BASKINS v. STEIN

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SANDY KEITH BASKINS, )

)

Petitioner, )

)

v. ) 1:19CV839

)

JOSH STEIN, Attorney General of )

North Carolina, et al. )

)

Respondents. )

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 1.) Respondent has moved for summary

judgment (Docket Entries 4, 5), and Petitioner has responded in

opposition (Docket Entry 7). For the reasons that follow, the

Court should grant Respondent’s Motion for Summary Judgment.

I. Background

On July 13, 2015, a jury in the Superior Court of Guilford

County found Petitioner not guilty of conspiracy to traffic in

heroin, but guilty of trafficking heroin by possession of 28 grams

or more and trafficking heroin by transportation of 28 grams or

more in case 14 CRS 88608. (See Docket Entry 1, ¶¶ 1, 2, 4-6; see

also Docket Entry 5-3 at 43; Docket Entry 5-18 at 448-49.)1 The

trial court consolidated the convictions and sentenced Petitioner

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.

to 225 to 289 months in prison. (See Docket Entry 1, FI 3; see also

Docket Entry 5-3 at 46-47; Docket Entry 5-18 at 460.)

Petitioner appealed to the North Carolina Court of Appeals,

(see Docket Entry 1, V9 8, 9; see also Docket Entry 5-3 at 49-51;

Docket Entry 5-18 at 460-61) and, in a published opinion, that

court found no error in part and remanded in part for further

findings regarding Petitioner’s motion to suppress evidence seized

during searches of the vehicle driven by Petitioner and its

occupants, as well as any statements made by Petitioner during the

stop (see Docket Entry 5-3 at 7-13), State v. Baskins (Baskins I),

247 N.C. App. 603 (2016). Specifically, the court held that the

record evidence did not support the trial court’s findings of fact

numbers 14 and 18 (see Docket Entry 5-3 at 15), because the vehicle

driven by Petitioner remained in the 15-day grace period for

registration renewal provided by N.C. Gen. Stat. § 20-66(g) at the

time of the stop, Baskins I, 247 N.C. App. at 608, and because

Detective M.P. O’Hal could not have determined that the vehicle’s

inspection status had expired, as the information he received on

his in-vehicle computer from the North Carolina Division of Motor

Vehicles (“DMV”) in response to his license plate request did not

include inspection data, id. at 608-09.°

Following remand but prior to issuance of the mandate from the

Court of Appeals, the trial court entered an “Order on Remand,

Still Denying Motion to Suppress” (“First Order on Remand”). (See

2 The court also found the conclusions of law in the trial court’s order

inadequate. See Baskins I, 247 N.C. App. at 609-11.

Docket Entry 5-8 at 27-30.) In response, Petitioner filed a motion

requesting the Court of Appeals to, inter alia, withdraw its

opinion in Baskins I, stay the mandate, and issue an order finding

the trial court’s First Order on Remand a nullity as the trial

court lacked jurisdiction. (See id. at 31.) The Court of Appeals

issued an order (“COA Order”) denying Petitioner’s motion insofar

as it requested withdrawal of Baskins I or a stay of the mandate,

but vacating the trial court’s First Order on Remand, finding that,

because “the mandate in [Baskins I] d[id] not issue until 6 June

2016[,] . . . the trial court [wa]s without jurisdiction to take

additional action.” (Id. at 32.) In compliance with the COA

Order, the trial court struck and declared void its First Order on

Remand. (See id. at 33.)

The trial court then held a new hearing on Petitioner’s motion

to suppress, which included additional witnesses and evidence

(Docket Entry 5-19), and thereafter entered an “Order on Remand,

Denying Motion to Suppress” (“Second Order on Remand”) (Docket

Entry 5-8 at 46-51). The Court of Appeals affirmed, State v.

Baskins (Baskins II), No. COA16-1237, 254 N.C. App. 346 (table),

801 S.E. 2d 711 (table), 2017 WL 2945609 (N.C. App. July 5, 2017)

(unpublished), and Petitioner did not file a petition for

discretionary review in the North Carolina Supreme Court (see

Docket Entry 1, FI 9(g)).

Petitioner subsequently filed both a pro se MAR (see Docket

Entry 1, 7 12(Ground Two) (d), (Ground Three) (d), (Ground Four) (d);

see also Docket Entry 5-12) and a separate, counseled MAR (see

Docket Entry 5-13) with the trial court. In light of Petitioner’s

counseled MAR (which raised a sole issue of ineffective assistance

of trial counsel - a matter not raised in the instant Petition -

and which, so far as the record reflects, remains pending), the

trial court denied Petitioner’s pro se MAR, finding that “[i]t

[wa]s inappropriate to consider the pro se motion [Petitioner]

filed when he has counsel representing his interests.” (Docket

Entry 5-14 at 2; see also Docket Entry 1, ¶ 12(Ground Two)(d)(2).)

Petitioner then filed a pro se Petition for Writ of Certiorari with

the North Carolina Court of Appeals seeking review of his pro se

MAR’s denial (see Docket Entry 1, ¶ 12(Ground Two)(d)(4)-(6),

(Ground Three)(d)(4)-(6), (Ground Four)(d)(4)-(6); see also Docket

Entry 5-15), which that court denied (see Docket Entry 1,

¶ 12(Ground Two)(d)(6)); see also Docket Entry 5-16), as well as

Petitioner’s subsequent Petition for Rehearing (see Docket Entry 5-

17).

Petitioner next instituted this action via his Petition.

(Docket Entry 1.) Thereafter, Respondent filed the instant Motion

and Supporting Brief (Docket Entries 4, 5), and Petitioner

responded in opposition (Docket Entry 7).

