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Pegues v. Hooks

United States District Court, M.D. North Carolina

January 7, 2020

CHRISTOPHER EUGENE PEGUES, Petitioner,
v.
ERIC A. HOOKS, Secretary, North Carolina Department of Public Safety, Respondent.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. Patrick Auld, United States Magistrate Judge

         Petitioner, a prisoner of the State of North Carolina, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the “Petition”). (Docket Entry 1.) Respondent has moved for summary judgment. (Docket Entries 4, 5.) For the reasons that follow, the Court should grant Respondent's Motion for Summary Judgment.

         I. Background

         On August 9 and 10, 2016, a jury in the Superior Court of Guilford County found Petitioner guilty of possession of a firearm by a convicted felon in case 15 CRS 76505, and of attaining habitual felon status in case 15 CRS 23221, respectively. (See Docket Entry 1, ¶¶ 1, 2, 4-6; see also Docket Entry 5-3 at 46, 74; Docket Entry 5-7 at 287-89, 391-94.)[1] The trial court sentenced Petitioner to 80 to 108 months in prison. (See Docket Entry 1, ¶ 3; see also Docket Entry 5-3 at 77-78; Docket Entry 5-7 at 395-401).

         Petitioner appealed to the North Carolina Court of Appeals, (see Docket Entry 1, ¶¶ 8, 9; see also Docket Entry 5-3 at 81-83; Docket Entry 5-7 at 403), which found no error, State v. Pegues, No. COA17-70, 812 S.E.2d 912 (table), 2018 WL 2016281 ( N.C.App. May 1, 2018) (unpublished). Petitioner did not thereafter file a petition for discretionary review in the North Carolina Supreme Court. (See Docket Entry 1, ¶ 9(g).)

         Petitioner subsequently filed a pro se MAR with the trial court (Docket Entry 1 at 40-56; Docket Entry 5-6), which that court summarily denied (Docket Entry 1 at 36-39). Petitioner then filed a Petition for a Writ of Certiorari with the North Carolina Court of Appeals seeking review of his MAR's denial (id. at 23-56), which that court denied (id. at 22).

         Petitioner next instituted this action via his Petition. (Docket Entry 1.) Thereafter, Respondent filed the instant Motion and Supporting Brief (Docket Entries 4, 5), and Petitioner responded in opposition (Docket Entry 7).

         II. Facts

         On direct appeal, the North Carolina Court of Appeals summarized the trial evidence as follows:

On [May 28, ] 2015, while [Petitioner] was on probation, law enforcement officers went to search [Petitioner]'s home. When officers arrived, [Petitioner] asked if he could secure his dogs before they entered; the officers agreed and [Petitioner] closed the door to his home. The officers then heard a window opening and a “clink, metal-on-metal” sound. When [Petitioner] returned to the door, he had forgotten to secure his dogs. Thereafter[, ] officers found two guns on the ground outside [Petitioner]'s residence by his bedroom window; one gun was on [Petitioner]'s property and the other was just beyond a fence on the neighbor's property but still “just outside” [Petitioner]'s bedroom window. [Petitioner] was the only person in the area, and his neighbor's house appeared to be entirely vacant.

Pegues, 2018 WL 2016281, at *1.

         III. Grounds for Relief

         The Petition raises nine grounds for habeas relief:

         1) Petitioner's “[c]onviction was obtained in violation of Due Process of Law” (Docket Entry 1, ¶ 12 (Ground One)), because “[the trial court] threatened [Petitioner], . . . made unfair and improper remarks about [Petitioner], . . . denied substitute counsel, . . . [and] did not make sufficient inquiry into [Petitioner's] suicide attempt” (id., ¶ 12(Ground One)(a));

         2) Petitioner possesses “[n]ew evidence” (id., ¶ 12 (Ground Two)) consisting of “[a]ffidavits from two witnesses stating that [Petitioner] did not live at [the] residence [where officers found the guns], the guns were not [Petitioner's], and that [the] guns may have belonged to someone next door, ” as well as a “[n]ewspaper article reporting on the houses in the neighborhood” (id., ¶ 12 (Ground Two)(a));

         3) Petitioner's “[c]onviction [was] obtained by use of [a] coerced or illegally obtained confession” (id., ¶ 12(Ground Three)) because, “[a]t trial[, Petitioner's trial counsel] opened the door to suppressed alleged statements [by Petitioner] which led to the prosecutor addressing [the] statements over objection” (id., ¶ 12(Ground Three)(a));

         4) “[u]nconstitutional search and seizure” (id., ¶ 12(Ground Four)), in that “[p]robation officers and High Point Police searched the residence [where they found the guns] without a warrant[ and Petitioner] did not live at the residence” (id., ¶ 12(Ground Four)(a));

         5) Petitioner's “[c]onviction [was] obtained by the use of evidence obtained pursuant to an unlawful arrest, ” because “[o]fficers placed [Petitioner] in handcuffs without any provocation from [him]” (id. at 12);

