United States District Court, W.D. North Carolina, Charlotte Division
CHRISTOPHER D. ELLERBE, Petitioner,
ERIK A. HOOKS, Respondent.
D. Whitney Chief United States District Judge
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.)
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 App. 2010) (unpublished).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.
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
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
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
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.
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.
[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
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 ...