United States District Court, W.D. North Carolina, Charlotte Division
JAMES A. DAYE, Petitioner,
JOHN HERRING, Respondent.
D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court upon Petitioner James A.
Daye's pro se Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254. (Doc. No. 1.) Also before the Court
is Respondent's Motion for Summary Judgment. (Doc. No.
is a prisoner of the State of North Carolina who, on May 28,
2015, was convicted by a Mecklenburg County jury of
first-degree murder. State v. Daye, 790 S.E.2d 752,
2016 WL 3892401, at *2 ( N.C. Ct. App. 2016) (unpublished).
At the outset of the trial, Petitioner pled guilty to
possession of a firearm by a felon. Id.
North Carolina Court of Appeals summarized the facts from
trial as follows:
Prior to the incident at issue, Walter Gregory (Gregory) was
in the Hunting Ridge neighborhood, drunk and using profanity
in front of children. He was told by a resident, Cecilia
Turner (Turner) who had known him for some time, to stop his
behavior; in response, he threw a beer bottle, breaking the
window of an SUV parked nearby. The SUV belonged to the
brother of the roommate of James Daye (defendant). Defendant,
his roommate, and his roommate's brother emerged from
their housing unit, learned what Gregory had done, chased
Gregory down, and beat him. In the following weeks, defendant
repeatedly saw Gregory in the area, usually coming from and
going to Turner's condominium. Defendant testified that
this behavior made him feel threatened. Defendant's
roommates testified that Gregory threatened to kill them all.
On 5 October 2012, Gregory was sitting outside of
Turner's condominium, drinking with others. At around
5:00 p.m., the neighborhood security manager saw the
gathering and called police, intending to ban Gregory and his
friends from the complex. Banning them would result in
trespass charges if they returned. Police arrived, and
Gregory left the immediate area, but not the complex. The
manager testified that Gregory was extremely aggressive.
According to defendant, defendant was in his car around dusk
when Gregory approached him, threatening to kill
“everybody in that apartment.” The two began
fighting until they were separated, at which point defendant
fled to his house. According to other witnesses, subsequent
to this, Gregory could be seen passing through the area,
making threats and shooting gestures with his hand. Defendant
emerged from his home with a kitchen knife, attempting to
scare Gregory away. When this failed, defendant returned to
his home and appeared with a gun. Defendant's friends
took the gun away from defendant, and defendant got into
another fistfight with Gregory.
Defendant went home and loaded his rifle. Rifle in hand,
defendant emerged from his home and approached Gregory.
Defendant testified that he saw Gregory reaching for
something, possibly a gun. In response, defendant
“jumped and . . . pulled the trigger.” According
to Turner, who witnessed the incident, before defendant shot,
defendant said, “Didn't I tell you if you came back
in here I was going to kill you?” Other witnesses
testified similarly, and further testified that defendant had
also threatened to shoot Gregory earlier in the evening.
At roughly 10:28 p.m., 911 received multiple calls about the
shooting. Gregory died of a single gunshot wound through the
chest. Before entering the chest, the bullet went through his
hand, palm first.
Id. at *1-*2. The trial court sentenced Petitioner
to life imprisonment without parole for the murder, with a
concurrent sentence of 17-30 months' imprisonment for
firearm possession. Id.
filed a direct appeal, raising one issue - whether the trial
court erred in refusing to instruct the jury on second-degree
murder and self-defense. Id. The North Carolina
Court of Appeals found no error. Id. at *5.
Petitioner filed a petition for discretionary review in the
North Carolina Supreme Court, which was denied on December 8,
2016. State v. Daye, 790 S.E.2d 752 ( N.C. 2016)
to his habeas Petition, Petitioner has not sought
post-conviction review in the trial court. (§ 2254 Pet.
3, Doc. No. 1). He filed the instant § 2254 Petition on
June 31, 2017, when he placed it in the prison mail system,
see Houston v. Lack, 487 U.S. 266, 267 (1988).
(§ 2254 Pet. 15). He raises the same ground for relief
that he raised on direct appeal. (§ 2254 Pet. 5).
Respondent has filed a Motion for Summary Judgment, raising a
procedural default defense and contending Petitioner's
claim is without merit. (Doc. No. 4).
August 16, 2017, the Court notified Petitioner, pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
of his right to respond to the Motion for Summary Judgement.
(Doc. No. 6). The Court provided Petitioner thirty (30) days
to file a response and warned him that failure to respond
could result in the ...