United States District Court, W.D. North Carolina, Statesville Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Respondents'
Motion for Summary Judgment (Doc. No. 6) seeking denial of
Petitioner Robert Harold Johnson's pro se Petition for
Writ of Habeas Corpus, filed pursuant to 28 U.S.C. §
2254 (Doc. No. 1). Also before the court is Petitioner's
Motion for Summary Judgment (Doc. No. 12) seeking habeas
is a prisoner of the State of North Carolina who, after a
jury trial in Watauga County Superior Court, was found guilty
of three counts of sex offense with a child and three counts
of sex activity by a substitute parent. The North Carolina
Court of Appeals summarized the evidence at trial as follows:
Defendant was arrested and a Watauga County Grand Jury
indicted Defendant on three counts of sexual offense with a
child, three counts of sexual activity by a substitute
parent, and three counts of taking indecent liberties with a
child. The charges were spread among three identical
superseding indictments dated 5 January 2015, each of which
contained one count of each offense.
Prior to jury selection, the State voluntarily dismissed the
three counts of indecent liberties with a child. The
remaining charges for sexual offense with a child and sexual
activity by a substitute parent were joined for trial without
Evidence presented by the State at trial tended to show
Defendant forced his wife's ten-year-old son to perform
fellatio on him, when Defendant was supposed to be taking the
juvenile to school and at other times inside and outside the
juvenile's grandparents' house, where Defendant and
the juvenile lived.
On 3 December 2015, the jury returned verdicts finding
Defendant guilty of all six charges-three counts of sex
offense with a child and three counts of sex activity by a
substitute parent. Based upon the verdicts, the trial court
entered three separate judgments corresponding to the
indictments, with one count of each offense included in each
judgment. Defendant received three consecutive sentences of
300 to 420 months imprisonment. The court further ordered
that upon Defendant's release from prison, Defendant
shall register as a sex offender for life and enroll in SBM
for the remainder of his life. Defendant filed notice of
appeal on 11 December 2015.
State v. Johnson, 801 S.E.2d 123, 124 ( N.C. Ct.
App. 2017). The Court of Appeals upheld Petitioner's
convictions for the offenses but reversed the trial
court's order for Petitioner to register for life as a
sex offender and order for SBM. Id. at 127-28, 130.
the Court of Appeals ruling, Petitioner filed a Motion for
Appropriate Relief (MAR) in Watauga County Superior Court
seeking relief from his conviction. (Doc. No. 7-7). In his
MAR, Petitioner alleged the following as grounds for relief:
his convictions were obtained by a coerced confession; they
were obtained by evidence gained in an unconstitutional
search or seizure; that evidence was obtained by an unlawful
arrest; the convictions were obtained by an
unconstitutionally selected jury; the convictions were
obtained as the result of a denial of his right to present
evidence; the discovery of new evidence; and ineffectiveness
of trial counsel. (Doc. No. 7-8, p. 2). The Honorable Gary M.
Gavenus, presiding over the MAR, denied Petitioner's
motion. Id. at 3. After being denied certiorari at
the North Carolina Court of Appeals and the Supreme Court of
North Carolina, see (Docs. Nos. 7-12, 7-14),
Petitioner filed the instant pro se federal habeas petition
in this Court on September 7, 2018 (Doc. No. 1). He raises
the following grounds for relief: (1) ineffective assistance
of counsel at trial; (2) new evidence proving
Petitioner's innocence; (3) his confession to police was
coerced or otherwise illegally obtained; and (4) the denial
of his right to provide evidence or witnesses proving his
innocence due to his lawyer's “freezing up”
at trial. (Doc. No. 1).
judgment is appropriate in those cases where there is no
genuine dispute as to any material fact, and it appears that
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c)(2); United States v. Lee, 943
F.2d 366, 368 (4th Cir. 1991). Any permissible inferences to
be drawn from the underlying facts must be viewed in the
light most favorable to the party opposing the motion.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986). Where, however, the
record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, disposition by summary
judgment is appropriate. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248-49 (1986).