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Rich v. Perry

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

March 13, 2015

RONNIE D. RICH, Petitioner,
v.
FRANK L. PERRY, CYNTHIA THORTON, Respondents.

ORDER

FRANK D. WHITNEY, Chief District Judge.

THIS MATTER is before the Court upon Petitioner Ronnie D. Rich's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1). Also before the Court is Respondents' Motion for Summary Judgment. (Doc. No. 5).

I. BACKGROUND

Petitioner pled guilty in Cleveland County Superior Court on September 1, 2010 to three counts of taking indecent liberties with a child and was sentenced according to the terms of his plea agreement to two consecutive active terms of 13-16 months, followed by 19-23 months, suspended for 36 months, with sex offender and other conditions in cases 10 CRS 1940-41. (Transcript of plea, judgments, and judicial findings, Resp.'s Mem. of Support Ex. #1 20-39, Doc. No. 6-2).[1] Petitioner did not file a direct appeal or seek discretionary review in the North Carolina appellate courts. As of August 18, 2011 and September 26, 2012, respectively, Petitioner completed his two active sentences of 13-16 months in case 10 CRS 1940. (Resp.'s Mem. 1-2, Doc. No. 6). He then began his 36-month period of supervised probation in case 10 CRS 1941.

On January 17, 2013, Petitioner's probation officer filed a probation violation report stating that Petitioner had violated probation by failing to report for scheduled office visits, violating curfew, failing to comply with supervision fees and court cost payments, absconding supervision, relocating without his probation officer's permission, being charged with no operator's license, and failing to attend sex offender rehabilitation therapy as ordered. (Probation Violation Report, Resp.'s Mem. of Support Ex. #1, supra, at 40-42). On February 8, 2013 a warrant was issued for Petitioner's arrest pursuant to N.C. Gen. Stat. § 14-208.11 (a)(2) (2009), which makes it a Class F felony for registered sex offenders to fail to notify the last registering sheriff of a change of address. (Warrant, Resp.'s Mem. of Support Ex. #1, supra, at 45-46).

On March 12, 2013, the Cleveland County Superior Court activated Petitioner's suspended 19-23 month sentence as a result of Petitioner's probation violations in case 10 CRS 1941. (Judgment, Resp.'s Mem. of Support Ex. #1, supra, at 43-44). On June 5, 2013, Petitioner pled guilty in the Superior Court of Cleveland County to failing to notify the last registering sheriff of a change of address, and was sentenced to a term of 15-27 months imprisonment in case 13 CRS 50805. (Transcript of plea and judgment, Resp.'s Mem. of Support Ex. #1, supra, at 49-58). Petitioner did not appeal or seek discretionary review in the North Carolina appellate courts.

On January 15, 2014, Petitioner filed a pro se Motion for Appropriate Relief ("MAR") in the Superior Court of Cleveland County. (MAR, Resp.'s Mem. of Support Ex. #1, Doc. No. 6-2). He raised the following claims: 1) counsel in cases 10 CRS 1940-41 was ineffective for failing to run the sentences concurrently, file an appeal, advise Petitioner of his rights to appeal, and ensure that the plea agreement was accurate; 2) counsel in cases 10 CRS 1940-41 was ineffective for coercing a guilty plea and misleading Petitioner about the terms of the plea agreement; 3) Petitioner's guilty pleas in 10 CRS 1940-41 were not knowing, intelligent or voluntary due to misrepresentations by counsel; 4) Petitioner's guilty plea in 13 CRS 50805 was not knowing, intelligent or voluntary; and 5) the sentences imposed in cases 10 CRS 1940-41 were disproportionate and unconstitutional. (MAR, Resp.'s Mem. of Support Ex. #1, supra).

The Cleveland County Superior Court denied the MAR by written order on January 16, 2014. (Resp.'s Mem. of Support Ex. #2, Doc. No. 6-3). On May 7, 2014, Petitioner filed a pro se certiorari petition in the North Carolina Court of Appeals. (Resp.'s Mem. of Support Ex. # 3, Doc. No. 6-4). On May 22, 2014, certiorari was denied. (Resp.'s Mem. of Support Ex. # 5, Doc. No. 6-6).

Petitioner signed the instant pro se federal habeas petition under penalty of perjury and placed it in the prison mailbox on May 27, 2014. (Pet. 15, Doc. No. 1). It was received and docketed in this Court on June 5, 2014. Upon completion of an initial review of the petition and attached documents as required by Rule 4 of the Rules Governing Section 2254 Cases, the Court ordered Respondent to answer the petition. (Doc. No. 3). On July 23, 2014, Respondent filed a Response, Motion for Summary Judgment, and Memorandum in Support. (Doc. Nos. 4-6).

In accordance with Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975), the Court provided Petitioner notice of Respondent's Motion for Summary Judgment and an opportunity to respond. (Doc. No. 7). Petitioner did so on August 6, 2014. (Doc. No. 8).

II. STANDARD OF REVIEW

A. Summary Judgment

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.R.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 ...


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