United States District Court, E.D. North Carolina, Western Division
C. DEVER, III CHIEF UNITED STATES DISTRICT JUDGE.
February 20, 2018, Magistrate Judge Numbers issued a
Memorandum and Recommendation ("M&R") [D.E. 26]
and recommended that the court deny respondent's motion
to dismiss [D.E. 13]. Both parties objected to the M&R
[D.E. 27, 28].
Federal Magistrates Act requires a district court to make a
de novo determination of those portions of the magistrate
judge's report or specified proposed findings or
recommendations to which objection is made." Diamond
v. Colonial Life & Accident Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005) (emphasis, alteration, and quotation
omitted); see 28 U.S.C. § 636(b). Absent a timely
objection, "a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation." Diamond, 416 F.3d at 315
(quotation omitted). Moreover, the court need not conduct a
de novo review where a party makes only "general and
conclusory objections that do not direct the court to a
specific error in the magistrate's proposed findings and
recommendations." Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982); see Wells v. Shriners Hosp,
109 F.3d 198, 200-01 (4th Cir. 1997). "Section 636(b)(1)
does not countenance a form of generalized objection to cover
all issues addressed by the magistrate judge; it contemplates
that a party's objection to a magistrate judge's
report be specific and particularized, as the statute directs
the district court to review only those portions of the
report or specified proposed findings or recommendations to
which objection is made." United States v.
Midgette, 478 F.3d 616, 621 (4th Cir. 2007) (quotation
and emphasis omitted).
those portions of the M&R to which the parties made no
objection, the court is satisfied that there is no clear
error on the face of the record. As for the objections, the
court overrules them.
November 24, 1992, Gray (a dentist in Kinston, North
Carolina) and his wife Roslyn Sage Gray were separated and
engaged in highly contentious divorce proceedings. That
evening, Roslyn Sage Gray returned their two children to
Gray's residence following her visit with the children.
Roslyn Sage Gray then went outside and entered her Jeep. See
State v. Gray, 347 N.C. 143, 161-62, 491 S.E.2d 538,
witness testified that he was jogging near Gray's
residence and heard screaming and yelling inside the Jeep.
Roslyn Sage Gray exited the Jeep and ran up the driveway
towards the residence. Gray exited the Jeep, chased Roslyn
Sage Gray, and tackled her. The two struggled. The witness
asked what was happening. Gray told the witness to leave.
Roslyn Sage Gray said, "Mister, please don't leave.
If you leave, he'll kill me." The jogger then heard
a shot, and Gray ran behind the residence. Roslyn Sage Gray
died from a gunshot wound to her head. Roslyn Sage Gray also
suffered injuries from a stun-gun and had been beaten with
the butt of a pistol. See Id. at 162, 491 S.E.2d at
police responded and arrested Gray. Gray denied knowing
anything about the shooting or Roslyn Sage Gray's
injuries or death and claimed that he had been in the bathtub
inside his residence. Gray was indicted for first-degree
murder, and North Carolina sought the death penalty. For
nearly a year, Gray maintained that he had nothing to do with
his wife's injuries or death.
October 22, 1993, nine days before Gray's trial was to
begin, Gray admitted to his lawyers that he shot Roslyn Sage
Gray during a fight in the driveway. See Gray v.
Branker, 529 F.3d 220, 226 (4th Cir. 2008). Gray claimed
that he and Roslyn Sage Gray were fighting and that he saw
Roslyn Sage Gray holding a gun. Gray claims that he pushed
the gun away, and it went off and killed his wife. See
November 1, 1993, Gray's trial began. At the end of the
guilt phase, the jury convicted Gray of first-degree murder.
Id. On December 14, 1993, the sentencing phase
began. Id. At the end of the sentencing phase, the
jury recommended a death sentence, and the court sentenced
Gray to death. See Id. at 227. The Supreme Court of
North Carolina affirmed Gray's conviction and sentence.
See Gray, 347 N.C. at 163-93, 491 S.E.2d at 544-61.
The United States Supreme Court denied certiorari. See
Gray v. North Carolina, 523 U.S. 1031 (1998).
filed a motion for appropriate relief in state court. On
December 1, 2000, the state trial court denied relief.
See Gray, 529 F.3d at 227. The Supreme Court of
North Carolina also denied relief. See id.
2002, Gray filed a petition for a writ of habeas corpus in
this court, and the case was assigned to the Honorable
Terrence W. Boyle. On March 28, 2006, this court denied
relief. See id. Gray appealed. On June 24, 2008, the
United States Court of Appeals for the Fourth Circuit held
that Gray received ineffective assistance of counsel during
the sentencing phase due to counsel's failure to
investigate and present evidence of Gray's mental
impairment. See Id. at 228-40. The Fourth Circuit
otherwise affirmed this court's order rejecting
Gray's other claims concerning his conviction and
sentence. See Id. at 228-42. The Fourth Circuit
ordered this court to "grant the writ of habeas corpus
unless the State of North Carolina affords Gray a new
sentencing hearing within a reasonable time."
Id. at 242.
August 7, 2008, this court entered an order releasing Gray
from his death sentence and imposing a sentence of life
imprisonment if North Carolina did not initiate a new
sentencing proceeding within 180 days. See Gray v.
Lee,608 Fed.Appx. 172, 173 (4th Cir. 2015) (per curiam)
(unpublished). In 2013, Gray filed several pro se motions in
this court, including what the Fourth Circuit construed
"as a motion under 28 U.S.C. § 2241 asking for his
release on various constitutional grounds." Id.
On January 13, 2014, this court, mistakenly believing that
Lenoir County Superior Court had resentenced Gray, denied
Gray's motions as moot. See id On February 10, 2014, Gray
moved for reconsideration. On August 20, 2014, this court
granted the motion for reconsideration, but denied relief on
Gray's claim concerning his delayed resentencing
proceedings. This court found that the delay was reasonable
because Gray's state trial counsel had been negotiating
with the state prosecutor and that plea bargaining concerning
Gray's sentence was on-going. The district court
requested updates from the parties every 30 days. On August
21, 2014, Gray filed a notice of appeal. On September 5,
2014, Gray requested reconsideration of this court's
denial of relief. On October 28, 2014, ...