United States District Court, W.D. North Carolina, Asheville Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
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.)
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
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
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
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).
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.
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.
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.
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.
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.
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.
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.)
STANDARD OF REVIEW
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).
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
Fatal Variance Claim
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 ...