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Clinton v. Hooks

United States District Court, M.D. North Carolina

July 10, 2018

REGINALD DEVORE CLINTON, Petitioner,
v.
ERIC A. HOOKS, Respondent.

          MEMORANDUM OPINION, ORDER, 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 4, 5.) For the reasons that follow, the Court should grant Respondent's Motion for Summary Judgment.

         I. Background

         On March 18, 2015, a jury in the Superior Court of Forsyth County found Petitioner guilty of attempt to obtain property by false pretenses in case 12 CRS 58153 (see Docket Entry 1, ¶¶ 1, 2, 5; see also Docket Entry 5-2 at 57, Docket Entry 5-12 at 255-56), [1]whereupon Petitioner pled guilty to habitual felon status in case 13 CRS 138 (see Docket Entry 1, ¶¶ 3, 6; see also Docket Entry 5-2 at 58-61, Docket Entry 5-12 at 259-65), and the trial court sentenced Petitioner to 103 to 136 months in prison (see Docket Entry 1, ¶ 3; see also Docket Entry 5-2 at 64-66).

         Petitioner appealed to the North Carolina Court of Appeals, and received appointed appellate counsel. (See Docket Entry 1, ¶¶ 8, 9, 16(e); Docket Entry 5-2 at 67-68.) Petitioner's appellate counsel submitted a brief under Anders v. California, 386 U.S. 738 (1967) (Docket Entry 5-3), deeming himself “unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal” (id. at 11), and “request[ing] [the Court of Appeals] to conduct a full examination of the record on appeal for possible prejudicial error and to determine whether [Petitioner's appellate counsel] overlooked any justiciable issue” (id.). Petitioner then submitted a pro se brief asserting multiple claims of ineffective assistance of trial counsel. (Docket Entry 5-4). The North Carolina Court of Appeals “fully examined the record to determine whether any issues of arguable merit exist[ed, ]” did not “find any possible prejudicial error[, ] and conclude[d] that [Petitioner's] appeal [wa]s wholly frivolous, ” State v. Clinton, No. COA15-1105, 789 S.E.2d 568 (table), 2016 WL 3395521, at *2 (June 21, 2016) (unpublished). The Court of Appeals additionally dismissed Petitioner's ineffective assistance “claims without prejudice to [Petitioner's] right to raise them in a motion for appropriate relief [(“MAR”)] in the trial court, ” Id. Petitioner thereafter neither sought discretionary review in the North Carolina Supreme Court (see Docket Entry 1, ¶ 9(g)), nor petitioned the United States Supreme Court for a writ of certiorari (see id., ¶ 9(h).

         Next, Petitioner filed a MAR with the Forsyth County Superior Court, asserting claims of ineffective assistance against his pretrial counsel, his trial counsel, and his appellate counsel. (Docket Entries 5-6, 5-7.)[2] The trial court denied Petitioner's MAR, ruling that “[Petitioner] was in a position to adequately raise [on direct appeal] the[] issues and perhaps other grounds underlying [Petitioner's MAR] but did not do so” and, alternatively that “any such grounds or issues, if so raised, were previously determined upon the merits in such proceedings.” (Docket Entry 1 at 21.) The North Carolina Court of Appeals denied Petitioner's subsequent request for certiorari review of the denial of his MAR (id. at 22).

         Petitioner then instituted this action via his Petition. (Docket Entry 1.) Thereafter, Respondent filed the instant Motion and Supporting Brief (Docket Entries 4, 5), as to which Petitioner responded in opposition (Docket Entries 7, 8), and moved for appointment of counsel (Docket Entry 9).

