detective Samlall had previously photocopied the $350.00 to make it identifiable.
The officers and Mr. Burgess drove to a grocery store parking lot in Swansboro, North Carolina, the site of the anticipated drug purchase. Mr. Burgess met [Johnson] in the grocery store parking lot and interacted with him for about a minute. Although several officers observed the interaction, no officers observed Mr. Burgess and [Johnson] exchange any money or drugs. Mr. Burgess testified that he purchased a bottle of pills from [Johnson] for $350.00, signaled to the officers that the deal was complete, and then drove away. After the officers observed Mr. Burgess signal that the deal was complete, the officers converged on [Johnson]' s vehicle and arrested [Johnson]. [Johnson]'s seven-year-old son was also in [Johnson]'s vehicle. Detective Samlall testified that he searched [Johnson]'s vehicle and found the $350.00 that had been issued to Mr. Burgess. Sergeant Ides testified that he followed Mr. Burgess and stopped him a short distance away from the parking lot. Sergeant Ides searched Mr. Burgess and his vehicle, locating a pill bottle containing 169.5 pills, but no additional drugs and no money. Sergeant Ides took possession of the pill bottle and the button camera worn by Mr. Burgess during the interaction.
Melanie Thornton (Ms. Thornton), a forensic chemist with the N.C. State Bureau of Investigation (SBI), testified that she analyzed and identified the pills "as a mixture of acetaminophen and Hydrocodone." Ms. Thornton also testified that the pills constituted "a Schedule III preparation of an opiate derivative, dihydrocodeinone, with a total weight of 118 grams." It is apparent from the record, and the parties agree, that Hydrocodone and dihydrocodeinone are synonymous.
[Johnson] testified that he received "180 pills every 30 days" for pain caused by his diabetes. During [Johnson]'s cross-examination, the State asked [Johnson] if he got "Vicodin or dihydrocodeinone from the VA" and [Johnson] responded "[t]hat is correct." [Johnson] testified that he and Mr. Burgess attended a cookout on 17 July 2009, where Mr. Burgess, aware of the pain [Johnson]'s diabetes caused [Johnson], offered to give [Johnson] several Percocet pills the following day. [Johnson] testified that he met Mr. Burgess in a grocery store parking lot on 18 July 2009, and that Mr. Burgess approached [Johnson]'s vehicle and dropped an empty pill bottle into [Johnson]'s lap, which [Johnson] immediately gave back to Mr. Burgess. [Johnson] denied ever selling any pills to Mr. Burgess and denied that the $350.00 "buy money" was ever in his possession or in his vehicle.

State v. Johnson, 214 N.C.App. 436, 437-38, 714 S.E.2d 502, 504-05 (2011).

On July 23, 2010, in Onslow County Superior Court, a jury convicted Johnson of selling and delivering, and possessing with intent to sell and deliver, a schedule m controlled substance, trafficking in opium, maintaining a vehicle for the purpose of selling controlled substances, and possession of drug paraphernalia. Johnson, 214 N.C.App. at 436-37, 714 S.E.2d at 504. The trial court sentenced Johnson to two consecutive terms of225 to 279 months' imprisonment. Id., 714 S.E.2d at 504. Johnson appealed and, on August 16, 2011, the North Carolina Court of Appeals found no error. Id. at 447, 714 S.E.2d at 510. On November 9, 2011, the North Carolina Supreme Court denied Johnson's petition for discretionary review. State v. Johnson, 365 N.C. 362, 718 S.E.2d 393 (2011). On October25, 2012, Johnson filed amotion for appropriate relief("MAR") in Onslow County Superior Court. Pet. [D.E. 1] 6; [D.E. 8-9] (copy of MAR). On February 28, 2013, the state court denied the MAR. See [D.E. 8-10] (order denying MAR); [D.E. 1-2] 2-5 (same); cf. Pet. 6 (stating the court denied the MARon March 8, 2013). On April 1, 2013, [1]Johnson filed a certiorari petition in the North Carolina Court ofAppeals, which that court dismissed on April 17, 2013, based on Johnson's failure to attach a copy ofhis MAR. See [D.E. 8-11, 11-2]. On April 25, 2013, Johnson moved to reinstate his petition and attached a copy of his MAR. See [D.E. 11-3]. On May 14, 2013, the North Carolina Court of Appeals denied the petition. See [D.E. 11-5]; Pet. 7. On May 23, 2013, Johnson filed a certiorari petition in the North Carolina Supreme Court, which that court denied on August 27, 2013. [D.E. 11-6, 11-7].

On May 23, 2013, Johnson signed his section 2254 petition, and filed it in this court on June 3, 2013. Pet. 12. Johnson asserts two grounds for relief: (1) ineffective assistance of trial counsel during plea negotiations because he rejected the state's plea offer based on his lawyer's incorrect advice concerning the sentence he might receive if convicted at trial; and (2) ineffective assistance of trial counsel for failing to object to improper testimony of a law enforcement officer. Pet. 9; see Mem. Supp. Pet. [D.E. 1-1] 1.


Swnmary judgment is appropriate when, after reviewing the record taken as a whole, no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter oflaw. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247-48 (1986). The party seeking swnmary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Com. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met its burden, the nonmoving party may not rest on the allegations or denials in its pleading, Anderson, 477 U.S. at 248-49, but "must come forward with specific facts showing that there is a genuine issue for trial, " MatsushitaElec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis removed) (quotation omitted). A trial court reviewing a motion for swnmary judgment should determine whether a genuine issue ofmaterial fact exists for trial. Anderson, 477 U.S. at 249. In making this determination, the court must view the evidence and the inferences drawn therefrom in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

A federal court cannot grant habeas relief in cases where a state court considered a claim on its merits unless (1) the state court decision 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) the state court decision was based on an unreasonable determination of the facts in light of the evidence presented in state court. 28 U.S.C. § 2254(d). A state court decision is "contrary to" Supreme Court precedent if it either "arrives at a conclusion opposite to that reached by [the Supreme] Court on a question oflaw" or "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite" to the Supreme Court's result. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision involves an "unreasonable application" of Supreme Court precedent "ifthe state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." ld. at407; see Lopezv. Smith, ___ S.Ct. ___, 2014 WL4956764, at *1 (U.S. Oct. 6, 2014) (per curiam); White v. Woodall, 134 S.Ct. 1697, 1702-07 (2014); Nevada v. Jackson, 133 S.Ct. 1990, 1992 (2013) (per curiam); Metrish v. Lancaster, 133 S.Ct. 1781, 1786-92 (2013); Marshall v. Rodgers, 133 S.Ct. 1446, 1450-51 (2013) (per curiam); Parkerv. Matthews, 132 S.Ct. 2148');"> 132 S.Ct. 2148, 2151-56 (2012) (per curiam); Hardy v. Cross, 132 S.Ct. 490, 493-95 (2011) (per curiam); Bobby v. Dixon, 132 S.Ct. 26');"> 132 S.Ct. 26, 29-32 (2011) (per curiam); Cavazos v. Smith, 132 S.Ct. 2, 4-8 (2011) (per curiam); Renico v. Lett, 559 U.S. 766, 773 (2010).

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