The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CHARLIE GILBERT GILLISPIE, )
)
Petitioner, )
)
v. ) 1:20CV507
)
WARDEN WATSON, )
)
Respondent. )
MEMORANDUM OPINION AND RECOMMENDATION
OF 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 2.) Respondent has moved for summary
judgment (Docket Entries 7, 8), and Petitioner has responded in
opposition (Docket Entry 10). For the reasons that follow, the
Court should grant Respondent’s Motion for Summary Judgment.
I. Background
On October 31, 2013, a jury in the Superior Court of Rowan
County found Petitioner not guilty of assault with a deadly weapon
but guilty of second degree sexual offense, second degree
kidnapping, and assault inflicting physical injury by strangulation
in cases 11 CRS 53241 and 53242 (see Docket Entry 2, ¶¶ 1, 2, 4-6;
see also Docket Entry 8-3 at 66-69), whereupon Petitioner pleaded
guilty to attaining habitual felon status in case 13 CRS 1777 (see
Docket Entry 2, ¶ 5; Docket Entry 8-3 at 70-73).1 The trial court
1 Throughout this Recommendation, pin citations refer to the page numbers
in the footer appended to those materials at the time of their docketing in the
CM/ECF system. When quoting from the parties’ filings, this Recommendation will
use standard capitalization conventions.
consolidated the convictions and sentenced Petitioner to 146 to 185
months in prison, ordered him to register as a sex offender for 30
years, and issued a permanent no-contact order protecting the
victim. (See Docket Entry 2, 7 3; see also Docket Entry 8-3 at 74-
82.)
Petitioner appealed to the North Carolina Court of Appeals,
(see Docket Entry 2, II 8, 9; see also Docket Entry 8-3 at 83-86)
and, in a published opinion, that court found no error in
Petitioner’s convictions and sentence, but remanded to correct a
clerical error in the judgment, State v. Gillespie, 240 N.C. App.
238, 771 S.E.2d 785 (2015) .° Petitioner, proceeding through
counsel, then filed a petition for discretionary review (“PDR”) in
the North Carolina Supreme Court (see Docket Entry 2, FI 9(qg)),
which that court subsequently denied, State v. Gillespie, 368 N.C.
353, 777 S.E.2d 62 (2015).°
Petitioner thereafter filed a pro se motion for appropriate
relief (“MAR”) with the trial court (see Docket Entry 8-6), arguing
* The above-cited decision (like some other materials cited hereafter)
reflects Petitioner’s last name as “Gillespie,” but, because Petitioner’s filings
in the instant action spell his name “Gillispie” (Docket Entry 2 at 1; Docket
Entry 10 at 1), the undersigned has referred to Petitioner by the last name of
Gillispie.
> Petitioner filed a pro se “Motion for Production of Exculpatory Evidence”
in the trial court (Docket Entry 8-4), which that court denied without prejudice
due to the pendency of Petitioner’s PDR on direct appeal in the North Carolina
Supreme Court (see Docket Entry 8-5 at 2-3). According to Respondent, Petitioner
then filed a series of three petitions for a writ of certiorari in the North
Carolina Court of Appeals in which he “generally requested th[at] court to issue
the writ to overrule its decision on direct appeal and to examine newly raised
challenges to the sufficiency of the evidence and the sufficiency of the trial
court’s jury instructions.” (Docket Entry 8 at 2.) Respondent did not include
copies of those certiorari petitions in the record, because they “raised
challenges unrelated to the sole ground for relief alleged in the present...
[P]etition.” (Id. at 2 n.1.)
the state improperly relied on the predicate felony convictions
alleged in Petitioner’s habitual felon indictment to determine his
prior record level (see id. at 2-3), a matter different than the
sole grounds for relief Petitioner pursues in the Petition here
(see Docket Entry 2 at 5). The trial court then denied
Petitioner’s MAR on the merits (see Docket Entry 8-7 at 2) and,
according to Respondent, Petitioner filed a series of three pro se
petitions with the North Carolina Court of Appeals seeking review
of his second MAR’s denial, all three of which that court denied
(see Docket Entry 8 at 3).*
Petitioner subsequently filed a “Motion in Arrest of Judgment”
in the trial court (Docket Entry 8-8) contesting, inter alia, his
habitual felon indictment because his predicate conviction of
carrying a concealed weapon qualified as only a Class 2 misdemeanor
(see id. at 4, 7-8). The trial court denied the motion (see Docket
Entry 8-9 at 2-3), and Petitioner filed a pro se petition for writ
of certiorari in the North Carolina Court of Appeals seeking review
of the trial court’s denial (Docket Entry 8-10). The North
Carolina Court of Appeals denied that petition (see Docket Entry 8-
11 at 2), and Petitioner filed a pro _se petition for writ of
certiorari in the North Carolina Supreme Court seeking review of
the orders entered by the trial court and North Carolina Court of
Appeals (Docket Entry 8-12), as well as a motion to appoint
counsel, which the North Carolina Supreme Court denied and
‘ The record does not contain copies of those three petitions.
dismissed as moot, respectively, State v. Gillispie, 372 N.C. 704,
829 S.E.2d 207 (2019).5
Petitioner next instituted this action via his Petition.
