United States District Court, M.D. North Carolina
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 1.) On April 15, 2010, in the Superior Court of Guilford County, a jury found Petitioner guilty of three counts of statutory rape/sexual offense, two counts of indecent liberties with a child, and two counts of sexual offense by a substitute parent in cases 08 CRS 111914 and 111916 through 111921. (Docket Entry 1, 55 1, 2, 4-6; see also Docket Entry 5-3 at 43-49.) The trial court consolidated the offenses into three Class B1 felonies and sentenced Petitioner in the presumptive range to three consecutive terms of 288 to 355 months' imprisonment. (Docket Entry 1, ¶ 3; see also Docket Entry 5-3 at 52-57.)
With the aid of appellate counsel, Petitioner appealed his convictions (Docket Entry 1, ¶¶ 8, 9(a)-(f); see also Docket Entries 5-2, 5-3, 5-4), and the North Carolina Court of Appeals affirmed, State v. Burch, 215 N.C.App. 391 (table), 716 S.E.2d 88 (table), No. COA-10-1199, 2011 WL 3891031 (Sept. 6, 2011) (unpublished). Petitioner thereafter submitted a certiorari petition to the North Carolina Supreme Court (see Docket Entry 1, ¶ 9(g)), which that court denied, State v. Burch, 366 N.C. 393, 732 S.E.2d 483 (2012). Petitioner did not then petition the United States Supreme Court for a writ of certiorari. (Docket Entry 1, ¶ 9(h).)
While his certiorari petition remained pending before the North Carolina Supreme Court, Petitioner filed a motion for appropriate relief ("MAR") with the state trial court (Docket Entry 1-2; see also Docket Entry 1, ¶ 11(a)),  which that court denied (Docket Entry 5-6 at 2; see also Docket Entry 1, ¶ 11(a)(7), (8)). Petitioner sought review of his MAR's denial by filing a certiorari petition in the North Carolina Court of Appeals (Docket Entry 5-7; see also Docket Entry 1, ¶ 11(b)), which that court denied (Docket Entry 5-9; see also Docket Entry 1, ¶ 11(b)(7)(8)).
Petitioner subsequently submitted his instant Petition to this Court. (Docket Entry 1.) Respondent moved for summary judgment on the merits (Docket Entry 4) and Petitioner filed responsive documents in opposition (Docket Entries 9, 12), along with a "Request and Motion to Add An Exhibit in Support of Motion in Opposition to Respondent's Motion for Summary Judgment" (Docket Entry 13), which the undersigned granted (see Text Order dated March 31, 2015).
The facts of the case, as set out in the North Carolina Court of Appeals' opinion affirming Petitioner's convictions, are as follows:
The State's evidence tended to show that in early 2008, Kit, 1 a fourteen-year-old girl, lived with defendant and his wife ("the Burches"). Defendant performed oral sex on Kit and had sex with her on multiple occasions. In November of 2008, Mary, a fifteen-year-old foster child, began living with the Burches. Defendant performed oral sex on Mary, and in December of 2008, defendant went into Mary's bedroom and performed oral sex on her, had her perform oral sex on him, and had vaginal intercourse with her; afterwards, defendant used a washcloth to wipe them both. The next day Mary reported the incident to her school guidance counselor. Mary was examined by a sexual assault nurse examiner. The nurse found a tear around Mary's vagina, and the nurse determined that "the physical findings from [the] examination... [were] supportive of [Mary's] allegations of sexual assault" and Mary "demonstrated symptoms of rape that's [sic] consistent with other similarly situated rape or sexual assault victim[s.]" The washcloth defendant had used to wipe both Mary and himself contained DNA from both defendant's semen and Mary.
1 Pseudonyms will be used to protect the identities of the minors in this case.
Burch, 2011 WL 3891031, at *1-2.
Petitioner raises four grounds for relief in his Petition: (1) he received ineffective assistance of trial counsel in that counsel "made errors... which fell below an objective standard of reasonableness and prejudiced the Petitioner, thus denying him a fundamentally fair trial in light of the cumulative effect of such errors" (Docket Entry 1 at 5-10); (2) Petitioner's trial "counsel failed to conduct an adequate pre-trial investigation and to properly prepare for trial" in violation of the Sixth and Fourteenth Amendments (id. at 11, 13); (3) the trial court violated the Sixth and Fourteenth Amendments by denying Petitioner "his rights to confront and cross-examine witnesses against him" (id. at 14, 16-17); and (4) Petitioner received ineffective assistance of appellate counsel ...