         6) Petitioner's “[c]onviction [was] obtained by a violation of the privilege against self-incrimination, ” because “[o]fficers claim[ed] that [Petitioner] admitted to guilt prior to being given Miranda warnings[ and the a]lleged statements were introduced at trial despite a motion to suppress [the] statements” (id. at 13);

         7) Petitioner's “[c]onviction [was] obtained by action of the trial jury . . . which was unconstitutionally selected, impaneled, and constituted, ” because “[a j]uror . . . admitted to being friends with the Assistant Chief of Police and that she m[ight have been] subconsciously bias[ed]” (id. at 14);

         8) Petitioner's “[c]onviction [was] obtained by denial of [his] right to present evidence in his own defense” because, “[o]n March 3[], 2016[, ] and again on August 8[], 2016[, he] made it clear to the [trial] court that [his trial counsel] did not know the details of [Petitioner's] case, but the [trial] court forced [Petitioner] to proceed without evidence or witnesses” (id. at 15); and

         9) Petitioner's “[c]onviction [was] obtained due to the ineffectiveness of [his] trial [] counsel, ” in that trial “counsel did not present [an] arresting officer's contradictory statements, did not present evidence, misstated facts, did not present witnesses, opened the door to suppressed statements, did not dispute ownership of [the home where officers found the guns], did not address probation's right to search, used profanity towards [Petitioner], expelled [Petitioner] from trial counsel's office, violated lawyer/client confidentiality, did not investigate, did not present mitigating factors, did not question [the] credibility of [the] state's witnesses, was unable to answer simple questions, did not object to proceeding after [Petitioner's] suicide attempt, did not give advice whether or not to testify, [and] did not strike [a] bias[ed] juror” (id. at 16).

         IV. Habeas Standards

         The 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). Further, “[b]efore [the] [C]ourt may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to [this] [C]ourt in a habeas petition. The exhaustion doctrine . . . is now codified at 28 U.S.C. § 2254(b)(1).” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see also 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to have waived the exhaustion requirement . . . unless the State, through counsel, expressly waives the requirement.”).[2]

         Alternatively, this Court must apply a highly deferential standard of review in connection with habeas claims “adjudicated on the merits in State court proceedings, ” 28 U.S.C. § 2254(d). More specifically, the Court may not grant relief unless a state court decision on the merits “was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. To qualify as “contrary to” United States Supreme Court precedent, a state court decision either must arrive at “a conclusion opposite to that reached by [the United States Supreme] Court on a question of law” or “confront[] facts that are materially indistinguishable from a relevant [United States] Supreme Court precedent and arrive[] at a result opposite” to the United States Supreme Court. Williams v. Taylor, 529 U.S. 362, 406 (2000). A state court decision “involves an unreasonable application” of United States Supreme Court case law “if the state court identifies the correct governing legal rule from [the United States Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case.” Id. at 407; see also Id. at 409-11 (explaining that “unreasonable” does not mean merely “incorrect” or “erroneous”).

         V. Discussion

         A. Ground One

         In Ground One, Petitioner contends that his “[c]onviction was obtained in violation of Due Process of Law” (Docket Entry 1, ¶ 12 (Ground One)), because “[the trial court] threatened [Petitioner], . . . made unfair and improper remarks about [Petitioner], . . . denied substitute counsel, . . . [and] did not make sufficient inquiry into [Petitioner's] suicide attempt” (id., ¶ 12(Ground One)(a)); see also Docket Entry 7 at 2-6). Those contentions fall short.

         1. Threats and Unfair/Improper Remarks (“Subcontention 1(a)”)

         Petitioner first asserts “that[, ] at [his] pre-trial hearing on [March 3, ] 2016[, ] regarding [his] rejection of a plea bargain[, the trial court] made strong, descriptive comments to [Petitioner] in order to impress upon [him] the seriousness of [his] situation.” (Docket Entry 7 at 2.) According to Petitioner, “[b]y [the trial court] making threatening and unfair remarks towards [Petitioner], [it] reaffirmed [Petitioner's] fears and distrust of the [c]ourts and prison” and, “had [the trial court] not made such threatening and unfair remarks about [Petitioner][, he] would have accepted the plea bargain.” (Id.) Petitioner also observes that “[a] prosecutor may not express personal opinions about the defendant's guilt or credibility, and must avoid epithets or other remarks regarding the defendant's character.” (Id. (citing United States v. Auch, 187 F.3d 125, 131 (1st Cir. 1999), United States v. Certified Envtl. Servs., Inc., 753 F.3d 72, 94-95 (2d Cir. 2014), and Hall v. United States, 419 F.2d 582, 587-88 (5th Cir. 1969)).)

