United States District Court, M.D. North Carolina
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE
WEBSTER UNITED STATES MAGISTRATE JUDGE.
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.
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).
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,  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.)
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.)
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
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.
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.
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.”).
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 ...