Daye v. Herring

          ORDER

          FRANK D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE.

         THIS 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. 4.)

         I. BACKGROUND

         Petitioner 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 App. 2016) (unpublished).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.

         The 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.

         Petitioner 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) (Mem).

         According 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).

         On 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 ...