United States District Court, W.D. North Carolina, Charlotte Division
FRANK D. WHITNEY, Chief District Judge.
THIS MATTER comes before the Court on Respondent's Motion for Summary Judgment, (Doc. No. 4), as to Petitioner's habeas petition brought pursuant to 28 U.S.C. § 2254.
Pro se Petitioner Joseph Tarleton is a prisoner of the State of North Carolina, who, on January 5, 2012, in Union County Superior Court, was convicted after trial by jury of two counts of first-degree statutory sexual offense of a child under the age of 13, five counts of indecent liberties with a child, and one count of disseminating obscenity to a minor under the age of 13, and was sentenced to 288-355 months imprisonment, in cases 04 CRS 50813, 50815-18, 5027-28, 5030. On May 7, 2013, the North Carolina Court of Appeals filed an unpublished opinion finding no error, and on August 27, 2013;, the North Carolina Supreme Court denied a petition for discretionary review. State v. Tarleton, 741 S.E.2d 928, review denied, 747 S.E.2d 536 (2013). Petitioner was represented at trial by Jon Arrowood and on appeal by Mark Montgomery. Petitioner did not thereafter did not file a motion for appropriate relief in Union County Superior Court. Instead, he filed the instant petition in this Court.
Petitioner placed the petition in the prison system for mailing on July 7, 2014, and the petition was stamp-filed in this Court on July 14, 2014. Petitioner brings the following claims in the petition: (1) the trial court's failure to exclude court reporter M.C. Trout from the 2012 proceedings violated Petitioner's constitutional rights because he had questioned her accuracy and objectivity as a stenographer in an MAR challenging a 2006 trial against him on other charges; (2) his request for a complete recordation was ignored in violation of his constitutional rights; (3) exculpatory evidence was withheld with no objection in violation of his constitutional rights; and (4) Petitioner's constitutional rights were violated because Officers Lynn Yow and Jeff Outen, who could have testified about "severe police misconduct" by other officers, were not called to testify. See (Doc. No. 1 at 5-10). Furthermore, in a handwritten attachment to his habeas petition, Petitioner sets forth 63 additional, one- or two-sentence conclusory grounds for relief, for a total of 67 claims. (Id. at 12-25).
On November 4, 2014, Respondent filed the pending motion for summary judgment. (Doc. No. 4). On November 5, 2014, this Court entered an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), granting Petitioner fourteen days to respond to the summary judgment motion. (Doc. No. 6). On November 21, 2014, Petitioner filed a response to the summary judgment motion. (Doc. No. 7).
The North Carolina Court of Appeals summarized the facts from Petitioner's trial as follows:
Prior to defendant's trial, he was indicted in 2004 for allegedly abusing his nieces (J.E.T. and M.E.) in addition to his nephew (J.T.), who is the victim in the current appeal. The cases were severed for trial. In 2006, defendant was tried for the crimes against his nieces and was convicted of nine counts of taking or attempting to take indecent liberties with a child and one count of disseminating obscenity to a minor under the age of 13.
The evidence at trial for the crimes against J.T. tended to establish the following: J.T., when he was six or seven years old, spent almost every other weekend with defendant who, at the time, was living in a camper located outside J.T.'s aunt's house. When J.T. visited, he and defendant would usually sleep in the same bed. Defendant made J.T. masturbate him and perform oral sex on him. Defendant would also perform these acts on J.T. and would show J.T. pornographic images of women and children. J.T. testified that these acts occurred every time he spent the night with defendant and that each of these acts happened at least fifteen times over a period of approximately two years until J.T. was seven or eight years old, at which time he ceased visiting defendant.
J.T. told no one about these acts until he was thirteen. At that point, J.T. told his mother something had happened, and, on 12 February 2004, she took him to the Union County Sheriff's Office where he described to Captain Cody Luke ("Captain Luke") what defendant had done to him. After the interview, Captain Luke obtained and served the warrant for arrest on defendant in the Union County jail. After defendant was read his Miranda rights, defendant invoked his right to remain silent.
On 5 January 2012, the jury convicted defendant of five counts of taking indecent liberties with a child, two counts of first degree sexual offense, and one count of disseminating obscene material to a minor under the age of thirteen. Defendant was sentenced to a minimum of 288 months and maximum of 355 months to be served after the expiration of the sentence he was serving for the convictions of crimes against his nieces. Defendant timely appealed.
State v. Tarleton, 741 S.E.2d 928 (2013) (unpublished).
II. STANDARD OF REVIEW
A. Summary Judgment ...