Opinion
1:07CV576.
November 7, 2007
MEMORANDUM OPINION AND ORDER
This matter is before the court on Respondent's motion for summary judgment [docket no. 5]. Petitioner has responded in opposition to the motion and the matter is ripe for disposition. For the reasons discussed herein, the court will grant Respondent's motion for summary judgment and the action will be dismissed.
The parties have consented to the jurisdiction of the magistrate judge.
I. BACKGROUND
Petitioner is a state court prisoner who, on August 17, 2005, in Forsyth County Superior Court, pled guilty to felony possession of cocaine as a habitual felon and was sentenced to 130 — 165 months of imprisonment in cases 04 CRS 52135 and 15146. At the same time, Petitioner also pled guilty to three counts of breaking or entering a motor vehicle, resisting a public officer, two counts of misdemeanor larceny, possession of a stolen motor vehicle, and misdemeanor possession of stolen goods/property, and was sentenced to a consolidated, concurrent term of 10-12 months imprisonment, in cases 04 CRS 62068-69, 52135, 05 CRS 57112, and 58384. On July 3, 2007, the North Carolina Court of Appeals issued an unpublished opinion affirming Petitioner's convictions and sentences. Petitioner was represented at trial by Bryan Gates and on appeal by Robert W. Ewing. Petitioner did not seek further review by a higher state court, nor did he file any post-conviction claim. Petitioner dated his pro se federal habeas petition July 25, 2007, and filed it in this court on July 30, 2007.
Petitioner's sole contention in this habeas action is that he is actually innocent of being an habitual felon. In his statement of specific facts in support of his claim, Petitioner averred:
Habitual felon indictment charged elements of the habitual felon declaration. Jury constructively found petitioner guilty of being a declared habitual felon when being a declared habitual felon is not an illegal act. Impossible to prepare defense against indictment's fatal defects. Petitioner asserts plain error.
(Pet. at 6).
The facts underlying Petitioner's conviction, as summarized by the North Carolina Court of Appeals on direct appeal, are as follows:
On 5 April 2004, defendant was indicted for felony possession of cocaine, resisting a public officer and having attained the status of an habitual felon. The habitual felon indictment stemmed from three prior convictions: (1) felonious breaking and entering a motor vehicle, (2) felony possession of stolen property, and (3) felony possession of cocaine. On 17 August 2005, defendant was indicted on three counts of breaking and entering a motor vehicle; two counts of misdemeanor larceny; one count of possession of a stolen motor vehicle; and one count of possession of stolen property.
On 20 April 2004, the State offered defendant a plea arrangement in which his pending charges of felony possession of cocaine and habitual felon would be consolidated into one charge, and defendant would be sentenced in the minimum mitigated range for a Class C Habitual Felon. A second plea offer signed by defendant on August 15, 2005 stated "[a]ll charges will be consolidated for sentencing as a Class C, Level IV felony." The trial court then performed an inquiry to determine defendant's understanding and acceptance of the plea arrangement.
During the inquiry, defendant questioned the length of jail time he would face according to the plea offer. He also expressed dissatisfaction with his counsel. The assistant district attorney informed the judge that the sentence would run in the presumptive range, since the transcript of plea did not include a sentencing recommendation. Defendant provided evidence of mitigating factors, such as his father's dependence on his ability to work full time. The trial court did not make any findings concerning the mitigating factors presented.
Defendant admitted his habitual felon status and stipulated to his prior record of conviction and further stipulated that record placed him at a Prior Record Level IV. The trial court found that defendant had a Prior Record Level IV and imposed a sentence in the presumptive range for the felony possession charge as an habitual felon of 130 to 165 months. The trial court also consolidated other charges into the charge of possession of a stolen vehicle, and imposed a concurrent sentence of ten to twelve months.State v. Pearson, No. COA06-1046, 2007 N.C. App. LEXIS 1450, at *1-2 (N.C.Ct.App. July 3, 2007).
II. STANDARD OF REVIEW
III. DISCUSSION
Blackledge v. Allison431 U.S. 638056Zahodnick v. Int'l Bus. Machs. Corp.135 F.3d 911913th Celotex Corp. v. Catrett477 U.S. 317323Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp.475 U.S. 574587Anderson v. Liberty Lobby, Inc. 477 U.S. 242250Sylvia Dev. Corp. v. Calvert County, Md. 48 F.3d 810817th Celotex Corp. 477 U.S. at 331Zahodnick135 F.3d at 913 Halperin v. Abacus Tech. Corp.128 F.3d 191196th 28 U.S.C. § 2254Longworth v. Ozmint377 F.3d 437447th Breard v. Pruett134 F.3d 615619th Matthews v. Evatt105 F.3d 907910-11th Matthews105 F.3d at 911Baker v. Corcoran 220 F.3d 276289th Breard134 F.3d at 619see also Baldwin v. Reese 541 U.S. 2731-32
"A distinct but related limit on the scope of federal habeas review is the doctrine of procedural default. If a state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim." Id. at 619. A procedural default also occurs when a habeas petitioner fails to exhaust available state remedies and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991); see also McNeill v. Polk, 476 F.3d 206 (4th Cir. 2007). Absent a showing of cause and prejudice or a fundamental miscarriage of justice, a federal habeas court is precluded from reviewing the merits of a defaulted claim. A state has an interest in its rules and procedures and in the finality of its judgments, which "would be undermined if the federal courts were free to ignore procedural forfeitures in state court." Reed v. Ross, 468 U.S. 1, 10 (1984). A state procedural rule is considered "adequate if it is regularly or consistently applied by the state court, . . . and it is independent if it does not depend on a federal constitutional ruling." McNeill, 476 F.3d at 211 (citing Johnson v. Mississippi, 486 U.S. 578 (1988) and Ake v. Oklahoma, 470 U.S. 68 (1985)).
