# BASKINS v. STEIN

> District Court, M.D. North Carolina · August 6, 2020

URL: https://www.frixlaw.com/law-library/cases/10253806

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** August 6, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253806

## How later opinions describe it (automated extraction)

- 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”
- 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”
- concluding that pro se brief, supplemental to brief filed by counsel, fairly presented claim to state court

## Opinion text

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
4
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
5
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.
6
[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.
7
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).
12

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.

13
[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,

15

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.”

18

[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-
19

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253806. Public record. Not legal advice.