United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE.
September 12, 2016, Frank Locklear ("Locklear"),
filed pro se a petition seeking a writ of habeas corpus
pursuant to 28 U.S.C. §2254 [D.E. 1]. The court's
November 2017 order allowed the matter to proceed. See [D.E.
10]. On December 6, 2017, respondent filed an answer [D.E.
13], a motion for summary judgment [D.E. 14], a statement of
material facts [D.E. 15], an appendix to the statement of
facts [D.E. 16], and a memorandum in support of the motion
for summary judgment [D.E. 17]. Pursuant to Roseboro v.
Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per
curiam), the court notified Locklear about respondent's
summary judgment motion, the response deadline, and the
consequences of failing to respond [D.E. 18]. Locklear did
not respond. For the reasons discussed below, the court will
grant respondent's pending motion for summary judgment.
November 20, 2015, in Robeson County Superior Court, Locklear
pleaded guilty to first-degree burglary, conspiracy to commit
robbery with a dangerous weapon and first-degree burglary,
attempted robbery with a dangerous weapon, and assault with a
deadly weapon with intent to kill inflicting serious injury
("AWDWIKISI"). See App. [D.E. 16-1] at 2-5.
Locklear was sentenced to 58-82 months for the AWDWIKISI to
begin at the expiration of his consolidated sentence of 51-
74 months for the other offenses. See id. Locklear
filed pro se a motion for appropriate relief
("MAR") arguing that: he was not guilty; he was
acting in self-defense; his attorney improvidently convinced
him to accept a plea deal; and that he was
"box-carted" as a level 1 record offender.
See App. [D.E. 16-2]. The MAR was summarily denied.
See App. [D.E. 16-3]. Locklear then filed a petition of
certiorari with the North Carolina Court of Appeals but this
petition was dismissed on procedural grounds for failure to
attach supporting documents. See App. [D.E. 16-4, 16-5,
generally argues that errors on the face of his plea
agreement as to his maximum total sentence rendered his plea
not knowing and voluntary. See [D.E. 1]. Specifically,
Locklear first contends that his total maximum punishment was
actually 78 months. Id. at 5. Alternatively,
Locklear contends that the maximum amount of potential
punishment on his transcript of plea was incorrectly totaled
to equal 787 months (instead of 727 months, the actual
total). Id. at 6.
generally argues that Locklear's grounds for relief are
both without merit and, because he did not raise these issues
in his MAR, procedurally barred. See Mem. [D.E. 17] at 2.
Respondent asserts that Locklear's first contention is
patently false because the transcript of plea, on its face:
(1) enumerates specific maximum possible sentences for each
crime, each of which was individually greater than 78 months;
and (2) indicates that, as per the plea agreement,
Locklear's AWDWIKISI sentence would range from 58-82
months imprisonment to follow consecutively after a
consolidated sentence of 51-74 months for his other offenses.
See Id. at 2-3. As to Locklear's second
contention, although respondent agrees that the maximum
amount of punishment was incorrectly totaled on the plea
transcript, respondent asserts that the error was harmless.
Id. at 4. Specifically, respondent contends that
"no rational petitioner... would have rejected a plea
bargain carrying a specific maximum sentence of 123 months .
. . merely because the total maximum possible sentence
carried by the offenses was actually 60.5 years instead of
65.5 years." Id.
judgment is appropriate when, after reviewing the record
taken as a whole, no genuine issue of material fact exists
and the moving party is entitled to judgment as a matter of
law. Anderson v. Liberty Lobby. Inc., 477 U.S. 242,
247-48 (1986). The party seeking summary judgment bears the
initial burden of demonstrating the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986). Once the moving party has met its
burden, the nonmoving party may not rest on the allegations
or denials in its pleading, Anderson, 477 U.S. at
248-49, but "must come forward with specific facts
showing that there is a genuine issue for trial, "
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (alteration and internal quotation
omitted). A trial court reviewing a motion for summary
judgment should determine whether a genuine issue of material
fact exists for trial. Anderson, 477 U.S. at 249. In
making this determination, the court must view the evidence
and the inferences drawn therefrom in the light most
favorable to the nonmoving party. Scott v. Harris,
550 U.S. 372, 378 (2007).
the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), a federal court cannot grant habeas
relief in cases where a state court considered a claim on its
merits unless (1) the state court decision was contrary to,
or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court of
the United States, or (2) the state court decision was based
on an unreasonable determination of the facts in light of the
evidence presented in state court. 28 U.S.C. § 2254(d).
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 the Supreme Court's
result. Williams v. Taylor, 529 U.S. 362, 405
(2000). A state court decision involves an "unreasonable
application" of Supreme Court precedent "if the
state court identifies the correct governing legal rule from
[the Supreme] Court's cases but unreasonably applies it
to the facts of the particular state prisoner's
case." Id. at 407; see White v.
Woodall, 134 S.Ct. 1697, 1702-07 (2014).
[Section 2254(d)] does not require that a state court cite to
federal law in order for a federal court to determine whether
the state court 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)
courts apply a highly deferential standard of review under 28
U.S.C. § 2254(d) and (e). See, e.g., Dunn v.
Madison, 138 S.Ct. 9, 11 (2017) (per curiam),
reh'g denied. 138 S.Ct. 726 (2018); Kernan
v. Cuero, 138 S.Ct. 4, 8 (2017) (per curiam),
reh'g denied. 138 S.Ct. 724 (2018); Cullen
v. Pinholster, 563 U.S. 170, 181 (2011); Harrington
v. Richter, 562 U.S. 86, 103 (2011). A habeas petitioner
meets this "standard only when he shows that the state
court's decision was so lacking in justification that
there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement." Dunn, 138 S.Ct. at 11 (quotation
omitted). Moreover, a state court's factual determination
is presumed correct, unless rebutted by clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1); Sharpe v.
Bell, 593 F.3d372, 378 (4th Cir. 2010).
a valid excuse, a state prisoner must exhaust all available
remedies in state court before seeking federal habeas corpus
relief. See 28 U.S.C. § 2254(b); Woodford v.
Ngo,548 U.S. 81, 92 (2006) ("In habeas, the
sanction for failing to exhaust properly (preclusion of
review in federal court) is given the separate name of
procedural default"); Rose v. Lundy, 455 U.S.
509, 522 (1982). To satisfy the exhaustion requirement, an
inmate must "fairly present" his claims to the
state court. See Picard v. Connor,404 U.S. 270, 275
(1971); Baker v. Corcoran,220 F.3d 276, 288 (4th
Cir. 2000). A claim is "fairly presented" if the
petitioner presents to the state court the "substance of
his federal habeas corpus claim, " including "both
the operative facts and the controlling legal
principles." Matthews v. Evatt,105 F.3d 907,
911 (4th Cir. 1997) (quotations omitted) cert,
denied.522 U.S. 833 (1997). abrogated on
other grounds by Miller-El v. Dretke, 545
U.S. 231 (2005). The exhaustion requirement of section 2254
demands that state prisoners give "the state courts one
full opportunity to resolve any constitutional issues by
invoking one complete round of the State's established
appellate review process." O'Sullivan v.
Boerckel,526 U.S. 838, 845 (1999). This "one full
opportunity" includes filing petitions for discretionary
review with the state supreme court when that review is part
of the ...