A petitioner may overcome both the procedural default bar and the exhaustion bar by showing cause for the default and actual prejudice resulting from the asserted constitutional error. Coleman, 501 U.S. at 750; see also Mickens v. Taylor, 240 F.3d 348, 356 (4th Cir. 2001). To demonstrate "cause," a petitioner may make "a showing that the factual or legal basis for the claim was not reasonably available to counsel." McCarver v. Lee, 221 F.3d 583, 591 (4th Cir. 2000) (quoting McCleskey v. Zant, 499 U.S. 467, 494 (1991)). To establish "prejudice," a petitioner must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. at 592 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).
A habeas court also may review an otherwise procedurally defaulted claim if the petitioner can demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; see also McCarver, 221 F.3d at 588. The "fundamental miscarriage of justice" exception applies only to a narrow class of cases involving extraordinary instances "where a constitutional violation has `probably resulted' in the conviction of one who is `actually innocent' of the substantive offense." Dretke v. Haley, 541 U.S. 386, 392-94 (2004) (citing Murray v. Carrier, 477 U.S. 478, 494-96 (1986)). Therefore, in order to establish a "fundamental miscarriage of justice," a petitioner must show actual innocence. Sawyer v. Whitley, 505 U.S. 333, 346-47 (1992); see also Smith v. Dixon, 14 F.3d 956, 974 (4th Cir. 1994). Moreover, the "actual innocence" exception has been limited by the Fourth Circuit Court of Appeals to apply only in capital cases or cases where the alleged error results in the application of recidivist enhancements. United States v. Mikalajunas, 186 F.3d 490, 494-95 (4th Cir. 1999). In Dretke, however, the Supreme Court called into doubt the extension of the actual innocence exception beyond capital cases. 541 U.S. 386 at 392-94.
Petitioner's petition for writ of habeas corpus arises out of his conviction under North Carolina's habitual felon law, N.C. GEN. STAT. § 14-7.1 et seq. (2006), which provides that "any person who has been convicted of or pled guilty to three felony offenses in any federal or state court in the United States or combination thereof is declared to be an habitual felon." He claims to be "innocent" of the habitual felon declaration. Nevertheless, a review of the record clearly shows that Petitioner did not raise this claim in his direct appeal in state court, cf. Baldwin v. Reese, 541 U.S. at 29 (noting that federal claim must be "fairly present[ed]" to "each appropriate state court (including a state supreme court with discretionary review)"), and he did not file a motion for appropriate relief ("MAR"). None of Petitioner's assignments of errors in his state court appeal dealt with the constitutionality of the habitual felon law, nor do they assert "actual innocence" of being a habitual felon. The decision of the state court of appeals, moreover, simply addressed sentencing issues and a due process argument based on the plea agreement. There was no discussion regarding Petitioner's present federal claim that the indictment was "fatal[ly] defect[ive]" because "being a declared habitual felon is not an illegal act." (Pet. at 6.) Because Petitioner could have raised this claim in his direct appeal or in a post-conviction proceeding, but did not, he has failed to exhaust his claim and summary judgment is appropriate.
The effect of having the status of an habitual felon is, in part, that "when an habitual felon . . . commits any felony . . . the felon must, upon conviction or plea of guilty under indictment . . . be sentenced as a Class C felon." N.C. GEN. STAT. § 14-7.6 (2006).
This is not a pure procedural bar case because Petitioner did not file a state post-conviction claim and therefore there is no state court decision expressly basing its dismissal of Petitioner's claim on a state procedural rule. Indeed, under North Carolina law, Petitioner could still file a MAR.
The only way that this bar could be lifted is if Petitioner were to show cause to excuse the default and prejudice resulting from the default or if he can demonstrate that a failure to hear the claim will result in a miscarriage of justice. Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). Petitioner has failed to do so. He has presented no reason explaining his failure to raise this issue in his direct appeal, and therefore, has shown no cause to excuse the default.
Petitioner also cannot show that a miscarriage of justice will result if his claim is not considered by this court. His only claim is that he is "actually innocent" of the habitual offender declaration and that therefore his "petition type is not barred in Fourth Circuit." There is no merit to this claim. While being a habitual felon under North Carolina law is a status and not a crime, an individual can still be indicted as an habitual felon and receive an enhanced sentence for subsequent crimes. State v. Patton, 342 N.C. 633, 635, 466 S.E.2d 708, 710 (1996). This court's review of the record, including the bills of indictment and information of the substantive charges and the habitual felon indictment, moreover, reveals that Petitioner had adequate notice of the charges against him. Any claim to the contrary by Petitioner is conclusory and without evidentiary support. See Nickerson v. Lee. 971 F.2d 1125, 1136 (4th Cir. 1992) ("In order to obtain an evidentiary hearing on an ineffective assistance claim — or for that matter, on any claim — a habeas petitioner must come forward with some evidence that the claim might have merit. Unsupported, conclusory allegations do not entitle a habeas petitioner to an evidentiary hearing."). Accordingly, the petition for a writ of habeas corpus will be denied and the action will be dismissed.
CONCLUSION
For the foregoing reasons, Respondent's Motion for Summary Judgment (docket no. 5) is GRANTED. A separate judgment will be entered simultaneously with this order.