United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE
a state inmate proceeding pro se, filed this petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
matter is before the court on respondent's motion for
summary judgment (DE 8). The motion was fully briefed and
thus the issues raised are ripe for decision. For the reasons
stated below, the court grants respondent's motion and
dismisses the petition.
a April 2015 traffic stop, members of the Brunswick County
Sheriff's Office discovered heroin and drug paraphernalia
in petitioner's van. (Pet'r. Ex. (DE 15-4) 1). On
April 15, 2015, the State of North Carolina assessed
petitioner taxes, penalties, and interest totaling $141,
167.49 under the North Carolina Unauthorized Substance Tax
Act (“drug tax”), N.C. Gen.Stat. §§
105-113.105, et seq. (Id.). On June 2,
2015, defendant was indicted on three counts of trafficking
opium or heroin. (Id.). On July 28, 2015, the North
Carolina Department of Revenue levied and sold
petitioner's real and personal property to collect the
April 2015 tax assessment. (Id. at 2). That property
included two parcels of land, a car, and a mobile home.
8, 2016, petitioner entered an Alford
in Brunswick County Superior Court to one count of
trafficking opium or heroin. (J. & Commitment (DE 10-2).
On June 10, 2016, the state court sentenced petitioner to 70
to 93 months imprisonment. (J. & Commitment (DE 10-2)).
Petitioner did not appeal, and did he properly file any state
post-conviction motion until March 27, 2018. (Pet. (DE 1)
2-3; Pet'r Ex. (DE 15-4)).
then filed a civil complaint pursuant to 42 U.S.C. §
1983, arguing that the drug tax was improperly assessed.
Grissett v. Branson, No. 5:16-CT-3125-FL (E.D. N.C.
May 25, 2016). The court dismissed this complaint without
prejudice because plaintiff's claims were barred by
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
(Id. (DE 17)). Petitioner filed a notice of appeal,
which he later voluntarily dismissed. (Id. (DE 19,
about May 16, 2017, petitioner challenged the assessment of
the drug tax in state court by filing an administrative
grievance with the Office of Administrative Hearings.
(Pet'r. Ex. (DE 1-1) 5).
filed the instant federal habeas petition on October 24,
2017, alleging the following claims for relief: 1) his
conviction violated the double jeopardy clause because the
state assessed a drug tax in addition to his prison sentence;
2) he received ineffective assistance of counsel based on his
attorney's failure to properly investigate the case; and
3) the Brunswick County Sheriff's Department conducted an
illegal search and seizure. (Id. at 5-8).
March 27, 2018, petitioner filed a motion for appropriate
(“MAR”) relief in Brunswick County Superior
Court, raising that same issues described in the instant
petition. (Resp't Ex. (DE 15-4)). The state court denied
petitioner's MAR on the merits. (Id.).
12, 2018, respondent filed the instant motion for summary
judgment, arguing that the petition is time barred and that,
regardless, petitioner was not entitled to relief. Petitioner
timely filed a response in opposition.
Standard of Review
judgment is appropriate when there exists no genuine issue of
material fact, and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); Anderson v.
Liberty Lobby, 477 U.S. 242, 247 (1986). The party
seeking summary judgment bears the burden of initially coming
forward and demonstrating an absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Once the moving party has met its burden,
the nonmoving party then must affirmatively demonstrate that
there exists a genuine issue of material fact requiring
trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). There is no issue for
trial unless there is sufficient evidence favoring the
non-moving party for a jury to return a verdict for that
party. Anderson, 477 U.S. at 250.
standard of review for habeas petitions brought by state
inmates, where the claims have been adjudicated on the merits
in state court, is set forth in 28 U.S.C. § 2254(d). The
statute states that habeas relief cannot be granted in cases
where a state court considered a claim on its merits unless
the decision was contrary to or involved an unreasonable
application of clearly established federal law as determined
by the United States Supreme Court, or the state court
decision was based on an unreasonable determination of the
facts. See 28 U.S.C. § 2254(d)(1) and (2). 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 that of the Supreme
Court. Williams v. Taylor, 529 U.S. 362, 406 (2000).
A state court decision “involves an unreasonable
application” of Supreme Court law “if the state
court identifies the correct governing legal principle from
[the Supreme] Court's cases but unreasonably applies it
to the facts of the state prisoner's case.”
Id. at 407. A state court decision also may apply
Supreme Court law unreasonably if it extends existing Supreme
Court precedent to a new context where it does not apply, or
unreasonably refuses to extend existing precedent to a new
context where it should apply. Id. The applicable
does not require that a state court cite to federal law in
order for a federal court to determine whether the state
court's 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),
cert. denied, 534 U.S. 830 (2001). Moreover, a
determination of a factual issue made by a state court is
presumed correct, unless rebutted by clear and convincing