CLEMENT v. HOEKSTRA

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JEFFERY DALE CLEMENT, )

)

Petitioner, )

)

v. ) 1:19CV531

)

ERIK A. HOOKS, )

)

Respondent. )

MEMORANDUM OPINION, ORDER, 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. (Docket

Entry 4; see also Docket Entry 5 (supporting Memorandum); Docket

Entry 9 (supplemental supporting filing).) Respondent has moved

for summary judgment (Docket Entry 12; see also Docket Entry 13

(Brief in Support)) and Petitioner has filed a response in

opposition (Docket Entry 16), as well as a motion to appoint

counsel and for discovery (Docket Entry 17; see also Docket Entry

19 (Respondent’s Response); Docket Entry 21 (Petitioner’s reply);

Docket Entry 22 (Petitioner’s supplemental supporting filing)).

For the reasons that follow, the undersigned United States

Magistrate Judge will deny Petitioner’s motion to appoint counsel

and for discovery, and will recommend that the Court grant

Respondent’s Motion for Summary Judgment.

I. Procedural History

On May 23, 2018, in the Superior Court of Surry County,

Petitioner entered pleas pursuant to North Carolina v. Alford, 400

U.S. 25 (1970), to 30 drug-related felony and misdemeanor charges,

as well as to charges of misdemeanor possession of a non-tax paid

alcoholic beverage, possession of a firearm by a convicted felon,

felony larceny, larceny of a motor vehicle, and conspiracy to

commit felony larceny. (See Docket Entry 4, 91 1, 2, 4-6; see also

id. at 16-17; Docket Entry 13-2.)' The trial court consolidated

the convictions into five separate judgments, and sentenced

Petitioner to consecutive prison terms of 90 to 120 months and 10

to 21 months, as well as three suspended prison terms of 18 to 31

months, 15 to 27 months, and 9 to 20 months. (Docket Entry 4, JI 3;

see also Docket Entries 13-3 through 13-7.) Petitioner thereafter

neither appealed his convictions (see Docket Entry 4, FI 8), nor

filed a Motion for Appropriate Relief (“MAR”) in the state court

collaterally attacking those convictions (see id., { 10).

Petitioner sent a letter dated April 26, 2019, to the Clerk of

this Court (Docket Entry 1), which the Clerk file-stamped on May

17, 2019 (see id. at 1), “requesting a time extension to file a

Writ of Habeas Corpus” (id.). On May 23, 2019, the undersigned

Magistrate Judge entered an Order (Docket Entry 3) “treat[ing]

' Page citations refer to the page numbers that appear in the footer

appended to documents upon their docketing in the CM/ECF system.

Petitioner’s filing as a petition under § 2254” because “Petitioner

[wa]s near the time limit for filing a § 2254 petition” (id. at 1),

striking the petition (id. at 2), and staying the matter for 30

days to “allow Petitioner time to resubmit his Petition in a form

that complie[d] with this Court’s rules” (id.). Petitioner

thereafter submitted the instant Petition (Docket Entry 4), along

with a supporting memorandum (Docket Entry 5) and a supplemental

supporting filing (Docket Entry 9). Respondent moved for summary

judgment both on the merits and on the procedural ground of non-

exhaustion (Docket Entries 12, 13), Petitioner responded (Docket

Entry 16), and subsequently filed a motion to appoint counsel and

for discovery (Docket Entry 17), which Respondent opposed (Docket

Entry 19), whereupon Petitioner replied (Docket Entries 21, 22).

II. Petitioner’s Claims

The Petition identifies five grounds for relief:

1) “Ineffective Assistance of Counsel (Retained) to represent

[Petitioner] in cases 15CRS054481-95 and 16CRS054084-88” (Docket

Entry 4, ¶ 12(Ground One)), in that “[c]ounsel filed [a] motion to

suppress and did not secure [a] ruling on [the] motion or reserve

the right to appeal the suppression issue before entering [the]

plea[s], did not investigate other charges, coerced [Petitioner]

into taking [the] plea[s], informed [Petitioner] that [he] could

not retract [the] plea[s], did not discuss with [Petitioner] of

[sic] appealability, failed to address [a] 4th Amendment claim on

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removing [the] safe from [Petitioner’s] residence, refus[ed] to

turn over [the] case file, [made] repeated [false] assurance[s] of

working on seized property . . ., [and] represent[ed] to [sic] many

clients to be effective by American Bar Assoc. standards” (id.,

¶ 12(Ground One)(a));

