Wright v. Keller

LOY ALEXANDER WRIGHT, Petitioner, v. ALVIN W. KELLER, JR., Respondent.

3:11-cv-341-RJC

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION

Signed: June 6, 2013

ORDER

THIS MATTER comes before the Court on Respondent's Motion for Summary Judgment, (Doc. No. 4), and on Petitioner's Motion to Ask Court to Proceed (or) to Rule and Answer Questions Brought Forth, (Doc. No. 28).

I. BACKGROUND

Pro se Petitioner Loy Alexander Wright is a prisoner of the State of North Carolina, who, on July 28, 2009, in Mecklenburg County Superior Court, was convicted in a jury trial of selling cocaine, and possession with intent to sell or deliver cocaine, in case 08 CRS 219683. Petitioner then pled guilty to habitual felon status, in case 08 CRS 54573, and was sentenced to 151-191 months imprisonment. On July 20, 2010, the North Carolina Court of Appeals issued an unpublished opinion finding no error. State v. Wright, 205 N.C. App. 469, 698 S.E.2d 201 (2010).

Petitioner was represented at trial by Chiege Okwara and on appeal by Michael E. Casterline. An error was discovered in Petitioner's prior record level, and he was re-sentenced on March 25, 2011 to 125-159 months imprisonment. (Doc. No. 5-4: Exhibit 3). Petitioner was represented at re-sentencing by Laura Grimaldi.

Petitioner dated a pro se motion for appropriate relief ("MAR") April 14, 2011, and filed it in Mecklenburg County Superior Court. (Doc. No. 1-1), which was summarily denied (Doc. No. 1 at 17). Petitioner filed an Amended MAR on June 16, 2011 (Doc. No. 1 at 18).

On June 17, 2011, Petitioner filed a pro se certiorari petition in the North Carolina Court of Appeals. (Doc. No. 5-5, Exhibit 4). The state filed its response on June 30, 2011. (Doc. No. 5-6, Exhibit 5). Certiorari was denied on July 6, 2011. (Doc. No. 5-7, Exhibit 6). On July 7, 2011, Petitioner, apparently unaware that certiorari had been denied, filed an amendment responding to the state's response. (Doc. No. 5-8, Exhibit 7). The state again responded on July 13, 2011. (Doc. No. 5-9, Exhibit 8). The amended certiorari petition was denied on July 15, 2011. (Doc. No. 5-10, Exhibit 9).

Petitioner placed the petition in the prison mail system on July 15, 2011, and it was stamp-filed in this Court on the same date. See (Doc. No. 1 at 14). On August 9, 2011, Respondent filed the pending motion for summary judgment. (Doc. No. 4). Also on August 9, 2011, this Court entered an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), granting Plaintiff thirty days to respond to the summary judgment motion. (Doc. No. 6). On September 19, 2011, Petitioner filed a response to the summary judgment motion in the form of a Declaration. (Doc. No. 8).

On October 30, 2011, Petitioner filed a "Motion for Consideration for (2) two legislature sentencing changes first change 2009 second change is for December 1, 2011, the Justice Reinvestment Act." (Doc. No. 14). On November 18, 2011, this Court entered an Order construing the motion to amend as a timely motion to amend the petition. (Doc. No. 15). Because Petitioner had not raised this claim in the state courts, this Court considered the petition a "mixed petition" and dismissed the petition without prejudice, but granted Petitioner the optionof abandoning his non-exhausted claims so the Court could rule on his exhausted claims. (Id.). On December 14, 2011, Petitioner filed a motion to abandon his unexhausted claims and for relief under Rule 60(b) from the Court's judgment dismissing the petition without prejudice. (Doc. No. 20). On December 15, 2011, this Court granted Petitioner's motion to abandon his unexhausted claims and for relief from judgment, thus reopening the case. (Doc. No. 21). Therefore, this Court now addresses Respondent's motion for summary judgment filed on August 9, 2011.

