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Broyal v. Hooks

United States District Court, M.D. North Carolina

June 26, 2018

PHILLIP WAYNE BROYAL, Petitioner,
v.
ERIC A. HOOKS, Respondent.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. PATRICK AULD UNITED STATES MAGISTRATE JUDGE

         Petitioner, a prisoner of the State of North Carolina, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the “Petition”). (Docket Entry 1.) Respondent has moved for summary judgment. (Docket Entries 9, 10.) For the reasons that follow, the Court should grant Respondent's Motion for Summary Judgment.

         I. Background

         In January 2015, a jury in the Superior Court of Chatham County found Petitioner guilty of intentional child abuse inflicting serious bodily injury, four counts of taking indecent liberties with a child, and two counts of statutory sex offense (all as an habitual felon). (See Docket Entry 1, ¶¶ 1-6; Docket Entry 10-4 at 52; Docket Entry 10-5 at 1-6.)[1] After a presentencing investigation (see Docket Entry 10-5 at 7-9), and based on the multiple aggravating factors found by the jury (see Id. at 1, 3, 5), the trial court imposed two, consecutive life sentences without the possibility of parole for the statutory sex offense convictions (see Id. at 28-36), as well as consecutive prison sentences of 159 to 251 months for the child abuse conviction (see Id. at 18-21), and 138 to 226 months for the consolidated indecent liberties convictions (see Id. at 22-26). Additionally, the trial court ordered that Petitioner, if released, submit to lifetime satellite-based monitoring (see Id. at 27, 37), and, after a hearing, deemed Petitioner a “sexually violent predator” (id. at 38-40).

         Petitioner appealed to the North Carolina Court of Appeals and received appointed appellate counsel. (See Docket Entry 1, ¶¶ 9, 16(e); Docket Entry 10-5 at 41-43.) The North Carolina Court of Appeals affirmed, North Carolina v. Broyal, No. COA16-21, 791 S.E.2d 665 (table), 2016 WL 4608201 (Sept. 6, 2016) (unpublished), and the North Carolina Supreme Court denied Petitioner's petition for discretionary review (“PDR”), North Carolina v. Broyal, 369 N.C. 197, 793 S.E.2d 698 (2016). Petitioner subsequently instituted this action via his Petition. (Docket Entry 1.) Respondent then filed the instant Motion and Supporting Brief (Docket Entries 9, 10), and, despite notification of his right to respond (see Docket Entry 11), Petitioner failed to file any response (see Docket Entries dated Jan. 29, 2018, to present).

         II. Facts

         On direct appeal, the North Carolina Court of Appeals summarized the trial evidence as follows:

[Petitioner] is the father of the victim, “Alice.”[FN]Alice's mother was just thirteen when Alice was born. [Petitioner] was a few years older. [Petitioner] lived with Alice and her mother for six months following Alice's birth. Alice's mother and [Petitioner] later separated because [Petitioner] impregnated two other girls during the time they lived together.
After that separation, [Petitioner] did not have any contact with Alice for many years. Alice's mother remarried and Alice considered her stepfather to be her father because she had no knowledge of [Petitioner].
In 2008, when Alice was nine years old, [Petitioner's] sister reached out to Alice through Facebook. Shortly after this contact, Alice's mother took her to meet [Petitioner]. Alice's mother did not know that [Petitioner] was a registered sex offender until after this initial visit, when Franklin County [Department of Social Services (“DSS”)] removed Alice from her because of the visit with [Petitioner]. Alice's mother later signed a safety plan agreeing to keep Alice away from [Petitioner], and regained custody as a result. When Alice was eleven, [Petitioner] began to write Alice from prison and they continued to correspond during the remainder of [Petitioner's] incarceration.
After [Petitioner] was released from prison, he and Alice would talk on the phone. They later began meeting at the home of one of [Petitioner's] friends. Alice's mother was not aware of these meetings. [Petitioner] gave Alice marijuana and they would smoke it together when they met.
A court later granted [Petitioner] supervised visitation with Alice after a custody hearing. The visitation initially happened during the day but, at Alice's request, these visits became overnight. The visits started out well. However, at some point Alice began coming home from the visits, going straight to her room, and locking her door. She would not talk to her parents.
When Alice would spend the night, she, [Petitioner], and [Petitioner's] girlfriend would all sleep together in one double bed because it was the only place to sleep in the house. Alice slept between [Petitioner] and his girlfriend, and [Petitioner] would ask Alice if she wanted him to hold her while she fell asleep. Alice would comply, and thought nothing of it because [Petitioner's] girlfriend was in the bed with them.
On the night of 15 December 2012, after smoking “[a] couple of bowls” of marijuana with [Petitioner] and his girlfriend, Alice fell asleep on the bed while [Petitioner] returned to work. She was asleep when he returned. Alice woke because her vagina was hurting. She realized that there were fingers inside her vagina and that [Petitioner] was kissing her on her lips, and using his tongue. Alice tried to roll over and scoot away from him so that he would stop. After she fell back asleep, she awakened again when he was “trying to do it again.” This time he had her “pants pulled somewhat down, ” had his hands on her butt and under her clothes on her breasts, and had his fingers “in the same area” as before. ...

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