United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
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
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)
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.
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.
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
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
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
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
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
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 DEFENDANT: Yes, sir.
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 DEFENDANT: Yes, sir.
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 ...