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Smith v. Hooks

United States District Court, E.D. North Carolina, Western Division

September 17, 2019

PATRICK RICARDO SMITH, Petitioner,
v.
ERIK A. HOOKS, Secretary, N.C. Department of Public Safety, et al., Respondent.[1]

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE

         Petitioner, a state inmate proceeding pro se, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is before the court on respondents' motion for summary judgment (DE 11). The motion was fully briefed and the issues raised are ripe for decision. For the reasons stated below, the court grants respondents' motion.

         STATEMENT OF THE CASE

         On March 27, 2003, a North Carolina jury convicted petitioner of robbery with a dangerous weapon. State v. Smith, No. COA03-1700, 2005 WL 351247, at *1 ( N.C. Ct. App. Feb. 15, 2005). The trial court sentenced petitioner to a term of 117 to 150 months' imprisonment. Petitioner appealed his conviction and sentence, but the North Carolina Court of Appeals affirmed on February 15, 2005. Id. at *5. On March 22, 2005, petitioner filed notice of appeal and petition for discretionary review with the North Carolina Supreme Court. (Resp't App. Exs. 1-2 (DE 13-1, 13-2)). On May 4, 2005, the North Carolina Supreme Court granted the State's motion to dismiss the notice of appeal and denied the petition for discretionary review. ((Resp't App. Ex. 2 (DE 13-2)).

         On an unidentified date, petitioner filed postconviction motion for appropriate relief in the trial court, which was denied on January 15, 2009. Petitioner filed second motion for appropriate relief on February 5, 2018, which was denied on February 19, 2018.

         On March 19, 2018, petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging his state judgment of conviction should be vacated because the arrest warrant was not supported by probable cause, and the indictment was defective because it failed to allege his name. On April 26, 2018, petitioner filed motion to alter judgment. On October 2, 2018, the court denied petitioner's motion to alter judgment, conducted its frivolity review of the petition, and allowed the matter to proceed.

         On October 25, 2018, respondents filed the instant motion for summary judgment, relying upon memorandum of law, statement of material facts, and appendix. Respondents' appendix included records from petitioner's criminal proceedings at the trial and appellate levels. Petitioner filed response in opposition on February 19, 2019, relying upon memorandum of law.

         STATEMENT OF THE FACTS

         The facts as summarized by the North Carolina Court of Appeals are as follows:

The State's evidence tended to show that on 12 July 2002 Nathan Phillips, a lineman employed by BellSouth, was working at the intersection of Lee and Blount Streets in Raleigh. As Phillips walked around his BellSouth van to reach a cable box, he noticed two males walking in his direction. Phillips knelt down to inspect the box, and defendant confronted him as he was standing up. Phillips observed defendant holding a gun and the other male positioned at the back of the van. Defendant asked Phillips where his tools were, and the other male jumped inside the van and grabbed a hard hat and tools. Defendant, still holding the gun, told Phillips to take off his shirt. Defendant and the other male took Phillips' shirt, hard hat, butt set, tool belt, and various tools and ordered him to get inside the van. After waiting approximately 20 seconds, Phillips called the police.
The State's evidence also showed that several weeks later on 2 August 2002 defendant committed an armed robbery at the Cash in Advance on Raeford Road in Fayetteville. Defendant approached the teller counter and informed an employee that he needed to check the phone lines. The employee observed that defendant was wearing a tool belt and BellSouth shirt and hard hat and carrying a butt set (red phone that repairmen plug in to check telephone lines). The employee asked defendant for identification, and defendant retrieved a BellSouth ID badge from his car and displayed it quickly. After the employee unbolted the door, defendant pulled out a gun and pointed it at her. Defendant asked where the money was and then retrieved about a thousand dollars from the teller drawers. As defendant was leaving, a customer present during the incident took down the license plate number of defendant's car. Detective Christopher Corcione of the Fayetteville Police Department traced the plate number to Michael Anthony Cox of Raleigh. Detective Mark Utley of the Raleigh Police Department and Detective Corcione interviewed Cox, who told them that he had obtained the license plate for defendant because defendant had no driver's license. Based upon this information, Detective Utley assembled a photographic lineup and showed it to Phillips. Phillips identified defendant as the person who robbed him on 12 July 2002.

Smith, 2005 WL 351247, at *1.

         DISCUSSION

         A. ...


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