II. Facts

On direct appeal, the North Carolina Court of Appeals

summarized the trial evidence as follows:

Greensboro Police Department Detective M.R. McPhatter

(“Detective McPhatter”) was working in a drug

interdiction capacity on the morning of Monday, 6 October

2014 when he positioned himself near a Shell gas station

with a convenience store (“the store”) drop-off point for

the China Bus Line. This line ran between Greensboro and

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New York City and, in the past, Greensboro police had

made arrests of people who had transported illegal

narcotics on that bus line. Detective McPhatter was

wearing plain clothes and waiting in an unmarked car when

the bus arrived at the store between 6:00 a.m. and 6:30

a.m. on 6 October 2014. Detective McPhatter observed

Gregory Charles Baskins (“Gregory”) and Tamekia Bone

(“Bone”) exit the bus. At that time, Detective McPhatter

was not familiar with either Gregory or Bone. Both

Gregory and Bone were carrying “smaller bags. Just for

like a weekend-type trip, change of clothes.” Detective

McPhatter watched Gregory and Bone enter the store, and

then saw Gregory exit the store a couple of minutes

later. After leaving the store, Detective McPhatter

observed Gregory walking “backwards” in his direction,

approach to about four parking spaces[’] distance, and

“gave a look inside my car as to see if he knew me or he

was trying to . . . see who I was inside the vehicle.

And then he kind of gave me a shoo-off type thing and

then kind of walked back inside the store.” At

approximately the same time, Detective McPhatter observed

a burgundy Buick (“the Buick”) pull into the parking lot

of the store. The driver of the Buick was later

determined to be Gregory’s brother, [Petitioner].

Gregory got into the front passenger side of the Buick

and Bone got into the rear right seat. The Buick then

left the store’s parking lot with Gregory and Bone

inside.

Detective McPhatter had taken down the license plate

number for the Buick, and he input that information into

his mobile terminal, which accessed the [DMV] data

associated with that license plate number. According to

Detective McPhatter’s testimony, the Buick’s

“registration had . . . expired and it had an inspection

violation also.” Detective McPhatter relayed that

information to other officers in the area because he

wanted to stop the Buick in order to investigate possible

drug trafficking activity. The information relating to

the license plate of the Buick was obtained from DMV.

Detective McPhatter did not want to stop the Buick

himself because he did not want Gregory to recognize his

vehicle as the same vehicle that had been waiting in the

parking lot of the store.

Greensboro Police Department Detective M.P. O’Hal

(“Detective O’Hal”) was the officer who actually stopped

the Buick on the morning of 6 October 2014. Detective

O’Hal, who was part of the same drug interdiction squad

as Detective McPhatter, had been alerted by Detective

McPhatter concerning Gregory’s actions at the store.

Detective McPhatter had read the Buick’s license plate

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number over the radio, so Detective O’Hal was able to

type that information into his mobile service computer

and obtain information concerning the license plate from

DMV. A printout of the DMV screen information relied

upon by Detective O’Hal [(“DMV Field Form”)] was provided

to Detective O’Hal during his testimony:

[THE STATE:] Want to show you what I’ve marked

as State’s 1 and 2, couple of communications

printouts, and just ask you about the

information in each of these documents. You

say when you initially ran the information

through the [DMV], it reflected that the

license itself was expired.

[DET. O’HAL:] Yeah. The inspection was

expired on it.

[THE STATE:] Okay. And I want to ask about

each of these. Let me begin with what I’ve

marked as State’s Exhibit Number 1 [the DMV

Field Form]. If I may approach, Your Honor.

THE COURT: Yes.

[THE STATE:] Can you explain what this first

document reflects?

[DET. O’HAL:] This is what I saw on my -- I

call it a visual MCT or my computer, which was

with me that day of the stop. And it shows

that the customer I.D.’s name or driver’s

license number, the name of the person that

the vehicle is registered to, and it says

“plate status expired.” And it says that it

was issued on 9-26-2013 and showed a status of

being expired.

[THE STATE:] And so in layman’s terms . . .

[the DMV Field Form] . . . reflect[s] the

status of the plate and the inspection on the

date in which it was stopped in State’s 1.

[DET. O’HAL:] Correct.

. . .

[THE STATE:] Okay. And that information

reflected in [the DMV Field Form] . . . is the

same information that was available to you on

that particular day.

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[DET. O’HAL:] Yes.

The [DMV Field Form], which was the same information

Detective O’Hal relied upon to justify the stop of the

Buick, contained the following two lines of information

relevant to this appeal:

PLT STATUS: EXPIRED

ISSUE DT: 09262013 VALID THRU: 10152014

Th[e DMV Field Form] contained no information indicating

the status of the Buick’s inspection. As indicated in

the information provided by DMV, the Buick’s

registration, though technically expired, was still valid

on 6 October 2014, and would remain valid through 15

October 2014. This was because, according to N.C. Gen.

Stat. § 20-66(9),

[t]he registration of a vehicle that is

renewed by means of a registration renewal

sticker expires at midnight on the last day of

the month designated on the sticker. It is

lawful, however, to operate the vehicle on a

highway until midnight on the fifteenth day of

the month following the month in which the

sticker expired.

N.C. Gen. Stat. § 20-66(9) (2015).

Detective O’Hal successfully initiated the stop, and

approached [Petitioner], who was the driver of the Buick.

Detective O’Hal informed [Petitioner] that he had been

stopped due to an expired registration and an inspection

violation, and asked [Petitioner] to produce his driver’s

license and registration. [Petitioner] informed

Detective O’Hal that his license had been revoked.

