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Govan v. Solomon

United States District Court, M.D. North Carolina

February 1, 2017

ARK DWAYNE GOVAN, Petitioner,
v.
GEORGE T. SOLOMON, Director, N.C. Dept. of Public Safety, Respondent.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. Patrick Auld United States 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 (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).)[1] 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).[2] The Court should enter judgment for Respondent.

         FACTS

         The 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 suspects.
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 for questioning.
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 exchange:
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: ...

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