         At the pre-trial hearing, the state advised the trial court that it made Petitioner a plea offer “to plead to the underlying active firearm by felon and take . . . 15 to 27 months active and [the state would] dismiss the other drug charge and the habitual felon charge, ” as well as that Petitioner “ha[d] chosen not to accept that plea.” (Docket Entry 5-7 at 4.) After receiving a forecast of the state's evidence, the trial court addressed Petitioner as follows:

[TRIAL COURT]: [N]ow, young man, you're a Prior Record Level IV habitual felon. . . . [T]here's going to be evidence you were on probation and the probation officer is going to describe what they do when you're on probation. And one of those conditions is that you have to submit yourself to searches while you're on probation.
. . .
I don't think [the jury is] going to believe [your] dogs threw the guns out the window. And if you were the only one in the house -- stop shaking your head. . . . I'm trying to get through your thick skull, it seems as if you have one, you're a habitual felon because you have . . . three prior felony convictions on your record. Now, listen. . . . [T]here are going to be people sitting over here in this box, a jury box. They're not going to be persons that have criminal convictions on their record. They're going to hear officers of the court take the witness stand and testify that they went to your house and that you were the only one in the house and weapons were thrown out the window. Now, if that's not the case[, ] for it to come into evidence that somebody else threw the weapons out, you're going to have to call somebody else to testify on your behalf. Because if you testify, the [district attorney] is going to cross-examine you about your prior criminal convictions. And you have at least three felony convictions. And so the jurors are going to hear that you have a bad record. And although they're instructed not to convict you on this offense for something you've done in the past, what do you think they're going to do when they hear you got a prior record?
. . .
[S]ometimes it's not whether or not you did it or not. It's whether or not you will be acquitted of doing it. And the evidence seems to be stacked pretty high against you. And you don't have to plead guilty. You can go to trial if you want to, but you need to understand if you plead guilty, you'll be out of jail in 15 months. If you don't plead guilty -- the evidence seems pretty strong, like you probably will be convicted -- you're looking at going to jail for seven or more years. Now, that's 88 months at the bottom of the presumptive range. A judge could be nice and sentence you at the bottom of the mitigated range. That would be five years and six months. But the [district attorney, ] . . . since you're playing difficult with him, he's going to put the case before a judge that's more likely to give you a tougher sentence than one who will give you a[n] easier sentence. So, you're probably . . . looking as much as 110 months in jail. . . . [T]hat's nine years in jail v. a year and three months in jail. Nine years in jail. And you're young. You're handsome. You look kind of pretty. And you're going to the Department of Corrections where there's going to be some guys who will take pleasure in taking advantage of younger boys in jail. . . . I'm just trying to be real with you . . . . I want you to understand what you're looking at. Now, you need to think about that, young man. Your attorney's tried to tell you. He doesn't have to say anything out loud, but . . . I'm sure he's told you to take advantage of this plea offer. It's a good plea offer. Are you sure you want to reject this plea today?
[PETITIONER]: (Nodding head.)
[TRIAL COURT]: Yes or no?
[PETITIONER]: Yes, sir.
. . .
[TRIAL COURT]: [Y]ou need to think about this, young man, real hard whether you want to subject yourself to going to jail for nine years. What are you, twenty-what?
[PETITIONER]: Twenty-six.
[TRIAL COURT]: Twenty-six. You're not going to be the same person after nine years in that kind of lifestyle being in the Department of Corrections. Now, you go to jail for a year and a half, I'll put in the judgment that you be sentenced as a youthful offender and go to a place where you're going to be around persons closer to your own age. If you're put in the regular prison population, you're going to be around people 10 to 20 years older than you. You know, they're going to be in jail for the rest of their life and they don't have much value on anyone else's life. That's what prison is. Prison is not a cake walk. And you're not going to a federal prison. You're going to a state prison. All right. That's all.

(Id. at 4-12.)

         Subcontention 1(a) faces a procedural bar. As Respondent argues, “Petitioner could have raised Subcontention 1(a) on direct appeal but did not do so.” (Docket Entry 5 at 5; see also Docket Entry 5-4 (Petitioner's appellate brief lacking any argument regarding trial court's threats and/or unfair, improper remarks).) Thus, “North Carolina's mandatory post-conviction procedural bar statute” bars Subcontention 1(a). (Docket Entry 5 at 5 (citing, inter alia, N.C. Gen. Stat. § 15A-1419(a)(3), (b) (claim procedurally barred where, “[u]pon a previous appeal the defendant was in a position to adequately raise the ground or issue . . . but did not do so, ” absent proof of “[g]ood cause” and “actual prejudice” or “a fundamental miscarriage of justice”), and Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008) (noting that Fourth Circuit “ha[d] consistently held that [ N.C. Gen. Stat.] § 15A-1419(a)(3) is an independent and adequate state ground for purposes of procedural default” (citing McCarver v. Lee, 221 F.3d 583, 589 (4th Cir. 2000), and Williams v. French, 146 F.3d 203, 209 (4th Cir. 1998)))).)

