United States District Court, W.D. North Carolina, Statesville Division
FRANK D. WHITNEY, Chief District Judge.
THIS MATTER comes before the Court on Respondent's Motion for Summary Judgment, (Doc. No. 7).
Pro se Petitioner James Hill, Jr., is a prisoner of the State of North Carolina, who, on August 14, 2012, in Catawba County Superior Court, was convicted after trial by jury of robbery with a dangerous weapon and possession of a firearm by a felon, and was sentenced to consecutive terms of 111-143 and 22-27 months imprisonment, in cases 11 CRS 4537 and 51882. On December 3, 2013, the North Carolina Court of Appeals filed an unpublished opinion finding no error and on January 23, 2014, the North Carolina Supreme Court denied Petitioner's petition for discretionary review. See State v. Hill, 753 S.E.2d 740 (2013), review denied, 367 N.C. 298, 753 S.E.2d 676 (2014). Petitioner was represented at trial by Mitchell A. Walker and on appeal by Jon H. Hunt and Benjamin Dowling-Sendor.
On June 26, 2014, Petitioner filed a pro se motion for appropriate relief ("MAR") in Catawba County Superior Court. (Doc. No. 8-11: Ex. 10). On July 7, 2014, the MAR was summarily denied. (Doc. No. 8-12: Ex. 11). On August 18, 2014, Petitioner filed a pro se certiorari petition in the North Carolina Court of Appeals. (Doc. No. 8-13: Ex. 12). On September 4, 2014, the state filed a response. (Doc. No. 8-14: Ex. 13). On September 8, 2014, certiorari was denied. (Doc. No. 8-15: Ex. 14).
Petitioner placed the instant petition in the prison system for mailing on September 30, 2014, and the petition was stamp-filed in this Court on October 7, 2014. Petitioner brings the following claims in the petition: (1) he received ineffective assistance of trial counsel for various reasons; (2) trial counsel withheld evidence and did not allow Petitioner obtain witnesses for trial, and the state did not allow the witnesses to be admitted in the later stages of trial, causing prejudice; (3) Petitioner's due process rights were violated because a prior judgment was entered into evidence and passed to the jury un-redacted; Ms. Lisa Baker was used as a witness but was not listed on discovery; the identification process was violated because witnesses were not accurate in their first descriptions, and Petitioner was not put in a line-up or photo array but was singled out in court unconstitutionally; and (4) Petitioner received ineffective assistance of appellate counsel because appellate counsel did not investigate trial counsel's ineffectiveness and simply filed an Anders brief, leaving Petitioner without counsel on appeal.
On November 14, 2014, Respondent filed the pending motion for summary judgment. (Doc. No. 7). On November 17, 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. 9). On November 21 and 24, 2014, Petitioner filed responses to the summary judgment motion. See (Doc. Nos. 10; 11; 12).
The state's brief on direct appeal to the North Carolina Court of Appeals summarized the facts as follows:
On April 4, 2011, two armed men robbed the Dollar General Store on Highway 70 in Hickory. Ms. Catherine White, the assistant manager of the Dollar General, testified that on that day shortly after opening the store at 8:00 am, she was in the store's office which is located in the back of the store. While in the office, she could see the front of the store through monitors which showed various areas of the store through several surveillance cameras. Through one of the monitors, White saw a man in the front of the store at the cash register, and she left the office and began walking to the front of the store. White described this man as a tall, black male who wore dark clothing, a black toboggan, and gloves.
On White's walk to the front of the store, she was met by a second man who was holding a handgun. The second man was described by White as a white male wearing dark, heavy clothing, a baseball cap, and a fake beard. White testified that this second man pointed the handgun at White and said, "This is a robbery. I want you to go to the front, open up the cash register so I can get the money. I want to get the money." In court, White identified Defendant-Appellant as the robber who had pointed the handgun at her.
This second man with the handgun then ushered White to the front of the store where she opened the cash register drawer and the safe. White stated that the two men took an unknown amount of cash from the register (maybe $80 to $90), a white basket from the safe containing $500, and a bank deposit bag containing an unknown amount (maybe $1, 500). According to testimony from Whitney Thomas, store manager of this particular Dollar General store, the two men took around $2, 300.00 dollars before leaving.
After the two men left the Dollar General store, they got into a small blue-gray sedan parked outside. A witness, Amber Collins, who worked at the pet store beside the Dollar General, saw the two men enter and leave the store. Collins testified that both men were wearing heavy winter clothing, fake beards, and gloves as they approached the store. She testified that the two men were only in the store for about four to five minutes. Upon leaving the store, Collins noticed that the driver had some type of box in his arm. Collins testified that she was suspicious and checked the license plate as the driver sped off, but there was duct tape covering the license plate. She continued watching and saw that the driver ran the red light to enter onto Highway 70.
At this point, Eric Young was entering the parking lot when he noticed a blue-gray Nissan Altima exiting the parking lot erratically and running a traffic light. He became more suspicious after seeing duct tape covering the center of the license plate, and so he began following the Nissan. Next, he saw the car pulled to the side of Highway 321, and he observed the passenger getting out of the car and removing the duct tape from the license plate. At this point, Young called 911 to report the Nissan that he thought might have been involved in a robbery. He gave the dispatcher the tag number and continued following the car to a store parking lot and then a gas station. Young saw both of the car's occupants remove some of their outer clothing at the gas station. Young continued to follow the Nissan as it left Catawba County and went into Burke and Caldwell Counties.
Officer Shane Bumgarner of the Hickory Police Department got behind the Nissan at a stoplight and activated his car's siren and blue lights. The Nissan, however, did not stop. Officer Bumgarner followed the Nissan for forty minutes into a neighboring county before another officer was able to deploy "stop sticks" to deflate the Nissan's tires and bring the car to a stop. Officer ...