United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE
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.
OF THE CASE
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)).
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.
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
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 THE FACTS
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
Smith, 2005 WL 351247, at *1.