United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
Patrick Auld United States Magistrate Judge.
a prisoner of the State of North Carolina, seeks a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (Docket
Entry 1 (the “Petition”).) On March 21, 2014, in
the Superior Court of Randolph County, a jury found
Petitioner guilty of robbery with a dangerous weapon in case
number 07 CRS 56709. (See id., ¶¶ 1, 2, 5,
6; see also Docket Entry 5-10 at 240-41 (Trial
Transcript).) The trial court sentenced Petitioner to 80
to 105 months imprisonment. (Docket Entry 1, ¶ 3; Docket
Entry 5-10 at 257.) Petitioner appealed (see Docket
Entry 1, ¶ 8), but the North Carolina Court of Appeals
found no prejudicial error, State v. Govan, No.
COA14-999, 772 S.E.2d 13 (table), 2015 WL 1201413 ( N.C. App.
Mar. 17, 2015), appeal dismissed and discretionary
review denied, State v. Govan, No.
140P15, 776 S.E.2d 197, 197 ( N.C. 2015). Petitioner
subsequently submitted his instant Petition to this Court
(Docket Entry 1), Respondent moved for summary judgment
(Docket Entry 4), and Petitioner responded in opposition
(Docket Entries 9, 10). The Court should enter judgment for
facts underlying Petitioner's conviction, as summarized
by the North Carolina Court of Appeals, appear as follows:
Brian Walker (“Walker”) testified that at
approximately 6:00 p.m. on 1 October 2007, he drove his
employee, Sequoia Brand (“Brand”), home from
work. When Walker stopped his truck near Brand's home in
High Point, he counted out and paid Brand approximately
eighty-five dollars for his work that day. After he drove
off, Walker noticed a four-door Saturn driving in the
opposite direction. Walker turned down a few side streets to
exit Brand's neighborhood and meet up with his younger
brother, Adam, for an evening run. When Walker stopped his
truck to turn onto the main road, he was surprised to see the
Saturn right behind his bumper.
Walker further testified that as he proceeded for ten miles
toward Adam's apartment, the Saturn followed his truck
closely, “close enough for him to notice.” At one
point during the commute, when both vehicles were stopped at
an intersection, the driver of the Saturn got out and walked
toward Walker's truck. Walker saw him approach, grew
concerned, and “peeled on off.” Walker continued
on for a few miles before turning into Adam's apartment
complex parking lot. Walker did not see Adam's car in the
parking lot and called him. Adam informed Walker that
“Me and mama's eating at Barbecue Joe's.”
Annoyed, Walker pulled his truck into a parking spot and
asked Adam “Bring me, you know, chicken or whatever.
Bring me something.” Then, Walker testified, he watched
the Saturn turn into the parking lot, drive past his truck,
turn around at the end of the lot, and then park right next
to Walker's truck. Four men immediately exited the
Saturn. Walker thought, “well, this ain't
good.” Walker continued to speak with Adam and kept an
eye on the four men “just standing around” the
outside of the Saturn[.] Soon one man approached the
driver's side of Walker's truck and another
approached the passenger's side. Walker held his cell
phone in his left hand; in his right, he gripped his .40
caliber Smith & Wesson.
Walker testified that once he flipped closed his cell phone,
one man grabbed Walker's left arm, shouting “give
me your mother-fu-” and [“]we gonna this and that
and another.” The man opened the driver's side door
and tried to yank Walker out of the truck. Walker gave up his
phone and, during the struggle, noticed the man's
“eyes get big” when he spotted Walker's gun.
The man shouted: “He's got a gun; he's got a
gun.” Walker got shot instantly one, two, three times
from an unknown direction, stumbled out of his truck, shot at
the man who grabbed his cell phone, watched that man and two
others sprint off, and then fired two shots at [Petitioner],
whom he saw “jumping in the front seat” of the
Saturn. [Petitioner] was hit twice and bent over as he asked:
“What did you shoot me for? I didn't do
anything.” Walker slumped back into his driver's
seat and ordered [Petitioner] to “get on the
ground.” [Petitioner] laid on the pavement and waited
with Walker for medical assistance to arrive.
Walker also read to the jury a signed statement he provided
to police a few days after the incident. Concerning what
transpired after Walker parked at Adam's apartment
complex, Walker's statement was read as follows:
When I pulled in, I was waiting on my little brother, Adam
Walker, who lives in the 200 building, to eat barbecue from
Barbecue Joe's. As soon as I hung up, those guys pulled
in the next-pulled in next to my driver's door and all
four got out. They were walking around, talking about -
. . . .
