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Tapp-El v. Cooper

United States District Court, M.D. North Carolina

August 6, 2019

MICHAEL TAPP-EL, Petitioner,
v.
ROY COOPER, Respondent.

          MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. PATRICK AULD UNITED STATES MAGISTRATE JUDGE

         Petitioner, a prisoner of the State of North Carolina, filed a Petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket Entry 2; see also Docket Entry 9 (requesting appointment of counsel).) Respondent has moved for summary judgment both on grounds of untimeliness and on the merits. (Docket Entries 6, 7.) For the reasons that follow, the Court should grant Respondent's instant Motion.

         I. Procedural History

         On November 19, 1998, [1] in the Superior Court of Forsyth County, a jury found Petitioner guilty of first-degree kidnapping, three counts of second-degree rape, eights counts of second-degree forcible sexual offense, and common law robbery in cases 97CRS48239 through 97CRS48246, case 98CRS4157, case 98CRS4158, and cases 98CRS4177 through 98CRS4179. (See Docket Entry 2, ¶¶ 1-2, 5-6; see also Docket Entry 7-3 at 55-66.)[2] The trial court sentenced Petitioner to eleven consecutive sentences of 120 to 153 months' imprisonment. (Docket Entry 2, ¶ 3; see also Docket Entry 7-3 at 70-91.) Petitioner appealed (see Docket Entry 2, ¶¶ 8, 9), and, on February 1, 2000, the North Carolina Court of Appeals issued an unpublished opinion finding no error in Petitioner's convictions, State v. Tapp, 136 N.C.App. 669, 530 S.E.2d 367 (2000) (table).

         Petitioner did not pursue any further appeal of the trial court's judgments of November 19, 1998 (see Docket Entry 2, ¶ 9(g)), but did, on August 23, 2018, file a pro se motion for appropriate relief (“MAR”) “[t]o be recognized as a [M]oorish [A]merican” and thereafter, pursuant to “Moorish” beliefs, “demand[ed] his freedom and immediate release from the Department of Public Safety of Corrections [sic] in the state of North Carolina” (Docket Entry 7-6 at 3, 15).[3] The trial court denied Petitioner's MAR on August 29, 2018. (Docket Entry 7-7 at 3; see also Docket Entry 2, ¶ 11(a).) On October 3, 2018, Petitioner filed a pro se Petition for Writ of Certiorari in the North Carolina Court of Appeals (Docket Entry 7-8 at 2), which that court denied on October 9, 2018 (Docket Entry 7-9 at 2).

         Petitioner subsequently filed the instant Petition on January 23, 2019. (Docket Entry 2 at 15.)[4] Respondent moved for summary judgment both on grounds of untimeliness and on the merits (Docket Entries 6, 7), and, despite Petitioner's receipt of notice under Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), of his right to respond in opposition to that Motion (see Docket Entry 8), Petitioner did not respond (see Docket Entries dated Feb. 27, 2019, to present). On March 29, 2019, Petitioner filed a Motion for Appointment of Counsel for Habeas Proceeding. (See Docket Entry 9.)

         II. Grounds for Relief

         The Petition raises four grounds for relief:

         (1) “[Petitioner] is a victim of ineffective assistance of counsel by [trial counsel] for sixth amendment rights violations, ” in that, “[d]uring the arraignment, trial[, ] and appeal, counsel [f]ailed to effectively challenge the prosecution's case . . . by filing . . . motions to secure a reasonable plea[, ] [failed to] [a]dequately raise contentions of law[, ] failed to file motions to suppress evidence . . .[, and f]ailed to effectively preserve rights for appellate and collateral attacks” (Docket Entry 2, ¶ 12 (Ground One));[5]

         (2) “this [C]ourt may decree its requisite jurisdiction by compelling lower court[s to] modify [sentence] term[s] under the concurrent sentence doctrine . . . through [ ] the U.S. Senate Bill 754-756, signed into law . . . on December 19, 2018 . . . to consolidate judgments into single counts . . . for a reduced sentence” (id., ¶ 12 (Ground Two));

         (3) “new sentencing reduction evidentiary discovery hearing [is] required for expungement of prior convictions/changes in law . . . [because] the sentencing court established [Petitioner's] prior record level to be IV [and] as a result of Governor Roy Cooper's 2017 new expungement law . . . [the Court should] enforce [sic] the Forsyth County Superior Court [to] expunge file [numbers] 83-41769, 90-22991, 90-7814, 81-70 and Asst D.W.I.SI, (III Prior Record)” (id., ¶ 12 (Ground Three));

         (4) “this Court is required by existing law to appoint counsel trained in law to assist in the cognizable brief of law, ” and “Petitioner, (a prisoner in custody) is constitutionally entitled to some form of legal assistance . . . since [North Carolina Prisoner Legal Services and the North Carolina Department of Public Safety] refuse to provide any assistance whatsoever” (id., ¶ 12 (Ground Four)).

         III. Habeas Standards

         The Court “shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). However, “[b]efore [the C]ourt may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. . . . The exhaustion doctrine . . . is now codified at 28 U.S.C. § 2254(b)(1).” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).

         When a petitioner has exhausted state remedies, this Court must apply a highly deferential standard of review in connection with habeas claims “adjudicated on the merits in State court proceedings, ” 28 U.S.C. § 2254(d). More specifically, the Court may not grant relief unless a state court decision on the merits “was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. To qualify as “contrary to” United States Supreme Court precedent, a state court decision either must arrive at “a conclusion opposite to that reached by [the United States Supreme] Court on a question of law” or “confront[ ] facts that are materially indistinguishable from a relevant [United States] Supreme Court precedent and arrive[ ] at a result opposite” to the United States Supreme Court. Williams v. Taylor,529 U.S. 362, 406 (2000). A state court decision “involves an unreasonable application” of United States Supreme Court case law “if the state court identifies the correct ...


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