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Fowler v. Perry

United States District Court, W.D. North Carolina, Asheville Division

May 11, 2017

DAVID KENNETH FOWLER, Petitioner,
v.
FRANK L. PERRY, Respondent.

          ORDER

          Frank D. Whitney Chief United States District Judge

         THIS MATTER is before the Court upon Petitioner's pro se Amended Petition for Writ of Certiorari, 28 U.S.C. § 2254 (Doc. No. 9) and Motion for Appropriate Order in the Interest of Justice (Doc. No. 11). Also before the Court is Respondent's Motion for Summary Judgment. (Doc. No. 7.)

         I. BACKGROUND

         Petitioner is a prisoner of the State of North Carolina who pled guilty, pursuant to a plea deal, in Rutherford County Superior Court on September 5, 2013, to attempting to obtain property by false pretenses (13 CRS 50379), attaining the status of habitual felon (13 CRS 918), three counts of obtaining property by false pretenses (13 CRS 50380-82), three counts of uttering a forged instrument (13 CRS 50380-82), one count of breaking or entering (13 CRS 50292), one count of felonious larceny (13 CRS 50292), two counts of breaking or entering a motor vehicle (13 CRS 50255-56), one count of financial card theft (13 CRS 50383), and three counts of misdemeanor larceny (13 CRS 50255-26, 13 CRS 50384). (Tr. of Plea 2, Resp't's Ex. 1, Doc. No. 8-2.) The terms of Petitioner plea agreement were as follows:

Defendant will plead to all felonies (except the PSG) and the habitual enhancement. Defendant will receive an active habitual sentence in File 13 CRS 50379, Att OPBFP. The remaining felonies will not be habitualized, but will be sentenced at the top end of the presumptive range, to run consecutive to each other and file 13 CRS 50379. These sentences will be suspended, and Defendant will be placed on supervised probation for five years, to begin following Defendant's completion of his sentence in file 13 CRS 50379. Defendant will enroll in TROSA within one week of his release in file 13 CRS 50379 and will successfully complete TROSA as a term of probation. Defendant will pay (illegible). The extended period of probation is necessary because Defendant's ability to pay restitution will most likely be limited during the two year period he is enrolled in TROSA. All other terms and conditions are in the discretion of the Court.

(Tr. of Plea 3.) In exchange for Petitioner's guilty pleas, the State dismissed a charge of possession of stolen goods, and two other habitual felon indictments. (Tr. of Plea 3.)

         Pursuant to the terms of his plea agreement, Petitioner was sentenced as a habitual felon (13 CRS 918) to 80-108 months imprisonment for attempting to obtain property by false pretenses (13 CRS 50379). (J. and Commit. 4, Pet'r's Ex. 1, Doc. No. 11.)[1] He was given four suspended 10-21 month sentences in cases 13 CRS 50292, 13 CRS 50380, 13 CRS 50381, and 13 CRS 50382 to be served consecutively to each other upon the expiration of the active sentence imposed in 13 CRS 50379. He also was given three suspended 7-18 month sentences in 13 CRS 50255, 13 CRS 50256, and 13 CRS 50383-84 (consolidated) to be served consecutive to the sentences imposed in 13 CRS 50292 and 13 CRS 50380-82. Finally, Petitioner was sentenced to 60 months of supervised probation to begin upon his release from incarceration. (J. and Comm. 1-10, Resp't's Ex. 2, Doc. No. 8-3.) Petitioner did not file a direct appeal.

         On July 28, 2014, Petitioner filed a Motion for Appropriate Relief (“MAR”) in the Rutherford County Superior Court asserting that the trial court lacked subject matter jurisdiction over the habitual felon indictment in 13 CRS 918 because one of the three prior felony convictions (09 CR 54450, felony B&E) relied upon by the State to support the indictment did not have a valid “bill of information.” (2014 MAR 1-2, Resp't's Ex. 3, Doc. No. 8-4.) Petitioner also claimed that trial counsel was ineffective for failing to investigate whether the prior felony convictions were supported by valid indictments or bills of information. Had counsel done so, Petitioner argued, he could have challenged the habitual felon indictment in 13 CRS 918, and “defendant's sentence would have resulted in a different outcome.” (2014 MAR 3-4, Doc. No. 8-4.)

         On October 7, 2014, the trial court issued an Order finding that the MAR was a collateral attack on the judgment in 09 CR 54450 and that Petitioner should have filed an MAR under that case number. (Order Den. 2014 MAR 1, Resp't's Ex. 4, Doc. No. 8-5.) Nevertheless, the court, on its own motion, held that Petitioner was entitled to relief from judgment in 09 CR 54450 because the bill of information in that case was not valid, and the original court did not have subject matter jurisdiction to enter judgment. Consequently, the court held, the conviction in 09 CR 54450 could no longer support the habitual felon indictment in 13 CRS 918 or the habitual felon status used to enhance Petitioner's punishment in 13 CRS 50379. (Order Den. 2014 MAR 1.) The court vacated the judgments in 09 CR 54450 and 13 CRS 50379 and dismissed the habitual felon indictment in 13 CRS 918. The court ordered that Petitioner be resentenced as a class H felon in case 13 CRS 50379. (Order Den. 2014 MAR 2.)

