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Moultry v. Hooks

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

June 21, 2018

VICTOR OLANDUS MOULTRY, Petitioner,
v.
ERIK A. HOOKS, Respondent.

          ORDER

          FRANK D. WHITNEY UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court upon Petitioner Victor Olandus Moultry's pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 1) and Motion for Evidentiary Hearing (Doc. No. 9). 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 April 4, 2014, was convicted by a Mecklenburg County jury of second-degree murder, misdemeanor hit and run, and possession of cocaine. State v. Moultry, 784 S.E.2d 572, 753 ( N.C. Ct. App. 2016). The North Carolina Court of Appeals summarized the facts from trial as follows:

On 16 February 2012, Officer Tim Wilson of the Charlotte Mecklenburg Police Department was speaking with Ms. Marian Carpenter, the victim of a hit and run accident, and two witnesses to that accident when he heard over his radio that there had been another accident he believed might be related to the first “due to the time” and proximity. When Officer Wilson arrived at the scene of the second accident he saw a Ford and an Impala with damage consistent with Ms. Carpenter's and the witnesses' descriptions of the hit and run. Defendant, the driver of the Impala, and the driver of the Ford truck were taken to the hospital. Cocaine was found in defendant's car and, upon testing at the hospital, in his blood. The driver of the Ford died from his injuries sustained in the collision.

Id. The trial court sentenced Petitioner to 207-261 months plus 120 days imprisonment. (Resp't's Supporting Br. 1, Doc. No. 6.) Petitioner appealed, and on April 5, 2016, the North Carolina Court of Appeals issued a published opinion finding no error. Moultry, 784 S.E.2d at 575. Petitioner did not seek discretionary review of the decision in the North Carolina Supreme Court. (§ 2255 Pet. 2, Doc. No. 1.)

         Petitioner then unsuccessfully sought post-conviction review in the state courts.[1] He filed the instant federal habeas Petition on September 18, 2017 (§ 2254 Pet. 14), when he signed it under penalty of perjury and placed it in the prison mail system, see Houston v. Lack, 487 U.S. 266, 267 (1988). The Respondent has filed a Motion for Summary Judgment (Doc. No. 5), and Petitioner has responded to the Motion (Doc. No. 8).

         II. STANDARD OF REVIEW

         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).

         III. DISCUSSION

         A. FOURTH AMENDMENT CLAIM AND RELATED INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

         1. Fourth Amendment Claim

         In his first ground for relief, Petitioner claims he was subjected to an illegal search and seizure when his blood was drawn at the request of law enforcement while he was unconscious at the hospital. The blood was tested, and the results were positive for the presence of cocaine. The State introduced that evidence at trial. Moultry, 784 S.E.2d at 753. Petitioner alleges the requesting officer did not have a warrant for a blood sample, and that the blood evidence should therefore have been excluded at trial.

         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. The exclusionary rule requires that evidence obtained in an illegal search or seizure be excluded at trial and that a conviction be reversed on direct review if the conviction was based upon evidence obtained in an illegal search or seizure. See e.g. Mapp v. Ohio, 367 U.S. 643 (1961).

         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, a state prisoner may not 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, 494 (1976). Petitioner could have moved prior to trial to suppress the test results of the blood evidence on Fourth Amendment grounds and then appealed any adverse decision on direct review. In other words, he had the opportunity for full and fair litigation of his Fourth Amendment claim prior to trial and on direct appeal, but he did not take it. Thus, he may not obtain habeas relief on the grounds that evidence seized in a warrantless search was introduced against him at trial. See id. This claim is denied.

         In his Response to the Motion for Summary Judgment, Petitioner claims for the first time on federal habeas review that law enforcement violated the Fourth Amendment when they searched his car after the accident. (Pet'r's Resp. to Summ. J. Mot. 7-8.) Petitioner has not moved to amend his § 2254 Petition to raise such a claim, and he may not use his response to the summary judgment motion as a substitute for that process. See Fed.R.Civ.P. 15. Therefore, the Court shall not consider Petitioner's new Fourth Amendment claim.

         2. Ineffective Assistance of Counsel Claim

         In his fourth ground for relief, Petitioner claims trial counsel was ineffective for failing to move to suppress the blood evidence on Fourth Amendment grounds. (§ 2254 Pet. 10.) Petitioner raised the substance of this claim in his January 9, 2017 MAR (MAR 9-10, § 2254 Ex., Doc. No. 1-1 at 19-20), and the trial court denied it on the merits (Jan. 13, 2017 Order Deny. MAR, Resp't's Ex. 7, Doc. No. 6-8).

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), habeas relief may be granted to a state prisoner only if the state court's last adjudication of a claim on the merits “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” 28 U.S.C. § 2254(d)(1), or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” 28 U.S.C. § 2254(d)(2). Petitioner does not claim that the trial court's rejection of this MAR claim was factually unreasonable. To obtain relief under § 2254(d)(1), then, Petitioner “is required to ‘show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).

         In Strickland v. Washington, the Supreme Court identified two necessary components of an ineffective assistance of counsel claim. 466 U.S. 668, 687 (1984). First, “the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. Second, “the defendant must show that the deficient performance prejudiced the defense.” Id. To establish prejudice, a defendant “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. To establish prejudice based upon counsel's failure to file a motion to suppress, a petitioner must prove that the “Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence.” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).

         “[W]hen a petitioner's habeas corpus claim is based on alleged ineffective assistance of counsel[, ] . . . [t]he AEDPA standard and the Strickland standard are dual and overlapping, and [the court] appl[ies] the two standards simultaneously rather than sequentially.” Lee v. Clarke, 781 F.3d 114, 123 (4th Cir. 2015), as amended (Apr. 15, 2015) (quoting Richardson v. Branker, 668 F.3d 128, 139 (4th Cir. 2012)) (internal quotation marks omitted). Because both standards of review are “ ‘highly deferential' to the state court's adjudication . . ., ‘when the two apply in tandem, the review is doubly so.'” Lee, 781 F.3d at 123 (quoting Richardson, 688 F.3d at 139). Therefore, to obtain relief on this claim, Petitioner must demonstrate the trial court's determination that he was not prejudiced by counsel's ...


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