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Wray v. Hooks

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

July 25, 2017

JOHN LEWIS WRAY, JR., Petitioner,
v.
ERIK A. HOOKS, Respondent.

          ORDER

          Frank D. Whitney Chief United States District Judge

         THIS MATTER is before the Court upon Petitioner's pro se Petition for Writ of Habeas Corpus, 28 U.S.C. § 2254 (Doc. No. 2).

         I. PROCEDURAL HISTORY

         Petitioner 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.[1] 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.

         On July 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.[2] 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.

         On 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.”).

         Between 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. Id.

         On 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).

         On 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, id.

         Petitioner 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).

         On 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.

         On 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.

         On 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.

         On 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. ...


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