United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
L. PATRICK AULD, Magistrate Judge.
Petitioner, a prisoner of the State of North Carolina, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket Entry 1.) A jury in the Superior Court of Guilford County acquitted Petitioner on a charge of robbery with a dangerous weapon but convicted him of felonious speeding to elude arrest. (Id., ¶¶ 1, 2, 4-6; see also Docket Entry 5-5 at 19-20 (verdicts).) Pursuant to the terms of a plea bargain, Petitioner than pled guilty to attaining habitual felon status (Docket Entry 5-5 at 23-26 (transcript of plea)), and the trial court sentenced Petitioner to 120 to 153 months' imprisonment (Docket Entry 2, ¶¶ 3, 5; see also Docket Entry 5-5 at 27-28 (judgment)). The North Carolina Court of Appeals affirmed Petitioner's conviction, the North Carolina Supreme Court dismissed Petitioner's appeal, and the United States Supreme Court denied certiorari. State v. Turner, No. COA09-933, 201 N.C.App. 727 (table), 689 S.E.2d 601 (table), 2010 WL 10552 (Jan. 5, 2010) (unpublished), appeal dismissed, 364 N.C. 247, 699 S.E.2d 922 (2010), cert. denied, ___ U.S. ___, 131 S.Ct. 1011 (2011).
Petitioner then instituted this action through counsel. (Docket Entry 1.) Respondent answered (Docket Entry 3), and moved for summary judgment (Docket Entry 4). Petitioner responded in opposition to Respondent's summary judgment motion. (Docket Entry 11.) The Parties consented to the disposition of this case by a United States Magistrate Judge. (Docket Entry 13.) For the reasons that follow, the Court will deny any habeas relief.
I. PETITIONER'S CLAIM
The Petition identifies one ground for relief. (Docket Entry 1, ¶ 12.) Petitioner alleges that the trial court violated the Sixth Amendment to the United States Constitution when it instructed the jury "that they did not need to be unanimous as to which aggravators existed" to elevate the crime of speeding to elude arrest from a misdemeanor to a felony. (Id.)
II. HABEAS STANDARDS
The Court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Further, "[b]efore [the] [C]ourt may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to [this] [C]ourt in a habeas petition. The exhaustion doctrine... is now codified at 28 U.S.C. § 2254(b)(1)." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see also 28 U.S.C. § 2254(b)(3) ("A State shall not be deemed to have waived the exhaustion requirement... unless the State, through counsel, expressly waives the requirement.").
When a petitioner has exhausted state remedies, this Court must apply a highly deferential standard of review in connection with habeas claims "adjudicated on the merits in State court proceedings, " 28 U.S.C. § 2254(d). More specifically, the Court may not grant relief unless a state court decision on the merits "was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or... was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id . To qualify as "contrary to" United States Supreme Court precedent, a state court decision either must arrive at "a conclusion opposite to that reached by [the United States Supreme] Court on a question of law" or "confront facts that are materially indistinguishable from a relevant [United States] Supreme Court precedent and arrive at a result opposite" to the United States Supreme Court. Williams v. Taylor, 529 U.S. 362, 406 (2000). A state court decision "involves an unreasonable application" of United States Supreme Court case law "if the state court identifies the correct governing legal rule from [the United States Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407; see also id. at 409-11 (explaining that "unreasonable" does not mean merely "incorrect" or "erroneous").
In his sole ground for relief, Petitioner asserts that the trial court violated his Sixth Amendment right to a jury trial by instructing the jury that "they did not need to be unanimous as to which two aggravators existed" to elevate the crime of fleeing to elude arrest from a misdemeanor to a felony. (Docket Entry 1, ¶ 12.) Petitioner maintains that "[t]he [United States] Supreme Court's Sixth Amendment line of cases, beginning with Apprendi v. New Jersey[, 530 U.S. 466 (2000), ] requires that the jury unanimously agree on which two of three possible aggravators constitute elements of the substantive crime of Felonious Speeding to Elude." (Id.) Petitioner relies on language in Justice Thomas' concurrence in Apprendi to underscore his point:
Thus, if the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact... the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime.
(Docket Entry 11 at 2 (citing Apprendi, 530 U.S. at 501).) Based on this language, and the subsequent cases of Ring v. Arizona, 536 U.S. 584 (2002), and Blakely v. Washington, 542 U.S. 296 (2004), Petitioner argues that each of the two aggravating facts required to elevate speeding to elude arrest from a misdemeanor to a felony constituted an element of the aggravated crime. (Docket Entry 11 at 3.) As such, Petitioner contends that the Sixth Amendment required the jury to unanimously agree on each of the two aggravating factors and that the trial court erred by failing to instruct the jury that it must so unanimously agree. (Id. at 5.)
Respondent argues that the "constitutional flaw" found in Apprendi, i.e., a judge finding facts that enhanced the punishment beyond that authorized by the guilty plea, simply does not exist in the instant case. (Docket Entry 11 at 5.) Respondent emphasizes that here, the jury found all of the elements of felony speeding to elude arrest beyond a reasonable doubt. (Id. at 6.) Further, Respondent argues that the aggravating factors at issue in this case do not, individually, constitute elements of the felony requiring jury unanimity on each factor, but rather equate to "alternative ways of proving the crime of felonious speeding to elude arrest." (Id.) Respondent urges the Court to recognize language from the United States Supreme Court's decision in Richardson v. United States, 562 U.S. 813 (1999), that a "jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of the crime." Richardson, 562 U.S. at 817 (citing Schad v. Arizona, 501 U.S. 624, 631-32 (1991) (plurality opinion)). (Docket Entry 11 at 7.)
Petitioner raised this claim on direct appeal, and the North Carolina Court of Appeals denied the ...