They were walking around, talking about switching drivers,
and I felt something wasn't right. My window was down and
one of them came to my window and grabbed me, yelling for my
phone. I gave him the phone and pulled my gun. My door came
open because he was about to pull me from the truck.
Once they saw my gun, they were yelling, “He's got
a gun, ” and then I heard shots. I didn't know I
was shot in the back. I felt blood running and heard more
shots, so I started shooting back.
The guy that was there with me shot was not the shooter or
the one at my window. As soon as I heard-as soon as I heard I
had a gun, he ran to the driver's side of their car and I
thought he was getting a gun.
Detective Anthony Cugino (“Detective Cugino”) of
the Archdale Police Department arrived at the scene just
prior to emergency medical services (“EMS”).
Detective Cugino testified that he saw Walker inside of his
truck and [Petitioner] outside of the Saturn, both suffering
from gunshot wounds. EMS arrived and tended to Walker and
[Petitioner]. Detective Cugino spoke briefly with Walker and
learned that multiple suspects had fled the scene on foot.
Detective Chris Jones (“Detective Jones”) arrived
shortly after, and the detectives conducted a protective
sweep of the area. Soon after, the detectives were approached
by an off-duty Deputy Sheriff with Guilford County and
directed toward where the suspects fled. Detective Jones
stayed at the crime scene while Detective Cugino pursued the
Detective Cugino testified that once he arrived, he found
three black males-Demetrius, Chris, and [Petitioner]'s
brother, Anthony-who all met Walker's descriptions.
Detective Cugino then exited his vehicle, drew his weapon,
and ordered the suspects on the ground. Demetrius and Anthony
complied and assumed a prone position. Chris went behind a
large tree, and Detective Cugino heard a “sound like a
metal object, something hitting metal” coming from that
direction. Chris then came out from behind the tree and
assumed a prone position. Detective Cugino detained
Demetrius, Anthony, and Chris and took them to the station
Detective Sergeant David F. Jones (“Sergeant
Jones”) of the Archdale City Police Department was the
lead investigator on the case. Sergeant Jones testified that
he arrived at the crime scene a few hours after the
shootings. After gathering information from the other
detectives, Sergeant Jones examined the crime scene and went
to investigate the “metal clanging” sound
Detective Cugino reported. Sergeant Jones discovered a
semiautomatic nine-millimeter handgun with its hammer pulled
back “as if it was ready to shoot or had already
fired” bullets that leave shell casings identical to
the three found at the crime scene. A few days later, after
[Petitioner] had been released from the hospital, Sergeant
Jones interviewed [Petitioner] at his residence in High
Point. During this interview, [Petitioner] provided and
signed the following written statement:
Demitrius came to my house and picked me and my brother up.
We rode around High Point for a while. Then we went and pick
[sic] up Chris. Chris said he need a lick and Demetrius said
Chris had a gun, but I never seen [sic] the gun. Then we seen
[seen] a man in a black truck. He let some man out. Demitrius
went to talk to the dude.
Then we was [sic] riding behind the truck for a long time.
Then we got to some apartment and parked right beside the
truck. Chris got out and went somewhere. I was sitting in the
car. Demetrius and my brother got out. Demetrius came to my
door and told me to drive. I got out and walked around to the
driver's seat. Then I heard Demetrius say, “Get his
phone.” Then I heard gunshots [phonetic]. I looked up.
My brother and Demetrius was [sic] running. Then the dude
looks at the car and seen [sic] me and start [sic] shooting.
I got hit two times. Then I got-then I got out, looking for
help. Seen [sic] Chris was looking around for Demetrius and I
told him to help me, I'd been shoot [phonetic]. Then
Chris walked up to the man's truck and start [sic]
shooting. Then he ran, and me and the dude were trying to get
help for ourselves.
Sergeant Jones further testified that based on his training
and experience, the term “lick” means to
“obtain something . . . in a criminal way, whether it
be a robbery, whether it be stealing, whether it be
drugs.” Specifically, the State elicited the following
Q. Sergeant Jones, going back to the term “need a lick,
” have you heard that terminology before throughout
your career in police work?
A. Yes, I have. “Need”- Q. Go ahead.
A. “need a lick”- DEFENSE COUNSEL: ...