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Ellerbe v. Hooks

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

January 2, 2018

ERIK A. HOOKS, Respondent.


          Frank D. Whitney Chief United States District Judge

         THIS MATTER is before the Court upon Christopher D. Ellerbe's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 13.) Also before the Court is Petitioner's “Motion for Judge's Order to Petitioner's Amended Petition of § 2254 Writ of Habeas Corpus.” (Doc. No. 15.)

         I. BACKGROUND

         Petitioner is a prisoner of the State of North Carolina who was indicted on May 8, 2006, by a Mecklenburg County grand jury on two counts of attempted first-degree murder, two counts of assault with a firearm on a law enforcement officer, one count of assault with a deadly weapon with intent to kill inflicting serious bodily injury, one count of assault with a deadly weapon with intent to kill, and one count of possession of a firearm by a felon. State v. Ellerbe, 691 S.E.2d 767, 2010 WL 697334, at *2 ( N.C. Ct. App. 2010) (unpublished). Following a motion by Petitioner, the trial court discharged appointed counsel and allowed Petitioner to represent himself at trial. Id.

         The North Carolina Court of Appeals summarized the evidence presented at trial, as follows:

[O]n the morning of 5 April 2006, law enforcement officials in South Carolina contacted the Charlotte-Mecklenburg Police Department [CMPD] requesting assistance to execute an arrest warrant against Defendant, Christopher Dennie Ellerbe. Law enforcement officials in Sumter believed that Defendant could be located at the home of his brother, Ricky Ellerbe, in Charlotte, North Carolina. Officers with the Violent Criminal Apprehension Team and the United States Marshall's office proceeded to Ricky Ellerbe's residence to locate the Defendant.
While conducting surveillance of Ricky Ellerbe's residence, officers observed Ricky Ellerbe and his sister, Veronica Nelson, emerge from the home. Officers made contact with Ricky Ellerbe and Veronica Nelson, informing the pair of Defendant's warrant. After a brief conversation, Ricky Ellerbe confirmed that Defendant was inside the residence, denied that any weapons were present, and reluctantly allowed officers to enter his home.
After several unsuccessful attempts to gain entry, Ricky Ellerbe directed officers to an entrance located at the rear of the home. Several officers positioned themselves at the rear entry of the home and prepared to enter. Meanwhile [CMPD] Officer [Kayvan] Hazrati positioned himself in a garage connected to the residence to limit the possibility of Defendant's escape.
Using a set of keys provided by Ricky Ellerbe, the officers located at the rear entrance of the home entered. When officers called out to the Defendant, Defendant fired shots upon the officers. The officers retreated from the rear entrance and took cover at the back of the residence. Hearing the gunshots from the garage, Officer Hazrati attempted to kick down the door. After several kicks, Officer Hazrati's foot went through the door. When bending down to push the door open with his shoulder, Officer Hazrati was shot in the head by Defendant. Hearing the gunshots, several officers returned to the garage, removed the unconscious and bleeding Officer Hazrati, and transported him to the hospital.
Following the shooting of Officer Hazrati, members of the SWAT Team and a crisis negotiator arrived at the location. After approximately six hours of negotiation, police officers released tear gas into the residence and Defendant agreed to exit the home. However, ignoring commands from several officers, Defendant charged out of the house firing his gun. Officers shot Defendant as he ran toward them. However, before he was shot, Defendant fired a shot striking a second [CMPD] officer [William L. Parks]. The bullet fired from Defendant's gun was deflected by the officer's helmet and caused no serious injury.

Id. at *1. The jury found Petitioner guilty of all the charges for which he was indicted; the same jury subsequently determined that the State had proven a number of aggravating factors beyond a reasonable doubt. Id. at *2. Petitioner received sentences in the aggravated range for some or all of his convictions. Id. at *3. Judgment was entered on March 4, 2008. Id. at *1.

         On March 2, 2010, the North Carolina Court of Appeals issued an opinion on direct appeal, finding no error in the judgment. Ellerbe, 2010 WL 697334 at *3. On June 6, 2011, Petitioner filed a petition in the North Carolina Supreme Court for a writ of certiorari to review the decision of the Court of Appeals. State v. Ellerbe, No. 220P11, 717 S.E.2d 385 ( N.C. 2011) (unpublished). The petition was dismissed on August 25, 2011. Id.

         “Thereafter [Petitioner] filed assorted pro se motions” in the Mecklenburg County Superior Court. (Order re: Mot. to Dismiss, § 2254 Pet. Ex. F, Doc. No. 1-2 at 22 ¶ 5.) At some point, he filed a paper writing titled: “AFFIDAVIT IN THE NATURE OF WRIT OF HABEAS CORPUS & A DEMAND FOR DISMISSAL OR STATE THE PROPER JURISDICTION, ” which the Mecklenburg Superior Court construed as a Motion for Appropriate Relief (“MAR”) and denied on August 22, 2014. (Order re: Mot. to Dismiss 22-23 ¶¶ 6-7.)

         Petitioner next filed a “Motion to Dismiss” in the trial court on September 15, 2015, which the court also construed as an MAR. (Order re: Mot. to Dismiss 23 ¶ 8.) The court entered an order filed on October 13, 2015, finding the claims raised in the MAR were procedurally barred (Order re: Mot. to Dismiss 23 ¶¶ 10-12) and that the MAR was “without merit” (Order re: Mot. to Dismiss 23). Petitioner filed a petition for writ of certiorari in the North Carolina Court of Appeals, which was denied on December 18, 2015 (Order Den. Cert. Pet., § 2254 Pet. Ex. D, Doc. No. 1-2 at 20), and a petition for ...

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