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Griffin v. Solomon

United States District Court, M.D. North Carolina

July 14, 2017

GREGORY A. GRIFFIN, Petitioner,
v.
GEORGE SOLOMON, Respondent.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. Patrick Auld United States Magistrate Judge

         Petitioner, a prisoner of the State of North Carolina, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the “Petition”). (Docket Entry 1.) Respondent has moved for summary judgment. (Docket Entries 19, 20.) For the reasons that follow, the Court should grant Respondent's Motion for Summary Judgment.

         I. Background

         On May 9, 2013, a jury in the Superior Court of Cabarrus County found Petitioner guilty of the offenses of breaking and entering and of possessing burglary tools (both as an habitual felon), whereupon the Superior Court imposed two, concurrent prison sentences of 146 to 185 months. (See Docket Entry 1, ¶¶ 1-6; Docket Entry 4-5 at 64, 70, 74-77.)[1] Petitioner appealed to the North Carolina Court of Appeals and received appointed appellate counsel. (See Docket Entry 4-5 at 83-85.) The North Carolina Court of Appeals affirmed. North Carolina v. Griffin, No. COA13-1093, 233 N.C.App. 239 (table), 2014 WL 1384371 (Apr. 1, 2014) (unpublished).[2] Petitioner (acting pro se) then forwarded to the Supreme Court of North Carolina a “Notice of Appeal” (Docket Entry 4-14 at 9), which that court dismissed, North Carolina v. Griffin, 367 N.C. 506, 759 S.E.2d 101 (2014).

         Next, Petitioner filed a Motion for Appropriate Relief (“MAR”) with the Cabarrus County Superior Court. (Docket Entry 4-17), which that court denied and dismissed (Docket Entry 4-18 at 2-3). Thereafter, the North Carolina Court of Appeals denied Petitioner's request for certiorari review of the denial/dismissal of his MAR. (Docket Entry 4-21 at 2.)

         Petitioner subsequently instituted this action via his Petition. (Docket Entry 1.) Respondent filed a Motion to Dismiss or, in the Alternative, Motion for More Definite Statement (Docket Entries 3, 4), and Petitioner responded (Docket Entries 6, 7).[3] The Court (per United States District Judge Loretta C. Biggs) denied Respondent's Motion to Dismiss, and denied as moot Respondent's alternative Motion for More Definite Statement. (Docket Entry 17.)

         Respondent then filed the instant Motion for Summary Judgment and supporting Brief (Docket Entries 19, 20), Petitioner responded (Docket Entry 22), and Respondent replied (Docket Entry 23).[4]

         II. Facts

         On direct appeal, the North Carolina Court of Appeals summarized the trial evidence as follows:

In the early morning hours of 2 April 2010, Christopher Andrew Shoe, Douglas Harwood, and a third employee were stocking shelves inside a closed Bi-Lo grocery store in Kannapolis. As Shoe worked near the front of the store, he heard loud popping noises coming from the front door. After calling out to the other employees that something was happening, Shoe went to the customer service desk about twenty feet from the front door. From that location, Shoe could see a man he later identified as [Petitioner] prying open the door with what appeared to be a long metal screwdriver. Shoe saw [Petitioner]'s face in the crack of the doorway as the door popped open and the store alarm began to sound. On hearing the alarm, [Petitioner] ran across the store parking lot, jumped into a van, and drove away down South Cannon Boulevard.
Harwood testified that he had come to the front of the store when Shoe called out to him. From a distance of about ten feet, Harwood saw a man wearing a plaid hooded jacket and jeans prying open the front door with a screwdriver. Harwood saw the face of the man whom he later identified as [Petitioner] and, after the alarm sounded and [Petitioner] fled in a red van, Harwood called 911.
Several officers with the Kannapolis Police Department, including Timothy Lafferty and Steven Webb, responded to the 911 call, and a red Ford Aerostar van was stopped a few minutes later on South Cannon Boulevard, about a mile and a half from the grocery store. After removing the driver and passenger from the van, the officers searched the cargo area. They found, inter alia, a fifty-five-gallon trash can, a large screwdriver, and a duffel bag filled with plastic bags of clothing which still had price tags and security sensors attached.
Harwood, who was still on the phone with a 911 operator, was told that police “had him [the perpetrator] in custody already.” Webb picked up Shoe and Harwood from the grocery store and drove them in a patrol car to the location where the van had been stopped. Shoe and Harwood identified [Petitioner], who was standing behind the red van, as the man who had pried open the door. Harwood was also able to identify the van as the vehicle in which [Petitioner] had fled the grocery store parking lot. Shoe testified that he had been shown two men during the show-up, one of whom he identified as the perpetrator. Harwood testified that he had seen only [Petitioner] at the show-up.

