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McNeill v. Perry

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

March 9, 2017

JERRY WILLIAM MCNEILL, JR., Petitioner,
v.
FRANK L. PERRY, Respondent.

          ORDER

          TERRENCE W. BOYLE United States District Judge.

         This matter is before the court on the Order and Memorandum and Recommendation ("Order and M&R") of United States Magistrate Judge Robert T. Numbers, II, pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b) [D.E. 28]. The court ADOPTS the Order and M&R.

         BACKGROUND

         On August 7, 2015, Jerry William McNeill, Jr. ("petitioner" or "McNeill") a state inmate proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 [D.E. 1]. He alleged four claims. First, he challenged his conviction as a habitual felon. Pet. ¶ 12 (Ground One). Second, he claimed that the Superior Court erred by failing to retroactively apply state sentencing provisions, enacted in 2009 and 2011, which would have reduced his sentence. See Id. (Ground Two). Third, he claimed that his sentence was grossly disproportionate in violation of the Eighth Amendment. Id. (Ground Three). Fourth, he argued that he received ineffective assistance of counsel at his resentencing proceeding. Id. (Ground Four). Subsequently, McNeill filed a motion to appoint counsel [D.E. 11]. The matter was referred to Judge Numbers pursuant to 28 U.S.C. § 636(b)(1)(C) for entry of a memorandum and recommendation.

         On March 25, 2016, Judge Numbers entered a Memorandum and Order allowing the action to proceed [D.E, 8]. On May 9, 2016, Respondent Frank L. Perry filed an answer [D.E.. 12], a motion for summary judgment [D.E. 13], and a memorandum in support of his motion for summary judgment [D.E. 16]. On July 20 and 21, 2016, McNeill filed responses in opposition to the motion for summary judgment [D.E. 23, 24].

         On February 3, 2017, Judge Numbers entered his Order and M&R denying McNeill's motion for counsel and recommending that the court dismiss McNeill's habeas petition. Sag Order and M&R [D.E. 28]. On February 16, 2017, McNeill filed objections to the Order and M&R [D.E. 30].

         STANDARD OF REVIEW

         "The Federal Magistrates Act requires a district court to make a de novo determination of those portions of the magistrate judge's report or specified proposed findings or recommendations to which objection is made." Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (emphasis, alteration, and quotation omitted); see 28 U.S.C. § 636(b). Absent a timely objection, "a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendations. Diamond, 416 F.3d at 315 (quotation omitted). The court does not perform a de novo review where a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson. 687 F.2d 44, 47 (4th Cir. 1982). Upon careful review of the record, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983).

         The court has reviewed the Order and M&R, the record, and McNeill's objections. As for those portions of the Order and M&R to which McNeill made no objection, the court is satisfied that there is no clear error on the face of the record.

         DISCUSSION

         A. Indictment Claims

         In his first objection, McNeill argues that the habitual felon indictment in his case was defective because the indictment's file number was the same as the number of the principal felony, he never admitted to the habitual felon status, he was not informed of the prior felonies used to support the habitual felon status, and the prosecutor had no jurisdiction to indict him as a habitual felon. See Obj. [D.E. 30-1] ¶ 1. However, McNeill fails to advance any argument or authority to support his objection and merely restates the argument set out in his habeas petition. See Pet. [D.E. 1] ¶ 12 (Ground One). Merely reiterating the same arguments made in the pleading submitted to the magistrate judge does not warrant de novo review. See Veney v. Astrue, 539 F.Supp.2d 841, 846 (W.D.Va. 2008). That notwithstanding, Judge Numbers correctly concluded that this claim should be dismissed. See Order and M&R [D.E. 28] 8-10. The issue of the sufficiency of a state indictment is a matter of state law. A state court's determination that one of its courts had jurisdiction over a purely state law criminal charge is not a matter cognizable in federal habeas review. See Wright v. Angelone, 151 F.3d 151, 157 (4th Cir. 1998). Further, a state court's decision on a question of state law is binding in federal court. See Estelle v. McGuire, 502 U.S. 62. 67-68 (1991): Thomas v. Davis. 192 F.3d445, 449 n.l (4th Cir. 1999). Thus, this objection is overruled.

         Moreover, the transcript of plea in McNeill's case makes clear that McNeill was aware of what he pled to and that he intended to plead guilty to being a habitual felon. The trial court inquired, and McNeill acknowledged under oath, in open court, that his attorney had explained the habitual felon charge to him, he understood the nature and the elements of the charge, he was satisfied with his lawyer's services, he understood he was pleading guilty to the habitual felon charge, and he had in fact attained the status of a habitual felon. See Tr. of Plea, D.E. 15-3. McNeill signed the plea, along with the prosecutor and his attorney. See id McNeill's attorney stated that he had "fully explained to the defendant the nature and elements of the charge(s) to which the defendant is pleading." Id. The trial court found, among other things, that there was a factual basis for the plea, McNeill was satisfied with his attorney, McNeill made an informed choice to plead, and the plea was made freely, voluntarily and understandingly. Id. Judge Numbers correctly concluded that McNeill's claim that his plea to being a habitual felon was uninformed is contradicted by the record. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) ("[a] [defendant's sworn representations made at a plea hearing 'carry a strong presumption of verity5 and 'constitute a formidable barrier against any subsequent collateral proceedings.'"). This objection is overruled.

         B. Equal ...


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