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Pierce v. Hooks

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

June 26, 2018

KELLY WINTON PIERCE, Petitioner,
v.
ERIK HOOKS, Respondent.

          ORDER

          Frank D. Whitney Chief United States District Judge

         THIS MATTER is before the Court upon Petitioner Kelly Winton Pierce's pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 1) and Respondent's Motion for Summary Judgment (Doc. No. 4.)

         I. BACKGROUND

         Petitioner is a prisoner of the State of North Carolina who, on November 7, 2013, was convicted by a Wilkes County Superior Court jury of failing to notify the sheriff's office of a change of address as a registered sex offender (“failure to notify”), in violation of N.C. Gen. Stat. § 14-208.9(a).[1] State v. Pierce, 766 S.E.2d 854, 855 ( N.C. Ct. App. 2014). He pled guilty to attaining habitual felon status. Id. The North Carolina Court of Appeals summarized the evidence presented at trial, as follows:

In 2009, defendant was convicted of four counts of indecent liberties with a child, an offense that required him to register as a sex offender. In November 2010, defendant registered as a sex offender in Burke County. Deputy Robin Jennings at the Burke County Sheriff's Office reviewed all the sex offender registration requirements with defendant, including the requirement that, if he moved to a different county, he would be required to appear in-person and provide written notice of the address change to both the sheriff in the county where he was most currently registered and the new sheriff.
1. The State's Evidence
Defendant's ex-wife, Marilyn Joann Long (“Joann”), lived in Wilkes County. At trial, Melissa Anderson (“Melissa”), who lived next door to Joann, testified on behalf of the State. Melissa claimed that, beginning in June 2012, she saw defendant at Joann's house “all week, ” “at least five days a week, ” and “every evening.” Although she acknowledged that defendant would usually be gone on the weekends, he was “always there” during the week. Furthermore, she alleged that defendant did things around Joann's home “like a normal person living in a house” such as mowing the yard.
Joy Griffin (“Joy”), who lived in the trailer in front of Joann's, also testified at trial. She claimed that, in June, she saw defendant in her backyard with a headlight on his head. Joy alleged that defendant would be at Joann's two or three days, leave for a day, and then come back. He would be there all day and all night. Ultimately, in November 2012 after she found out that defendant was a registered sex offender, Joy called the Wilkes County Sheriff's Office and reported that defendant was living with Joann.
2. Defendant's Evidence
Defendant testified on his own behalf at trial and claimed that he never moved in with Joann. Although he conceded that he may have stayed with Joann two or three days in a row to help her with home improvement projects, he usually just drove back and forth between Morganton and Wilkesboro. Joann's testimony was similar to defendant's. She claimed that defendant travelled back and forth between Morganton and Wilkesboro to help her. According to Joann, although he may have spent one or two nights with her a week, “that was about the limit.”
At trial, defendant produced several documents showing an address in Burke County, including his driver's license, an electricity bill from November 2012, his bank account statements, a wireless phone bill, car registration and tax bill, and his disability check. According to defendant, these documents showed that he still resided in Burke County.
Defendant also relied on the testimony of Earl Miller (“Earl”), his neighbor in Burke County, to support his claim that he never moved to Wilkes County. According to Earl, he helped defendant complete several projects around his mobile home, including installing a water pump and water heater. Earl claimed that he and his wife saw defendant every other day during 2012 and that defendant often ate dinner with him, sometimes five times a week.
On 7 November 2012, Lieutenant Whitley from the Wilkes County Sheriff's Office took the report from Joy that defendant was living with Joann. He and Sergeant Coles went to Joann's home to investigate. Defendant denied that he was living with Joann, claiming that he stays with her “from time to time.” Based on their investigation and defendant's failure to register in Wilkes County, they arrested defendant for failure to notify the Wilkes County Sheriff's Office.

Id. at 855-856.

         Petitioner filed a direct appeal, challenging only the failure to notify conviction. Pierce, 766 S.E.2d at 855. He argued that: (1) the indictment was fatally defective because it named the wrong sheriff's department where notification was required and failed to allege a “failure to report in person”; (2) the trial court erred in allowing the indictment to be amended with regard to the dates of offense; and (3) the trial court erred in denying defendant's motion to dismiss because the State failed to provide substantial evidence that he resided in Wilkes County. Id.

         The North Carolina Court of Appeals issued a published opinion on December 16, 2014, finding no error at trial. Id. at 861. The North Carolina Supreme Court denied a petition for discretionary review on June 10, 2015. State v. Pierce, 772 S.E.2d 734 ( N.C. 2015).

         On or about January 29, 2016, Petitioner filed a pro se motion for appropriate relief (“MAR”) in the Superior Court of Wilkes County; he was appointed counsel to represent him in post-conviction. The trial court denied the MAR on February 1, 2017, but the North Carolina Court of Appeals granted Petitioner's pro se petition for writ of certiorari for the limited purpose of remanding for an evidentiary hearing on the issue of whether Petitioner received ineffective assistance of counsel related to a plea offer.

         A post-conviction MAR evidentiary hearing was held on July 14, 2017, in the Superior Court of Wilkes County; Petitioner was represented by counsel. On July 29, 2016, the court entered an order denying Petitioner relief on his ineffective assistance of counsel claim. Petitioner's pro se certiorari petition in the North Carolina Court of Appeals was denied on October 4, 2017.

         Petitioner timely filed the instant § 2254 Petition on November 2, 2017, when he signed it under penalty of perjury and placed it in the prison mail box. See Houston v. Lack, 487 U.S. 266, 267 (1988). He raises the following grounds for relief: 1) trial counsel rendered ineffective assistance with respect to a plea offer; and 2) the trial court's jury instruction created a fatal variance in the indictment, thereby allowing the State to convict Petitioner on insufficient evidence that he had moved from Burke to Wilkes County. Respondent has filed a Motion for Summary Judgment (Doc. No. 4) and Petitioner has responded (Doc. No. 7).

         II. STANDARD OF REVIEW

         A. Summary Judgment

         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).

         B. The Antiterrorism and Effective Death Penalty Act of 1996

         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). To obtain relief under § 2254(d)(1), a 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)).

         III. DISCUSSION

         A. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

         In his first ground for relief, Petitioner claims trial counsel was ineffective for advising him that the State did not have sufficient evidence to prove he had moved from Burke to Wilkes County and that he, therefore, should reject a plea offer from the State. Petitioner raised the substance of this claim in his MAR. After holding an evidentiary hearing on the claim, the trial court denied it on the merits.

         According to Petitioner, prior to his indictment, the State made a plea offer whereby he would plead guilty to failure to notify, a Class F felony, in exchange for a mitigated sentence of 24 months in prison. (§2254 Pet. 5, Doc. No. 1.) His attorney informed him of the offer but advised him to reject it because the State did not have any evidence Petitioner had actually moved to Wilkes County; it only had evidence that Petitioner made frequent trips to Wilkes County. (§2254 Pet. 5, 16.) Relying on his attorney's advice and the fact that he had not moved to Wilkes County, Petitioner rejected the plea. Subsequently, a grand jury indicted him for failure to notify and for ...


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