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; Docket Entry 11-1.) For the reasons that follow, the Court will deny relief.
A jury in the Superior Court of Rockingham County found Petitioner guilty of attempted first-degree murder and shooting into an occupied vehicle in cases 07 CRS 50962 and 07 CRS 1984. (Docket Entry 2, ¶¶ 1, 2, 4-6; Docket Entry 8, Ex. 1 at 1-4, 6-13.) He received a consolidated sentence of 151 to 191 months in prison. (Docket Entry 2, ¶ 3; Docket Entry 8, Ex. 1 at 12-13.) Petitioner unsuccessfully pursued a direct appeal. State v. Walker, No. COA08-1224, 197 N.C.App. 630 (table), 680 S.E.2d 271 (table), 2009 WL 1664035 (June 16, 2009) (unpublished), disc. review denied, 684 S.E.2d 39 ( N.C. 2009). He then twice sought relief in state court via motions for appropriate relief ("MARS"). (Docket Entry 8, Exs. 7, 11.) The trial court denied each MAR and the North Carolina Court of Appeals denied certiorari on each occasion. ( Id., Exs. 8, 10, 12, 14.)
Upon the dismissal by the North Carolina Supreme Court of a request for review (id., Ex. 15), Petitioner filed his instant Petition in this Court (Docket Entry 2). Respondent thereafter sought summary judgment. (Docket Entry 7.) Petitioner not only responded (Docket Entry 10), but also moved to amend his Petition (Docket Entries 11, 12), which motion the Court allowed (Text Order dated Aug. 3, 2012). Respondent then sought summary judgment on the claims raised via amendment. (Docket Entry 14.) Petitioner responded to that second summary judgment motion (Docket Entry 18) and also filed multiple motions seeking to expand the record in connection with claims in the Petition (as amended) (Docket Entries 19, 20, 24, 62), as well as multiple motions (however labeled) that effectively propose the addition of new claims (Docket Entries 27, 29, 34, 37, 49, 61). The parties have consented to disposition of this case by a United States Magistrate Judge. (Docket Entry 21.)
The facts of Petitioner's underlying criminal case, as set out by the North Carolina Court of Appeals, appear as follows:
Gary Tilley and his uncle, Cliff Tilley, lived in a mobile home located at 371 Settlement Loop Road in Stoneville, North Carolina. [Petitioner] and his wife, Patsy Walker, lived in a nearby home also on the property. On 31 March 2007, Gary and his friends, Frankie and Steve, gathered at Gary's home to do some work. Gary, Frankie, Steve, and Cliff intended to have a cookout after the work was finished. At some point before the cookout began, [Petitioner] and Patsy walked over to Gary's house. While Cliff stayed home to prepare for the cookout, Gary, Frankie, Patsy, and [Petitioner] left in Gary's truck to go buy drinks, bread, and cigarettes at Citgo.
When they arrived at Citgo, [Petitioner] got out of the truck and started fighting with some people. Gary got [Petitioner] back into the truck and told Frankie to take [Petitioner] home. Gary told Frankie to tell Cliff to come pick Gary up. Cliff picked Gary up from the Citgo about eight minutes later. When Cliff and Gary arrived home, [Petitioner], Patsy, and Frankie were pulling out of the driveway in the white truck to go buy cigarettes at the store. Gary got into the truck to drive it, and Frankie moved over to the passenger's seat. On the way to the store, [Petitioner] and Patsy started fighting in the back seat. Gary pulled the truck over and told [Petitioner] that "he ought to hit on somebody his own size; he shouldn't be beating on his wife." [Petitioner] replied, "Well, I'll beat on you." Gary and [Petitioner] got out of the truck. Gary grabbed [Petitioner] and pushed him to the ground. Gary got back in the truck and took Frankie to Frankie's house. Gary then drove back home.
Cliff encountered [Petitioner] walking up the road and asked [him] what was going on. [Petitioner] replied, "You see Gary, you tell him I got something waiting on him." Cliff continued to his home and parked his vehicle.
