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Ross v. Hargrave

United States District Court, M.D. North Carolina

December 22, 2014

RAY LEE ROSS, Petitioner,
v.
WENDELL HARGRAVE, Respondent.[1]

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

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 6.) A jury in the Superior Court of Rowan County convicted Petitioner of two counts of attempted first-degree murder, two counts of assault with a deadly weapon with intent to kill inflicting serious injury, attempted robbery with a dangerous weapon, and assault on a female. ( Id., ¶¶ 1, 2, 4-6; see also Docket Entry 11-2 at 58-65 (verdicts).) Based upon the jury's finding of three aggravating factors (see Docket Entry 11-2 at 66), the trial court sentenced Petitioner to two consecutive terms of 220 to 273 months' imprisonment (Docket Entry 6, ¶ 3; see also Docket Entry 11-2 at 69-76 (judgments and findings of aggravating factors)).

The North Carolina Court of Appeals affirmed Petitioner's convictions, but reversed his sentences on the grounds that Petitioner's indictments failed to list the aggravating factors found by the jury and relied upon by the trial court at sentencing. State v. Ross , 216 N.C.App. 337, 350-51, 720 S.E.2d 403, 411-12 (2011). The North Carolina Supreme Court dismissed Petitioner's appeal. State v. Ross, No. 39P12-1, 366 N.C. 400 (table), 735 S.E.2d 174 (Dec. 12, 2012) (unpublished).

Subsequently, Petitioner filed a pro se motion for appropriate relief ("MAR") with the state trial court (Docket Entry 12-4), which that court denied on the merits (Docket Entry 6 at 59-61). The North Carolina Court of Appeals then denied Petitioner's certiorari petition and request for a belated appeal. (Docket Entry 12-5 (petition); Docket Entry 6 at 24 (order)).

In the interim, the trial court resentenced Petitioner to two consecutive sentences of 220 to 273 months' imprisonment. (Docket Entry 13-3 at 2-3.) At that resentencing, the state did not seek sentences in an aggravated range, but did add the fact of Petitioner's conviction for driving while impaired to his prior conviction worksheet, which raised his prior record level from II to III (resulting in a presumptive sentencing range equal to the original aggravated range). ( Id. at 4-5.)

Petitioner then instituted this action. (Docket Entry 6.) Respondent answered (Docket Entry 9), and moved for summary judgment (Docket Entry 10). Petitioner responded in opposition to Respondent's summary judgment motion. (Docket Entries 16, 17, 18.) For the reasons that follow, the Court should deny any habeas relief.

II. PETITIONER'S CLAIMS

The Petition identifies three grounds for relief. (Docket Entry 6, ¶ 12.) Petitioner alleges that (1) the trial court violated the Confrontation Clause of the Sixth Amendment to the United States Constitution by admitting as evidence (a) an audio-visual recording of a victim's testimony taken at a pretrial probable cause hearing, and (b) the "testimony and handwritten notes of law enforcement officers utilized... to corroborate... unsigned statement[s] attributed to [the victim]" (id. at 5-9); (2) the trial court violated Petitioner's right to due process by granting the state's motion for joinder of the offenses for trial (id. at 10-13); and (3) the trial court violated Petitioner's right to due process by resentencing him, following appellate remand, using a prior record level increased by an "obscure" impaired driving offense from 1981 ( Id. at 14-16).

I. FACTS

The facts of the case, as set out in the North Carolina Court of Appeals' opinion in Petitioner's direct appeal, appear as follows:

At approximately 5:30 or 6:00 a.m. on 2 February 2007, Pedro Romero Amaro and his wife, Angelica Martinez Besies, were asleep in their mobile home when a knock at their door woke them up. Mr. Amaro got out of bed and went to the front door. When he opened it, he saw [Petitioner] carrying something in a black plastic bag. Mr. Amaro knew [Petitioner] as a friend of a friend, and [Petitioner] had come to Mr. Amaro's residence a day or two earlier and sold Mr. Amaro a Mossberg shotgun.
Mr. Amaro let [Petitioner] inside, as he believed [Petitioner] was there to sell him another firearm. Mr. Amaro walked towards the kitchen and started to make coffee when he heard a gunshot. Mr. Amaro then felt heat at the back of his head and his vision began to get blurry. The next thing that he heard was his wife screaming in the bedroom and another gunshot.
During the same time frame, Ms. Besies, while she was in the bedroom, heard a noise from the kitchen and then heard her husband scream. [Petitioner] came into the bedroom and pointed his gun at Ms. Besies' head as she lay in bed. The gun was covered with a black plastic bag and had tape around it. Ms. Besies reached for the gun and moved it away from her head just as [Petitioner] pulled the trigger. She was shot in the hand and screamed. [Petitioner] then punched her in the face, breaking her nose, and grabbed her by the arm, trying to pull her out of bed.
Mr. Amaro came into the bedroom and saw his wife and [Petitioner] struggling. Mr. Amaro began to strike [Petitioner] in the face with his fists, and Ms. Besies was able to wrest the rifle from [Petitioner]. Mr. Amaro subdued [Petitioner] by holding him down on the bathroom floor while Ms. Besies called 911 and took [Petitioner]'s firearm outside where she waited for the law enforcement officers.
Four officers with the Kannapolis Police Department arrived at the mobile home at approximately 6:15 a.m. The officers found Ms. Besies standing on the porch of the mobile home with her hand bleeding, and she told them that she had been shot. The officers also saw that a long gun inside a garbage bag was lying against the tongue of the trailer. Ms. Besies told the officers that her husband was holding a man down inside the home.
Three of the officers went inside and found Mr. Amaro holding [Petitioner] down on the bathroom floor. The floor was covered in blood. The officers saw that [Petitioner] had injuries to his head and face, and once he and Mr. Amaro were separated, [Petitioner] was secured by the officers and led into the living room. The officers saw that Mr. Amaro had blood on the back and side of his head, and he told them that [Petitioner] had shot him in the back of the head.
While the officers waited with [Petitioner] for medical personnel to arrive, [Petitioner] told the officers that he had come to the residence to collect money that Mr. Amaro owed him from a drug deal and that he had brought the gun in order to frighten Mr. Amaro into giving him the money. He said that Mr. Amaro attacked him, and in the struggle, [Petitioner]'s gun accidentally discharged, shooting Mr. Amaro. Then, [Petitioner] went into the bedroom to get the money from Ms. Besies, but, according to [Petitioner], she grabbed the gun, and it again accidentally discharged. At that point, Mr. Amaro came into the bedroom and began to fight with [Petitioner].
Mr. Amaro and Ms. Besies were transported to the emergency room to have their injuries treated. Diagnostic imaging revealed that Mr. Amaro did in fact have a bullet lodged in his brain, and Mr. Amaro was kept at the hospital for several days for observation. Ms. Besies had been shot through the thumb, and there was gun powder stippling present on her skin that indicated she had been shot at a close range. Lead fragments from the bullet were still present in Ms. Besies' flesh when the doctor treated her injuries. Surgery was required to repair a broken bone in Ms. Besies' thumb.
In the days following the shooting, Mr. Amaro and Ms. Besies were both interviewed repeatedly by law enforcement officers. Upon being released from the hospital, both Mr. Amaro and Ms. ...

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