State v. Leach

742 S.E.2d 608

STATE of North Carolina

v.Reginald Terrell LEACH.

No. COA12–962.

Court of Appeals of North Carolina.

May 21, 2013.

Appeal stemming from the allowance of a request for certiorari by defendant from order entered 5 May 2011 by Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals 30 January 2013.

Attorney General Roy Cooper, by Assistant Attorney General Jodi Harrison, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant.

ERVIN, Judge.

Defendant Reginald Terrell Leach challenges the trial court's order denying his petition for the issuance of a writ of habeas corpus pursuant to a petition for the issuance of a writ of certiorari that was allowed by this Court on 8 February 2012. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and applicable law, we conclude that the trial court's order should be affirmed.

I. Factual Background

A. Substantive Facts

On 14 December 1992, the Cabarrus County grand jury returned bills of indictment charging Defendant with trafficking in between 28 and 200 grams of cocaine by manufacturing, trafficking in between 28 and 200 grams of cocaine by transportation, and trafficking in between 28 and 200 grams of cocaine by possession. On 24 May 1993, the Cabarrus County grand jury returned a bill of indictment charging Defendant with the murder of John Thomas Ford. On 12 October 1993, Defendant entered a plea of guilty to three counts of trafficking in cocaine on the condition that the State would voluntarily dismiss the indictments that had been returned against Defendant in two additional cases, that the three counts to which Defendant had entered guilty pleas would be consolidated for judgment, and that Defendant would not be sentenced to more than seven years imprisonment in these cocaine trafficking cases. On the same date, Defendant entered a plea of guilty to second degree murder. On 13 October 1993, Judge W. Douglas Albright found that Defendant had murdered Mr. Ford “while on pretrial release on another felony charge,” that Defendant had “a prior conviction or convictions for criminal offenses punishable by more than 60 days confinement,” and that Defendant had “killed the deceased with malice, after premeditation and deliberation;” that there were no mitigating factors; that an aggravated sentence should be imposed; and that Defendant should be imprisoned for the term of his natural life. On the same date, Judge Albright entered a judgment consolidating Defendant's three cocaine trafficking convictions for judgment and sentencing Defendant to seven years imprisonment, with this sentence to be served at the expiration of Defendant's sentence for murdering Mr. Ford.

After a review conducted in September 2005, Defendant was denied release on parole. Following another parole review, Defendant was informed in 2006 that he would be paroled through the Mutual Agreement Parole Program. On 28 March 2007, the Division of Prisons, the Parole Commission, and Defendant signed a Parole Agreement Form. According to this MAPP contract, Defendant agreed “to the conditions set forth in this agreement and [that he] ha[d] read and underst[ood] the Statement of Procedures incorporated herein” and the Division of Prisons and the Parole Commission acknowledged that they would “fulfill the Conditions set forth in this agreement” “if the Participant fulfills the conditions” which applied to him. Although the release date specified in the original agreement was 28 September 2009, Defendant received notice on 8 July 2009 that the Parole Commission had recommended extending his release date for twelve months because of Defendant's failure to comply with the work release provisions set out in the MAPP contract. On 23 July 2009, Defendant agreed to the proposed MAPP contract modification. Subsequently, Defendant was assigned to work at Perdue Farms, where he remained actively employed for more than a year, thereby fulfilling his work release obligation. After Defendant returned to the correctional facility to which he was assigned following a 48 hour home leave on 26 September 2010, the Parole Commission, by means of a notice dated 28 September 2010, terminated Defendant's MAPP contract and denied Defendant's release on parole on the grounds that there was “a substantial risk that [Defendant would] not conform to reasonable conditions of parole” and “would engage in further criminal conduct.” Although Defendant submitted a grievance challenging the termination of his MAPP contract and the denial of his request for release on parole, that grievance did not prove successful.

