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Grissett v. State

United States District Court, E.D. North Carolina, Western Division

March 27, 2019

MICHAEL MALIK LEVI GRISSETT, Petitioner,
v.
STATE OF NORTH CAROLINA, Respondent.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE

         Petitioner, 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.

         BACKGROUND

         During 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. (Id.).

         On June 8, 2016, petitioner entered an Alford plea[1] 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)).

         Petitioner 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, 22)).

         On or 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).

         Petitioner 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).

         On 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.).

         On June 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.

         DISCUSSION

         A. Standard of Review

         Summary 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.

         The 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 statute

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 ...


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