United States District Court, E.D. North Carolina, Western Division
SYLVESTER E. HARDING, III, Petitioner,
LYNN SUMMERS, Respondent.
TRRENCE W. BOYLE, District Judge.
Sylvester E. Harding, III, ("petitioner"), petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently before the court is respondent's motion for summary judgment. Mot. for Summ. J., D.E. 7. Thereafter, petitioner was given notice of the pending motion. Roseboro Letter, D.E. 9 and 10. Petitioner responded to the motion, and the matters are ripe for determination. Response, D.E. 11.
On May 12, 2010, Harding was found guilty by jury in Guilford County Superior Court of possession with intent to manufacture, sell, or deliver cocaine, felonious maintaining a vehicle used for keeping or selling a controlled substance, misdemeanor driving while license revoked, and displaying a fictitious registration plate. Mem. in Supp., D.E. 8, Ex 3 pp 27-28. Harding also stipulated and pleaded guilty to attaining the status of an habitual felon. Id., p 29. After finding Harding to be a prior record level III offender, the trial court sentenced Harding in the presumptive range to a term of imprisonment of 93 to 121 months. Id., pp 34-37. On May 13, 2010, on motion for reconsideration, the trial court vacated its prior judgment, received evidence in mitigation, and sentenced Harding in the mitigated range to 82 to 108 months imprisonment. Id., pp 38-44. At the trial and in the motion for reconsideration, Harding was represented by attorney Allen W. Rogers. Id., p 46.
Harding, through appointed attorney Bryan E. Gates, Jr., appealed his convictions to the North Carolina Court of Appeals. Id., p. 55. By unpublished decision issued September 6, 2011, the court held no error in part and reversed Harding's conviction for maintaining a vehicle for the keeping or selling of controlled substances on the basis of insufficient evidence. State v. Harding, 716 S.E.2d 87 ( N.C. App. 2011). On September 26, 2011, Harding filed a pro se petition for discretionary review ("PDR") in the North Carolina Supreme Court, D.E. 8, Ex 4, which was denied on November 9, 2011. State v. Harding, 365 N.C. 362, 718 S.E.2d 394 (2011). On November 3, 2011, pursuant to the decision of the North Carolina Court of Appeals, a re-sentencing hearing was held in Guilford County Superior Court wherein Harding once again was sentenced to a term of imprisonment of 82 to 108 months. D.E.8., Ex 5.
On February 10, 2012, Harding filed a pro se motion for appropriate relief ("MAR") in Guilford County Superior Court, alleging, that he was not allowed to be heard at the re-sentencing hearing on November 3, 2011, and that he was represented by his original trial attorney who, in his prose PDR, Harding had claimed to be ineffective. By order entered February 24, 2012, that court denied Harding's MAR in part but concluded Harding was entitled to another re-sentencing hearing, at which he was entitled to be represented by retained counsel, conflict-free appointed counsel, or himself. Id., Ex 6. On March 16, 2012, before he was re-sentenced, Harding filed a petition for writ of habeas corpus in this court. Harding v. Thomas, No. 5: 12-HC-2072-FL, D.E. 1. By order entered February 15, 2013, the Honorable Louise W. Flanagan allowed Harding's motion to amend that habeas petition, denied Harding's petition for writ of mandamus, and denied without prejudice the parties' cross motions for summary judgment. Harding v. Thomas, No. 5: 12-HC-2072-FL, D.E. 22. On August 21, 2013, the court granted Harding's motion to supplement the record and denied Harding's motions for discovery, writ of assistance, telephone/video conference, stay, and summary judgment. Id., D.E. 37. On March 20, 2014, the court denied Harding's motion for summary judgment, granted respondent's motion for summary judgment, dismissed without prejudice conclusory claims raised for the first time in response to respondent's motion for summary judgment, and denied a certificate of appealability. Id., D.E. 49
During the pendency of the first habeas proceeding, Harding's resentencing hearing, pursuant to the February 24, 2012 order, was held in Guilford County Superior Court on January 10, 2013. Harding was represented by attorney James R. Parish. Mem. in Supp., Ex. 7. At the conclusion of the hearing, Harding once again was sentenced to a term of imprisonment of 82 to 108 months. Id., Ex 7 p 20; Ex 8. Harding attempted to appeal his re-sentencing by way of a prose "Appeal as a Right or Petition for Writ of Certiorari" filed in the North Carolina Court of Appeals on September 25, 2013. Id., Ex 10. By orders entered November 7, 2013, the court dismissed both the appeal and the petition. Id., Ex 11.
On August 16, 2013, Harding also filed a prose MAR in Guilford County Superior Court. Id., Ex 12. By order signed September 13, 2013 and filed October 4, 2013, the MAR was denied. Id., Ex 13. Harding then attempted to appeal this order by way of a pro se "Appeal of Denial of Motion for Appropriate Relief' filed in the North Carolina Court of Appeals on September 30, 2013;. Id., Ex 14. By order entered October 10, 2013, the North Carolina Court of Appeals, held that petitioner's filing was a state petition for writ of certiorari and dismissed it. Id., Ex 16. Harding then filed a petition for writ of habeas corpus in the North Carolina Supreme Court on October 29, 2013 Id., Ex 17, which the court denied on October 30, 2013. Id., Ex 18.
On October 15, 2013, while pursuing appellate review of the denial of his MAR, Harding filed a pro se "Notice of Withdrawal of Plea and Motion for Dismissal of Indictment" in Guilford County Superior Court which was denied on November 6, 2013. Id., Ex 19-20. On October 21, 2013, Harding filed a prose petition for writ of certiorari in the North Carolina Court of Appeals, Id., Ex 21, and on October 31, 2013, which was denied on November 4, 2013, by the North Carolina Court of Appeals. Id., Ex 23. Thereafter, Harding filed, in the North Carolina Court of Appeals, a prose MAR on November 12, 2013, and a prose petition for writ of certiorari on November 15, 2013. Id., Exs 24-25. On December 3, 2013, the North Carolina Court of Appeals dismissed Petitioner's MAR and denied his PWC. Id . Exs 28-29. On November 12, 2013, Harding filed this habeas petition. Pet., D.E. 3, p 14.
Harding's petition is not a model of clarity. However, the court construes the petition to assert the following: (1) the trial court lacked a valid indictment and thus lacked jurisdiction to re-sentence petitioner; (2) ineffective assistance of counsel ("lAC") on the grounds that his counsel stipulated petitioner's status as an habitual felon without petitioner's consent; (3) his re-sentencing violated his protection against double jeopardy; and (4) he was not allowed during re-sentencing to challenge his underlying convictions and raise issues involving due process, racial profiling, prosecutorial misconduct, and the Fourth Amendment.
i. Summary Judgment
Summary 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 of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. 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, " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis removed) (quotation omitted). A trial court reviewing a motion for summary judgment should determine whether a genuine issue of material fact ...