         In response, Petitioner argues neither that “good cause” and “actual prejudice” exist under Section 15A-1419(b)(1), nor that “failure to consider [his] claim will result in a fundamental miscarriage of justice” under Section 15A-1419(b)(2). (See Docket Entry 7 at 3.) Rather, Petitioner maintains that, “on pages [two through five] of [his] appella[te] brief it clearly raises the issue [of Subcontention 1(a)].” (Id. (referencing Docket Entry 5-4 at 7-10, and citing Fortini v. Murphy, 257 F.3d 39, 45 (1st Cir. 2001), for proposition that “exhaustion requirement satisfied because appellate brief's language and citations should have alerted court of due process argument”).) However, Petitioner's appellate counsel merely quoted portions of the trial court's remarks on March 3, 2016, in the “Statement of Facts” portion of Petitioner's appellate brief (Docket Entry 5-4 at 7-9 (capitalization, bold font, and underscoring omitted)), and made no argument that those remarks violated Petitioner's due process rights (see Id. at 26-42). Correspondingly, the North Carolina Court of Appeals did not address any argument that the trial court's remarks violated Petitioner's due process rights in its decision affirming Petitioner's convictions and sentence, see Pegues, 2018 WL 2016281, at *1-4.

         Furthermore, even if Petitioner could demonstrate cause and prejudice and/or a fundamental miscarriage of justice sufficient to excuse his procedural default, Subcontention 1(a) still fails as meritless.[3] As an initial matter, Petitioner has offered nothing beyond his own bald assertion that, but for the trial court's allegedly improper remarks, he would have accepted the plea. (See Docket Entry 7 at 2 (“But had [the trial court] not made such threatening and unfair remarks about me[, ] I would have accepted the plea bargain. Prior to [the trial court] making those remarks, I was considering accepting the plea bargain.”); see also Docket Entry 1 at 28 (assertion in Petition for a Writ of Certiorari that, “[h]ad [Petitioner] not been threatened and intimidated by the [p]rosecutor, he may have taken the plea bargain resulting in a far lesser sentence”).) Moreover, the record strongly indicates the opposite, i.e., that the trial court held the hearing on March 3, 2016, for the sole purpose of placing on the record Petitioner's previous rejection of the state's plea offer. (See Docket Entry 5-7 at 4 (reflecting prosecutor's report to trial court at outset of hearing that Petitioner “ha[d] chosen not to accept th[e] plea”).)

         In other words, prior to the hearing and the trial court's allegedly improper remarks, Petitioner had already rejected the state's plea offer. Under these circumstances, Subcontention 1(a) fails as conclusory and unsupported. See Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992) (holding that, “[i]n order to obtain an evidentiary hearing . . . a habeas petitioner must come forward with some evidence that the claim might have merit, ” and that “[u]nsupported, conclusory allegations do not entitle a habeas petition to an evidentiary hearing”), abrogated on other grounds, Gray v. Netherland, 518 U.S. 152, 165-66 (1996).[4]

         In short, Subcontention 1(a) fails as procedurally barred and on the merits.

         2. Denial of Petitioner's Request for Substitute Counsel (“Subcontention 1(b)”)

         Petitioner maintains that his “[c]onviction was obtained in violation of Due Process of Law” (Docket Entry 1, ¶ 12 (Ground One)), because the trial court on two occasions denied Petitioner's request for “substitute counsel” (id., ¶ 12(Ground One)(a)); see also Docket Entry 7 at 3-5). According to Petitioner, “the record clearly shows that (1) [he] requested substitute counsel several times in a timely manner that would not have impacted the [trial] court's proceedings, (2) the [trial] court did not adequately inquire into [his] complaints about counsel, and (3) the extent of the conflict between [him] and [his] counsel was . . . so severe that even the opposing counsel was aware of the strained relationship.” (Docket Entry 7 at 3-4; see also Id. at 4-5 (“There was substantial evidence of irreconcilable conflicts between [Petitioner] and [trial] counsel.”).)

         As an initial matter, Petitioner's failure to file a timely notice of appeal or a petition for discretionary review (“PDR”) in the North Carolina Supreme Court seeking review of the North Carolina Court of Appeals' decision affirming his convictions and sentence results in a procedural bar of Subcontention 1(b). See O'Sullivan, 526 U.S. at 847 (“requiring state prisoners to file [PDRs with the state's highest court] when that review is part of the ordinary appellate review procedure in the [s]tate” in order to exhaust post-conviction claims). Petitioner admits that he “did not file a timely notice of appeal or [PDR] [in] the North Carolina Supreme Court seeking review of the [North Carolina Court of Appeals' decision].” (Docket Entry 7 at 4.) However, he contends that, “at the time[, he] did not have legal materials and [his] appellate counsel did not explain to [him] the significance of filing a PDR.” (Id.) Petitioner additionally “request[s] that the Court allow [him] to present the [substance of Subcontention 1(b)] to the North Carolina Supreme Court in order to exhaust claims.” (Id.)