2) “Ineffective assistance of counsel - court appointed to

represent [Petitioner] in case numbers starting with 18CRS-------”

(id., ¶ 12(Ground Two)), in that she “[d]id not investigate [the]

charges, [a]dvised [Petitioner] to take plea[s] that she had not

reviewed, was not present at [the] plea hearing, [r]efuse[d] to

correspond or relinquish [the] case file, [and] did not address

civil controlled substance tax resulting from [the] criminal

charges as she stated she would” (id., ¶ 12(Ground Two)(a));

3) “Prosecutorial misconduct Surry County North Carolina

Assistant District Attorney Tim Watson and office” (id.,

¶ 12(Ground Three)), in that “[n]o indictments or waivers [were]

entered in several cases, nor probable cause hearings held or

waived[, r]equest[s] for materials/records to proceed in litigation

went unanswered, therefore denying ‘due process’ and ‘access to

courts[,]’ [and i]n [the] summary of evidence [the] prosecutor

stated ‘the drugs were found in [Petitioner’s] brother’s pocket,’

yet [Petitioner] was sentenced for them[ and Petitioner’s brother,]

Everette Neil Clement had previously plead [sic] guilty to the

offense” (id., ¶ 12(Ground Three)(a));

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4) “Judicial Misconduct - Surry County N.C. Clerk of Court -

North Carolina Administrative Office of the Courts” (id.,

¶ 12(Ground Four)), in that “[r]epeated request[s] to [the] clerk

for case records: complied with in part, denied in majority[, e]ach

reply contained [a] flier referning [sic] AOC as directing [the]

court to provide copies[, l]etter to and reply from N.C.A.O.C.

stating differently[,] AOC forwarded a copy of [Petitioner’s]

letter to ‘[his] attorney’ who does not exist because

[Petitioner’s] case is final[, and] AOC being advocate [sic]

ineffective defense attorney” (id., ¶ 12(Ground Four)(a) (internal

parenthetical citations omitted)); and

5) “‘Due Process’ and ‘Access to Courts’ denied by North

Carolina Department of Public Safety” (id. at 18; see also id.

(setting forth as “[s]upporting facts” that “[r]equire[ment] t[hat

Petitioner] work forty (40) and fifty (50) hour work weeks in North

Carolina Correctional Enterprises sewing plant for slave wages,

under threat of displinary [sic] action for not doing so [gave him

n]o viable coarse [sic] to receive time off of job to prepare legal

claims[,] N.C.D.P.S. has contracted with North Carolina Prisoner

Legal Services Inc to provide legal services and eliminate ‘Law

Librarys [sic] [,]’ NCPLS are ‘ineffective counsel’ as provided by

constitutional law[, t]hey do not provide legal assitance [sic],

services, or resources for legitimate actions or anyone who wishes

to proceed on thier [sic] own[, and] N.C.D.P.S. does not provide

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any outlet for making photocopies or even the use of a simple

staple to secure legal papers together” (internal parenthetical

citation omitted))).

III. Discussion

A. Exhaustion

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 [s]tate 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). Moreover, “[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). A habeas petitioner meets this exhaustion requirement by

“‘fairly present[ing]’ his claim in each appropriate state court

. . . thereby alerting that court to the federal nature of the

claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004). “Fair

presentation” means that the petitioner “presented face-up and

squarely . . . both the operative facts and the controlling legal

principles” of the federal habeas claim. Baker v. Corcoran, 220

F.3d 276, 289 (4th Cir. 2000) (internal quotation marks omitted).

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In North Carolina, a petitioner can meet this “exhaustion

requirement by directly appealing his conviction and/or sentence to

the North Carolina Court of Appeals and then petitioning the North

Carolina Supreme Court for discretionary review, or by filing an

MAR and then petitioning the North Carolina Court of Appeals for a

writ of certiorari.” Hooks v. Hooks, No. 3:18CV611, 2019 WL

5791006, at *2 (W.D.N.C. Nov. 5, 2019) (unpublished) (citing N.C.

Gen. Stat. §§ 7A-31, 15A-1422). “A State shall not be deemed to

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

through counsel, expressly waives the requirement.” 28 U.S.C.

§ 2254(b)(3).