According to Detective O’Hal’s testimony, while he was

talking to [Petitioner], he noticed Gregory acting very

nervous and sweating profusely. Detective O’Hal then

noticed Gregory glance at Bone nervously, and Detective

O’Hal noticed that Bone was also acting nervous.

Detective O’Hal then asked if there were any weapons in

the Buick, and [Petitioner] responded that there were

not. Detective O’Hal asked [Petitioner] if he would

consent to a search of the Buick, and [Petitioner] gave

consent. [Petitioner], Gregory, and Bone all exited the

Buick, and Detective O’Hal conducted a sniff search with

his drug-trained canine (“K-9”). The K-9 alerted in both

the front and rear right side passenger seats, indicating

the possible recent presence of illegal narcotics. Based

upon the alert of the K-9, and the behavior of Gregory

and Bone, they, along with [Petitioner], were searched.

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Approximately six ounces of what was later determined to

be heroin was recovered from inside Bone’s pants, and the

suspects were arrested. [Petitioner] was indicted on 1

December 2014 for conspiracy to traffic in heroin,

trafficking by possession of 28 grams or more of heroin,

and trafficking by transportation of 28 grams or more of

heroin.

Baskins I, 247 N.C. App. at 604-07.

III. Grounds for Relief

The Petition raises four grounds for habeas relief:

1) Petitioner’s “[c]onviction [was] obtained pursuant to an

unlawfull [sic] traffic stop” in violation of the Fourth, Fifth,

and Fourteenth Amendments to the U.S. Constitution and Article 1,

Section 19 of the North Carolina Constitution (Docket Entry 1, ¶ 12

(Ground One));

2) Petitioner’s “[c]onviction was obtain [sic] by the state

[sic] failure to make a show [sic] of probable cause supported by

oath or affirmation to support magistrate [sic] order” (id., ¶ 12

(Ground Two));

3) Petitioner’s “[c]onviction [was] obtained by the state’s

failure to make a showing of probable cause supported by oath or

affirmation to support indictment” (id., ¶ 12(Ground Three)); and

4) Petitioner’s “[c]onviction [was] obtain [sic] by the state

[sic] use of Grand Jury under Article 31 G.S. 15A-623(d)

unconstitutionally provisioned without procedural due process

safeguard [sic] to record and preserve witness testimony” (id.,

¶ 12(Ground Four)).

8

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

have waived the exhaustion requirement . . . unless the State,

through counsel, expressly waives the requirement.”).3

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

3 The Court may deny a claim on the merits despite a lack of exhaustion.

See 28 U.S.C. § 2254(b)(2).

9

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”).

V. Discussion

A. Ground One

In Ground One, Petitioner contends that his “[c]onviction

[was] obtained pursuant to an unlawfull [sic] traffic stop” in

violation of the Fourth, Fifth, and Fourteenth Amendments to the

U.S. Constitution and Article 1, Section 19 of the North Carolina

Constitution. (Docket Entry 1, ¶ 12 (Ground One).) More

specifically, Petitioner asserts that the trial court’s findings of

fact numbers two, 10, and 12 in the Second Order on Remand qualify

as “incorrect [] based on the expert testimony of DMV Lt. [Gary]

Ollis at the July 6, 2016 hearing on remand.” (Id. at 17, 19

(citing Docket Entry 5-19 at 40-41); see also Docket Entry 7 at 1-

5.) Petitioner further argues that the trial court’s findings of

10

fact numbers three, seven, and eight fail to comply with the COA

Order’s directive that the trial court “‘take additional evidence

to determine if Detective O’Hal had evidence from a source other

than the DMV Field Form, prior to the stop of the Buick, that the

Buick[’s] inspection had lapsed.’” (Docket Entry 1 at 16-17

(emphasis added); see also Docket Entry 7 at 1-5.) Petitioner thus

maintains that, “because Detective[s] O’Hal and McPhatter failed to

obtain probable cause to justify the traffic stop based upon a

registration violation, an inspection violation, or any other

traffic violation as no traffic citation was ever issued, Detective

O’Hal[’s] search of [Petitioner’s] vehicle and its occupants

without a search warrant was inconsistent with the Fourth Amendment

to the U.S. Constitution.” (Docket Entry 7 at 4.) As a result,

Petitioner insists that “the evidence derived from or gathered

during Detective[s] O’Hal and McPhatter[’s] illegal search of the

vehicle and its occupants constituted fruit of the poisonous tree[]

that was inadmissible under the exclusionary rule.” (Id.) Those

contentions fall short.

Ground One fails, because “Fourth Amendment claims generally

cannot be considered on habeas review.” Salazar v. Jones, No.

1:09CV859, 2010 WL 3895574, at *4 (M.D.N.C. Sept. 30, 2010)

(unpublished) (citing Wright v. West, 505 U.S. 277, 293 (1992),

Stone v. Powell, 428 U.S. 465, 481–82 (1976), Mueller v. Angelone,

181 F.3d 557, 570 n.8 (4th Cir. 1999), and Grimsley v. Dodson, 696

F.2d 303, 304 (4th Cir. 1982)). Here, “Petitioner certainly had a

full and fair opportunity to contest [the officers’ search of

11

Petitioner, his companions, and the vehicle in question as

unlawful] at trial... . Therefore, the Court cannot consider

[Ground One] under the rule in Stone.” Id.

Even if not rendered non-cognizable by the rule in Stone,

Ground One fails under a de novo review.’ Petitioner asserts that

the trial court’s findings of fact numbers two, 10, and 12 in the

Second Order on Remand qualify as “incorrect [] based on the expert

testimony of DMV Lt. Ollis at the July 6, 2016 hearing on remand.”