         II. Facts

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

The [s]tate's evidence at trial tended to show that on 12 August 2012, Mary Leigh was working as a customer service manager at a Food Lion located in Winston-Salem, North Carolina. That afternoon, [Petitioner], dressed in a purple suit, approached the customer service counter and attempted to cash a check worth $499.31 payable to “Reginald Clinton.” The check was issued by Wachovia Bank and listed Atlantic Coast Dining as the account holder. [Petitioner] provided Ms. Leigh with a photo identification card in the name of Reginald Clinton. Ms. Leigh noticed that the No. on the top and bottom of the check did not match. Believing the check to be fraudulent, she called the police.
Shortly after 4:00 p.m. on 12 August 2012, Officer K.J. Neff with the Winston-Salem Police Department received a report of an individual attempting to cash a fraudulent check at a Food Lion. When Officer Neff arrived at the Food Lion, [Petitioner] was still in the store. Officer Neff spoke with [Petitioner], who told him the Food Lion employees were profiling him, and that the check was a valid payroll check for work he did for Tyson Foods issued to him through Samaritan Ministries. While Officer Neff was making phone calls in order to verify the authenticity of the check, [Petitioner] exited the store, leaving the check and photo identification card behind. Officer Neff obtained [Petitioner's] phone No. from the records of the Winston-Salem Police Department and called [Petitioner]. However, other than a brief telephone conversation informing [Petitioner] that he had his identification card, Officer Neff was unable to speak further with [Petitioner].
During his investigation, Officer Neff discovered that the account No. on the check belonged to the Evangelical Holiness and Missionary Association and not to Atlantic Coast Dining as the check indicated. The Evangelical Association informed Officer Neff that [Petitioner] was not associated with the church and that there was no reason for [Petitioner] to have a check with the church's account No. on it. Officer Neff also spoke with the Assistant Director of Samaritan Ministries, who told Officer Neff that he did not know [Petitioner] and that [Petitioner] never worked for Samaritan Ministries. At trial, Officer Neff testified that the address on the check listed for “Reginald Clinton” did not exist in Winston-Salem and did not match the address on the photo identification card or the address on file with the police department.
[Petitioner] testified in his defense that he did not attempt to cash a check at the Food Lion, did not own a purple suit, and had never seen Officer Neff or Ms. Leigh before “in [his] life.” [Petitioner] further testified that his son had access to his photo identification card and the capability of making false checks on the computer.

Clinton, 2016 WL 3395521, at *1-2.

         III. Grounds for Relief

         Petitioner presents three grounds for habeas relief. (See Docket Entry 1, ¶ 12.) Specifically, he alleges:

         1) ineffective assistance of pretrial counsel in that pretrial counsel (A) “failed to meet with Petitioner to discuss the case” (id., ¶ 12 (GROUND ONE)(a)); (B) “fail[ed] to return multiple calls from Petitioner resulting in loss of [the] state's pre-indictment plea offer of 12-24 mon[ths]” (“2012 Plea Offer”) (id.); and (C) “failed to offer Petitioner's March 25, 2013 plea offer from [the] state with [a] sentence recommendation in [the] mitigated [range]” (“2013 Plea Offer”) (id.);

         2) ineffective assistance of trial counsel in that trial counsel (A) “failed to investigate Petitioner's case” (id., ¶ 12 (GROUND TWO)(a)); (B) “failed to prepare and consult with Petitioner on trial strategy” (id.); (C) “provided erroneous advice to Petitioner” (id.); (D) knowingly withheld evidence favorable to Petitioner” (id.); and (E) “failed to properly examine witnesses after Petitioner repeatedly instructed [his trial counsel] to do so” (id.); and

         3) ineffective assistance of appellate counsel in that appellate counsel (A) “failed to file the agreed upon proposed record of appeal” (id., ¶ 12, (GROUND THREE)(a)); (B) filed a brief under Anders v. California, 386 U.S. 738 (1967), “against Petitioner's wishes and after repeated letters from Petitioner instructing [appellate] counsel not to file [an] [Anders] brief” (id.); and (C) “violated Petitioner's right to assist Petitioner in basic functions of a criminal proceeding” (id.).

         IV. Habeas Standards

         The Court “shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Further, “[b]efore [the] [C]ourt may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to [this] [C]ourt in a habeas petition. The exhaustion doctrine . . . is now codified at 28 U.S.C. § 2254(b)(1).” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see also 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to have waived the exhaustion requirement . . . unless the State, through counsel, expressly waives the requirement.”).

