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Grady v. NC Department of Public Safety

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

July 12, 2017

BOBBY RAY GRADY, Petitioner,


          LOUISE W. FLANAGAN United States District Judge

         The matter now comes before the court on respondent's motion for summary judgment (DE 21) pursuant to Federal Rule of Civil Procedure 56. The motion was fully briefed. The matter also is before the court on petitioner's motion for rehearing (DE 34), to which respondent did not respond. In this posture, the issues raised are ripe for adjudication. For the following reasons, the court denies petitioner's motion for rehearing and grants respondent's motion for summary judgment.


         On May 6, 2014, petitioner was convicted, following a jury trial in the Wayne County Superior Court, of first-degree rape, first-degree sex offense, and first-degree kidnaping. (Resp't's Mem. Ex. 2, pp. 62-64). The superior court judge consolidated the first-degree rape and first-degree sex offense convictions into a single judgment and imposed a presumptive-range sentence of 317 to 390 months imprisonment. State v. Grady, No. COA15-433, 2016 WL 2659505, at *7 (2016). The trial court arrested judgment on the first-degree kidnaping charge and sentenced defendant for second-degree kidnaping to a consecutive presumptive-range term of 33 to 49 months imprisonment. Id. Petitioner subsequently filed a notice of appeal to the North Carolina Court of Appeals. See Id. The court of appeals entered an order finding no error on May 10, 2016. Id. at *14. On August 18, 2016, the North Carolina Supreme Court denied petitioner's pro se petition for discretionary review and dismissed his notice of appeal. State v. Grady, 792 S.E.2d 788 ( N.C. 2016) (table opinion).

         On May 9, 2016, petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, petitioner alleged the following: (1) he was not competent to represent himself at trial; (2) he lacked the mental capacity to commit the offenses; and (3) his conditions of confinement are unconstitutional. Petitioner subsequently filed a pleading captioned “motion to amend evidence, ” which the court granted. Petitioner, additionally, filed a motion for an evidentiary hearing and a jury trial, as well as a motion for a temporary restraining order. The court denied petitioner's motions. As part of its order, the court noted that plaintiff raised claims challenging the conditions of his confinement in his motion for a temporary restraining order, and directed the clerk of court to send petitioner the civil rights package.

         In the interim, respondent filed a motion for summary judgment arguing that petitioner is not entitled to habeas relief. Petitioner responded to the motion for summary judgment and filed a pleading captioned “Motion for Rehearing of Preliminary Injunction and Restraining Order.” Respondent did not respond to petitioner's motion.


