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McGill v. Hooks

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

September 24, 2019

OTTIS McGILL, Petitioner,
ERIK A. HOOKS, Secretary, N.C. Department of Public Safety, et al., Respondents.[1]



         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 12) pursuant to Federal Rule of Civil Procedure 56. The issues raised have been fully briefed and in this posture are ripe for decision. For the reasons that follow, the court grants respondents’ motion.


         On March 31, 2015, petitioner pleaded guilty pursuant to a written plea agreement to two counts of common law robbery and having attained the status of habitual felon, in the Superior Court of New Hanover County. (Resp’t App. Ex. 3 (DE 14-3) at 41-44).[2] The state trial court sentenced petitioner to consecutive terms of 117 to 153 months’ imprisonment. (Id. at 76-81). The North Carolina Court of Appeals affirmed petitioner’s convictions and the trial court’s order denying petitioner’s motion to withdraw his guilty plea. State v. McGill, 791 S.E.2d 702, 711 ( N.C. Ct. App. 2016), cert. denied 797 S.E.2d 12 ( N.C. 2017). Petitioner filed motions for appropriate relief (“MAR”) in the state trial court on April 19 and October 25, 2017. (Resp’t App. Exs. 8 (DE 14-8), 12 (DE 14-12)). The MAR court denied both of the motions, and the North Carolina Court of Appeals denied petitioner’s petitions for discretionary review. (Resp’t App. Exs. 9 (DE 14-9), 11 (DE 14-11), 13 (DE 14-13), 15 (DE 14-15)).

         On May 1, 2018, petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging his state convictions should be vacated based on numerous constitutional violations that occurred during his state criminal proceedings. Respondents filed the instant motion for summary judgment, on December 6, 2018, relying upon a memorandum of law, statement of material facts, and appendix, including records from petitioner’s state criminal proceedings at the trial and appellate levels. In opposition, petitioner relies upon an opposing statement of material facts and appendix, including additional records from petitioner’s state criminal proceedings, correspondence between petitioner and his state criminal defense attorneys, and correspondence between petitioner and the North Carolina State Bar.


         The facts and procedural history of petitioner’s criminal proceedings have been summarized by the North Carolina Court of Appeals as follows:

         On 21 August 2013, Defendant entered a Western Union in Wilmington, North Carolina and demanded money from Calethea Smith (“Smith”) who was working at the front counter. Smith gave Defendant approximately $6, 403.00 and Defendant fled the premises. The entire exchange between Defendant and Smith was captured on audio and video surveillance.

         Several days later on 6 September 2013, Defendant entered New Bridge Bank in Wilmington and demanded that James Taylor (“Taylor”) and Lynn Creech (“Creech”)-who were working as tellers at the bank at the time-give him all of the money in their cash drawers. Taylor and Creech complied and gave Defendant approximately $2, 250.00. Defendant then fled.

         Detectives David Timken (“Detective Timken”) and K.J. Tully (“Detective Tully”) with the Wilmington Police Department were assigned to investigate the robberies. They consulted with Jeff Martens with the U.S. Marshal Task Force, who informed them that he had been looking for Defendant whom he believed was in the Wilmington area and could have perpetrated the robberies. The detectives obtained a photograph of Defendant, and Detective Timken included Defendant’s picture in photographic lineups he administered to Smith, Taylor, and Creech, all of whom positively identified Defendant as the man who had committed the robberies. Defendant was subsequently located and arrested.

         On 23 June 2014, Defendant was indicted on two counts of common law robbery and obtaining the status of an habitual felon. Shortly thereafter, the State offered him a plea agreement that would have required him to plead guilty to these charges in exchange for concurrent-as opposed to consecutive-prison sentences.

         Defendant declined this plea agreement and trial was scheduled for 30 March 2015. Prior to trial, Defendant moved to suppress the results of the photographic lineups. The trial court denied this motion.

         On 30 March 2015, Defendant’s case was called for trial before the Honorable Phyllis M. Gorham in New Hanover County Superior Court. Shortly after the jury was empaneled, however, Defendant informed the trial court that he did, in fact, want to enter into a plea deal with the State.

         After a discussion with his attorney and the State during a recess in the proceedings, Defendant informed the trial court that he wished to plead guilty to the charges against him and proceeded to do so, signing a transcript of plea. In exchange for his guilty plea, Defendant received a prayer for judgment continued-seemingly so he could provide the State with information he possessed concerning an unrelated criminal case in exchange for a potentially more lenient prison sentence.

         During the time period following the entry of his guilty plea and prior to sentencing, Defendant engaged in several interviews with the State concerning the unrelated criminal matter. The State ultimately determined not to use Defendant as a witness in that case, however, and declined to recommend a reduction of his sentence to the trial court.

On 9 April 2015, Defendant filed a pro se motion for appropriate relief wherein he requested to withdraw his guilty plea on the ground that his trial counsel had erroneously informed him that if he entered into the guilty plea his sentence would run concurrently with sentences he was set to receive in connection with unrelated criminal convictions in Robeson and Bladen Counties. He further alleged the existence of an undefined conspiracy amongst court appointed attorneys generally to trick their clients into taking unfavorable plea bargains, stating that “[t]his manner of dispensing with criminal cases has become so profound that many lawyers of the Public Defenders [sic] Office and Court appointed Attorney’s [sic] have little to no actual trial experience. Rather, these lawyers trick, manipulate and threateningly coerce defendants to enter guilty plea [sic]. Such a conspiracy has taken place in this case.”
On 20 April 2015, Defendant was appointed counsel to represent him regarding his motion for appropriate relief. On 24 August 2015, Defendant’s newly appointed counsel filed an amended motion for appropriate relief stating that “Defendant asserts his intention to withdraw his plea, but under a Motion to Withdraw a Guilty Plea and not under a Motion for Appropriate Relief.” On 17 and 22 September 2015, an evidentiary hearing was held on Defendant’s motion before the Honorable W. Allen Cobb, Jr. in New Hanover County Superior Court. On 6 October 2015, Judge Cobb entered an order concluding that based on the evidence presented, Defendant’s motion to withdraw his guilty plea should be denied.
That same day, a sentencing hearing was held before Judge Cobb who sentenced Defendant to two consecutive sentences of 117 to 153 months imprisonment.

McGill, 791 S.E.2d at 703–05.


         A. Standard of Review

         Summary judgment is appropriate when there exists no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the burden of initially coming forward and demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmoving party then must affirmatively demonstrate that there exists a genuine issue of material fact requiring trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 250.

         The standard of review for habeas petitions brought by state inmates, where the claims have been adjudicated on the merits in state court, is set forth in 28 U.S.C. § 2254(d). That statute states that habeas relief cannot be granted in cases where a state court considered a claim on its merits unless the decision was contrary to or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court, or the state court decision was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1) and (2). A state court decision is “contrary to” Supreme Court precedent if it either arrives at “a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite” to that of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 406 (2000). A state court decision “involves an unreasonable application” of Supreme Court law “if the state court identifies the correct governing legal principle from [the Supreme] Court’s cases but unreasonably applies it to the facts of the ...

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