United States District Court, E.D. North Carolina, Western Division
PAUL E. SEELIG, Petitioner,
GEORGE T. SOLOMON, Respondent.
W. FLANAGAN United States District Judge
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.
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.)
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. (Resp't's Mem. Ex. 5).
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.
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.
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
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
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
Seelig, 738 S.E.2d at 430-431.
Motion for Reconsideration
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.
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, 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.
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