(Docket Entry 2.) Thereafter, Respondent filed the instant Motion
and Supporting Brief (Docket Entries 7, 8), and Petitioner
responded in opposition (Docket Entry 10).
II. Facts
On direct appeal, the North Carolina Court of Appeals
summarized the trial evidence as follows:
[Petitioner] and Jane Doe had known each other since
around 1994 or 1995 and previously had a consensual
sexual relationship. On 16 May 2011, Ms. Doe’s neighbor
gave Ms. Doe and [Petitioner] a ride to the grocery store
to buy food and beer. [Petitioner] and Ms. Doe then
returned to her apartment where they drank the beer. Ms.
Doe testified that [Petitioner] became angry when he
realized that there was no more beer in the refrigerator.
He told her that he was going to “f––– [her] in [her]
a–––” and began “punching” and “smacking” her in the
face. Ms. Doe attempted to get away from [Petitioner] by
running into the bathroom. She got in the shower to
clean the blood off of her face. [Petitioner] followed
her into the bathroom, pulled the shower curtain back,
and made her take a shower while he watched.
When Ms. Doe finished showering and left the bathroom
wearing only a towel, she saw [Petitioner] “come walking
towards [her] with three knives, like a butcher knife and
two small steak knives.” He said, “Don’t think I won’t
do it to you.” Ms. Doe ran back into the bathroom and
locked the door, but [Petitioner] broke through the door.
Once inside the bathroom, [Petitioner] again hit Ms. Doe.
[Petitioner] then put the knives away and took Ms. Doe
into the bedroom. [Petitioner] told her to take her
towel off and get on the bed. She complied because she
was “scared for [her] life.” [Petitioner] got cocoa
butter and baby oil from the bathroom and rubbed them on
his penis. He then started having anal sex with Ms. Doe
5 A copy of that motion to appoint counsel does not appear in the record.
4
against her will. She “told him to stop,” that “he was
hurting [her],” but he told her to “shut up.” Ms. Doe
kicked him in the chest to get him off of her, but he
pulled her onto the floor and started choking and hitting
her. When [Petitioner] was choking her, Ms. Doe was
unable to breathe and felt “[l]ike [she] was going to
die.”
[Petitioner] eventually left the bedroom and Ms. Doe
quickly put some clothes on and ran next door to her
neighbor’s apartment. Ms. Doe had blood on her face and
arms, a swollen eye, and a hurt ankle. The neighbor
called 911. The neighbor testified that Ms. Doe was
“really upset” and “shaking,” and said Ms. Doe told her
that [Petitioner] had sexually assaulted her, trapped her
in the bathroom, and “beat on her.” Throughout the
evening, the neighbor had heard “a lot of banging” coming
from Ms. Doe’s apartment.
Rowan County Sheriff’s Deputy Timothy Cook responded to
the 911 call. He discovered Ms. Doe sitting in front of
her neighbor’s apartment and complaining that she thought
she had a broken ankle. Deputy Cook observed that Ms.
Doe had bruises on her body and was very upset. Ms. Doe
told Deputy Cook that her boyfriend had beaten her up.
Deputy Cook searched Ms. Doe’s apartment, but did not
find [Petitioner]. Ms. Doe did not tell Deputy Cook that
[Petitioner] had sexually assaulted her. Ms. Doe
testified that she did not tell Deputy Cook about the
sexual assault because she “didn’t like that cop” and
“[h]e was real rude, like I was faking or something.”
Deputy Cook called EMS and Ms. Doe was taken to the
hospital by ambulance. Ms. Doe was treated for her
injuries at the hospital, but testified that she did not
tell hospital personnel about the sexual assault because
she was embarrassed and ashamed.
When Ms. Doe’s mother picked her up from the hospital,
she told her mother what had happened, including that
[Petitioner] had forced her to have anal sex with him
against her will. Ms. Doe and her mother went to the
Rowan County Sheriff’s Office and met with Deputy J.R.
Wietbrock. Ms. Doe told Deputy Wietbrock what had
happened, including the sexual assault, and then made a
written statement.
