Schnebelen v. Beaver, 1:18-cv-00281-FDW

DAVID SCHNEBELEN, Petitioner, v. KENNETH BEAVER, Respondent.

1:18-cv-00281-FDW

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION

June 1, 2020

ORDER

THIS MATTER is before the Court upon Respondent's Motion for Summary Judgment (Doc. No. 14) and Petitioner David Schnebelen's pro se Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254 (Doc. No. 1).

I. BACKGROUND

On May 5, 2014, a Burke County Grand Jury indicted Petitioner on one count of manufacturing methamphetamine in violation of N.C.G.S. § 90-95(a)(1) and two counts of possession of an immediate precursor chemical (hydrochloric acid and acetone) knowing or having reasonable cause to believe it would be used to manufacture methamphetamine in violation of N.C.G.S. §§ 90-95(a)(1),(b)(1a), and (d1)(2). The indictment alleged three factors in aggravation including that a minor resided on the property used for the manufacture of methamphetamine.

Defense counsel filed several pretrial motions including: (1) Motion to Continue; (2) Motion for Discovery; (3) Motion to Compel Criminal Discovery Requests; (4) Motion to Suppress and Supporting Affidavit; (5) Supplemental Affidavit in Support of the Motion to Suppress; (6) Motion to Suppress Statements; (7) Motion to Suppress Based on Insufficient Corroboration of Information; (8) Motion to Suppress Based on Timeliness Issue; and (9) Supplemental Motion to Suppress Statements. On March 30-31, 2015, the Honorable Carla N. Archie ("Judge Archie"), Superior Court Judge presiding, conducted evidentiary hearings on the pretrial motions. At the conclusion of the hearing on Petitioner's discovery and continuance motions, Judge Archie found insufficient evidence "to suggest the existence of camera footage or audio-video files or any additional dispatch records beyond what has been previously provided" and denied the discovery motions as moot or otherwise unsubstantiated. Mar. 30-31, 2015 Hr'g Tr. (Doc. No. 16-3), at 43. She also denied Petitioner's motion to continue. See id. At the conclusion of the suppression hearing, Judge Archie made findings of fact and conclusions of law in open court and denied the motions to suppress, see id. at 149-154, and in an Order filed April 15, 2015, she entered written findings of fact and conclusions of law in support of her decision, see Order on Suppress. Mots., R. on Appeal (Doc. No. 16-2), at 60-63.

On March 31, 2015, after Judge Archie announced her decision on the suppression motions, Petitioner pled guilty to all charges in exchange for dismissal of the aggravating factors and an active consolidated sentence of 110-144 months. The parties stipulated to Petitioner's Prior Record Level points and Prior Record Level. During the plea proceedings, District Attorney Frank A. Webster ("ADA Webster"), summarized the factual basis for the plea as follows:

Sarah Jordan is a loss prevention officer at Walmart. She is the -- is the subject matter of his misdemeanor larceny conviction here in Burke County back in March of 2014. She notified the Burke County Narcotics Task Force that this individual was stealing things that were consistent with the manufacturing of methamphetamine. So this is what put him on their radar.

They, as you heard, checked the pseudoephedrine logs. There was purchases between him and his codefendant, Jodi Brown, that indicated that this was an excessive amount of pseudoephedrine being purchased. They were in the processof securing a search warrant. In fact, Investigator Dellinger with the task force was in the process of doing what they call a trash-pull. The local trash maintenance people somehow got their orders crossed and that didn't happen. But that was set to happen at a -- at a future date.

Well, what happened in the interim, as you heard, Mark Mitchell, who is an individual that was at this residence participating in the using of methamphetamine and probably the manufacture as well -- which is why he was knowledgeable of it -- something happened on that day that scared even him. And the fact that there was an eight-year-old at the residence caused him to come to his sentences and realize, "This is dangerous. I, I ain't somebody that's going to rat on people, but at the same time there's an eight-year-old child here at stake."

So he made a phone call to -- which, because it was -- It was a Morganton address; 205 Jefferson Street is here in Morganton city limits. It's just down the road that way about a mile or so. That call was routed through Morganton Department of Public Safety. Sergeant Whisnant took that call. He was willing to give his name, his phone number, and what he observed and the dangers he felt like associated with it.