         To the extent Petitioner's statement that his “appellate counsel did not explain to [him] the significance of filing a PDR” (id.) constitutes an attempt to raise a claim of ineffective assistance of appellate counsel, such a claim could not establish cause to excuse his procedural default, because Petitioner did not possess a constitutional right to counsel beyond his first direct appeal to the North Carolina Court of Appeals, see Coleman v. Thompson, 501 U.S. 722, 755-56 (1991); Wainright v. Torna, 455 U.S. 586, 587-88 (1982); Ross v. Moffitt, 417 U.S. 600, 616 (1974). Furthermore, any such claim of ineffective assistance of appellate counsel would itself face a procedural bar, as Petitioner failed to raise such a claim in his MAR. (See Docket Entry 5-6.)[5] Moreover, the Court should decline Petitioner's request that the Court permit him to now raise Subcontention 1(b) with the North Carolina Supreme Court as futile, as any such claim would face a mandatory state procedural bar, see N.C. Gen. Stat. § 15A-1419(a)(3).

         Even if Petitioner could demonstrate either cause and prejudice or a fundamental miscarriage of justice sufficient to excuse his default, Subcontention 1(b) would fail under the deferential standard of review in 28 U.S.C. § 2254(d) and (e). Petitioner raised the substance of Subcontention 1(b) on direct appeal (see Docket Entry 5-4 at 26-31), and the North Carolina Court of Appeals rejected that assignment of error as follows:

[Petitioner] directs th[e] [c]ourt to times he “raised the issue of wanting new counsel” with the trial court due to “irreconcilable conflicts and a complete breakdown in communication[.]” (Original in all caps.) [Petitioner]'s problems with his counsel occurred before and during his trial, but the substance of [Petitioner]'s complaints was essentially the same during each of his many exchanges with the trial court. [Petitioner]'s complaints were all similar to two which we will describe. First, at a [March 3, ] 2016[, ] hearing for [Petitioner] to reject his plea, [he] said he did not believe his attorney was representing him to the best of his ability and his attorney would not provide him with information about the case. After speaking with [Petitioner], the trial court then explained,
You were on probation. They did a normal search that they do when people are on probation. They came over to your house and they found guns at your house. That's the evidence against you. He can't tell you anymore that's going on. That's what the evidence is in the case.
What do you think -- what is he supposed to be doing?
What is he not doing that you think -- you think he's going to be able to go and talk to those probation officers and tell them to change their statement?
They're not going to do that.
What do you think is going to happen?
[Petitioner] raised no further issues at the hearing on that day.
Second, on the day of [Petitioner]'s trial, before the trial began[, Petitioner] again expressed dissatisfaction with his attorney noting he was not representing him “to the best of his ability” because he was not familiar enough with the case. The trial court then took a recess for [Petitioner] and his counsel to “see if [they could] work out any differences[.]” After the recess[, ] [Petitioner] again expressed discontent, but then stated, “I'm willing to proceed, Your Honor.” The trial court then asked [Petitioner] directly, “Okay. So, you resolved your conflict with your attorney and you're ready to proceed?” to which [Petitioner] responded, “Yes, sir.” [Petitioner] then expressed that he would like a new attorney, to which the trial court responded,
Then the court finds, to the extent there is a motion to fire his attorney at this point, I find it to be meritless. He -- any question he's had the court has answered easily within just a few seconds. He understands he now can work with his attorney simply because -- the court knows [Petitioner]'s entitled to be represented by an attorney, but it's not an attorney of his choice. There has been nothing that has been brought forward that would rise to the level of some type of conflict that would require [Petitioner's trial counsel] to be removed.
In fact, the court finds [Petitioner] just told the court that he can work with his attorney and [Petitioner's trial counsel] said the same thing of [Petitioner].
So, to the extent [Petitioner] is now saying he's not withdrawing his motion, I find it to be meritless. It is denied at this point. It is only delaying the trial.
We conclude that the trial court properly satisfied “itself . . . that present counsel is able to render competent assistance and that the nature or degree of the conflict is not such as to render that assistance ineffective.” [State v. Thacker, 301 N.C. 348, 353 (1980).] We discern no abuse of discretion. This argument is overruled.

Pegues, 2018 WL 2016281, at *1-2 (emphasis added).[6]

         In so holding, the North Carolina Court of Appeals did not contradict or unreasonably apply clearly established federal law as determined by the Supreme Court of the United States, because “[t]he United States Supreme Court has not addressed the issue of when a denial of a motion to substitute counsel constitutes a violation of the right to counsel of choice[ and thus t]here is no binding Supreme Court constitutional precedent that the state courts must follow.” Wilson v. Weisner, No. 1:05CV161, 2005 WL 2253825, at *9 (M.D. N.C. Sept. 16, 2005) (unpublished) (Sharp, M.J.); see also Peterson v. Smith, 510 Fed.Appx. 356, 366-67 (6th Cir. 2013) (holding that failure of trial court to make sufficient inquiry into the defendant's request for substitute counsel “could not be the basis for relief under [28 U.S.C. § 2254(d)] because such inquiry is not required by clearly established [United States] Supreme Court precedent”); Plumlee v. Masto, 512 F.3d 1204, 1211 (9th Cir. 2008) (en banc) (recognizing that “no Supreme Court case . . . stands for the proposition that the Sixth Amendment is violated when a defendant is represented by a lawyer free of actual conflicts of interest, but with whom the defendant refuses to cooperate because of dislike or distrust” (citing Morris v. Slappy, 461 U.S. 1, 13-14 (1983) (“reject[ing] the claim that the Sixth Amendment guarantees a ‘meaningful relationship' between an accused and his counsel”))); Smith v. Bonner, 104 F.Supp.3d 1252, 1271 (D. Colo. 2015) (noting that, “[t]o date, the [United States] Supreme Court has not articulated a standard for deciding a Sixth Amendment claim based on a habeas petitioner's allegation the trial court denied his request for substitute counsel” (citing Peterson)).[7]