(Docket Entry 1 at 17, 19 (citing Docket Entry 5-19 at 40-41); see

also Docket Entry 7 at 1-5.) In particular, Petitioner maintains

that findings two and 12, that Detectives McPhatter and O’Hal had

the ability to see that the Buick’s inspection had lapsed on their

in-vehicle computers prior to the time of the stop (see Docket

Entry 5-8 at 46, 47), conflict with the testimony of Lt. Ollis that

* Although in Petitioner’s direct appeal after remand, he challenged the

trial court’s findings in its Second Order on Remand, he did so based on

different arguments then he now raises in Ground One. (Compare Docket Entry 5-9

at 3 (arguing that “the trial court erred by finding as facts that the officers

were able to see an inspection violation on the vehicle computer screens when the

state failed to produce any non-testimonial evidence at the remand hearing to

support the officers’ testimony and the decision below found the lack of

non-testimonial evidence rendered the state’s case insufficient” (emphasis

added)), with Docket Entry 1, {@ 12(Ground One), id. at 11-21, and Docket Entry

7 at 1-5 (contending that trial court’s findings 1) conflicted with the testimony

of Lt. Ollis, and 2) did not comply with the COA Order’s directive that trial

court determine whether Detective O’Hal had evidence from sources other than the

DMV Field Form and prior to the stop of the Buick that the Buick’s inspection had

lapsed).) Moreover, Petitioner neither raised the substance of Ground One in his

pro se MAR (see Docket Entry 5-12) nor his counseled MAR (see Docket Entry 5-13).

Accordingly, although not argued by Respondent (see Docket Entry 5 at 4-6),

Petitioner has failed to exhaust the substance of Ground One in state court.

Respondent’s mere failure to argue exhaustion with regard to Ground One does not

amount to waiver of the exhaustion requirement, see 28 U.S.C. § 2254 (b) (3)

(providing that “[a s]tate shall not be deemed to have waived the exhaustion

requirement . . . unless the [s]tate, through counsel, expressly waives the

requirement”), and the Court may deny a claim on the merits despite a lack of

exhaustion, see 28 U.S.C. § 2254 (b) (2). Moreover, because Petitioner has not

exhausted the substance of Ground One in state court, no state court

determination on the merits of the substance of Ground One exists to which this

Court must defer under 28 U.S.C. § 2254(d) and (e) (1).

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Detective O’Hal could not have seen the information reflected in

State’s Exhibits Two, Three, and Four (see Docket Entry 5-8 at 41-

45) on his in-vehicle computer (see Docket Entry 1 at 17-19 (citing

Docket Entry 5-19 at 40-41)). With regard to finding number 10

that Lt. Ollis confirmed that Detectives McPhatter and O’Hal could

have seen the Buick’s lapsed inspection in the database they

accessed prior to the stop (see Docket Entry 5-8 at 47), Petitioner

argues that this finding contradicts Lt. Ollis’s testimony that the

DMV License and Theft Bureau bears the responsibility of

maintaining vehicle inspection data, and that only the DMV may

access that data (Docket Entry 1 at 19-21 (citing Docket Entry 5-19

at 31-33)).

Petitioner’s reliance on Lt. Ollis’s testimony that Detective

O’Hal could not have seen the information reflected in State’s

Exhibits Two, Three, and Four (see Docket Entry 5-8 at 41-45) on

his in-vehicle computer to attack findings two and 12 (see Docket

Entry 1 at 17-19 (citing Docket Entry 5-19 at 40-41)) misses the

mark. Lt. Ollis acknowledged that he created those documents after

the fact of the stop as part of his investigation into the

inspection history of the Buick. (See Docket Entry 5-19 at 29-31,

34-36, 40-41.) In particular, Lt. Ollis utilized State’s Exhibits

Two, Three and Four to confirm the Buick’s last inspection date as

the end of August 2013, as the following testimony shows:

[State’s Attorney:] [Y]ou’ve had occasion to hear

Detective O’Hal from the witness stand; is that right?

[Lt. Ollis:] Yes, sir.

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[State’s Attorney:] When he testified that he stopped

this particular vehicle and he made various checks on his

mobile computer, he was able to determine that there was

an expired registration plate and an inspection

violation. And specifically that vehicle was last

inspected in what would have been August of 2013. Can

you tell me, based upon your research of this vehicle,

whether or not that is consistent with your understanding

of the inspection history for this vehicle?

[Lt. Ollis:] Yes. That is accurate.

. . .

[State’s Attorney:] And in this particular instance, when

he indicated that it was last inspected, at least based

upon his review of the information provided to him[,] on

August 31, 2013; is that consistent with the documents

that had been presented by yourself and introduced into

evidence?

[Lt. Ollis:] Consistent, yes. There’s a one-day

discrepancy.

[State’s Attorney:] Can you explain that to me?

[Lt. Ollis:] The DMV, in laymen’s terms, gives the

customer or citizen the benefit of a doubt. And

regardless of what day of the month you have your vehicle

inspected, they always give you credit to the last day of

that month. So this vehicle, in historical records,

shows that it was inspected August 30th. But when the

officer ran the plate, they were shown August 31st which

is consistent for all viewers.

[State’s Attorney:] [B]ased on your research of the

vehicle itself and the documents connected with the

records of the [DMV], is it your determination that this

vehicle, in fact, had an expired inspection at the time

it was stopped, on October 6th? Is that right?

[Lt. Ollis:] That is correct. It was expired.

[State’s Attorney:] . . . [T]here’s a grace period

incorporated with an expired plate; is that correct?

[Lt. Ollis:] That’s correct.

