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Brennan v. Hooks

United States District Court, W.D. North Carolina, Asheville Division

September 23, 2019

THOMAS LEE BRENNAN, Petitioner,
v.
ERIK A. HOOKS, Respondent.

          ORDER

          Frank D. Whitney, Chief United States District Judge.

         THIS MATTER is before the Court upon Respondent’s Motion for Summary Judgment (Doc. No. 4) seeking denial of Petitioner Thomas Lee Brennan’s pro se Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, (Doc. Nos. 1, 1-1).

         I. BACKGROUND

         Petitioner is a prisoner of the State of North Carolina who, after a jury trial in Haywood County Superior Court, was found guilty of possession with intent to manufacture, sell or deliver methamphetamine, possession of marijuana, and possession of drug paraphernalia. The NCCOA summarized the evidence at trial as follows:

[O]n 2 April 2014, two detectives-Phillips and Beck-with the Haywood County Sheriff's Office were assigned to the Unified Narcotics Investigative Team, a multi-agency team focused on narcotics in Haywood County. In response to complaints regarding heavy traffic and “high activity” at 116 Barefoot Ridge, the detectives set up surveillance near that address, sitting in an unmarked law enforcement vehicle and wearing plainclothes. Detective Phillips was familiar with the address: “[I]t was the residence of Robert Guinn, who we have had several ongoing cases with narcotics. . . .” Detective Phillips testified that at 5:00 p.m. that day, [1] he observed a white Chevy Tahoe parked on the backside of the residence. After about five minutes, the Tahoe left the residence and came to the intersection of Barefoot Ridge and Poison Cove Road. The driver turned his head in the direction of the officers' vehicle and sat at the intersection for 20 to 30 seconds. When the vehicle turned onto Poison Cove Road, the detectives pulled away from their point of surveillance and followed the Tahoe. “[A]utomatically when he saw us coming behind the vehicle [the driver] began riding the brake.” As the Tahoe approached New Clyde Highway, the Tahoe and the law enforcement vehicle were both traveling at 20 to 30 miles an hour when the Tahoe “just abruptly turned left, ” causing Detective Beck to slam on his brakes to keep from rear-ending the Tahoe. The detectives conducted a traffic stop of the Tahoe for making an unsafe turn without signaling. The Tahoe pulled over near a tobacco barn. Detective Phillips's testimony about defendant's behavior during the stop included the following:
[Defendant] was acting very erratic. His hands were shaking. He was very nervous. He would speak really loud and speak real soft and, I mean, just shaking nervous. . . . I could see his eyes. His eyes looked like his pupils were very constricted about the size of a pinhead. Just with my training and experience, that's somebody who appears to be under the influence of a substance. Since I didn't smell alcohol, me being a narcotics detective, I thought it was going to be-or he was going to be impaired of some kind of narcotic.
Detective Phillips requested defendant's consent to search the vehicle, but defendant refused. Defendant was ordered to exit the vehicle and was informed that a K–9 unit was en route. Upon arrival, the K–9 officer “hit on the rear of the vehicle.” Inside the vehicle in the center console between the front seats, officers discovered a bag of marijuana and in the cargo area of the rear, two digital scales, along with a golf-ball sized ball of crystallized methamphetamine weighing 8.75 grams.

State v. Brennan, 786 S.E.2d 433, 2016 WL 1745101, at *2 ( N.C. Ct. App. 2016) (unpublished table decision) (footnote added). The evidence at trial showed that Phillips and Beck initiated the traffic stop at 7:34 p.m. on April 2, 2014, and called for the canine unit at 7:52 p.m., which arrived on the scene at 8:00 p.m. (Trial Tr. 105, Resp’t’s Ex. 18 Vol. II, Doc. No. 5-19.) Petitioner was arrested at 8:23 p.m. (Trial Tr. 106, id.)

         Prior to trial, counsel filed a motion to suppress the evidence seized during the search of the vehicle. (Pre-trial Mots. Tr. 3, Resp’t’s Ex. 18 Vol. I, Doc. No. 5-19.) The court denied the motion as untimely filed pursuant to N.C. Gen. Stat. §§ 975(b), 976. (Id. at 14.)

         After the jury returned its verdicts, Petitioner pled guilty to attaining the status of habitual felon. The trial court sentenced Petitioner to an active term of 84 to 113 months. Judgment was entered on February 12, 2015.

         Petitioner filed a pro se notice of appeal, which was not accepted due to defects in the notice. See Brennan, 786 S.E.2d 433, 2016 WL 1745101, at *2. Thereafter, however, appellate counsel filed a petition for writ of certiorari on Petitioner’s behalf, which the North Carolina Court of Appeals (“NCCA”) granted. The NCCA affirmed Petitioner’s judgment on May 3, 2016. See id. at *4. Petitioner did not seek discretionary review in the North Carolina Supreme Court.

         After filing multiple pro se and counseled post-conviction motions pursing collateral relief from judgment in the state courts, Petitioner filed the instant pro se federal habeas Petition in this Court on June 2, 2018. He raises the following grounds for relief: 1) trial counsel was ineffective for filing an untimely motion to suppress; 2) appellate counsel was ineffective for failing to argue trial counsel’s ineffective performance related to the motion to suppress; and 3) appellate counsel was ineffective for failing to perfect a timely appeal. Respondent has filed a Motion for Summary Judgment (Doc. No. 4) and Petitioner has responded (Doc. No. 7).

         II. LEGAL STANDARD

         The habeas statute at 28 U.S.C. § 2254 states that a district 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). The federal court’s power to grant habeas relief is limited by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which provides that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that ...

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