United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, United States District Judge
petitions this court for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. This matter is before the court on
respondent's motion for summary judgment (DE 13).
Petitioner did not respond to the motion. In this posture,
the issues raised are ripe for adjudication. For the
following reasons, the court grants respondent's motion.
a state inmate incarcerated at Pasquotank Correctional
Institution, entered an Alford plea in the Brunswick
County Superior Court on June 15, 2015, to a single count of
possession of a schedule II controlled substance, and was
sentenced to 26-44 months imprisonment. (Resp't's
App. (DE 15) Exs. 1, 2). Petitioner was sentenced as an
habitual felon at the lowest possible mitigated range, and
his sentence was ordered to run consecutive to a sentence
petitioner was already serving on unrelated charges.
(Id. Ex. 2; Pet. (DE 1) at 5) Petitioner filed a pro
se certiorari petition seeking a belated direct appeal of his
conviction and sentence, but the North Carolina Court of
Appeals denied the certiorari petition. (Resp't's
App. (DE 16) Exs. 6, 8).
then filed a pro se motion for appropriate relief
(“MAR”) in the Superior Court of Brunswick
County. (Id. Ex. 9). On September 19, 2016, the MAR
was summarily denied. (Id. Ex. 10). The state trial
judge, however, noted in the order denying the MAR that a
hearing was held in petitioner's case on August 9, 2016,
for the purpose of correcting petitioner's sentence.
(Id.) Ultimately, petitioner's prior record
level (used to calculate his sentence under North
Carolina's Structured Sentencing Act), was changed from
Level V to Level IV and his sentence was correspondingly
reduced to 23-40 months imprisonment. (Resp't's App.
(DE 17) Ex. 11).
filed a pro se certiorari petition with the North Carolina
Court of Appeals on October 31, 2016, seeking to appeal the
state court's denial of his MAR. (Id. Ex. 12).
The North Carolina Court of Appeals summarily denied the
petition on November 15, 2016. (Id. Ex. 14).
filed the instant habeas petition on November 28, 2016,
alleging the following claims for relief: (1) the state trial
court erred by accepting petitioner's guilty plea where
there was no factual basis for the plea and the plea was
coerced because petitioner was misadvised by counsel that he
would receive concurrent sentences; (2) petitioner's
sentence was grossly disproportionate and (an unidentified)
new law came into effect and retroactivity is applicable; (3)
petitioner's counsel was ineffective because: counsel
misadvised him to plead guilty to a crime that did not amount
to a misdemeanor, petitioner's sentence should have run
concurrently to any other sentence, and petitioner was
inappropriately sentenced at a prior record level V when he
should have been sentenced at level IV; and (4) petitioner is
entitled to the advanced supervised release program because
his counsel promised him that he would be enrolled in the
program, and the habitual felon indictment is defective and
duplicious [sic] because the prosecuting attorneys
used the same habitual felon indictment in two of
petitioner's criminal cases.
11, 2017, respondent filed the instant motion for summary
judgment, arguing that petitioner is not entitled to habeas
relief. The following day, the court sent petitioner a notice
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), providing notice that the summary judgment motion
had been filed, the deadline for responding, and explaining
the potential consequences of failing to respond. Letter from
Peter A. Moore, Clerk of Court, to James Staccato Best (July
12, 2017) (DE 19). Despite this notice, petitioner did not
respond to the motion.
Standard of Review
judgment is appropriate when there exists no genuine issue of
material fact, and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); Anderson v.
Liberty Lobby, 477 U.S. 242, 247 (1986). The party
seeking summary judgment bears the burden of initially coming
forward and demonstrating an absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Once the moving party has met its burden,
the nonmoving party then must affirmatively demonstrate that
there exists a genuine issue of material fact requiring
trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). There is no issue for
trial unless there is sufficient evidence favoring the
non-moving party for a jury to return a verdict for that
party. Anderson, 477 U.S. at 250.
standard of review for habeas petitions brought by state
inmates, where the claims have been adjudicated on the merits
in the state court, is set forth in 28 U.S.C. § 2254(d).
That statute states that habeas relief cannot be granted in
cases where a state court considered a claim on its merits
unless the decision was contrary to or involved an
unreasonable application of clearly established federal law
as determined by the United States Supreme Court, or the
state court decision was based on an unreasonable
determination of the facts. See 28 U.S.C. §
2254(d)(1) and (2). A state court decision is “contrary
to” Supreme Court precedent if it either arrives at
“a conclusion opposite to that reached by [the Supreme]
Court on a question of law” or “confronts facts
that are materially indistinguishable from a relevant Supreme
Court precedent and arrives at a result opposite” to
that of the Supreme Court. Williams v. Taylor, 529
U.S. 362, 406 (2000). A state court decision “involves
an unreasonable application” of Supreme Court law
“if the state court identifies the correct governing
legal principle from [the Supreme] Court's cases but
unreasonably applies it to the facts of the state
prisoner's case.” Id. at 407. A state
court decision also may apply Supreme Court law unreasonably
if it extends existing Supreme Court precedent to a new
context where it does not apply, or unreasonably refuses to
extend existing precedent to a new context where it should
apply. Id. The applicable statute
does not require that a state court cite to federal law in
order for a federal court to determine whether the state
court's decision is an objectively reasonable one, nor
does it require a federal habeas court to offer an
independent opinion as to whether it believes, based upon its
own reading of the controlling Supreme Court precedents, that
the [petitioner's] constitutional rights were violated
during the state court proceedings.
Bell v. Jarvis, 236 F.3d 149, 160 (4th Cir. 2000),
cert. denied, 534 U.S. 830 (2001). Moreover, a
determination of a factual issue made by a state court is
presumed correct, unless rebutted by clear and convincing