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Byrd v. Hooks

United States District Court, W.D. North Carolina, Statesville Division

March 29, 2018

ABDO BYRD, (aka Abdo Byrd Bey-El) Petitioner,
ERIK A. HOOKS, Respondent.



         THIS MATTER is before the Court upon Petitioner Abdo Byrd's pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 1), and Omnibus Motion (Doc. No. 10). Also before the Court is Respondent's Motion for Summary Judgment (Doc. No. 5).

         I. BACKGROUND

         Petitioner is a prisoner of the State of North Carolina, who, on May 9, 2016, pled guilty in Catawba County Superior Court to assault with a deadly weapon inflicting serious injury (AWDWISI) and attaining habitual felon status. (§ 2254 Pet. 1, Doc. No. 1.) The trial court sentenced him to 74-101 months imprisonment. (§ 2254 Pet. 1.) Petitioner did not file a direct appeal. (§ 2254 Pet. 2.)

         On 8 February 2017, Petitioner filed a pro se motion for appropriate relief (“MAR”) in the Superior Court of Catawba County. (§ 2254 Pet. 3.) On March 14, 2017, the MAR court filed an order instructing the clerk to correct certain clerical errors in the judgment and commitment form, but otherwise denying the MAR. (Order Den. MAR, Amend J., Resp't's Exhibit 7, Doc. No. 6-8.) Also on March 14, 2017, the court entered an amended judgment and commitment form correcting clerical errors, but not changing Petitioner's convictions or length of sentence. (Amended J., Resp't's Exhibit 8, Doc. No. 6-9.) Petitioner filed a pro se certiorari petition in the North Carolina Court of Appeals seeking review of the MAR court's orders; it was denied on April 20, 2017. (Order Den. Cert. Pet., Resp't's Ex. 11, Doc. No. 6-12.)

         Petitioner filed the instant federal habeas Petition in this Court on May 2, 2017. Respondent has filed a Motion for Summary Judgment, and Petitioner has responded (Doc. No. 9). Petitioner also has filed an Omnibus Motion, seeking leave to conduct discovery, an evidentiary hearing in this court, bail, and summary-default judgment (Doc. No. 10), all of which Respondent opposes (Doc. No. 8).


         Summary judgment is appropriate in those cases where there is no genuine dispute as to any material fact, and it appears that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c)(2); United States v. Lee, 943 F.2d 366, 368 (4th Cir. 1991). Any permissible inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). Where, however, the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).


         The habeas Petition cites at least eleven grounds for relief, many of which rely on the same allegations of fact or contain overlapping legal issues. Almost all of Petitioner's grounds for relief rely, in whole or in part, on his assertion that there was no probable cause for his arrest. Accordingly, to avoid as much repetition as possible, the Court will address that issue first.


         Despite the number of claims raised, the Petition is almost completely devoid of factual allegations. As best as the Court can understand from the Petition and the Response to the Motion for Summary Judgment, Petitioner challenges the validity of his arrest, his indictments, jurisdiction of the trial court, and the voluntariness of his guilty plea because no probable cause affidavit was attached to the arrest warrant(s) or the indictments, and he has never been provided a copy of a probable cause affidavit or been “shown any factual findings to support probable cause for the issuance of the order for arrest.” (§ 2254 Pet. 7.)

         1. Arrest

         The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and states that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. In cases involving a seizure, the standard of “reasonableness” typically is satisfied by a showing that the police had probable cause to conclude that the individual seized was involved in criminal activity. Dunaway v. New York, 442 U.S. 200, 213-14 (1979). This standard of probable cause constitutes “the minimum justification necessary to make the kind of intrusion involved in an arrest ‘reasonable' under the Fourth Amendment.” Id. at 208.

         The Court notes Petitioner does not assert he was arrested without a warrant. His claim that there was no probable cause for arrest rests on his allegation that there was no probable cause affidavit attached to the warrant. However, probable cause for an arrest may exist regardless of whether the information demonstrating the existence of probable cause is supplied by an affidavit. In fact, there is no requirement under North Carolina law that an arrest warrant may be issued only upon sufficient information of probable clause supplied by an affidavit. “A judicial official may issue a warrant for arrest . . . when he is supplied with sufficient information, supported by oath or affirmation, . . . that there is probable cause to believe that a crime has been committed and that the person to be arrested committed it.” N.C. Gen. Stat. § 15A-304(d). The information must be shown by affidavit or oral testimony under oath or affirmation before the issuing official. Id.

         Regardless, in Stone v. Powell, the Supreme Court held that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” 428 U.S. 465, 481-82 (1976). Petitioner could have litigated his Fourth Amendment claim prior to entering his guilty plea and, subsequently, on direct appeal in the state courts. Because he did not do so, he is not entitled to habeas review of his Fourth Amendment claim that his arrest was not supported by probable cause. See id.

         2. Indictments

         Petitioner's claim with respect to his indictments for AWDWISI and attaining habitual felon status appears to be: they are invalid because they fail to include any affidavit, Grand Jury transcript, or other statement of facts showing probable cause. (§ 2254 Pet. 16-17). ...

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