That phone call was then routed to Investigator Dellinger, who happened to be -- it was a Saturday - he happened to be out of town with his family. And he was not in position to immediately respond to that. So he set things in motion to come back. But in the meantime it was going to take him a couple hours to get back -- he called Special Agent Chambliss. Special Agent Chambliss then applied for the search warrant that you're aware of; Judge Ervin signed it; they executed it.

What other evidence that would've come out at trial is, is that in the course of this back and forth of speaking to Mr. Schneb -- Schnebelen, the defendant, with -- that you heard from Officer Chambliss, in one of those conversations, he said, "Look, she didn't have nothing to do with this, that it's my meth lab and you can't charge her. She didn't do anything about this."

The evidence that was seized inside the home was based on their all training and experience plus another officer who would've testified who's even more of a specialist, so to speak, than anybody else, as I'm told, about meth labs. And he's an expert with the SBI and works clandestine meth labs.

He would absolutely be able to say this three-page list of things, that we would've gone through with him, that were taken out of the house -- yes, each and every one of those things in and of themselves are household items that we all probably have in our house, such as nail polish, which is the acetone, which is one of the precursors he's pled guilty to. Muriatic acid or hydrochloric acid, a common thing people may keep in their sheds or in their garage to clean things with.

The one thing, though, that, that I found, what I thought was one of our best pieces of evidence in a picture that the jury would've gotten to see, is in the trash is over 200 matchbooks. Now, who buys -- and there's a receipt from two days before where they bought matches at Ingles. Who buys this many matches and then throws them away? Well, they remove the striker plate, which is for the red phosphorus. So there's also pictures of all these striker plates from the matches. That would've been introduced into evidence.

So all these things taken together would've been sufficient evidence for the jury to find beyond a reasonable doubt that there was a meth lab being -- there was meth being manufactured at that residence on that day, the date of offense, as well as these two precursor chemicals.

The last piece of evidence -- the, the actual motion that we heard on the motion to suppress, the actual statement that he made, in addition to the spontaneous statement he made there at the scene that it's his meth lab, not hers. He was, he was very conscious of the fact that he did not want Ms. Brown to be charged with anything. Of course, as you heard, they made him no promises.

He said, initially, that this lab was started by somebody named Stephen; he didn't know the last name. Him and Jodi had moved to North Carolina in the timeframe, end of January. They initially stayed at the Days Inn. That's where he met Mark Mitchell. Mark Mitchell became a hook-up for Jodi to get hydrocodone pills. And it was through Mark Mitchell that they met Stephen, last name unknown.

He began to buy pseudoephedrine for the manufacturing of methamphetamine. He said he knew how to cook methamphetamine. He admitted his involvement to being involved in cooking methamphetamine at that -- at that residence. He said the first time he cooked at that residence was March of 2014. He said the last time he cooked was that, that, that night, the day they were there, April 12th, 2014.

He was very specific about -- there was 8.4 grams of iodine crystals, which were also found at the residence; 4.2 grams of ephedrine powder, which he referred to as "white powder"; and 6.3 grams of red phosphorus. This yielded a cook of less than two grams of methamphetamine. He admitted that he was addicted to methamphetamine. He admitted that he and Jodi used methamphetamine. They both tried to mitigate the involvement of the child being at the residence when methamphetamine was cooked.

As you'll hear tomorrow, I believe, Ms. Brown, who is in the courtroom, who's the codefendant, she pled guilty to two counts of precursors. We dismissed her methamphetamine manufacturing charge. In exchange she was going to testify. And, of course, this was all in the court file, with notices, appropriate notices, according to the statute, because it's clearly exculpatory evidence.

She would've testified that basically she didn't know how to cook, that he did, that she was a user, that she did supply pseudoephedrine, and that her eight-year-old daughter resided in the home while methamphetamine was being cooked at some points.

Mar. 30-31, 2015 Hr'g Tr. (Doc. No. 16-3), at 162-67 (verbatim).

In accordance with the plea agreement, Judge Archie consolidated the offenses and sentenced Petitioner in the presumptive range to 110-144 months imprisonment. Defense counsel filed a timely notice of appeal for Petitioner on April 2, 2015.

Petitioner's appointed appellate counsel filed an Anders brief on his behalf in which she stated she was unable to identify an issue with merit to support a meaningful argument for relief on appeal, State v. Schnebelen, 788 S.E.2d 681 (N.C. Ct. App. 2016...