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Edwards v. Hooks

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

March 30, 2019

BILLY JOSEPH EDWARDS, Petitioner,
v.
ERIK A HOOKS, Respondent.

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court upon Respondent's Motion for Summary Judgment (Doc. No. 6.) Also before the Court is Petitioner's “Request for Execution of Writ Order of Release.” (Doc. No. 12.)

         I. BACKGROUND

         Petitioner is a prisoner of the State of North Carolina, who, on January 13, 2016, was convicted by a Graham County Superior Court jury of felonious possession of stolen goods or property and felonious safecracking. The North Carolina Court of Appeals (“NCCOA”) summarized the facts of the case, as follows:

The State presented evidence tending to show on 14 May 2014, a safe was stolen from the home of Donna and Scott Rutland. The safe contained the Rutlands' personal documents, such as deeds, titles, birth certificates, and papers from Scott's father. The Rutlands knew Defendant prior to the break-in. Donna testified Defendant had never been inside the Rutlands' home and she had never told Defendant where the safe was located.
The Rutlands lived next door to Heather Gogan and Tim Sellers, who regularly visited the Rutlands. A few weeks before the break-in, Heather had visited Donna. Donna testified Heather saw and inquired about the Rutlands' safe, which was located inside the bedroom closet. Heather and Tim also visited the Rutlands two nights before the break-in. That evening, Scott mentioned his father had recently passed away and left him some money.
On the morning of 14 May 2014 at approximately 6:15 a.m., Scott was preparing to leave for work when an individual he did not recognize approached and asked him for a ride. Scott refused and the individual walked back toward Heather and Tim's home. Scott observed Defendant, who was walking around the corner of Heather and Tim's home, begin to argue with that individual. Defendant never entered the Rutlands' yard, and Scott did not see Heather or Tim prior to leaving for work that morning.
Scott walked back inside and told Donna to lock the doors and “stay safe, [Defendant] and all is out here.” Scott left for work around 6:30 a.m. Donna left shortly thereafter to go to work from 8:00 a.m. to 3:00 p.m. Donna did not observe Defendant present in Heather and Tim's yard at any point that morning.
When Donna returned home from work, she discovered her home had been broken into. Officer Chad Hall responded to the scene and conducted an initial investigation. Officer Hall spoke with Heather, Tim, and other neighbors, who said they did not notice anything out of the ordinary.
At the time of Officer Hall's initial investigation, there were no known suspects, and neither Donna nor Scott noticed anything was missing. It was not until the Rutlands' nephew, Spencer Branham, returned the safe that they realized it had been stolen. Many of the documents contained in the safe were missing upon the safe's return.
The State also called Michelle and Dennis Anderson as witnesses. Dennis and Michelle lived in a two-story apartment, and Michelle's son, Tanner Pilkington, lived on the second floor. Michelle testified Defendant arrived at her apartment around 3:00 p.m. on 14 May 2014 with the safe and carried it into the backyard. Defendant eventually brought the opened safe into the Andersons' living room. Neither Michelle nor Dennis saw Defendant open the safe. Michelle testified Defendant was surprised when he found only personal documents located inside, because he had believed the safe contained $15, 000 in cash.
While Defendant rifled through the safe's contents, Michelle observed the Rutlands' names on several of the documents. Defendant burned the documents and did not take the safe with him upon leaving the Andersons' apartment. Tanner knew Spencer Branham, Donna's nephew, and called him to come pick up the safe. Spencer testified he did not recognize the safe, but delivered the safe back to the Rutlands' home. Spencer never observed Defendant and the safe present together in the same place.
While Defendant was in jail, Scott visited Defendant with Defendant's father. Scott testified Defendant stated he did not take the safe from the Rutlands' home. Defendant asserted Heather and Tim had given him the safe in exchange for drugs.
Defendant admitted he had taken the safe to the Andersons' apartment, but claimed Dennis had opened the safe. This conversation was monitored, recorded by Detective Jones, and played for the jury. Detective Jones affirmed to the jury Defendant's voice was on the recording. The recorded conversation included Defendant's statement admitting he traded “Thad [sic] Gogan for half a gram of drop for that safe.”