Griffin, 2014 WL 1384371, at *1 (footnote omitted).

         III. Grounds for Relief

         Petitioner has presented five grounds for habeas relief. (See Docket Entry 13 at 4 (analyzing Docket Entries 1, 7).) Specifically, he has alleged:

1) ineffective assistance of trial and appellate counsel, (A) because trial counsel “failed to file timely motions for discovery and/or move for subpoenas for surveillance tapes, or witnesses who initiated the investigation of the case and were responsible for evidence of surveillance . . .[, ] [and] fail[ed] to suppress evidence of an illegal search” (Docket Entry 7 at 2), and (B) because appellate counsel “settled [the] record on appeal, and filed [Petitioner's] brief without [his] knowledge, agreement and/or informed consent of the issues that made-up the settled record, and appeal brief[, ] . . . [and] mislead [sic] [Petitioner] into believing that preserved issues from trial concerning video tapes, and discovery issues would be included in the brief[] so that the issues could be raised in a post-conviction proceeding” (id.);
2) violation of “due process” and/or “equal protection, ” as a result of (A) “the [trial] judge's assumption that a key piece of evidence [i.e., a surveillance video tape] no longer existed, based on a [sic] unsubstantiated, alledged [sic] and assumed phone call by the State, ” (B) “the prosecutor['s] state[ment] that he had no idea where the tape is, or if, it was saved, destroyed, or . . . what the outcome of the tape is [and that he had not] sought to get the tape, ” (C) “the prosecutor['s] knowing[] use[ of] staged testimony in order to elicit, and introduce fabricated evidence, and testimony in order to conceal evidence of an illegal search, and misrepresent the actions of [law enforcement officers], ” (D) the trial judge's “deni[al of defense] counsel's motion for continuance, in order to determine the truth of the matter [regarding the existence of a surveillance video tape], ” and (E) the “prosecutor['s] question[ing of] it's [sic] witness extensively concerning what was/wasn't on a particular tape” (id. at 3-4 (“Ground Two”));
3) “[v]iolation of Petitioner's right against an unreasonable search and seizure” (id. at 5 (“Ground Three”));
4) “[v]iolation of Petitioner's right for failure to disclose favorable evidence, ” arising from the fact that Petitioner and his trial counsel “made a total of 4 motion[s]/request[s] for discovery of video surveillance, and witnesses responsible for the surveillance, the States [sic] response to the request, and the fact that the State elicited evidence of what's depicted on the requested evidence, (that was not produced) from a State's witness” (id. at 6-7 (“Ground Four”)); and
5) “[v]iolation of Petitioner[']s [federal constitutional] right to a [sic] impartial jury” (id. at 7 (“Ground Five”)).

         IV. Habeas Standards

         The Court “shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Further, “[b]efore [the] [C]ourt may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to [this] [C]ourt in a habeas petition. The exhaustion doctrine . . . is now codified at 28 U.S.C. § 2254(b)(1).” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see also 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to have waived the exhaustion requirement . . . unless the State, through counsel, expressly waives the requirement.”).[5]

         When a petitioner has exhausted state remedies, this Court must apply a highly deferential standard of review in connection with habeas claims “adjudicated on the merits in State court proceedings, ” 28 U.S.C. § 2254(d). More specifically, the Court may not grant relief unless a state court decision on the merits “was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. To qualify as “contrary to” United States Supreme Court precedent, a state court decision either must arrive at “a conclusion opposite to that reached by [the United States Supreme] Court on a question of law” or “confront[] facts that are materially indistinguishable from a relevant [United States] Supreme Court precedent and arrive[] at a result opposite” to the United States Supreme Court. Williams v. Taylor, 529 U.S. 362, 406 (2000). A state court decision “involves an unreasonable application” of United States Supreme Court case law “if the state court identifies the correct governing legal rule from [the United States Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case.” Id. at 407; see also id. at 409-11 (explaining that “unreasonable” does not mean merely “incorrect” or “erroneous”).

         V. Discussion

         A. Proce ...


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