[State’s Attorney:] If this plate expired at the end of

what would have been September . . . it is technically

valid for another 15 days following; is that correct?

14

[Lt. Ollis:] That is correct.

[State’s Attorney:] So, technically speaking, while

expired, until October 15, 2014, it would have been

proper to continue to operate the vehicle?

[Lt. Ollis:] That is correct. As far as registration is

concerned.

[State’s Attorney:] . . . How about the inspection?

[Lt. Ollis:] The inspection expires the last day of the

month that the plate is actually valid through. So, in

this particular case, the inspection expired on September

30th, 2014. And there’s no grace period for the

inspection. In fact, the state allows you to have your

vehicle inspected up to 90 days before the tag expires so

that you’re given ample time to renew your registration

before the 15-day grace period expires.

[State’s Attorney:] And with respect to that explanation,

Lieutenant, had the registered owner for this vehicle had

this vehicle inspected any time within the 90-day period

prior to the expiration of the plate, the records that

have been introduced into evidence [State’s Exhibits 2,

3, and 4] would they have reflected that?

[Lt. Ollis:] Yes, sir. They would have shown the exact

date that the vehicle was inspected.

[State’s Attorney:] And because they do not, and because

they did not, then again the records reveal that this

inspection was not renewed prior to a vehicle being

stopped?

[Lt. Ollis:] That is correct.

(Id. at 36-40 (emphasis added) .)

Even more significantly, Petitioner glosses over the fact that

Lt. Ollis testified that 1) the Detectives could have seen the

information on the DMV Field Form (State’s Exhibit One) on their

in-vehicle computers, and 2) that such information included the

inspection status of the Buick:

[State’s Attorney:] . . . When [Det. O’Hal] described

that he was viewing a screen from his mobile computer,

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are you acquainted with the information that is provided

once a plate registration is placed into the computer?

[Lt. Ollis:] Yes, sir.

[State’s Attorney:] And might that include the status of

the registration plate in [sic] the inspection history?

[Lt. Ollis:] Yes, sir.

(Id. at 37 (emphasis added) .)°

Petitioner’s citation to Lt. Ollis’s testimony that the DMV

License and Theft Bureau bears the responsibility of maintaining

vehicle inspection data, and that only the DMV may access that data

(Docket Entry 1 at 19-21 (citing Docket Entry 5-19 at 31-33)) to

challenge finding number 10 (that Lt. oOllis confirmed that

Detectives could have seen the Buick’s lapsed inspection on their

in-vehicle computers (see Docket Entry 5-8 at 47)) fares no better.

As the testimony quoted above makes clear, Lt. Ollis unambiguously

stated that the Detectives could access DMV data such as

registration and inspection status from their in-vehicle computers.

(See Docket Entry 5-19 at 37.)

Petitioner further attacks the trial court’s findings seven

and eight that Lt. Ollis confirmed the Buick’s last inspection date

as August 31, 2013, and confirmed that the Buick’s inspection had

lapsed prior to the stop (see Docket Entry 5-8 at 46-47), as based

on matters occurring after the stop, contrary to the COA Order’s

mandate that the trial court determine if Detective O’Hal had

information regarding the Buick’s inspection status from a source

° The final question above likely should read, “And might that include the

status of the registration plate and the inspection history.” (Docket Entry 5-8

at 37 (emphasis added) .)

16

“‘prior to the stop.’” (Docket Entry 1 at 16 (emphasis added)

(quoting Docket Entry 5-8 at 31); see also Docket Entry 7 at 1-5.)

However, Petitioner again conflates Lt. Ollis’s testimony regarding

documents he generated during his investigation to confirm the

Buick’s last inspection date with his testimony regarding the

information that Detectives McPhatter and O’Hal could see on their

in-vehicle computers. As quoted above, Lt. Ollis agreed that the

Detectives could access the Buick’s registration and inspection

status from their in-vehicle computers prior to the stop. (See

Docket Entry 5-19 at 37.)

Petitioner additionally maintains that the trial court’s

finding number three, that the information regarding the Buick’s

inspection status “was at the bottom of a scroll down screen”

(Docket Entry 5-8 at 46), violates the COA Order’s dictate that the

trial court “‘take additional evidence from some source other than

the DMV Field Form . . . that the Buick’s inspection had lapsed.’”

(Docket Entry 1 at 16-17 (emphasis added) (quoting Docket Entry 5-8

at 31).) Contrary to Petitioner’s allegations, Detective O’Hal’s

testimony, upon which finding number three depends, complied with

the COA Order:

[Det. O’Hal:] [W]e have our mobile database which is

hooked up to the [DMV]. And when you place the tag in

there, it will give you the registered owner’s name,

address, and the status of the registration of the

vehicle, the status of the insurance of the vehicle, if

it’s active insurance or non[-]active, and also show you

the inspection of the vehicle, as well.

[State’s Attorney:] And this is all reflected on a single

screen, or a scroll-down screen?

[Det. O’Hal:] It’s a scroll-down screen, sir.

17

[State’s Attorney:] [Y]ou noted an inspection violation?

[Det. O’Hal:] Yes, sir. The very bottom part of that

scroll-down screen it will show that in addition to the

expired registration tag, it will show in almost an

asterisk inspection violation as well. And then it said,

it also gave that as “last inspected on 08/31/2013.”

[State’s Attorney]: And for purpose of clarification, is

this the same information incidentally, the expired

registration plate, coupled with the expired inspection

that Corporal McPhatter shared with you?

[Det. O’Hal:] Yes, sir.

[State’s Attorney:] This based on his own independent

review of the same DMV file?

[Det. O’Hal:] That’s correct.