Gillespie, 240 N.C. App. at 240-41.
5
III. Ground for Relief
The Petition raises one ground for habeas relief: “Defective
Habitual Felon Indictment thereby Depriving Sentencing Court of
Jurisdiction.” (Docket Entry 2, ¶ 12 (Ground One) (dashes
omitted).) As “[s]upporting facts,” Petitioner contends that
“[t]he [s]tate in a rush to sentence [ P]etitioner as a habitual
felon failed to secure a proper presentment or indictment for
conviction,” in that “[t]he indictment failed to use the three (3)
prior felonies as required by N.C.G.S. 14-7.1 and violated [
P]etitioner’s 5th [and] 14th amendment right to due process and a
fair sentencing.” (Id., ¶ 12(Ground One)(a) (parentheses,
quotation marks, and semi-colon omitted).)
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
6
have waived the exhaustion requirement . . . unless the State,
through counsel, expressly waives the requirement.”).6
Additionally, 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”).
6 The Court may deny a claim on the merits despite a lack of exhaustion.
See 28 U.S.C. § 2254(b)(2).
7
V. Discussion
Petitioner’s sole ground for relief argues that “[t]he [s]tate
in a rush to sentence [ P]etitioner as a habitual felon failed to
secure a proper presentment or indictment for conviction,” in that
“[t]he indictment failed to use the three (3) prior felonies as
required by N.C.G.S. 14-7.1 and violated [ P]etitioner’s 5th [and]
14th amendment right to due process and a fair sentencing.”
(Docket Entry 2, ¶ 12 (Ground One)(a).) More specifically,
Petitioner asserts that “the trial court refuse’s [sic] to correct
and [sic] indictment, where it attempted to use a gun charge, a
Class (2) misdemeanor, with another Class (2) misdemeanor to make
it a felony.” (Docket Entry 10 at 4.) According to Petitioner, he
“was on trial for one of the misdemeanor’s [sic], and he was found
not guilty on that count, (because no gun was mention [sic] the
entire trial.)” (Id.) Thus, Petitioner argues, “the [s]tate loss
[sic] with an attempt to make the gun charge the ‘predicate felony’
in a ‘habitual felon indictment.’” (Id.) This claim falls short.
To begin, the claim faces a procedural bar. As Respondent
argues, “Petitioner did not raise his claim for relief — that his
habitual felon indictment was defective for failure to allege three
felonies — in his first [MAR] when he was in a position to do so”
(Docket Entry 8 at (citing Docket Entry 8-6 (Petitioner’s first MAR
lacking any argument that his habitual felon indictment failed to
allege three predicate felonies))), but “[r]ather, [he] first
raised this claim, among others, in his [subsequently-filed]
‘Motion in Arrest of Judgment’” (id. (citing Docket Entry 8-8)).
8
Here, the trial court expressly acknowledged Petitioner’s failure
to raise the substance of this claim in his first MAR in finding
Petitioner’s pro se Motion to Arrest Judgment “procedurally
barred.” (Docket Entry 8-9 at 2.)
This Court may not consider the merits of a collateral claim
if a state court, as here, has declined to consider the merits of
Petitioner’s parallel MAR claim on the basis of “an adequate and
independent state procedural rule.” Harris v. Reed, 489 U.S. 255,
262 (1989). Such a rule qualifies as “adequate” if the state
courts regularly or consistently apply the rule, see Johnson v.
Mississippi, 486 U.S. 578, 587 (1988), and qualifies as
“independent” if the rule does not “depend[ ] on a federal
constitutional ruling,” Ake v. Oklahoma, 470 U.S. 68, 75 (1985).
The state rule implicitly invoked by the trial court procedurally
bars a claim where, “[u]pon a previous [MAR], the defendant was in
a position to adequately raise the ground or issue underlying the
present motion but did not do so.” N.C. Gen. Stat.
§ 15A-1419(a)(1), absent proof of “[g]ood cause” and “actual
prejudice” or “a fundamental miscarriage of justice,” N.C. Gen.
Stat. § 15A-1419(b). The Fourth Circuit has consistently found
that N.C. Gen. Stat. § 15A-1419(a)(1) constitutes an “adequate and
independent state-law ground for decision foreclosing federal
habeas review,” Boyd v. French, 147 F.3d 319, 332 (4th Cir. 1998);
see also Ashe v. Styles, 39 F.3d 80, 88 (4th Cir. 1994).
