United States District Court, W.D. North Carolina, Statesville Division
D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE.
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).
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.)
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.)
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).
STANDARD OF REVIEW
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).
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.
PROBABLE CAUSE ISSUE
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.)
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.
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.
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.
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). ...