As Cliff parked, Gary was in his truck in the driveway about ten or twelve feet behind Cliff. Just as Cliff was getting out of his vehicle, [Petitioner] "step[ped] out from behind the tree with a rifle and just start[ed] shooting at [Gary's] truck." Cliff saw [Petitioner] cock the rifle at least three times when [Petitioner] was walking up the driveway. Cliff asked [Petitioner], "[W]hat in the hell are you doing?" [Petitioner] did not respond and continued to shoot at the truck. Cliff testified that "all of a sudden, the truck just lunged forward. It started towards him and I both." Cliff ran behind a nearby tree. The truck made a u-turn beside the tree and headed away across the field. [Petitioner] continued to shoot at the truck. The truck then stopped and Gary jumped out, put his hands up, and begged [Petitioner] not to shoot him. [Petitioner] shot at Gary again, and Cliff ran into his house. When Cliff got inside, he heard a shotgun go off and "it sounded like it was raining rocks and things hitting the trailer." Cliff called 911.
Bill Wade, a deputy sheriff with the Rockingham County Sheriff's Office, responded to the dispatch concerning gun shots being fired at 371 Settlement Loop Road. While waiting for backup, Wade heard a gun shot. When Deputy Jason Joyce arrived, Wade and Joyce entered the scene together. Wade observed Cliff taking cover next to a mobile home and flagging down Wade. Wade then observed [Petitioner] running away from the scene towards some bushes. [Petitioner] was apprehended and two unspent rifle cartridges were retrieved from [his] pants' pocket.
After securing [Petitioner], Wade entered [Petitioner's] home and found a 16-gauge single-barrel shotgun lying opened on the bed. [Petitioner] had some minor injuries to his face but declined medical attention. [He] smelled strongly of alcohol.
Cliff told Wade that [Petitioner] had fired at Gary while Gary was driving his truck to his home. Cliff stated that after initially being fired upon, Gary drove the vehicle into a field to avoid the gunfire. The truck stopped in the field approximately half-way between [Petitioner's] home and Cliff's home. When Gary got out of the truck, [Petitioner] chased Gary around the truck and fired an additional three to four shots at Gary.
Joyce located rifle shell casings in front of and to the side of Gary's truck and Deputy Jason Hutchins of the Rockingham County Sheriff's Office observed a bullet hole on the driver's side of the truck.
Walker, 2009 WL 1664035, at *1-2 (internal brackets omitted).
The Petition raises two claims. (Docket Entry 2, ¶ 12.) The first alleges that Petitioner's attempted first-degree murder indictment was defective. (Id. (Ground One).) The second asserts that Petitioner's trial counsel acted ineffectively by failing to challenge the indictment's deficiency. (Id. (Ground Two).)
Petitioner's accepted amendment presents three more claims. (See Docket Entry 11-1.) The first such claim (Ground Three) requests relief because the trial court, while polling the jury as to the verdict, did not individually question the jurors about a note they sent to the trial court requesting leniency for Petitioner at sentencing. (Id. at 1-2.) Said claim also contends that Petitioner's trial counsel should have objected to the lack of such inquiry and Petitioner's appellate counsel should have pursued the issue on direct appeal. (Id. at 2.) The next claim (Ground Four) alleges that Petitioner's trial counsel rendered ineffective assistance by failing to call certain witnesses at trial. (Id.) Petitioner's final claim (Ground Five) asserts that constitutional violations occurred in connection with three recordings of his jailhouse telephone calls. (Id. at 3.) As part of that claim, Petitioner also states that his appellate counsel performed ineffectively by not raising such issues on direct appeal. (Id.)
IV. 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).
When a petitioner has exhausted state remedies, this Court must apply a highly deferential standard of review in connection with a habeas claim "adjudicated on the merits in State court proceedings, " 28 U.S.C. § 2254(d). Specifically, the Court may not grant relief unless such adjudication "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 [or]... confront facts that are materially indistinguishable from a relevant [United States] Supreme Court precedent and arrive at a result opposite to that reached by [the United States Supreme Court]." Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision "involves an unreasonable application" of United States Supreme Court case law "if the state court ...