United States District Court, W.D. North Carolina, Asheville Division
D. Whitney Chief United States District Judge
MATTER is before the Court upon Petitioner's pro se
Petition for Writ of Habeas Corpus, 28 U.S.C. § 2254
(Doc. No. 2).
is a prisoner of the State of North Carolina, who on May 31,
2007, was arrested on a misdemeanor warrant for possession
with intent to sell or deliver cocaine (“PWISD”)
and for selling cocaine. See May 31, 2007 Warrant,
Doc. No. 1-1 at 14. After his arrest, Petitioner posted a
$500.00 secured appearance bond and was released from
custody. See Appearance Bond, Doc. No. 1-1 at 16. On
June 1, 2007, C. McWhirter was appointed to represent
Petitioner at trial. Order of Assignment of Counsel, Doc. No.
1-1 at 17.
16, 2007, a Cleveland County Grand Jury returned a felony
bill of indictment for selling cocaine and for possessing
cocaine with the intent to sell or deliver. Record on Appeal
(“R.”) at 4, Doc. No. 9-3. On the same day,
the Grand Jury returned an indictment against Petitioner
alleging that he had attained habitual felon status. R. at 5,
id. Notice of the return of indictments was mailed
to Petitioner's counsel, C. P. McWhirter, on July 16,
2007. R. at 3, id.
September 12, 2007, Petitioner failed to appear for a court
date in Cleveland County Superior Court on his felony drug
charges, and an order for his arrest for failure to appear
(“FTA”) was issued. See Sept. 12, 2007
Order for Arrest, Doc. No. 1-1 at 26. The order for arrest
contained a recommendation that his pre-trial release bond be
set at $10, 000. Id. Petitioner was arrested on the
FTA order on September 21, 2007, id. at 27, and his
pre-trial release bond was set at $10, 000, see
Faith Bushnaq Letter to Pet., Doc. No. 1-1 at 25 (“I
have enclosed the Conditions of Release and Release Order
dated September 21, 2007 showing the $10, 000 bond after the
order for arrest was issued.”).
his arrest on September 21, 2007, and the beginning of his
trial on July 14, 2008, Petitioner went through three
court-appointed attorneys, including Mr. McWhirter. State
v. Wray, 747 S.E.2d 133, 134-35 ( N.C. Ct. App. 2013)
(hereinafter “Wray II”). After
Petitioner told the trial court he did not want to be
represented by his fourth court-appointed attorney, the court
found that Petitioner had forfeited his right to counsel, and
he proceeded to trial pro se. Id. at 135. On July
15, 2008, the jury returned a verdict of guilty of PWISD
cocaine, but was unable to reach a verdict on the sale
charge. State v. Wray, 698 S.E.2d 137, 138-39 ( N.C.
Ct. App. 2010) (hereinafter “Wray I”).
On July 16, 2008, the same jury found that Petitioner had
attained habitual felon status. Id. at 139. He was
sentenced to a term of 136 to 173 months in prison.
direct appeal, the North Carolina Court of Appeals reversed
and remanded the case, concluding that Petitioner might not
have been competent to proceed pro se and “that the
trial court erred by granting defense counsel's motion to
withdraw and in ruling that [d]efendant had forfeited his
right to counsel.” Id. at 148. The North
Carolina Supreme Court denied the State's petition for
discretionary review. State v. Wray, 706 S.E.2d 476
( N.C. 2011).
remand, the trial court ordered that Petitioner be committed
for an examination regarding his capacity to proceed to
trial, which culminated in a finding that Petitioner had the
capacity to proceed. R. at 27-36, Doc. No. 9-3. Petitioner
subsequently was convicted by a jury of selling cocaine and
of possessing cocaine with the intent to sell or deliver. R.
at 57-58, Doc. No. 9-4. The same jury found that Petitioner
had obtained the status of a habitual felon. R. at 74,
id. On June 13, 2012, the trial court sentenced
Petitioner to 142 to 180 months imprisonment. R. at 77-78,
appealed, and on August 6, 2013, the North Carolina Court of
Appeals issued an opinion finding no error. Wray II,
747 S.E.2d at 137. The North Carolina Supreme Court denied
discretionary review. State v. Wray, 755 S.E.2d 615
( N.C. 2014).
November 25, 2013, Petitioner filed his first federal habeas
petition in this Court under 28 U.S.C. § 2254. Pet.,
State v. Perry, No. 1:13-cv-00310-FDW (W.D. N.C. ),
Doc. No. 1. He claimed that no felony indictments had ever
been issued and that it was impossible for any indictments to
have been issued on July 16, 2007, because he was out of jail
on bond at that time. Pet. 5, 7, id.
March 11, 2014, the Court entered an Order granting the
Respondent's Motion for Summary Judgement and dismissing
Petitioner's § 2254 Petition. Order, id. at
Doc. No. 15. The Court found that Petitioner's claims
were both procedurally barred and without merit because
indictments had, in fact, been returned by a grand jury on
July 16, 2007. Order 6, id. (citing R. at 5, Doc.
No. 9-3). Petitioner did not appeal the Court's judgment.
March 5, 2015, Petitioner filed another petition pursuant to
§ 2254. Pet., Perry v. North Carolina, No.
1:15-cv-00049-FDW (W.D. N.C. ), Doc. No. 1. In it, he raised
the same grounds for relief that he raised in his previous
habeas petition but included an assertion that the Cleveland
County Superior Court Clerk's Office has no record of any
grand jury indictments against him for PWISD cocaine, sale of
cocaine, or attaining habitual felon status. Pet. 2 ¶ 4,
id. On March 24, 2015, the Court dismissed the
Petition as an unauthorized, successive petition pursuant to
28 U.S.C. § 2244(b)(3)(A). Order, id. at Doc.
No. 3. Petitioner did not appeal the Court's dismissal of
his habeas petition.
February 17, 2016, Petitioner filed a § 2254 Petition in
the United States District Court for the Eastern District of
North Carolina, raising the same grounds for relief as in his
previous habeas petitions. Pet., Wray v. Perry, No.
1:16-cv-00075-FDW (W.D. N.C. ), Doc. No. 1. The Eastern
District transferred the Petition to this Court, where venue
is proper, see Order, id. at Doc. No. 8,
and on September 9, 2016, this Court dismissed the Petition
as an unauthorized, successive petition pursuant to §
2244(b)(3)(A), see Order, id. at Doc. ...