B. Procedural History

On 4 March 2011, Defendant filed a petition for the issuance of a writ of habeas corpus in the Moore County Superior Court. As a result of the fact that Defendant's imprisonment arose from judgments entered in Cabarrus County, Judge James M. Webb referred Defendant's petition to the Cabarrus County Superior Court. On 5 May 2011, the trial court entered an order denying Defendant's habeas corpus petition pursuant to N.C. Gen.Stat. § 17–4(2) (providing that a petition for the issuance of a writ of habeas corpus should be denied in the event that the applicant is “committed or detained by virtue of the final order, judgment or decree of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon such final order, judgment or decree”). On 23 January 2012, Defendant sought the issuance of a writ of certiorari for the purpose of obtaining review of the trial court's order by this Court. On 8 February 2012, we allowed Defendant's certiorari petition.

II. Legal Analysis

A. Standard of Review

According to the statutory provisions governing habeas corpus proceedings as prescribed in North Carolina law, “[e]very person imprisoned or restrained of his liberty within this State, for any criminal or supposed criminal matter, or on any pretense whatsoever, except in the cases specified in [N.C. Gen.Stat. § ] 17–4, may prosecute a writ of habeas corpus, according to the provisions of this Chapter, to inquire into the cause of such imprisonment or restraint, and, if illegal, to be delivered therefrom.” N.C. Gen.Stat. § 17–3. An application for the issuance of a writ of habeas corpus “must state, in substance, as follows:

(1) That the party, in whose behalf the writ is applied for, is imprisoned or restrained of his liberty, the place where, and the officer or person by whom he is imprisoned or restrained, naming both parties, if their names are known, or describing them if they are not known.

(2) The cause or pretense of such imprisonment or restraint, according to the knowledge or belief of the applicant.

(3) If the imprisonment is by virtue of any warrant or other process, a copy thereof shall be annexed, or it shall be made to appear that a copy thereof has been demanded and refused, or that for some sufficient reason a demand for such copy could not be made.

(4) If the imprisonment or restraint is alleged to be illegal, the application must state in what the alleged illegality consists;and that the legality of the imprisonment or restraint has not already been adjudged, upon a prior writ of habeas corpus, to the knowledge or belief of the applicant.

(5) The facts set forth in the application must be verified by the oath of the applicant, or by that of some other credible witness, which oath may be administered by any person authorized by law to take affidavits.

N.C. Gen.Stat. § 17–7. An application for the issuance of a writ of habeas corpus “shall” be summarily denied:

(1) Where the persons are committed or detained by virtue of process issued by a court of the United States, or a judge thereof, in cases where such courts or judges have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commencement of suit in such courts.

(2) Where persons are committed or detained by virtue of the final order, judgment or decree of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon such final order, judgment or decree.

. . . . .

(4) Where no probable ground for relief is shown in the application.

N.C. Gen.Stat. § 17–4. “Any court or judge empowered to grant the writ, to whom such applications may be presented, shall grant the writ without delay, unless it appear from the application itself or from the documents annexed that the person applying or for whose benefit it is intended is, by this Chapter, prohibited from prosecuting the writ.” N.C. Gen.Stat. § 17–9. As a result, a trial judge presented with an application for the issuance of a writ of habeas corpus must issue the requested writ, thereby triggering the necessity for further proceedings, unless one of the grounds for denial specified in N.C. Gen.Stat. § 17–4 exists. In re Boyett, 136 N.C. 415, 424, 48 S.E. 789, 793 (1904) (stating that “[t]here can be no doubt of the duty and power of the Court to issue the writ of habeas corpus when applied for in accordance with statutory provisions”).

After the issuance of the requested writ, it must be served upon the person to whom it is directed or the facility in which the applicant is being detained. N.C. Gen.Stat. § 17–12. Upon service of the writ, “[t]he person or officer on whom the writ is served must make a return thereto in writing, and, except where such person is a sworn public officer and makes his return in his official capacity, it must be verified by his oath.” N.C. Gen.Stat. § 17–14. According to N.C. Gen.Stat. § 17–14, the person making the return must “plainly and unequivocally” state:

(1) Whether he has or has not the party in his custody or under his power or restraint.

(2) If he has the party in his custody or power, or under his restraint, the authority and the cause of such imprisonment or restraint,...