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Brady v. Mecum

United States District Court, M.D. North Carolina

June 3, 2019

JACKIE JAMES BRADY, Petitioner,
v.
DENNIS E. MECUM, Respondent.

          ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          JOE L. WEBSTER 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. (Docket Entry 1.) Respondent filed an answer (Docket Entry 3), a motion for summary judgment (Docket Entry 4), and a supporting brief (Docket Entry 5). Petitioner filed a response (Docket Entry 10), a motion to appoint counsel (Docket Entry 8), and an application to proceed in forma pauperis in support thereof (Docket Entry 9). This matter is now ready for a ruling.

         Background

         In 2015, Petitioner pled guilty in state court to possession with the intent to sell or deliver cocaine in July of 2011, having attained habitual offender status, and was sentenced to 87-114 months of imprisonment. (Docket Entry 5, Ex. 2 at pdf pages 26-34.) On April 19, 2016, the North Carolina Court of Appeals affirmed the trial court's denial of Petitioner's motion to suppress, dismissed Petitioner's claim for ineffective assistance of counsel, and remanded to correct a clerical error in the judgment. State v. Brady, 247 N.C.App. 246 (2016).

         What happened at this point is unclear. Although the Clerk denies receiving it, Petitioner asserts that on June 29, 2016, he mailed a motion for appropriate relief (“MAR”) to the Superior Court of Randolph County. (Docket Entry 10 at 27 and Ex. 3.) In any event, it is undisputed that thereafter on or about November 10, 2016, Petitioner filed what he entitled a supplemental MAR in the Superior Court of Randolph County, which was denied on November 21, 2016. (Docket Entry 5, Exs. 6-7.) The same day, Petitioner also filed a MAR in the Superior Court of Randolph County-back-dated to June 29, 2016-contending, in pertinent part, that his counsel was ineffective for failing to argue at a suppression hearing that the information contained in a state probable cause affidavit was unconstitutionally stale. (Docket Entry 10, Ex. 4.) None of the orders issued by the Superior Court of Randolph County in this case clearly addresses or disposes of this MAR and so it appears to remain pending. (Id.) Petitioner then filed a MAR in the Superior Court of Randolph County on or about April 4, 2017, [1] which the trial court referred to as a second supplemental MAR, and which it denied on June 2, 2017. (Docket Entry 5, Exs. 8, 13.) Petitioner then filed a MAR on July 5, 2018 in the Superior Court of Randolph County, which was denied on July 20, 2018. (Id., Exs. 9-10.)

         On August 1, 2018, Petitioner filed a certiorari petition in the North Carolina Court of Appeals, which was denied on August 3, 2018. (Id., Exs. 11-12.) On August 16, 2018, Petitioner filed second and third certiorari petitions in the North Carolina Court of Appeals, which were denied on August 20, 2018. (Id., Exs. 13-14; Docket Entry 1 at 53-54.) Petitioner filed the instant petition with this Court on November 6, 2018. (Docket Entry 1.)

         Petitioner's Grounds

         Petitioner contends that counsel was constitutionally ineffective for (1) not arguing that the information in a probable cause affidavit was stale, and (2) for failing to object to the state's error in reclassifying his prior sale and delivery of cocaine convictions from Class H felonies to Glass G felonies. (Docket Entry 1, Grounds One and Two, pdf pages 21-30.)

         Discussion

         Respondent first argues that the Petition is time-barred under 28 U.S.C. § 2244(d). (Docket Entry 5 at 7-14.) Respondent's arguments concerning the timeliness of the Petition involve a number of complicated issues. The other grounds set out in Respondent's summary judgment brief present no such difficulties. Moreover, the limitation period in § 2244(d) is not jurisdictional, so the Court need not consider it before proceeding to other arguments. Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002). Given all of these circumstances, the Court will not address the time bar issue further, but instead will analyze Respondent's other summary judgment arguments.

         Ground One

         Prior to Petitioner's guilty plea, counsel filed a motion to suppress and argued at the subsequent hearing that a probable cause affidavit was insufficiently reliable because the information supplied by a confidential informant was itself unreliable. (Docket Entry 5, Ex. 5 at 4-7.) The state court denied the motion. (Id. at 19.) On appeal, Petitioner raised an alternate theory, contending that trial counsel was constitutionally ineffective in failing to argue that the information in the probable cause affidavit was stale. (Docket Entry 5, Ex. 3.) The North Carolina Court of Appeals declined to reach the merits of this claim and “dismissed [it] without prejudice to [Petitioner's] right to assert it in a subsequently filed motion for appropriate relief.” See Brady, 247 N.C.App. at 246. Petitioner now contends to this Court that counsel was constitutionally ineffective for failing to argue at the suppression hearing that the information in the probable cause affidavit supporting the search warrant of his residence was stale-rather than unreliable-and therefore could not establish probable cause to justify a search of that residence. (Docket Entry 1 at pdf pages 21-25.) As explained below, the Court finds this argument unpersuasive.

         As an initial matter, the Court notes that it applies a de novo standard in reviewing Petitioner's first ground because it appears unexhausted. More specifically, Petitioner raised this ineffective assistance of counsel claim in his November 10, 2016 MAR filing, which appears to remain pending. (Docket Entry 10, Ex. 4.) Petitioner raised this ground again, along with a second unrelated ground, in his April 4, 2017 MAR. (Docket Entry 5, Ex. 6 at 12-20.) In denying that MAR, the trial court made no mention of either ground and instead addressed a ground not contained in that pleading. (Id., Ex. 8.) Nevertheless, given that Plaintiff's claim lacks merit even under a de novo standard of review, the Court-in the interest of judicial efficiency-will dispose of it herein. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”).

         To prove ineffective assistance of counsel generally, a petitioner must establish: (1) that his attorney's performance fell below a reasonable standard for defense attorneys, and (2) that he was prejudiced by this performance. See Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). With respect to the first prong, the petitioner bears the burden of affirmatively showing that his counsel's performance was deficient, that is, that the performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 688-89; Spencer v. Murray, 18 F.3d 229, 233 (4th Cir. 1994). With respect to the second prong, the petitioner must show that prejudice resulted from the deficient performance, that is, that there is a reasonable probability that but for counsel's unprofessional errors, the result of the ...


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