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 2.) On June 18, 2009, a jury in the Superior Court of Durham County found Petitioner guilty of conspiracy to traffic in cocaine by transportation, conspiracy to traffic in cocaine by possession, trafficking in marijuana by possession, and possession with intent to sell and deliver marijuana in cases 07CRS44610 through 44612. (Docket Entry 6-5 at 17-18 (verdicts); see also Docket Entry 2, ¶¶ 1-2, 4-6.) The trial court then consolidated the cocaine convictions and sentenced Petitioner to 175 to 219 months of imprisonment. (Docket Entry 6-5 at 21-22 (judgment); see also Docket Entry 2, ¶ 3.) The trial court also consolidated the marijuana convictions and sentenced Petitioner to a second, consecutive term of 35 to 42 months of imprisonment. (Docket Entry 6-5 at 23-24 (judgment); see also Docket Entry 2, ¶ 3.) The North Carolina Court of Appeals affirmed Petitioner's convictions and the North Carolina Supreme Court denied discretionary review. State v. Gomez, 209 N.C.App. 611, 705 S.E.2d 421, disc. review denied, 365 N.C. 352, 717 S.E.2d 746 (2011). Petitioner subsequently filed a pro se motion for appropriate relief ("MAR") (Docket Entry 6-9; see also Docket Entry 2, ¶¶ 10, 11(a)(1)-(6)), which the trial court summarily denied (Docket Entry 6-10; see also Docket Entry 2, ¶ 11(a)(7)-(8)). Thereafter, the North Carolina Court of Appeals rejected Petitioner's certiorari petition. (Docket Entry 6-11 (certiorari petition); Docket Entry 6-13 (order denying certiorari).) Petitioner next submitted his instant Petition to this Court. (Docket Entry 2.) Respondent moved for summary judgment (Docket Entries 5, 6) and Petitioner has responded in opposition. (Docket Entry 10). The parties have consented to disposition of this case by a United States Magistrate Judge. (See Docket Entry 11.)
I. Petitioner's Claims
Petitioner has raised four claims for relief in his Petition: (1) the trial court erred by allowing the playing of state's exhibit 52A-52J, a recording of intercepted telephone conversations in Spanish, where one juror spoke fluent Spanish (see Docket Entry 2 at 5); (2) Petitioner's trial counsel provided ineffective assistance in that he (a) seemed "reluctant" to try the case and to "build any meaningful defense, " (b) advised Petitioner not to testify and threatened to withdraw if Petitioner chose to testify, and (c) admitted Petitioner's guilt in his closing arguments (see id. at 7); (3) Petitioner suffered violations of "his right to be free from double jeopardy" and "his [e]qual protection guarantees" by "convictions for more than one conspiracy" (see id. at 8); and (4) the trial court abused its discretion and violated the Confrontation Clause by allowing a witness to offer an opinion about the controlled substance in question, and erred by "fail[ing] to dismiss the trafficking in [m]arijuana convictions due to the lack of evidence" (id. at 10).
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 first claim for relief, Petitioner asserts that the trial court violated Rule 403 of the North Carolina Rules of Evidence by allowing the jury to hear state's exhibit 52A-52J, a recording of intercepted telephone conversations in Spanish, when one of the jurors spoke Spanish fluently. (See Docket Entry 2 at 5.) According to Petitioner, the trial court should have permitted the jury to view only an English-language, written translation of the recordings "without playing the Spanish recordings." (Docket Entry 10 at 3.) Petitioner contends that allowing the Spanish-speaking juror to hear the Spanish recordings prejudiced Petitioner, because that juror could "interpret the recording at variance with the certified translation." (Id.) Petitioner relies on United States v. Gutierrez, 367 F.3d 733, 736 (9th Cir. 2004), and United States v. Bailon-Santana, 429 F.3d 1258, 1260 (9th Cir. 2005), to argue that, "having allowed the playing of the Spanish recordings, the trial court abused its discretion in not instructing the jury, at the time [of] playing the recording, to rely solely on the court appointed written translation rather than any individual varying interpretation." (Id. at 3-4.) Petitioner alleges that the trial court's error "had substantial and injurious effect or influence in determining the jury's verdict" under Brecht v. Abrahamson, 507 U.S. 619, 623 (1993), because the "intercepted Spanish telephone conversations" constituted "the strongest evidence linking [Petitioner] to any conspiracy." (Id.) Claim 1 provides no basis for relief.
