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Seelig v. Solomon

United States District Court, E.D. North Carolina, Western Division

March 2, 2017

PAUL E. SEELIG, Petitioner,
v.
GEORGE T. SOLOMON, Respondent.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         The matter came before the court on respondent's motion for summary judgment (DE 17) pursuant to Federal Rule of Civil Procedure 56(a), which was fully briefed. Also before the court is petitioner's motion for reconsideration (DE 30). Respondent did not respond to petitioner's motion. In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants both motions.

         STATEMENT OF CASE

         On April 12, 2011, petitioner was convicted following a jury trial in the Wake County Superior Court of 23 counts of obtaining property by false pretenses. State v. Seelig, 226 N.C.App. 147, 149, 738 S.E.2d 427, 429, 431 (2013). Petitioner then pleaded guilty to the aggravating factor of taking advantage of a position of trust or confidence to commit the offenses. Petitioner was sentenced to 10 consecutive terms of 10-12 months imprisonment. I d . at 431. Petitioner did not file a direct appeal immediately following his conviction. Id. However, on June 24, 2011, petitioner filed a pro se motion for appropriate relief (“MAR”) in the Wake County Superior Court. (Resp't's Mem. p. 1). The superior court then dismissed petitioner's MAR without prejudice to allow petitioner the opportunity to re-file his MAR after completing his appeal. (Resp't's Mem. p. 1). Petitioner thereafter filed numerous pro se petitions in the state appellate court. (Id.)

         On December 6, 2011, petitioner filed a pro se petition for a writ of certiorari in the North Carolina Court of Appeals seeking a belated direct appeal. Seelig, 738 S.E.2d at 431. On December 15, 2012, the court of appeals granted the petition and permitted petitioner to file a direct appeal. Id. On March 19, 2013, the court of appeals issued an opinion finding no error in petitioner's conviction or sentence. Seelig, 738 S.E.2d at 440. Petitioner subsequently filed a pro se petition for discretionary review in the North Carolina Supreme Court, which was denied on June 13, 2013. State v. Seelig, 366 N.C. 598, 743 S.E.2d 182 (2013). On May 28, 2014, petitioner filed a second pro se MAR in the Wake County Superior Court, which was summarily denied. (Pet. Ex. E). Petitioner then filed a pro se petition for a writ of certiorari in the court of appeals, which was denied on October 27, 2015.[1] (Resp't's Mem. Ex. 5).

         On February 2, 2016, petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United State District Court for the Middle District of North Carolina. Petitioner raised the following claims in his § 2254 petition: (1) his conviction violated the Due Process Clause of the Fourteenth Amendment to the United State Constitution because there are no federal or state laws defining “gluten free” products; (2) the trial court violated his Fifth Amendment privilege against compelled self-incrimination; (3) he was denied a probable cause hearing in violation of the Due Process Clause; (4) he filed numerous pro se motions in the trial court which were never ruled upon; (5) he received ineffective assistance of trial counsel; (6) his conviction violated the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution or the doctrine of collateral estoppel; (7) his sentence is disproportionate in violation of the Eighth Amendment to the United States Constitution; (8) the sentencing court failed to properly calculate his prior record level; (9) his rights pursuant to the Confrontation Clause of the Sixth Amendment to the United States Constitution were violated when the trial court permitted a witness to testify through a live, two-way, closed circuit broadcast; and (10) there was insufficient evidence to convict him.

         On February 10, 2016, the Middle District of North Carolina transferred the action to this court. On May 13, 2016, respondent filed a motion for summary judgment arguing that petitioner is not entitled to habeas relief. Respondent subsequently filed a motion to amend or supplement his motion for summary judgment to include an additional defense, and the court granted respondent's motion. On July 13, 2016, petitioner filed a motion for leave to exceed the page limitation for his response to respondent's motion for summary judgment. On July 19, 2016, the court granted petitioner's motion, but limited his response brief to 40 pages. Petitioner then filed a 60-page response to respondent's motion for summary judgment, and a motion for reconsideration of the court's July 19, 2016, order limiting his brief to 40 pages. Respondent filed a reply.

         STATEMENT OF FACTS

         The facts as summarized by the North Carolina Court of Appeals are as follows:

The State's evidence tended to show the following facts. Defendant was the owner of Great Specialty Products, a company that sold, among other things, bagels, breads, and other baked edible goods (collectively “bread products”) that were advertised as homemade and gluten free. Gluten is a protein found in wheat, barley, and rye.
Some people, including people diagnosed with celiac disease, are gluten intolerant because their bodies recognize gluten as a foreign substance and create antibodies that actually work to damage the body.
When people with gluten intolerance ingest gluten, their symptoms include abdominal bloating, indigestion, abdominal cramping and pain, diarrhea, vomiting, acidosis, and fatigue. For some, but not all, people with celiac disease, ingesting even a very small amount of gluten can cause these symptoms. People who are gluten intolerant are treated by working with nutritionists to maintain gluten-free diets; there is no medication to treat celiac disease.
Defendant began selling his bread products-represented as gluten free-in August 2009. He operated out of a booth at the flea market located on the State Fairgrounds in Raleigh, North Carolina. Defendant next sold the bread products from a booth at the 2009 State Fair in Raleigh. During the fall of 2009 and early 2010, defendant also sold the bread products online from a “Great Specialty Products” website. He delivered the products to customers' homes anywhere within a 40-minute drive from Morrisville, North Carolina.
None of the bread products advertised by defendant as gluten free were actually gluten free. Defendant bought all of the bread products either completely premade or in a partially-baked, frozen form that only needed to be baked briefly in the oven. Many, but not all, of the bread products sold on defendant's website as gluten free were manufactured by Tribecca Oven, a New Jersey bakery. Because gluten is integral to Tribecca Oven's manufacturing process, a witness from Tribecca Oven described the company as a “gluten machine” and testified that all of the bread products manufactured by Tribecca Oven contain gluten.
All of the bagels and some of the other products defendant represented as homemade and gluten free were purchased from Sam's, Costco, or BJ's. The remainder of the bread products were delivered by truck to defendant's home. None of the products received or purchased by defendant for resale bore labels indicating they were gluten free. The premade bread products were simply repackaged for sale by defendant. The products purchased in a frozen, partially-baked form were briefly baked in an oven and then packaged for sale by defendant. Laboratory testing on 12 of 13 samples of bread products sold by defendant and advertised as gluten free indicated that those samples contained gluten.
During the fall of 2009 and early 2010, defendant or one of his employees sold bread products to at least 23 persons who would not have purchased the products if the products had not been advertised as gluten free. Many of those persons either had celiac disease or were purchasing the products for a person with celiac disease. At least one of those individuals filed a complaint with the North Carolina Department of Justice. The North Carolina Department of Agriculture and Consumer Services investigated defendant and filed a civil action against him seeking permanent injunctive relief. The Department of Agriculture obtained a temporary restraining order against defendant pending a hearing on a preliminary injunction. T h e record does not contain any further information regarding that civil action.
On 6 April 2010, defendant was indicted for nine counts of obtaining property by false pretenses. On 9 November 2010, defendant was indicted for an additional 19 counts of obtaining property by false pretenses. At trial, defendant testified that he never advertised or sold products as gluten free that he knew, in fact, contained gluten. Defendant claimed he purchased all of his gluten-free products from “Rise ‘n Bakeries, ” an Amish bread products manufacturer located in Millsburg, Ohio. He purchased regular bread products from other companies. According to defendant, none of his bread products or bagels were bought at Costco, Sam's, or BJ's. Defendant testified he regularly performed tests on the products he sold as gluten free to ensure that they were, in fact, gluten free.
Defendant further testified that as of 22 December 2009, defendant believed there may have been cross-contamination at some point during the production process of his bread products such that the end product was not actually gluten free. Defendant promptly notified his customers and began printing labels on the products warning that they may have been contaminated with gluten.
Defendant also presented the testimony of one of his customers, Sharon Hargraves. Ms. Hargraves testified that she has celiac disease, she purchased bread products from defendant throughout t h e fall of 2009, and she showed no symptoms of having ingested gluten.
At trial, the State dismissed four counts of obtaining property by false pretenses, and the trial court dismissed an additional count of obtaining property by false pretenses on defendant's motion at the close of all the evidence. The jury found defendant guilty of 23 counts of obtaining property by false pretenses. Defendant then pled guilty to the aggravating factor that he took advantage of a position of trust or confidence to commit the offenses.
The trial court consolidated the convictions into 11 judgments. In each judgment, the court sentenced defendant to an aggravated-range term of 10 to 12 months imprisonment and further ordered that all of the sentences run consecutively. Defendant's written notice of appeal was not timely, but this Court granted defendant's petition for writ of certiorari.

Seelig, 738 S.E.2d at 430-431.

         DISCUSSION

         A. Motion for Reconsideration

         Petitioner seeks reconsideration of the court's July 19, 2016, page limitation order to the extent that it limits petitioner's response to respondent's motion for summary judgment to 40 pages. The court grants petitioner's motion for reconsideration, and accepts petitioner's 60-page response brief.

         B. Motion for Summary Judgment

         1. Standard of Review

         Summary 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, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 250.

         The standard of review for habeas petitions brought by state inmates, where the claims have been adjudicated on the merits in the state court, is set forth in 28 U.S.C. § 2254(d). That statute states that habeas relief cannot be granted in cases where a state court considered a claim on its merits unless the decision was contrary to or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court, or the state court decision was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1) and (2). A state court decision is “contrary to” Supreme Court precedent if it either arrives at “a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite” to that of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 406 (2000). A state court decision “involves an unreasonable application” of Supreme Court law “if the state court identifies the correct governing legal principle from [the Supreme] Court's cases but unreasonably applies it to the facts of the state prisoner's case.” Id. at 407. A state court decision also may apply Supreme Court law unreasonably if it extends existing Supreme Court precedent to a new context where it does not apply, or unreasonably refuses to extend existing precedent to a new context where it should apply. Id. The applicable statute

does not require that a state court cite to federal law in order for a federal court to determine whether the state court's decision is an objectively reasonable one, nor does it require a federal habeas court to offer an independent opinion as to whether it believes, based upon its own reading of the controlling Supreme Court precedents, that the ...

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