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Warrick v. Shanahan

United States District Court, W.D. North Carolina, Charlotte Division

December 22, 2014

ROBERT GIBSON WARRICK, Petitioner,
v.
KIERAN J. SHANAHAN, Respondent.

ORDER

ROBERT J. CONRAD, Jr., District Judge.

THIS MATTER comes before the Court on Respondent's Motion for Summary Judgment, (Doc. No. 6).

I. BACKGROUND

Pro se Petitioner Robert Warrick is a prisoner of the State of North Carolina, who, on June 11, 2012, in Union County Superior Court, pled guilty to four counts of indecent liberties with a child, and was sentenced to two consecutive terms of 16-20 months imprisonment, in cases 09 CRS 55149-55152. (Doc. No. 7-2: Ex. 1; Doc. No. 7-3: Ex. 2). Petitioner was represented by Carol Huffman Kendrick and did not appeal. On February 21, 2013, Petitioner filed a pro se motion for appropriate relief ("MAR") in Union County Superior Court. (Doc. No. 7-4: Ex. 3). On April 8, 2013, the MAR Court summarily denied the MAR. (Doc. No. 7-5: Ex. 4). Petitioner did not seek appellate review of the denial of his MAR. On October 1, 2013, Petitioner filed a pro se habeas corpus petition in the North Carolina Court of Appeals. (Doc. No. 7-6: Ex. 5). On October 2, 2013, the North Carolina Court of Appeals denied the petition. (Doc. No. 7-7: Ex. 6).

Petitioner originally filed his pro se federal habeas petition in the Middle District of North Carolina on April 1, 2013, and on April 5, 2013, the Middle District transferred the petition to this Court.[1] In the petition, Petitioner contends that (1) his conviction violates the "Law of the Land" Clause of the North Carolina State Constitution, and (2) he received ineffective assistance of counsel because trial counsel did not inform him of his right to appeal, and counsel allowed Petitioner's ex-wife to make disparaging comments about Petitioner at Petitioner's plea hearing.

On September 24, 2014, Respondent filed the pending motion for summary judgment. (Doc. No. 6). On September 29, 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. 8). Petitioner did not respond to the summary judgment motion and the deadline to do so has passed.[2]

II. STANDARD OF REVIEW

A. Summary Judgment Standard

Summary judgment is appropriate in those cases where there is no genuine dispute as to any material fact, and it appears that the moving party is entitled to judgment as a matter of law. FED. CIV. P. 56(c)(2); United States v. Lee , 943 F.2d 366, 368 (4th Cir. 1991). Any permissible inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587-88 (1986). Where, however, the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248-49 (1986). The mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. Id . If the evidence is merely colorable, or is not significantly probative, summary judgment is appropriate. Id. at 249-50.

B. Section 2254 Standard

In addition to the motion for summary judgment standard set forth above, this Court must also consider the Petition for Writ of Habeas Corpus under the requirements set forth in 28 U.S.C. ยง 2254. Section 2254(d) provides that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by ...

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