         On November 17, 2014, the court resentenced Petitioner, who was represented by counsel, in 13 CRS 50379 to an active term of 10 to 21 months incarceration and gave him credit for 628 days already served under that case number. (J. and Comm., Resp't's Ex. 5, Doc. No. 8-6.) None of Petitioner's other sentences were affected by the court's ruling in Petitioner's MAR. Petitioner did not appeal the new judgment in 13 CRS 50379.

         According to North Carolina Department of Public Safety records, Petitioner's sentence in 13 CRS 50379 expired on November 17, 2014, and he was released from custody on that date.[2] On May 4, 2016, the Rutherford County Superior Court revoked Petitioner's supervised probation and activated his remaining sentences in 13 CRS 50292, 13 CRS 50255-56, and 13 CRS 50380-84. (J. and Comm. 1-14, Resp't's Ex. 6, Doc. No. 8-7.)

         Petitioner filed an MAR in Rutherford County Superior Court on May 18, 2016, in which he challenged the judgments entered in 13 CRS 50379, 13 CRS 50292, 13 CRS 50255-56, and 13 CRS 50380-84. (2016 MAR 1, Resp't's Ex. 7, Doc. No. 8-8.) In the MAR, Petitioner again alleged ineffective assistance of trial counsel for failing to discover that the judgment in 09 CR 54450 was invalid and could not support the habitual felon indictment in 13 CRS 918. (2016 MAR 2, Doc. No. 8-8.) This time, however, he asserted that his trial counsel presented him with two plea offers from the State. Petitioner asserted that he would have accepted the second plea offer, which he contends was more favorable in the absence of the habitual felon enhancement, had he known that the habitual felon indictment was invalid. (2016 MAR 3.)

         On August 23, 2016, the trial court entered an Order denying Petitioner's second MAR on the merits. (Order Den. 2016 MAR, Resp't's Ex. 8, Doc. No. 8-9.) On September 22, 2016, Petitioner filed a petition for writ of certiorari in the North Carolina Court of Appeals seeking review of the trial court's October 7, 2014 order vacating judgment in 09 CR 54450 and 13 CRS 50379 and dismissing the habitual felon indictment in 13 CRS 918. (Resp't's Ex. 9, Doc. No. 8-10.) The petition was dismissed on October 10, 2016, for failure to comply with North Carolina's rules of appellate procedure. (Resp't's Ex. 11, Doc. No. 8-12.) According to Petitioner, he filed another petition for writ of certiorari in the North Carolina Court of Appeals on October 19, 2016, which was dismissed for the same appellate rules violation. (Pet'r's Reply 2, Doc. No. 12.) Finally, Petitioner asserts that his third certiorari petition, filed November 7, 2016, was granted by the North Carolina Court of Appeals on November 30, 2016. (Pet'r's Reply 2.)

         Petitioner filed a § 2254 habeas Petition in this Court on September 7, 2016, when he placed it in the prison mail system. (Pet. 16, Doc. No. 1.) Respondent filed an Answer (Doc. No. 6), Motion for Summary Judgment (Doc. No. 7), and Supporting Brief (Doc. No. 8) arguing that Petitioner's claims were without merit and barred by the federal statute of limitations.

         Petitioner then filed an Amended Petition for Writ of Habeas Corpus (Doc. No. 9) in which he addresses some of the Government's statute of limitations arguments by raising a claim that he was denied access to the courts because North Carolina Prison Legal Services refused to help him prepare and present a meaningful legal challenge in post-conviction, and he did not have access to a law library. (Am. Pet. 9, Doc. No. 9.) He raises the following other grounds for relief: 1) ineffective assistance of counsel for failing to investigate and discover that one of the felony convictions supporting the habitual felon indictment (13 CRS 918) was invalid (Am. Pet. 5-6); 2) his guilty plea on September 5, 2013, was involuntary and unintelligent due to the ineffectiveness of counsel (Am. Pet. 8); and 3) due to the ineffective assistance of counsel with respect to the guilty plea, Petitioner waived his right to challenge admission of evidence on 4th Amendment grounds (Am. Pet. 11). Additionally, Petitioner states that he filed a third MAR in the Rutherford County Superior Court on September 26, 2016, which evidently was denied on November 23, 2016. (Am. Pet. 4, 8.)

         The Government filed a Response to the Amended Petition. (Doc. No. 10.) Petitioner filed a Reply to the Government's Response (Doc. No. 12) and a “Motion for Appropriate Order in the Interest of Justice, ” asking the Court to take various actions in this case (Doc. No. 11).

         II. STANDARD OF REVIEW

         Summary judgment is appropriate in those cases where there is no genuine dispute as to any material fact, and it appears that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c)(2); United States v. Lee, 943 F.2d 366, 368 (4th Cir. 1991). Any permissible inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). Where, however, the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

         III. ...


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