United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
matter came before the court on respondent's motion for
summary judgment (DE 23) pursuant to Federal Rule of Civil
Procedure 56. The issues raised have been fully briefed and
are ripe for adjudication. For the following reasons, the
court grants respondent's motion for summary judgment.
April 10, 2013, petitioner was convicted, in Cumberland
County Superior Court, of obtaining property by false
pretenses in case numbers 13CRS51503 and 51505.
(Resp't's Ex. 1, p. 2). Petitioner then was sentenced
to two consecutive suspended sentences of 10-21 months
imprisonment. (DE 35, p. 121). The sentences were suspended
for a period of 60 months. (Resp't's Mem. Ex. 7, part
2, p. 3). Shortly after sentencing, the probation cases were
transferred to Onslow County and became subject to the
jurisdiction of the Onslow County Superior Court.
October 31, 2014, the North Carolina Parole Commission (the
“Commission”) issued a probation violation for
petitioner alleging that she had absconded from probation on
October 21, 2014. (Id.) The next day, on November 1,
2014, the Commission sent petitioner and her probation
officer, Billie Carter, a letter stating that petitioner was
released from post-release supervision for all of her cases,
including case numbers 13CRS51503 and 51505.
(Resp't's Mem. Ex. 2, p. 10). Then, on March 23,
2015, the Onslow County Superior Court conducted a hearing on
petitioner's October 31, 2014, absconding charge.
(Resp't's Ex. 6). In the course of the hearing,
petitioner argued that she did not abscond because the
November 1, 2014, letter from the Commission stated she was
released from post-release supervision for all of her
criminal cases. (Id. p. 26). The state, in turn,
argued that the November 1, 2014, letter was intended to
notify petitioner of the termination of her post-release
supervision for a conviction bearing the case number
12CRS61019, but erroneously also listed case numbers
13CRS51503 and 51505 due to a computer glitch. (Id.
conclusion of the hearing, the superior court found that
petitioner violated the terms of her probation for case
number 13CRS51503 by absconding from supervision.
(Id.) As a result, the superior court revoked
petitioner's probation in case number 13CRS51503, and
activated petitioner's suspended sentence of 10-21 months
imprisonment. (Id.) With respect to petitioner's
case number 13CRS51505, the superior court modified the
original judgment to require petitioner to report to her
probation officer within 72 hours after her release from the
North Carolina Department of Public Safety
(“DPS”). (Id. pp. 52-53).
April 23, 2015, petitioner was convicted in the Onslow County
Superior Court of misdemeanor simple worthless check.
(Id. Ex. 7, part. 1, p. 9). On April 29, 2015, the
Commission issued a probation violation based upon
petitioner's new April 23, 2015, worthless check
conviction. (DE 35, p. 121). On September 23, 2015, the
Onslow County Superior Court conducted a hearing on
petitioner's probation violation charge. (DE 7).
Petitioner again raised the argument that her post-release
supervision in case numbers 13CRS51503 and 51505 was
terminated by the November 1, 2014, letter. (DE 7, part. 2,
p. 9). At the conclusion of the hearing, the superior court
judge determined that petitioner violated the conditions of
her probation, and revoked petitioner's probation in case
number 13CRS51505. (Id. p. 14). The superior court
judge additionally ordered that petitioner's remaining
sentence of 10-21 months imprisonment in case number
13CRS51505 be activated and run consecutive to the sentence
in 13CRS51503. (Id.)
November 6, 2015, petitioner filed the instant pro
se petition for a writ of habeas corpus pursuant to 28
U.S.C. 2254. Petitioner asserted the following grounds as
relief: (1) her conviction was obtained by a violation of the
protection against the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution when the
Commission unconditionally discharged her post-release
supervision in case numbers 09CRS52656, 12CRS61019,
13CRS51503, and 13CRS51505; (2) her conviction was obtained
by denial of her right to present evidence in her own defense
because the superior court judge would not permit her to go
over the records when she was acting pro se and
would not accept her arguments; (3) her conviction was
obtained due to the ineffectiveness of trial or appellate
counsel because the superior court judge ordered the
prosecutor to subpoena the Commission's original records
after she proved the second copy of the certificate she
received was fraudulent; and (4) her various constitutional
rights were violated.
March 7, 2016, petitioner filed a motion for appropriate
relief (“MAR”) in the Onslow County Superior
Court, which was denied. (DE 45, Attach. p. 6). Petitioner then
filed a petition for a writ of certiorari in the North
Carolina Supreme Court on April 29, 2016, which was dismissed
on May 19, 2016. (Id. p. 9). In the interim, on May
3, 2016, respondent filed in this case a motion for summary
judgment arguing that the petition should be dismissed for
failure to exhaust state court remedies. Alternatively,
respondent argued that the petition fails on the merits. The
motion was fully briefed. On June 21, 2016, petitioner was
released from DPS custody and placed on parole. (DE 45, pp.
10-11). The expiration of petitioner's parole is March
29, 2017. (DE 48, Attach., p. 2).
April 8, 2016, petitioner filed a motion to amend her
complaint to substitute the proper party respondent.
Petitioner then filed a motion to perform a handwriting
analysis, motion to subpoena witnesses and evidence, motion
to have documents served electronically, and motion to
suppress the state's response. On November 7, 2016, this
court granted petitioner's motion to amend and motion to
have the documents in this action served electronically, but
denied petitioner's remaining motions. This court
additionally determined that petitioner properly exhausted
her state court remedies and directed petitioner to show
cause why this action should not be dismissed based upon her
June 29, 2016, release from incarceration. The parties
subsequently responded to the court's November 7, 2016,
Motion for Summary Judgment
Standard of Review
judgment is appropriate when there exists no genuine issue of
material fact, and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); Anderson v.
Liberty Lobby, 477 U.S. 242, 247 (1986). The party
seeking summary judgment bears the burden of initially coming
forward and demonstrating an absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Once the moving party has met its burden,
the nonmoving party then must affirmatively demonstrate that
there exists a genuine issue of material fact requiring
trial. Matsushita Elec. Industrial Co. Ltd. v. Zenith
Radio Corp., 475 U.S. 574, ...