         Furthermore, “Petitioner has done nothing to show that, factually, the [trial] court['s] findings [that ‘nothing [] ha[d] been brought forward that would rise to the level of some type of conflict that would require [Petitioner's trial counsel] to be removed[, that] . . . [Petitioner had] just told the court that he c[ould] work with his attorney and [Petitioner's trial counsel] said the same thing of [Petitioner, and that he] . . . [wa]s only delaying the trial' (Docket Entry 5-7 at 34)] were incorrect. These findings are presumed correct on [federal] habeas review.” Wilson, 2005 WL 2253825, at *9 (citing 28 U.S.C. § 2254(e)(1)).

         In sum, Subcontention 1(b) remains procedurally defaulted and also falls short under Sections 2254(d) and (e)(1).

         3. Insufficient Inquiry into Petitioner's Capacity to Stand Trial (“Subcontention 1(c)”)

         Petitioner next argues that his “[c]onviction was obtained in violation of Due Process of Law” (Docket Entry 1, ¶ 12 (Ground One)), because the trial court “did not make sufficient inquiry into [Petitioner's] suicide attempt” (id., ¶ 12(Ground One)(a)); see also Docket Entry 7 at 5-6). More specifically, Petitioner points out “that there is video footage of [his] suicide attempt, [] that [the trial court] was initially against any inquiry into [Petitioner's] competence[, and that a f]orensic screener . . . wrote to [the trial court] that it m[ight] be appropriate to refer [Petitioner] to further forensic evaluation and [the trial court] declined.” (Docket Entry 7 at 6.) According to Petitioner, the trial court's “order finding [Petitioner] capable of proceeding was based primarily on the [trial] court's observations of [Petitioner] during trial[, and t]he court made no inquiry into [Petitioner's] history of mental illness and did not base it's [sic] findings regarding competency on psychiatric evidence.” (Id.)

         As with Subcontention 1(b), Subcontention 1(c) faces a procedural bar due to Petitioner's failure to file a timely notice of appeal or a PDR in the North Carolina Supreme Court seeking review of the North Carolina Court of Appeals' decision affirming his convictions and sentence. See O'Sullivan, 526 U.S. at 847 (“requiring state prisoners to file [PDRs with the state's highest court] when that review is part of the ordinary appellate review procedure in the [s]tate” in order to exhaust post-conviction claims). Although Petitioner did not specifically address Respondent's procedural default arguments with respect to Subcontention 1(c) (see Docket Entry 7 at 5-6), to the extent Petitioner's statement in the context of Subcontention 1(b) that his “appellate counsel did not explain to [him] the significance of filing a PDR” (id. at 4) constitutes an attempt to raise a claim of ineffective assistance of appellate counsel for failure to raise Subcontention 1(c) on direct appeal, such a claim would not excuse his procedural default, because Petitioner had no constitutional right to counsel beyond his direct appeal to the North Carolina Court of Appeals. See Coleman, 501 U.S. at 755-56; Wainright, 455 U.S. at 587-88; Ross, 417 U.S. at 616.[8]

         Even assuming, arguendo, that Petitioner could establish either cause and prejudice or a fundamental miscarriage of justice sufficient to excuse his default, Subcontention 1(c) still falters under the deferential standards of review in 28 U.S.C. § 2254(d) and (e)(1). Petitioner raised the substance of Subcontention 1(c) on direct appeal (see Docket Entry 5-4 at 36-42), and the North Carolina Court of Appeals rejected that assignment of error as follows:

[Petitioner] does not directly challenge the [trial court's] findings of fact, but seems to contend the trial court should have simply done more, such as ordering further evaluation of [Petitioner]'s capacity and mental health history and questioning [Petitioner] directly about his mental status. [Petitioner] notes his in-court outbursts, arguments with his attorney, and suicide attempts as evidence of his mental instability. But the trial court interpreted [Petitioner]'s actions differently than [Petitioner] would have liked and explained in the findings why it concluded that [Petitioner] was competent.
The trial court held a hearing regarding [Petitioner]'s competency and filed a written order which includes 46 findings of fact supporting its determination that [Petitioner] was competent to stand trial. Again, [Petitioner] has not identified any particular finding which he contends is unsupported by the evidence. The trial court found it had “extensive” communication with [Petitioner] due to his issues with his attorney, and [Petitioner] was able to appropriately address the situation. The trial court also found [Petitioner] was “able to understand the nature and object of the proceedings against him, to conduct his defense and assist in his defense in a rational manner[, ]” but upon being convicted of the charge for possession of a firearm by a felon [Petitioner] became difficult when the jury was not present: “[Petitioner] wanted to be found not guilty in the first phase of the trial, and when he did not get what he wanted, he started acting out by being disrespectful, disruptive, and combative with the Court.” On [Petitioner]'s suicide “attempts, ” the trial court found [Petitioner] jumped “from the second floor to the first floor” in the jail with a sheet around his neck but that it was “wrapped loosely” and afterward [Petitioner] “calmly [walked] back up the stairs” with “no injury or bruising” on his neck. On an attempt regarding “drink[ing] cleaning fluid, ” the trial court found [Petitioner] “acted like he was” but “did not, and did not in truth intend to consume any cleaning fluid.” The trial court considered the evidence and determined [Petitioner] had not attempted suicide but “did attempt to delay this trial[.]” The trial court made findings regarding [Petitioner]'s cooperation with detention officers, but that [Petitioner] “calmly, clearly and intentionally declared that ‘plan B is about to get started fellas.'” The trial court found [Petitioner] was “attempt[ing] to delay” the trial. The trial court then found:
43. [Petitioner] is able to understand the nature and object of the proceedings against him.
44. [Petitioner] adequately understands the nature and object of the proceedings against him.
45. [Petitioner] comprehends his own situation in reference to the proceedings.
46. [Petitioner] is able to adequately assist in his defense in a rational and reasonable manner, if he chooses to do so.
The trial court did not err in determining [Petitioner] was competent to stand trial. This argument is overruled.

Pegues, 2018 WL 2016281, at *3-4 (emphasis added).[9]

         The Fourteenth Amendment's Due Process Clause precludes states from trying and convicting mentally incompetent defendants. See Pate v. Robinson, 383 U.S. 375, 384-86 (1966). To determine a defendant's competency to stand trial, the trial court must decide “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding[, ] and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402 (1960). The issue of competence to stand trial constitutes a question of fact. See Thompson v. Keohane, 516 U.S. 99, 111 (1995); Maggio v. Fulford, 462 U.S. 111, 117 (1983).

         “Section 2254 contains two provisions relevant to the evaluation, on federal habeas, of state-court factual determinations. First, [Section] 2254(d)(2) provides that a district court may not grant habeas relief unless the adjudication of a claim by the state court ‘resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceeding.' Second, [Section] 2254(e)(1) provides that factual findings by the state court are presumed to be correct and that the petitioner bears the burden of ‘rebutting the presumption of correctness by clear and convincing evidence.'” Bramblett v. True, 59 Fed.Appx. 1, 7 (4th Cir. 2003); see also Demosthenes v. Baal, 495 U.S. 731, 735 (1990) (“A state court's determinations on the merits of a factual issue are entitled to a presumption of correctness on federal habeas review[ and] . . . a state court's conclusion regarding a defendant's competency is entitled to such a presumption.”).

         Petitioner does not specifically contest any of the trial court's findings of fact regarding his competence, let alone overcome the presumption of their correctness with clear and convincing evidence. (See Docket Entries 1, 7.) Thus, the trial court's determination that Petitioner remained competent to stand trial binds this Court on federal habeas review under Section 2254(e)(1), precluding relief on Subcontention 1(c).

         Even if Petitioner could overcome Section 2254(e)(1)'s presumption, any attempt by Petitioner to show that the trial court unreasonably determined the facts in light of evidence presented during the trial court's competency hearing under Section 2254(d)(2) also fails. Although Petitioner asserts “that there is video footage of [his] suicide attempt” (Docket Entry 7 at 5), the trial court viewed that video footage and nevertheless found that, although Petitioner “did jump from the second floor [of the jail] to the first floor, . . . a sheet was wrapped loosely on or around [Petitioner's] neck[ and a]fter jumping, [Petitioner] walked calmly back up the stairs . . . and never touched or rubbed his neck in the slightest degree.” (Docket Entry 5-3 at 51.) The trial court further found that Petitioner had “no injury or bruising to [his] neck, and . . . there was no change in speed as he fell from the second floor to the first floor.” (Id.) Petitioner has not challenged those specific findings. (See Docket Entries 1, 7.)