The North Carolina Court of Appeals summarized the facts from Petitioner's trial as follows:

The State's evidence tended to show that on 30 October 2007 at approximately 11:55 a.m. Patrol Officer Kimberly Blackwell and Detective Jorge Olmeda of the Charlotte Mecklenburg Police Department were working undercover in the Pine Valley neighborhood attempting to purchase illegal drugs. The officers were driving in an unmarked car when they were flagged down by a black male who asked them what they wanted. Officer Blackwell asked the man for twenty dollars worth of "hard" or crack cocaine. The man then told the officers to pull over, and he would go get it. The man walked up to a house on Longleaf Drive and engaged in a conversation with defendant. Defendant then walked toward the officers' car and waved them up to him. Detective Olmeda drove the car toward defendant, and defendant approached Officer Blackwell who was sitting in the front passenger seat. Defendant asked if they had given the money to the other man, and Officer Blackwell replied that they had not. Officer Blackwell asked defendant if he had the "twenty dollars worth," and defendant replied, "yeah I got it." Defendant then pulled out and handed Officer Blackwell a napkin with what looked like a broken crack rock, and Officer Blackwell gave defendant twenty dollars. Defendant told them he would give them thirty dollars worth because it was broken. He told them to pull up and he would "come back with another dime."

The officers moved the car up to turn around, looked at the napkin's contents, and realized the substance was fake. Less than a minute later, defendant approached Detective Olmeda, and they had a conversation about the contents of the napkin being fake. Defendant then handed Detective Olmeda another rock of crack cocaine, and the fake crack was given back to defendant. The officers took the crack cocaine purchased from defendant to Property Control and turned it inas evidence. A forensic chemist in the police department's crime laboratory tested the substance and determined the substance was cocaine, weighing 0.09 grams.

Defendant moved to dismiss the charges at the close of the State's evidence. Defendant presented no evidence, and renewed his motion at the close of all evidence. The trial court denied defendant's motions.

State v. Wright, 205 N.C. App. 469, 698 S.E.2d 201 (2010).

Petitioner brings the following grounds for relief in his § 2254 petition: (1) he received ineffective assistance of trial and appellate counsel; (2) he was subjected to vindictive prosecution in violation of equal protection and due process, when indicted as a habitual felon; (3) he was subjected to selective prosecution; and (4) the prosecution did not prove each essential element of the crime for which Petitioner was convicted, nor was the lack of sufficient evidence brought up on direct appeal.

II. STANDARD OF REVIEW

A. Summary Judgment Standard

Summary 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. 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).

B. Section 2254 Standard

In addition to the motion for summary judgment standard set forth above, this Court must also consider the Petition for Writ of Habeas Corpus under the requirements set forth in 28 U.S.C. § 2254. Section 2254(d) provides that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Tice v. Johnson, 647 F.3d 87, 103 (4th Cir. 2011).

A claim is considered "adjudicated on the merits" when it is "substantively reviewed and finally determined as evidenced by the state court's issuance of a formal judgment or decree." Young v. Catoe, 205 F.3d 750, 755 (4th Cir. 2000) (quoting Thomas v. Davis, 192 F.3d 445, 455 (4th Cir. 1999)). A state court adjudication is "contrary to" clearly established federal law only if "the state court arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "It is not enough for us to say that, confronted with the same facts, wewould have applied the law differently; we can accord [the petitioner] a remedy only by concluding that the state court's application of the law in his case was objectively unreasonable." See Tice, 647 F.3d at 103 (citing Williams v. Ozmint, 494 F .3d 478, 483-84 (4th Cir. 2007)). "[W]e will not discern an unreasonable application of federal law unless 'the state court's decision lies well outside the boundaries of permissible differences of opinion.'" Id. at 108 (quoting Goodman v. Bertrand, 467 F.3d 1022, 1028 (7th Cir. 2006)).

In addition, "[a] federal habeas court will not review a claim rejected by a state court if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Walker v. Martin,...