In response, Petitioner argues neither that “good cause” and
“actual prejudice” exist under Section 15A-1419(b)(1), nor that
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“failure to consider [his] claim will result in a fundamental
miscarriage of justice” under Section 15A-1419(b) (2). (See Docket
Entry 10.) Rather, Petitioner maintains that, “[i]n several recent
case’s [sic] the N.C. Court of Appeals have said: [t]here will be
no bar on meritorious claims when access have [sic] not been
abused.” (Id. at 6 (citing State v. Millhouse, 262 N.C. App. 374
(table), 2018 WL 5796230 (Nov. 6, 2018) (unpublished), State v.
McPhaul, 259 N.C. App. 253 (table), 2018 WL 1801781 (Apr. 17, 2018)
(unpublished), and State v. Brooks, 257 N.C. App. 261 (table), 2017
WL 6459437 (Dec. 19, 2017) (unpublished)).) However, those cases
lack applicability to the instant matter, as (in all three) the
North Carolina Court of Appeals held only that the trial court had
erred by ruling that the petitioner’s motion for DNA testing
procedurally barred other forms of post-conviction motions, and did
not address the validity of Section 15A-1419. See Millhouse, 2018
WL 5796230, at *3; McPhaul, 2018 WL 1801781, at *2; Brooks, 2017 WL
6459437, at *1-2. Thus, North Carolina’s mandatory post-conviction
procedural default statute bars Petitioner’s only claim in his
Petition.
Furthermore, even if Petitioner could demonstrate cause and
prejudice and/or a fundamental miscarriage of justice sufficient to
excuse his procedural default, his claim still fails as meritless.
Under North Carolina law, “[a]ny 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.” N.C. Gen. Stat. § 14-7.1 (version in effect on
10
date of offenses, May 16, 2011). Furthermore, state law prohibits
(unless a statutory exception applies) “any person [from] willfully
and intentionally [] carry[ing] concealed about his [or her] person
any pistol or gun,” N.C. Gen. Stat. § 14-269(a1) (version in
effect on date of offenses, May 16, 2011), and, while that statute
categorizes a first conviction of subsection (a1) as a Class 2
misdemeanor, the law deems “[a] second or subsequent offense . . .
a Class I felony,” N.C. Gen. Stat. § 14-269(c) (version in effect
on date of offenses, May 16, 2011) (emphasis added).7
Here, Petitioner’s habitual felon indictment alleged three
predicate felony convictions: “felonious restraint,” “carrying [a]
concealed gun,” and “larceny.” (Docket Entry 8-3 at 8
(capitalization omitted).) With regard to Petitioner’s prior
“carrying [a] concealed gun” conviction, the record demonstrates
that, on May 25, 2005, Petitioner entered an Alford plea to the
charge (via information) of carrying a concealed weapon (a .22
caliber revolver). (See Docket Entry 8-2 at 4-7.) Significantly,
both the information and Petitioner’s transcript of plea expressly
described the carrying a concealed weapon charge as a Class I
felony due to Petitioner’s previous conviction of carrying a
concealed weapon. (See id. at 5-6, 8.) The record further
establishes that, prior to Petitioner’s May 2005 conviction for
“carrying [a] concealed gun,” he had previously been convicted of
misdemeanor “carrying [a] concealed weapon” on two prior occasions
7 Effective December 1, 2014, the North Carolina General Assembly amended
N.C. Gen. Stat. § 14-269(c) to change the punishment for a second or subsequent
offense to a Class H felony. See N.C. Gen. Stat. § 14-269(c) (2014).
11
– on June 12, 1986 (Rowan County case no. 86CR007608), and on March
1, 1995 (Rowan County case no. 94CR011303). (Docket Entry 8-3 at
75 (capitalization omitted).) The trial court thereafter entered
a judgment on May 25, 2005, convicting Petitioner of the Class I
felony of carrying a concealed weapon. (Docket Entry 8-2 at 2-3.)
As that prior conviction constituted a felony under North Carolina
law, the trial court did not err by including it as a predicate
felony conviction in Petitioner’s habitual felon indictment. (See
Docket Entry 8-14 at 243 (reflecting statement of Petitioner’s
trial counsel to the trial court that, “[o]n behalf of
[Petitioner], first of all I point out that the second conviction,
carrying a concealed weapon, ordinarily is not a felony, but he had
a prior conviction that made it a Class I felony”)).
Simply put, Petitioner’s sole ground for relief fails as a
matter of law, due to procedural bar and want of merit.
VI. Conclusion
Petitioner’s claim provides no basis for collateral relief.
IT IS THEREFORE RECOMMENDED that Respondent’s Motion for
Summary Judgment (Docket Entry 7) be granted, that the Petition
(Docket Entry 2) be denied, and that Judgment be entered dismissing
this action without issuance of a certificate of appealability.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
November 12, 2020
12