         V. Discussion

         A. Standard of Review

         Ordinarily, when a petitioner has exhausted state remedies, this Court must apply a highly deferential standard of review in connection with habeas claims “adjudicated on the merits in [s]tate court proceedings, ” 28 U.S.C. § 2254(d). Under such circumstances, the Court may not grant relief unless a state court decision on the merits “was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. However, as explained below, the deferential standard of review under Section 2254(d) does not apply in this case, because Petitioner's ineffective assistance claims have not been “adjudicated on the merits in [s]tate court proceedings, ” id.

         As discussed above, the Court of Appeals dismissed Petitioner's ineffective assistance “claims without prejudice to [Petitioner's] right to raise them in a [MAR] in the trial court, ” Clinton, 2016 WL 3395521, at *2 (emphasis added). In his MAR, Petitioner raised ineffective assistance claims against his pretrial, trial, and appellate counsel. (Docket Entries 5-6, 5-7.) The trial court then denied Petitioner's MAR, ruling that “[Petitioner] was in a position to adequately raise [on direct appeal] the[] issues and perhaps other grounds underlying [Petitioner's MAR] but did not do so” and, alternatively that “any such grounds or issues, if so raised, were previously determined upon the merits in such proceedings.” (Docket Entry 1 at 21.) In the petition for a writ of certiorari Petitioner filed with the North Carolina Court of Appeals, he alleged only that the trial court improperly denied his MAR on procedural default grounds and, thus, erroneously failed to consider the merits of his ineffective assistance claims (see Docket Entry 5-8 at 5-12), and did not independently raise any ineffective assistance claims (see Id. at 2-14). The Court of Appeals summarily denied his petition. (Docket Entry 1 at 22.)

         In other words, contrary to the MAR court's order, Petitioner did not find himself “in a position to adequately raise” his ineffective assistance claims on direct appeal (Docket Entry 1 at 21), as the Court of Appeals dismissed (without prejudice) as premature the ineffective assistance claims Petitioner raised, see Clinton, 2016 WL 3395521, at *2, and no reasonable basis exists for concluding that the Court of Appeals would have considered the merits of any additional ineffective assistance claims against his pretrial and trial counsel. Moreover, Petitioner obviously could not have raised his ineffective assistance of appellate counsel claim on direct appeal. Furthermore, and contrary to the MAR court's order (Docket Entry 1 at 21), none of Petitioner's ineffective assistance claims were considered by the Court of Appeals on the merits, see Clinton, 2016 WL 3395521, at *2.

         Subsequently, the Court of Appeals, in ruling on Petitioner's certiorari petition, considered only whether the trial court erred in denying the MAR on procedural grounds, rather than the substance of Petitioner's ineffective assistance claims. (See Docket Entry 5-8 at 5-12.) Thus, no state court ever adjudicated Petitioner's ineffective assistance claims on the merits. Accordingly, no state court adjudication exists to which this Court owes deference under 2254(d), and the Court should consider Petitioner's instant claims under a de novo standard of review. See Gordon v. Braxton, 780 F.3d 196, 202 (4th Cir. 2015) (“[T]he state court's decision must qualify as an ‘adjudicat[ion] on the merits' to trigger AEDPA deference. If it does not so qualify, review in the federal courts is de novo.” (quoting Winston v. Pearson, 683 F.3d 489, 499 (4th Cir. 2012)) (internal citation omitted)); see also Hudson v. Hunt, 235 F.3d 892, 895 (4th Cir. 2000).

         B. Merits

         1. Ground One - Ineffective Assistance of Pretrial Counsel

         In Ground One, Petitioner contends that his pretrial counsel failed him in that counsel (A) “failed to meet with Petitioner to discuss the case” (Docket Entry 1, ¶ 12 (GROUND ONE)(a)); (B) “fail[ed] to return multiple calls from Petitioner resulting in loss of [the] state's [2012 Plea Offer] ¶ 12-24 mon[ths]” (id.); and (C) “failed to offer Petitioner's [2013 Plea Offer] from [the] state with [a] sentence recommendation in [the] mitigated [range]” (id.). All of those contentions fall short.

