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Wilson v. Thorton

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

August 4, 2017

DAVID MICHAEL WILSON, Petitioner,
v.
CYNTHIA D. THORTON, Respondent.

          ORDER

          Frank D. Whitney Chief United States District Judge.

         THIS MATTER is before the Court upon Petitioner David Michael Wilson's pro se Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Also before the Court is Petitioner's Motion to proceed in forma pauperis. (Doc. No. 2.)

         I. BACKGROUND

         Petitioner is a prisoner of the State of North Carolina who, on December 15, 2011, was convicted by a Buncombe County Superior Court jury of first-degree sex offense with a child, taking indecent liberties with a child, and attaining habitual felon status. State v. Wilson, 737 S.E.2d 190, 2013 WL 432768, at *1 ( N.C. Ct. App. 2013) (unpublished). The court sentenced Petitioner to a minimum of 483 months and a maximum of 589 months imprisonment. Id. Petitioner filed a direct appeal, and on February 5, 2013, the North Carolina Court of Appeals issued an opinion concluding that no error had occurred at trial. Id. at *3.

         In 2014, Petitioner filed one or more motions for appropriate relief (“MAR”) in Buncombe County Superior Court, which ultimately resulted in relief on his habitual felon conviction. See State's Resp. to Pet'r's Oct. 1, 2015 Cert. Pet. ¶ 3, State v. Wilson, No. P15-759 ( N.C. Ct. App. filed Oct. 14, 2015).[1] Petitioner was resentenced on December 5, 2014, to a minimum of 444 months and a maximum of 547 months imprisonment.[2] He did not appeal his new judgment.

         Petitioner filed another MAR in Buncombe County Superior Court in August 2015; it was denied on September 15, 2015. See Pet'r's Oct. 1, 2015 Cert. Pet. 2, 46, id. The North Carolina Court of Appeals denied the petition on October 16, 2015. See State's Resp. to Pet'r's Dec. 1, 2016 Cert. Pet. ¶ 7, id. (filed Dec. 13, 2016). Thereafter, Petitioner filed at least one more unsuccessful MAR in Buncombe County Superior Court, id. at ¶¶ 8-10, followed by unsuccessful petitions for review in the North Carolina appellate courts, see e.g., State v. Wilson, 797 S.E.2d 302 ( N.C. 2017) (Mem) (dismissing notice of appeal); State v. Wilson, 797 S.E.2d 289, 290 ( N.C. 2017) (Mem) (dismissing petition for discretionary review); State v. Wilson, 787 S.E.2d 28 ( N.C. 2016) (Mem) (dismissing petition for discretionary review of certiorari).

         On May 19, 2017, Petitioner filed a § 2254 petition for writ of habeas corpus, which this Court dismissed without prejudice on May 31, 2017, because it did not comply with Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts.[3] See Wilson v. Thornton, 1:17-cv-00133-FDW (W.D. N.C. ), Doc. Nos. 1, 3. Shortly thereafter, Petitioner filed another § 2254 habeas petition, which the Court dismissed without prejudice on July 7, 2017, because it also did not comply with Rule 2(c).[4] See Wilson v. Thornton, 1:17-cv-00165-FDW (W.D. N.C. ), Doc. Nos. 1, 3, 4.

         In its order dismissing the second habeas petition, the Court warned Petitioner that if he filed a third habeas petition that did not comply with Rule 2(c), the Court would review the petition on the merits, regardless of its deficiencies. See id. at Doc. No. 4. On July 26, 2017, Petitioner filed the instant § 2254 Petition.

         II. STANDARD OF REVIEW

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), as construed by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 374-91 (2000), this Court may grant habeas relief on a claim of constitutional error only if the state court's adjudication of a claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” § 2254(d)(2).[5] It is not clear whether Petitioner raised the substance of his single habeas claim in the state courts, or, if he did raise it, whether the state court addressed the claim on the merits. Consequently, the Court will conduct a more lenient de novo review.

         III. DISCUSSION

         Petitioner asserts, without elaboration or supporting facts, that “there [was] no evidence at all[, ] no penetration[, ] no bruises around her vagina[.]” (Pet. 5, Doc. No. 1.) Petitioner's claim appears to be that there was insufficient evidence to convict him of either first-degree sex offense with a child or taking indecent liberties with a child.

         A person challenging the sufficiency of the evidence to support a conviction does so under the Due Process Clause of the Fourteenth Amendment. See Jackson v. Virginia, 443 U.S. 307, 318 (1979) (invalidating a conviction under the Due Process Clause when “the record evidence could [not] reasonably support a finding of guilt beyond a reasonable doubt”). “On sufficiency review, a reviewing court makes a limited inquiry tailored to ensure that a defendant receives the minimum that due process requires: a ‘meaningful opportunity to defend' against the charge against him and a jury finding of guilt ‘beyond a reasonable doubt.'” Musacchio v. United States, 136 S.Ct. 709, 715 (2016) (quoting Jackson, 443 U.S. at 314-315). The court considers “only the ‘legal' question ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'” Id. (quoting Jackson, 443 U.S. at 319 (emphasis in the original)).

         Under North Carolina law, “[a] person is guilty of sexual offense with a child if the person is at least 18 years of age and engages in a sexual act with a victim who is a child under the age of 13 years.” N.C. Gen. Stat. § 14-27.4A (2008), recodified at § 14-27.28 (2015). A “sexual act” is defined, in relevant part, as “the penetration, however slight, by any object into the genital or anal opening of another person's body[.]” N.C. Gen. Stat. § 14-27.1. (2006), recodified at ยง 14-27.20 (2015). A person is ...


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