Petitioner's first claim relies upon an alleged violation of a North Carolina evidentiary rule, a matter simply not cognizable on federal habeas review. See 28 U.S.C. § 2254(a) ("[A] district 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."); see also Estelle v. McGuire, 502 U.S. 62, 67 (1991) ("We have stated many times that federal habeas corpus does not lie for errors of state law.'" (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990))). "Normally, the admissibility of evidence... and instructions to the jury in state trials are matters of state law and procedure not involving federal constitutional issues. It is only in circumstances impugning fundamental fairness or infringing specific constitutional protections that a federal question is presented." Spencer v. Murray, 5 F.3d 758, 762 (4th Cir. 1993) (citing Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir. 1960)). Petitioner has not shown either a federal constitutional violation or fundamental unfairness here, particularly where he has not alleged any differences between the Spanish recordings and the written translation in English.
Gutierrez and Bailon-Santana, non-habeas cases relied upon by Petitioner, do not aid his arguments. Neither case addresses whether a state trial court violates the federal constitution by permitting the playing of a foreign-language recording to a jury that includes a speaker of that foreign language; nor do the cases hold that the federal constitution requires the giving of the limiting instruction urged by Petitioner. See Gutierrez, 367 F.3d at 736 (encouraging federal district courts to give the limiting instruction but finding no error in its omission absent a showing of prejudice); Bailon-Santana, 429 F.3d at 1260-61 (reversing conviction where the defendant's attorney, and not a court-certified interpreter, translated the jury waiver).
In sum, Claim 1 fails as non-cognizable on federal habeas review.
Next, Petitioner contends that his trial counsel provided ineffective assistance in that he (a) seemed "reluctant" to try the case and to "build any meaningful defense, " (b) advised Petitioner not to testify and threatened to withdraw if Petitioner chose to testify, and (c) admitted Petitioner's guilt without his consent in closing arguments. (See Docket Entry 2 at 7; see also Docket Entry 10 at 6.) In his opposition to summary judgment, Petitioner refers the Court to his MAR for explanation of his allegation that counsel seemed "reluctant to take [the] case and build any meaningful defense." (See Docket Entry 10 at 6.) Petitioner offers no further facts in support of this claim.
Petitioner raised the substance of this claim in his MAR (see Docket Entry 6-9 at 2-7), and the trial court summarily denied the MAR on the merits (Docket Entry 6-10). In light of that adjudication on the merits, Section 2254(d)'s highly deferential standard governs this Court's review of Petitioner's instant parallel claim and the Court thus must consider whether the MAR court contradicted or unreasonably applied clearly established federal law. The Fourth Circuit has provided guidance in regards to the clearly established law governing ineffective assistance claims:
In order to establish an ineffective assistance of counsel claim..., [a petitioner must] establish that his "counsel's representation fell below an objective standard of reasonableness, " measured by the "prevailing professional norms, " [Strickland, 466 U.S. at 688], and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, " id. at 694. "Unless a [petitioner] makes both showings, it cannot be said that the conviction or... sentence resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687.
In determining whether counsel's performance was deficient, "[i]t is all too tempting for a [petitioner] to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689. Hence, "court[s] must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance... [and] that, under the circumstances, the challenged action might be considered sound trial strategy." Id . (internal quotation marks omitted).
Similarly, in evaluating whether [a petitioner] has shown actual prejudice from any such deficient performance, it is insufficient for the [petitioner] "to show that the errors had some conceivable effect on the outcome of the proceeding, " because "[v]irtually every act or omission of counsel would meet that test." Id. at 693. Rather, a "reasonable probability" that the result would have been different requires "a probability sufficient to undermine confidence in the outcome." Id. at 694. When challenging a conviction, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695.