         Petitioner also contends that the trial court initially opposed “any inquiry into [Petitioner's] competence.” (Docket Entry 7 at 5.) Despite any initial reluctance on the trial court's part (see Docket Entry 5-7 at 332-40), the trial court ordered a forensic evaluation of Petitioner and held a competency hearing, taking the testimony of three witnesses, on the very day the state requested such proceedings (see Docket Entry 5-3 at 47-48; see also Docket Entry 5-7 at 332, 342-67). Thus, Petitioner has not shown that the trial court's initial hesitation to conduct the competency hearing prejudiced him in any way.[10]

         Additionally, Petitioner points out that the “[f]orensic screener . . . wrote to [the trial court] that it m[ight] be appropriate to refer [Petitioner] to further forensic evaluation and [the trial court] declined, ” and notes that the trial court “did not base its findings regarding competency on [the] psychiatric evidence.” (Docket Entry 7 at 5.) However, the forensic examiner noted that Petitioner refused to “answer any questions, including questions about his full name and date of birth” and thus that she “d[id] not know whether [Petitioner] [wa]s [then] capable to proceed to trial.” (Docket Entry 5-3 at 54 (emphasis added).) The examiner further stated that “[i]t [wa]s possible that a physical illness or a psychiatric disorder [then] impede[d] [Petitioner's] capacity” and that “[i]t m[ight] be appropriate to refer him for further forensic evaluation.” (Id. (emphasis added).) Thus, due to Petitioner's lack of cooperation with the evaluation, the examiner could not offer an opinion as to Petitioner's competency, and even equivocated with respect to her suggestion to refer him for further evaluation. (See id.) In any event, the trial court labored under no obligation to fully credit or adopt the forensic examiner's report, even if the examiner had offered a concrete opinion. See Maggio, 462 U.S. at 117-18 (rejecting lower court's “conclu[sion] that the trial judge was obligated to credit both the factual statements and ultimate conclusions of [the examining psychiatrist] solely because he was unimpeached” as “simply not the law”).

         Petitioner next faults the trial court for basing its “order finding [Petitioner] capable of proceeding . . . primarily on the [trial] court's observations of [Petitioner] during trial.” (Docket Entry 7 at 5.) However, the United States Supreme Court has expressly acknowledged that a determination of competency “depends heavily on the trial court's appraisal of witness credibility and demeanor.” Thompson, 516 U.S. at 111 (emphasis added); see also Maggio, 462 U.S. at 118 (“‘Face to face with living witnesses the original trier of the facts holds a position of advantage from which [federal habeas] judges are excluded.'” (quoting United States v. Oregon Med. Soc., 343 U.S. 326, 339 (1952))). Notably, Petitioner has not contested the accuracy of the trial court's findings with regard to Petitioner's demeanor during trial and, in particular, the change in Petitioner's demeanor after the jury found him guilty of possession of a firearm by a felon. (See Docket Entries 1, 7.)

         Lastly, Petitioner challenges the trial court's failure to “ma[ke any] inquiry into [Petitioner's] history of mental illness.” (Docket Entry 7 at 5.) However, Petitioner neither offered evidence that he actually has a “history of mental illness, ” nor explained how such a history of past mental illness would have established his incompetency on the morning of August 10, 2016. (See Docket Entries 1, 7.)

         In light of the foregoing analysis, the Court should deny Subcontention 1(c) as procedurally barred or, in the alternative, under Sections 2254(d)(2) and (e)(1).

         B. Ground Two

         Via Ground Two, Petitioner contends that he possesses “[n]ew evidence” (Docket Entry 1, ¶ 12 (Ground Two)) consisting of “[a]ffidavits from two witnesses stating that [Petitioner] did not live at [the] residence [where officers found the guns], the guns were not [Petitioner's], and that [the] guns may have belonged to someone next door, ” as well as a “[n]ewspaper article reporting on the houses in the neighborhood” (id., ¶ 12(Ground Two)(a)).

         According to Petitioner:

[T]he affidavits contradict the underlying incorrect assumption that the residence was my home and that the guns belonged to me, which the conviction was based on. Affidavits also contradict the allegation that the neighboring home, where one of the guns was found, was vacant. . . . The newspaper article documents the high volume of traffic in the area and previous problems with neighboring houses, which could have been used as mitigating evidence. Had all this evidence been introduced at trial, there is a significant probability that there would have been a different outcome, and that no reasonable juror would have found me guilty.

(Docket Entry 7 at 6.)[11]

         The United States Supreme Court has recognized that a showing of actual innocence may permit a federal court to evaluate the merits of a constitutional claim even though a procedural default otherwise would preclude review. See Schlup v. Delo,513 U.S. 298, 315, 319-22 (1995). However, the Supreme Court also ruled that showings of actual innocence “are rare, ” and that a petitioner must demonstrate that no reasonable juror could vote to find the petitioner guilty beyond a reasonable doubt. McQuiggin v. Perkins,569 U.S. 383, 392 (2013); see also United States v. Jones,758 F.3d 579, 583 (4th Cir. 2014) (noting that “‘substantial claim[s] of actual innocence are extremely rare'” (quotingSchlup, 513 U.S. at 321)). Moreover, “‘[a]ctual innocence' means factual innocence, not mere legal insufficiency.” Bousley v. United States,523 U.S. 614, 623 (1998). “To be credible, such a claim requires [a] petitioner to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup, 513 U.S. at 324. The ...


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