United States District Court, W.D. North Carolina, Asheville Division
D. Whitney Chief United States District Judge.
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.)
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 App. 2013) (unpublished).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.
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). Petitioner was resentenced on December 5,
2014, to a minimum of 444 months and a maximum of 547 months
imprisonment. He did not appeal his new judgment.
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).
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. 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). See Wilson v. Thornton,
1:17-cv-00165-FDW (W.D. N.C. ), Doc. Nos. 1, 3, 4.
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.
STANDARD OF REVIEW
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). 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
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
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)).
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 § 14-27.20 (2015). A
person is ...