[State’s Attorney]: By way of further explanation when

you indicated that in your report, in a parenthetical, it

was last inspected 08/31/2013?

[Det. O’Hal:] Yes.

[State’s Attorney:] This is the same . . . information

that was provided again in part based upon the tag?

[Det. O’Hal:] That’s correct. When you ran that tag on

that day, that is the results that came back on our

screen.

[State’s attorney:] And so, just in laymen’s terms then,

what that reflected for you is not only that the tag

itself was expired, whether or not within some grace

period, but there was an inspection violation. And, in

addition to that, the DMV shared with you, through this

record, the last time this particular vehicle was

inspected?

[Det. O’Hal:] That’s correct.

[State’s attorney:] It was more than a year before this,

and specifically . . . on or about 08/31/2013?

[Det. O’Hal]: Yes, it specifically said, “Last inspected

on 08/31/2013.”

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[State’s Attorney:] Now, is there any information on

thle DMV Field Form] that was run at or about the same

time that thle first] hearing [on Petitioner’s motion to

suppress] was being conducted concerning the inspection

violation or the alleged inspection violation?

[Det. O’Hal:] No, sir. This is what we ran. Just the

tag.

[State’s Attorney:] Now, I want to make sure that I'm

clear. Taking a look at [the DMV Field Form]. Is this

the extent of any information that was made available to

you _ back on the date in which the stop took place, back

on October 6, 2014?

[Det. O’Hal:] There was additional information on the

actual stop, and we had an actual stop [sic] that is not

on this document here.

[State’s Attorney:] So on your mobile terminal, in

addition to what is reflected on that document, more

information concerning a status of the vehicle that this

tag belongs to?

[Det. O’Hal:] That’s correct.

[State’s Attorney:] Did that information include the last

inspection?

[Det. O’Hal:] Yes, sir. Underneath this -- this is

obviously the correct format and the correct spacing,

etc., but underneath, when we looked at the document that

day, there should have been an asterisk right here, and

then it would say, “Last inspected on 08/31/2013,” and

then an asterisk at the bottom.

[State’s Attorney:] And also reflected then on your

computer screen the status of the vehicle’s inspection,

that being that it had expired?

[Det. O’Hal:] Yes.

[State’s Attorney:] And it reflects then the date

08/31/2013?

[Det. O’Hal:] Yes.

(Docket Entry 5-19 at 14-19 (emphasis added).) Thus, Detective

O’Hal’s testimony makes clear that, once he inputted the Buick’s

license plate into his in-vehicle computer, the computer’s scroll-

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down screen contained inspection data not apparent on the DMV Field

Form, i.e., he obtained information regarding the Buick’s

inspection status from a source other than the DMV Field Form.

As Petitioner has not demonstrated the incorrectness of any of

the trial court’s findings of fact, he has not undermined the trial

court’s ultimate finding that probable cause existed for the stop

“based on [Petitioner]’s violation of [North Carolina’s] inspection

law” (Docket Entry 5-8 at 47) and thus Petitioner has not shown

that the subsequent search of the Buick and its occupants violated

his rights under the Fourth Amendment of the U.S. Constitution.

In sum, Ground One fails as non-cognizable under the rule in

Stone and additionally on the merits.

B. Ground Two

Next, Petitioner argues that his “[c]onviction was obtain

[sic] by the state [sic] failure to make a show [sic] of probable

cause supported by oath or affirmation to support magistrate [sic]

order.” (Docket Entry 1, ¶ 12 (Ground Two).) According to

Petitioner, Detective McPhatter “appeard [sic] before [a]

magistrate [] for a magistrate order to justify the arrest and

detention of [P]etitioner after a traffic stop,” and “failed to

make a showing of probable case supported by his oath or

affirmation by affidavit.” (Id. at 22.) In that regard,

Petitioner maintains that he wrote “to the Guilford County Clerk of

Court to produce the affidavit supporting the issue of [the]

magistrate’s order [in case] 14CRS088608 as direct evidence of a

showing of probable cause supported by oath or affirmation to

20

justify the arrest and detention of [Pletitioner,” but that the

Clerk of Court responded that “no affidavit [existed] with the

magistrate[’s] order.” (Id.)° Petitioner contends that “the

arrest and detention of petitioner by magistrate order 14 CRS 88608

without a showing of probable cause supported by oath or

affirmation inconsistant [sic] with the Fourth Amendment

prohibition against unreasonable searches and seizures.” (Id.)

As with Ground One, Ground Two falters on the basis of the

rule in Stone. See Salazar, 2010 WL 3895574, at *4 (‘Fourth

Amendment claims generally cannot be considered on habeas review.”)

(citing Wright, 505 U.S. at 293, Stone, 428 U.S. at 481-82,

Mueller, 181 F.3d at 570 n.8, and Grimsley, 696 F.2d at 304).

Here, “Petitioner certainly had a full and fair opportunity to

contest [the magistrate’s issuance of the arrest warrant in case 14

CRS 088608 as unlawful] at trial... . Therefore, the Court

cannot consider [Ground Two] under the rule in Stone.” Id.

Moreover, even if not rendered non-cognizable by Stone, Ground

Two fails on its merits. Indeed, the Magistrate’s Order itself

belies Petitioner’s argument:

Petitioner’s detention is justified because there is

probable cause to believe that on or about the date of

offense shown and in the county named above [Petitioner]

unlawfully, willfully, and feloniously did conspire with

Gregory Baskins, and Tomekia Antoinette Bone to commit

the felony of trafficking by transportation and

possession of 28 grams or more of heroin.

° The record lacks copies of Petitioner’s alleged written communication to

the Guilford County Clerk of Court and the Clerk’s alleged response.