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

On 13 March 2011, Jane Smith[] worked a shift from 7:00 p.m. to 2:00 a.m. as a supervisor at an internet sweepstakes business in Kinston, North Carolina. At about 2:00 a.m. on 14 March 2011, Mrs. Smith locked up at work and left to head home. As she was driving home on Highway 70, she approached Bill Lane Boulevard, but could not move into the right turn lane for Bill Lane Boulevard because it was blocked by a red BMW, with defendant sitting in the driver's seat of that vehicle with the door open. Mrs. Smith cracked her window and asked defendant if everything was okay, and he said he could not get anybody on his cell phone and was stuck. Defendant asked Mrs. Smith if she could help him move his car to the side o f t h e road, and she did. Although it was dark, Mrs. Smith could see defendant's face because of the lights from the cars. Afterwards, defendant asked if Mrs. Smith could give him a ride to his home off Emmaus Church Road, and since Mrs. Smith lived off that road, she agreed.
When they turned onto Emmaus Church Road, defendant said that he lived in the second trailer on the right. As Mrs. Smith started to slow down and approach the trailer, defendant leaned over and held a sharp object against Mrs. Smith's throat. Mrs. Smith could feel it cutting her skin. Defendant told her to make the next right onto Casey Mill Road and pull off at the speed limit sign. Defendant, still holding a knife to Mrs. Smith's throat, asked her to turn off the car and its lights. He then opened the passenger door to Mrs. Smith's minivan and told Mrs. Smith to get out through that door.
After exiting the car, defendant, while still holding the knife to Mrs. Smith's throat, made her sit on the ground. Defendant unzipped his pants and forced Mrs. Smith to perform oral sex on him. Defendant then made Mrs. Smith lay down on the ground, remove her pants and underwear, and performed oral sex on her, with the knife at her leg. After that, defendant engaged in vaginal intercourse with the knife held at Mrs. Smith's throat. Defendant pulled out and ejaculated on the ground and then unsuccessfully tried to burn that part of the ground with his lighter. A car drove by, and defendant lay on top of Mrs. Smith so she could not move.
Defendant told Mrs. Smith to get dressed and get back in the car. He then said, “I'm not going to kill you, but I was supposed to, it's part of a Blood initiation.” Defendant made Mrs. Smith drive him back to his red BMW, and on the way he said, “Don't forget, don't tell or I will kill you.” After dropping defendant back off at his car, Mrs. Smith “turned around and floored it out and left.”
Mrs. Smith drove past her neighborhood first because she was worried defendant might be following her, but eventually she went home and woke up her husband and told him what had happened. She did not want to call the police because she was worried defendant was going to find her and kill her, but her husband called 911 anyway. When Deputy Michael Biggins of the Wayne County Sheriff's Office arrived, about 15 minutes later, Mrs. Smith told him that her attacker was “a tall, black male, about six foot, between 150 and 200 pounds, and he had an extreme lazy eye and looked like he had a broken nose.” Mrs. Smith then went to the hospital, where a rape kit was completed and the examination noted two horizontal scratches on Mrs. Smith's neck.
Deputy Biggins thought Mrs. Smith had described someone he had encountered several times, but he could not recall the man's name. He did remember an address associated with the man since he had been to the address several times. Deputy Biggins called the dispatch office and had them look up the address and read off names associated with it-that search led to defendant's name.
Deputy Biggins contacted Deputy Kenneth Lupton of the Wayne County Sheriff's Office, his sergeant at the time, and asked him to go to the Bill Lane Boulevard area identified by Mrs. Smith and see if he could locate the red BMW. Law enforcement officers found a red BMW at the location Mrs. Smith described and had a wrecker take it to a secure location. The vehicle was registered to Linda Grady Johnson at the address Deputy Biggins had recalled.
The following day, 14 March 2011, Mrs. Smith received a call asking her to go to the sheriff's annex. While at the annex, Mrs. Smith identified defendant in a double-blind photographic lineup, presented to her by Detective Tammy Odom Mozingo of the Wayne County Sheriff's Office. Detective Mozingo acted as the lineup administrator and knew nothing about the case or which person in the lineup was the suspect. Mrs. Smith wrote on defendant's picture in the lineup: “Not one hundred percent, but pretty close.” Detective Mozingo asked Mrs. Smith to be more accurate with the percentage amount, so Mrs. Smith added “I'm ninety percent sure.” After Mrs. Smith identified defendant in the photographic lineup on 14 March 2011, defendant was arrested. At defendant's probable cause hearing on 16 May 2011, where defendant was represented by counsel, defendant told the court that Mrs. Smith was willing during all the sexual acts, that defendant did not have to force anything, and that Mrs. Smith was the one pushing it.
DNA test results of the external and internal vaginal swabs taken during Mrs. Smith's rape kit exam were inconclusive. The results excluded Mrs. Smith's husband, but the samples were of “insufficient quality or quantity” to exclude defendant. The sample taken from her underwear could not exclude either Mrs. Smith's husband or defendant.
On 16 March 2011, defendant indicated he wanted to waive counsel, but on the waiver of counsel form, in place of his signature on the form, he wrote, “I refuse to sign.” Defendant was still represented during the preliminary hearing by Kenneth Rouse. Mr. Rouse filed a motion to withdraw as defendant's counsel on 25 May 2011, attached a handwritten motion from defendant, and stated it was clear from the motion that defendant was “plainly expressing he does not want court appointed counsel.” Upon Mr. Rouse's withdrawal, William Bland was appointed to represent defendant. On 16 June 2011, Mr. Bland moved to withdraw from representation of defendant, citing a conflict of interest for his firm, and Jim Copeland was appointed as defendant's counsel.
When Mr. Copeland met with defendant, it was clear that defendant did not want Mr. Copeland or anyone else representing him, so Mr. Copeland moved to withdraw, and his motion was granted at a hearing on 20 July 2011. At the hearing on 20 July 2011, Judge Arnold O. Jones II asked defendant if he understood his right to counsel, to which defendant responded, “Yes.” Judge Jones then asked defendant if he wanted a lawyer appointed for him, if he wanted to represent himself, or if he wished to hire his own lawyer, to which defendant replied: “Represent myself, sir.” On the waiver of right to counsel form, however, defendant once again wrote in place of his signature, “Refuse to sign.” Judge Jones then expressed concern that defendant “may not fully understand the gravity of what's going on” and decided to send defendant to Central Regional Hospital for a psychological evaluation.
In his order committing defendant to Central Regional Hospital Raleigh Campus to be examined on his capacity to proceed, Judge Jones wrote that “[t]he court needs to have the Defendant's capacity to (1) understand/comprehend rights to counsel and the effect of not having counsel[;] (2) understand the proceedings against him[;] (3) represent himself at pretrial/trial.” The psychological evaluation was conducted on 25 August 2011 by Senior Psychologist Nancy E. Laney. In her 8 November 2011 report, Dr. Laney concluded that defendant was capable of proceeding to trial and that defendant “appreciates his decision to represent himself versus allowing a public defender to represent him.” In explaining her conclusions, Dr. Laney stated that defendant had “no history of intellectual impairment or cognitive difficulties.” Dr. Laney did state that defendant had a history of substance abuse and sought mental health treatment for various self-reported mood symptoms, and at times he reported psychotic symptoms such as hallucinations and paranoia, but he was never observed to be actively psychotic. Dr. Laney noted, in relation to defendant's self-reported symptoms, that they “led to diagnosis of mental illness and a legal determination of Not Guilty by Reason of Insanity in the State of Florida [, ]” but she went on to state that “these diagnoses were questioned numerous times by multiple providers.” On 8 February 2012, Charles Gurley was appointed to represent defendant. Mr. Gurley, however, moved to withdraw on 13 March 2012, on the grounds of lack of communication and that defendant was trying to advise him on what motions to file and what law to file.
In a hearing on 4 September 2012 before Judge Jones, defendant renewed his request to proceed pro se. Judge Jones asked defendant whether he still understood the charges against him and wished to proceed pro se and found that he did. Judge Jones then engaged in the following colloquy with defendant:
THE COURT: All right. I've got a few more questions.
Do you understand that you have a constitutional right to be represented by a lawyer?
THE COURT: Do you understand if you want a lawyer and you can't afford a lawyer, I have and I will continue to appoint you a lawyer to represent you in this case?
THE COURT: Do you understand if you decide-and you can change your mind at any time. We're not done with this yet. But if you decide to represent yourself, I will not give you legal advice concerning any legal defenses, jury instructions, or any other ...

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