Fisher v. Lee, 215 F.3d 438, 446-47 (4th Cir. 2000) (internal parallel citations omitted).
Moreover, the United States Supreme Court has cautioned that "[s]urmounting Strickland's high bar is never an easy task.... Even under de novo review, the standard for judging counsel's representation is a most deferential one." Harrington v. Richter, 562 U.S. 86, ___, 131 S.Ct. 770, 788 (2011) (internal quotation marks omitted). Further, "[w]here the issue is whether the state court has unreasonably applied Strickland standards to a claim of ineffective assistance of counsel, ... double deference is required...." Lavandera-Hernandez v. Terrell, No. 1:12-cv-553, 2013 WL 1314721, at *4 (M.D. N.C. Mar. 28, 2013) (Schroeder, J.) (unpublished) (internal quotation marks omitted), appeal dismissed, 539 F.Appx. 159 (4th Cir. 2013); see also Harrington, 562 U.S. at ___, 131 S.Ct. at 788 ("The standards created by Strickland and § 2254(d) are both highly deferential and when the two apply in tandem, review is doubly so." (internal citations and quotation marks omitted)).
Accordingly, when the Court's examination of an ineffective assistance claim proceeds under Section 2254(d), "[t]he question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 526 U.S. at ___, 131 S.Ct. at 788; see also Cullen v. Pinholster, ___ U.S. ___, ___, 131 S.Ct. 1388, 1398 (2011) (observing that Section 2254(d) imposes "a difficult to meet and highly deferential standard..., which demands that state-court decisions be given the benefit of the doubt... [and that a] petitioner carries the burden of proof" (internal citations and quotation marks omitted)). In other words, "under the dual, overlapping lenses of [Section 2254(d)] and Strickland [the Court must] ask the following question: Was the [MAR court]'s holding incorrect to a degree that its conclusion was so lacking in justification that it was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement?" Moore v. Hardee, 723 F.3d 488, 496 (4th Cir. 2013) (internal brackets, ellipses, and quotation marks omitted). Under this standard, the Court concludes that the MAR court's denial of this ineffective assistance claim did not contradict or unreasonably apply Strickland.
Petitioner's allegation that his trial counsel rendered deficient performance by displaying reluctance to try the case and to build a meaningful defense fails as conclusory and unsupported, Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992) (recognizing that "[u]nsupported, conclusory allegations do not entitle a habeas petitioner to an evidentiary hearing"), abrogated on other grounds, Gray v. Netherland, 518 U.S. 152, 165-66 (1996). Petitioner has provided no evidence, beyond his own unsupported allegations, detailing how his counsel demonstrated his reluctance or outlining strategies counsel should have pursued to mount a more meaningful defense.
Petitioner's attempt to show ineffective assistance based on his trial counsel's alleged advice that Petitioner not testify similarly fails. Such advice, in and of itself, cannot form the basis of an ineffective assistance claim. Carter v. Lee, 283 F.3d 240, 249 (4th Cir. 2002) (observing that "the advice provided by a criminal defense lawyer on whether his client should testify is a paradigm of the type of tactical decision that cannot be challenged as evidence of ineffective assistance'" (quoting Hutchins v. Garrison, 724 F.2d 1425, 1436 (4th Cir. 1983)).
Moreover, the record before the state trial court belies Petitioner's assertion that trial counsel's alleged threat to withdraw if Petitioner chose to testify somehow prejudiced him. At the close of the state's evidence, the following colloquoy took place:
[TRIAL] COURT: All right, at this time the jury has left the courtroom.... Will there be any evidence on behalf of the [Petitioner]?
[DEFENSE COUNSEL]: No, Your Honor. After discussing this with [Petitioner], my understanding is he does not wish to present any evidence or wish to testify upon my advice. He is, of course, ...