State v. Edwards, 796 S.E.2d 537, 2017 WL 897711, at *1-*2 ( N.C. Ct. App. 2017) (unpublished table decision).

         At the close of the State's evidence, the defense moved to dismiss all the charges for lack of substantial evidence. Id. at *2. The trial court denied the motion and instructed the jury on the charges of breaking and entering, felonious larceny after breaking and entering, felonious possession of stolen goods or property, and felonious safecracking. Id. Over the defense's objection, the trial court also instructed the jury on the theory of acting in concert. Id.

         The jury found Petitioner not guilty of felonious breaking and entering and not guilty of felonious larceny after breaking and entering but guilty of felonious possession of stolen goods or property and of felonious safecracking. Id. Defendant pled guilty to having attained habitual felon status. Id. The trial court consolidated the safecracking and possession of stolen property convictions into one judgment and sentenced Petitioner as an habitual felon to a minimum term of 84 months and a maximum term of 113 months. Edwards, 796 S.E.2d at *2.

         Petitioner appealed, and on March 7, 2017, the North Carolina Court of Appeals (“NCCOA”) reversed Petitioner's safecracking conviction, vacated the consolidated judgment, and remanded for re-sentencing on the remaining possession of stolen goods conviction as an habitual felon. Id. at *4. As Petitioner only appealed his conviction for safecracking, the NCCOA found no error in his conviction for felonious possession of stolen goods/property. Id.

         While his direct appeal was pending, Petitioner filed various miscellaneous pro se petitions in both the NCCOA and the North Carolina Supreme Court (“NCSC”), which were dismissed. (Pet'r's Exs., Doc. No. 1-1 at 17, 20-21, 84-85.) On or about February 17, 2017, Petitioner filed a pro se state habeas corpus petition in the Superior Court of Graham County. (Pet'r's State Habeas Pet., Doc. No. 1-1 at 39-50.) It was denied on the merits by written order on May 5, 2017. (Order Deny State Habeas Pet., Doc. No. 1-1 at 37-38.) Petitioner did not seek review of the trial court's order in the NCCOA or NCSC.

         Petitioner was re-sentenced on June 29, 2017, to 78-106 months imprisonment for possession of stolen goods as an habitual felon. (Resent. J. & Commit. Form, Resp't's Ex. 5, Doc. No. 7-6.) Petitioner did not appeal his sentence.

         On or about August 29, 2017, Petitioner filed a pro se motion for appropriate relief (“MAR”) in the Superior Court of Graham County. (MAR, Doc. No. 1-1 at 93-125.) It was summarily denied on September 21, 2017. (Order Deny. MAR, Doc. No. 1-1 at 126.) Petitioner did not seek certiorari review of the court's order in the NCCOA.

         Petitioner filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on March 15, 2018. (Doc. No. 1.) Respondent filed an Answer/Response (Doc. No. 5) and the instant Motion for Summary Judgment (Doc. No. 6). Subsequent to notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) (Doc. No. 8), Petitioner filed a Response in opposition to the summary judgment Motion (Doc. No. 9), followed thereafter by an Addendum (Doc. No. 10) and a Declaration (Doc. No. 11). He later filed a “Request for Execution of Writ Order of Release.” (Doc. No. 12.)

         II. STANDARD OF REVIEW

         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).

         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. Fatal Variance Claim

         In Ground One, Petitioner claims there was a fatal variance between his indictment for felonious possession of stolen goods and one of the jury instructions. (§ 2254 Pet. 5, Doc. No. 1.) According to the Petition, “[t]he prosecution proceeded to trial on the accusation that defendant (alone) committed Counts 1-4. “After” the jury found not guilty of B&E - Larceny - Counts 1 and 2 - the court made evidence itself that Defendant “acted in concert” and possessed knowledge - of same - fatal to the indicted charge.” (§ 2254 Pet. 5 (citing “State v. Gobblett [sic]”).) Suffice it to say, this ground for relief is not a ...


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