         The Fourth Circuit has described the United States Supreme Court authority governing ineffective assistance claims as follows:

In order to establish an ineffective assistance of counsel claim . . ., [a petitioner must] establish that his “counsel's representation fell below an objective standard of reasonableness, ” measured by the “prevailing professional norms, ” [Strickland v. Washington, 466 U.S. 668, 688 (1984)], and “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, ” Id. at 694. “Unless a [petitioner] makes both showings, it cannot be said that the conviction or . . . sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Id. at 687.
In determining whether counsel's performance was deficient, “[i]t is all too tempting for a [petitioner] to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Id. at 689. Hence, “court[s] must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . [and] that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (internal quotation marks omitted).
Similarly, in evaluating whether [a petitioner] has shown actual prejudice from any such deficient performance, it is insufficient for the [petitioner] “to show that the errors had some conceivable effect on the outcome of the proceeding, ” because “[v]irtually every act or omission of counsel would meet that test.” Id. at 693. Rather, a “reasonable probability” that the result would have been different requires “a probability sufficient to undermine confidence in the outcome.” Id. at 694. When challenging a conviction, “the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695.

Fisher v. Lee, 215 F.3d 438, 446-47 (4th Cir. 2000) (internal parallel citations omitted). Moreover, “[s]urmounting Strickland's high bar is never an easy task. . . . Even under de novo review, the standard for judging counsel's representation is a most deferential one.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (internal quotation marks omitted).

         Regarding Petitioner's first ineffective assistance sub-claim against his pretrial counsel, Petitioner alleges that counsel admitted at the hearing on Petitioner's motion to withdraw counsel that, in the two years since his appointment as counsel, he had met with Petitioner on only one occasion. (See Docket Entry 8 at 4 (citing Docket Entry 5-7 at 9).) Moreover, Petitioner asserts that his pretrial “counsel was removed by the [trial] court for his ineffectiveness.” (Id.)

         As an initial matter, the trial court did not remove pretrial counsel for “ineffectiveness, ” but rather because Petitioner indicated he did not wish to remain represented by pretrial counsel going forward. (See Docket Entry 5-7 at 15-16.) Furthermore, to the extent Petitioner alleges that pretrial counsel's alleged failure to communicate with Petitioner during the pretrial period constitutes an independent ground of ineffective assistance, such a claim fails, as Petitioner “has provided ‘no explanation how additional meetings with his counsel, or longer meetings with his counsel, would have led to new or better theories of advocacy or otherwise would have created a reasonable probability of a different outcome, '” Lenz v. Washington, 444 F.3d 295, 303 (4th Cir. 2006) (quoting Hill v. Mitchell, 400 F.3d 308, 325 (6th Cir. 2005)) (internal quotation marks omitted). As a result, Petitioner has not shown prejudice under Strickland's second prong. See Bowling v. Parker, 344 F.3d 487, 506 (6th Cir. 2003) (“[T]he mere fact that counsel spent little time with [petitioner] is not enough under Strickland, without evidence of prejudice or other defects.”).[3]

         In Petitioner's second and third ineffective assistance sub-claims against pretrial counsel, Petitioner asserts that his pretrial counsel “fail[ed] to return multiple calls from Petitioner resulting in loss of [the] state's [2012 Plea Offer] ¶ 12-24 mon[ths, ]” and “failed to offer Petitioner's [2013 Plea Offer] from [the] state with [a] sentence recommendation in [the] mitigated [range].” (Docket Entry 1, ¶ 12 (GROUND ONE)(a); see also Docket Entry 8-1 at 1 (copy of 2013 Plea Offer).) Petitioner maintains that he “was prejudiced by the loss of the ...


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