21

. . . This Magistrate’s Order is issued upon information

furnished under oath by the arresting officer(s) shown

[Detective McPhatter].

(Docket Entry 5-8 at 5 (emphasis added).) Furthermore, as the

United States Court of Appeals for the Fourth Circuit has

recognized, the Fourth Amendment does not require that the

information given by Detective McPhatter under oath or affirmation

must appear in an affidavit or other form of writing:

The Fourth Amendment does not require that the basis for

probable cause be established in a written affidavit; it

merely requires that the information provided the issuing

magistrate be supported by “Oath or affirmation.” U.S.

Const. amend. IV. Moreover, the Amendment does not

“require that statements made under oath in support of

probable cause be tape-recorded or otherwise placed on

the record or made part of the affidavit.” It follows

that magistrates may consider sworn, unrecorded oral

testimony in making probable cause determinations during

warrant proceedings[.]

United States v. Clyburn, 24 F.3d 613, 617 (4th Cir. 1994)

(internal citation omitted) (quoting United States v. Shields, 978

F.2d 943, 946 (6th Cir.1992)).

In light of the foregoing analysis, the Court should deny

Ground Two as non-cognizable under the rule in Stone and meritless.

C. Ground Three

Via Ground Three, Petitioner contends that his “[c]onviction

[was] obtained by the state’s failure to make a showing of probable

cause supported by oath or affirmation to support indictment.”

(Docket Entry 1, ¶ 12 (Ground Three).) According to Petitioner,

“Detective McPhatter failed to make a showing of probable cause

supported by his oath or affirmation to support the return of true

bill of indictment from the grand jury.” (Id. at 24.) Petitioner

22

additionally appears to argue that, because the grand jury that

indicted him did not constitute an “investigative grand jury” under

N.C. Gen. Stat. § 15A-623(h), but rather one impaneled under

Section 15A-623(d) which lacked “procedural due process safeguard

[sic] to record and preserve grand jury witness testimony” (Docket

Entry 7 at 6), his indictment violated the Fourteenth Amendment’s

guarantees of equal protection of the laws and due process (id. at

5-8.)

As an initial matter, Respondent counters that Ground Three

faces a procedural bar, because Petitioner neither raised the

substance of Ground Three on direct appeal nor in his counseled

MAR. (See Docket Entry 5 at 8-10.) That argument glosses over the

fact that Petitioner did fairly present the substance of Ground

Three in his pro se MAR (see Docket Entry 5-12 at 5), and filed a

certiorari petition in the Court of Appeals seeking review of that

MAR’s denial (see Docket Entry 5-15). The Fourth Circuit has

rejected the argument that a petitioner who presents pro se claims

in a filing supplemental to a counseled filing fails to exhaust

those claims:

The district court concluded that because South Carolina

law forbids a [post-conviction petitioner] who is

represented by counsel from filing supplemental pro se

pleadings in the South Carolina Supreme Court, [the

petitioner] had failed to exhaust the claim. The court

further reasoned that [the petitioner] would be

procedurally barred from presenting the claim in a

subsequent [post-conviction] application, and thus that

the claim was defaulted. This holding is incorrect. A

petitioner exhausts state remedies by fairly presenting

his constitutional claim to the state courts. See

Mallory v. Smith, 27 F.3d 991, 994 (4th Cir. 1994). And,

the fact that the state court does not rule on the merits

of a claim does not mean that it is unexhausted. See

23

Smith v. Digmon, 434 U.S. 332, 333 (1978) (per curiam)

(holding that exhaustion does not turn on whether the

state court considers the merits of a claim that has been

fairly presented to it). Because [the petitioner]

presented his claim that trial counsel were

constitutionally ineffective to the South Carolina

Supreme Court, the claim has been exhausted and may be

treated as defaulted only if the state court actually

relied on a state procedural rule in denying relief. See

Harris[ v. Reed], 489 U.S. [255,] 262-63 [(1989)].

Atkins v. Moore, No. 97-17, 139 F.3d 887 (table), 1998 WL 93409, at

*4A n.6 (4th Cir. Mar. 5, 1998) (unpublished) (internal parallel

citation omitted); see also Holloway v. Horn, 355 F.3d 707, 715-16

(3d Cir. 2004) (concluding that pro se brief, supplemental to brief

filed by counsel, fairly presented claim to state court); Clemmons

v. Delo, 124 F.3d 944, 948-49 (8th Cir. 1997) (deeming the

petitioner’s attempt to file supplemental pro se brief with state

supreme court sufficient to fairly present Brady claim to state

courts); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997) (holding

that “[a] petitioner may satisfy the exhaustion requirement by

presenting his federal claim in a pro se supplemental brief, even

if he has an attorney”); McBride v. Estelle, 507 F.2d 903, 904 (5th

Cir. 1975) (per curiam) (stating that the petitioner’s filing of

supplemental pro se brief in addition to opening brief filed by

counsel satisfied § 2254’s “presentation” requirement). Thus,

Petitioner has fairly presented, and therefore exhausted, the

substance of Ground Three in state court.

Even if Petitioner has exhausted the substance of Ground Three

in the state courts, this Court may not consider it if a state

court has declined to consider its merits on the basis of “an

adequate and independent state procedural rule.” Harris, 489 U.S.

24

at 262. 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).

Here, however, the trial court did not cite to any rule in

declining to consider Petitioner’s pro se MAR, stating only that

“[i]t [wa]s inappropriate to consider the pro se motion

[Petitioner] filed when he has counsel representing his interests.”

(Docket Entry 5-14 at 2.)7 Under these circumstances, the Court

should not find that procedural default bars Ground Three. See

Clemmons, 124 F.3d at 948 n.3 (“No rule of court or reported

Missouri case of which we are aware specifies the circumstances

under which Missouri appellate courts allow pro se briefs. A state

procedural rule must be regularly adhered to if it is to be an

adequate state ground supporting a procedural bar. Sometimes

Missouri courts allow pro se briefs, and sometimes they do not.

That is their prerogative. But in the absence of regularly applied

criteria, the decision not to allow such a brief cannot be said to

rest on a regularly applied rule of state procedural law.”

(internal citation omitted)).

Although not procedurally barred, Ground Three fails on its

merits for three reasons. First, Petitioner’s claim that the

7 The North Carolina Court of Appeals also did not indicate that it denied

Petitioner’s certiorari petition seeking review of his pro se MAR’s denial on the

basis of procedural default and/or an adequate and independent state procedural

rule. (See Docket Entry 5-16.)

25

format of the grand jury that indicted him, i.e., one impaneled

under N.C. Gen. Stat. § 15A-623(d) rather than § 15A-623(h) and

thus not involving recordation/transcription of witness testimony,

violated his equal protection and due process rights remains non-

cognizable on federal habeas review. “‘[T]he essence of habeas

corpus is an attack by a person in custody upon the legality of

that custody, and . . . the traditional function of the writ is to

secure release from illegal custody.’ Preiser v. Rodriguez, 411

U.S. 475, 484 (1973). . . . [C]orrecting such error would have no

impact on the legality of [the petitioner]’s sentence. Claims of

the denial of due process in collateral proceedings [such as grand

jury proceedings] are simply not cognizable in federal habeas

corpus cases.” Morton v. Crews, No. CIV.A. 10-148, 2012 WL

1410252, at *14 (E.D. Ky. Mar. 27, 2012) (unpublished),

recommendation adopted, 2012 WL 1410186 (E.D. Ky. Apr. 23, 2012)

(unpublished).

Second, even if Petitioner had attempted to argue that the

unrecorded format of the grand jury proceedings against him somehow

impeded or precluded a sufficient showing of probable cause to

indict him, such a claim would fail, as “the right to be properly

indicted by a grand jury is not a right that the [United States]

Supreme Court has made applicable to defendants facing state

criminal proceedings.” Jones v. Shanahan, No. 1:12CV304, 2014 WL

991892, at *4 (W.D.N.C. Mar. 13, 2014) (unpublished) (citing

Hurtado v. California, 110 U.S. 516, 534-35 (1884), and Albright v.

Oliver, 510 U.S. 266, 272–73 (1994)). Moreover, the United States

26

Supreme Court has held that guilty verdicts at trial render

harmless “any conceivable error” in the grand jury’s proceedings,

United States v. Mechanik, 475 U.S. 66, 73 (1986), because “the

petit jury’s subsequent guilty verdict means not only that there

was probable cause to believe that the defendants were guilty as

charged, but also that they are in fact guilty as charged beyond a

reasonable doubt,” id. at 72; see also id. (explaining that “the

societal costs of retrial after a jury verdict of guilty are far

too substantial to justify setting aside the verdict simply because

of an error in the earlier grand jury proceedings”).

Third, Petitioner did not attend (and by law could not attend,

see N.C. Gen. Stat. § 15A-623(d) (listing persons permitted to

attend grand jury proceedings)) the grand jury proceedings against

him and thus lacks personal knowledge whether 1) Detective

McPhatter provided information to the grand jury under oath or

affirmation, and 2) that information provided probable cause to

indict Petitioner on the three charges in question. As a result,

Petitioner has not shown that “Detective McPhatter failed to make

a showing of probable cause supported by his oath or affirmation to

support the return of true bill of indictment from the grand jury”

(Docket Entry 1 at 24).

In sum, Ground Three fails as a matter of law.

D. Ground Four

In Ground Four, Petitioner argues that his “[c]onviction [was]

obtain [sic] by the state [sic] use of Grand Jury under Article 31

G.S. 15A-623(d) unconstitutionally provisioned without procedural

27

due process safeguard [sic] to record and preserve witness

testimony.” (Docket Entry 1, ¶ 12(Ground Four).) More

specifically, Petitioner reiterates his contentions from Ground

Three that, because the grand jury that indicted him did not

constitute an “investigative grand jury” under N.C. Gen. Stat.

§ 15A-623(h), but rather one impaneled under Section 15A-623(d)

which lacked “procedural due process safeguard [sic] to record and

preserve Detective McPhatter’s grand jury witness testimony and

oath or affirmation as evidence of the state’s showing of probable

cause . . . to support the return of true bill of indictment

against [P]etitioner” (id. at 27-28), his indictment “permanently

denied his fundamental constitutional right to unreasonable search

and seizure, an impartial jury, confrontation cruel and unusual

punishment, involuntary servitude, privileges and immunities, due

process of law, and equal protection of laws” (id. at 28; see also

Docket Entry 7 at 8-9.)

As a threshold matter, because Petitioner raised the substance

of Ground Four in his pro se MAR (see Docket Entry 5-12 at 6-7),

for the reasons provided in connection with Ground Three, Ground

Four does not face a procedural bar. See Atkins, 1998 WL 93409, at

*4 n.6. However, Ground Four merely repackages the allegations

contained in Ground Three and therefore fails on its merits for the

same reasons provided in the discussion of Ground Three.

28

VI. Conclusion

Petitioner’s claims provide no basis for collateral relief.

IT IS THEREFORE RECOMMENDED that Respondent’s Motion for

Summary Judgment (Docket Entry 4) be granted, that the Petition

(Docket Entry 1) 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

August 6, 2020

29