Here, Respondent argues that “Petitioner cannot show that he

has exhausted his state remedies in this case[, as he] did not file

[a] direct appeal from his guilty pleas, . . . [n]or did [he] file

an MAR raising any of the issues presented in the Petition.”

(Docket Entry 13 at 18; see also Docket Entry 4, ¶¶ 8, 10

(reflecting Petitioner’s admissions that he neither appealed his

convictions nor attacked them collaterally).) In Petitioner’s

response in opposition to the instant Motion for Summary Judgment,

he acknowledged that “the process of filing for state remedies

[wa]s still open as to the exhaustion rules,” but argues that the

state’s continued “refus[al] to turn over [d]iscovery materials

needed to properly file for state remedies” constitutes “one

example of the states [sic] prejudice in . . . denying [him a]ccess

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to [c]ourts.” (Docket Entry 16 at 14; see also id. at 16-20

(detailing other unsuccessful efforts Petitioner undertook to

obtain materials to support state habeas filing), 20 (deeming

various actors’ failure to turn over requested materials

“negligence and gross impediment to due process in both state [and]

federal filings, showing cause and prejudice”); Docket Entry 4,

¶ 12(Ground One)(b) (“No meaningful opportunity for claims to be

previously heard. Government interference has impeded the

presentation of claims. Procedural default rule is overcome by

show of ‘cause’ and ‘prejudice’ in demonstrating ineffectiveness of

counsel. Totality of injustices has created a ‘fundamental

miscarriage of justice.’”).)

Under North Carolina’s post-conviction relief procedure,

Petitioner can file a MAR “[a]t any time after verdict,” N.C. Gen.

Stat. § 15A-1415(a) (emphasis added), alleging that his “conviction

was obtained in violation of the Constitution of the United

States,” N.C. Gen. Stat. § 15A-1415(b)(3). Moreover, North

Carolina’s rules for procedural default would not bar Petitioner’s

Grounds for Relief under the circumstances presented here. See

N.C. Gen. Stat. § 15A-1419(a) (providing as grounds for denial of

MAR that, upon a previous MAR or appeal, “[t]he ground or issue

underlying the motion was previously determined on the merits” or

the petitioner “was in a position to adequately raise the ground or

issue underlying the present motion but did not do so”). Thus,

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Petitioner’s Grounds for Relief qualify as unexhausted, but not

procedurally defaulted. Because Petitioner’s Grounds for Relief do

not face a procedural default, arguments as to “cause and

prejudice” and “fundamental miscarriage of justice” do not apply;

however, the Court could liberally construe Petitioner’s pro se

filings to argue that the Court should not require Petitioner to

exhaust even available state court remedies, because “circumstances

exist that render such process ineffective to protect [his]

rights,” 28 U.S.C. § 2254(b)(1).

The Court need not, however, resolve the issue of whether

available state court remedies remain effective to protect

Petitioner’s rights because, as Respondent urges (see Docket Entry

13 at 16), the Court may deny Petitioner’s Grounds for Relief on

the merits, notwithstanding the failure to exhaust, under 28 U.S.C.

§ 2254(b)(2). “[A] district court has the authority to deny a

petitioner’s unexhausted habeas claims on the merits, . . . [where]

it is obvious that the petitioner is not presenting a colorable

federal claim.” Ward v. Trent, 19 F. Supp. 2d 608, 613 (S.D.W. Va.

1998) (internal quotation marks omitted), aff’d in part, dismissed

in part on other grounds, No. 98-7267, 188 F.3d 505 (table), 1999

WL 638606 (4th Cir. Aug. 23, 1999) (unpublished); see also Swisher

v. True, 325 F.3d 225, 232–33 (4th Cir. 2003) (affirming district

court’s discretionary decision to deny “clearly unexhausted” habeas

corpus claim on the merits pursuant to Section 2254(b)(2)). As all

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five of Petitioner’s Grounds for Relief clearly lack any merit, the

Court should exercise its discretion under Section 2254(b)(2) to

deny those Grounds on the merits.

B. Merits

1. Ground One

Via Ground One, Petitioner contends that his retained trial

counsel provided constitutionally ineffective assistance (see

Docket Entry 4, ¶ 12(Ground One)) in that “[c]ounsel filed [a]

motion to suppress and did not secure [a] ruling on [the] motion or

reserve the right to appeal the suppression issue before entering

[the] plea[s], did not investigate other charges, coerced

[Petitioner] into taking [the] plea[s], informed [Petitioner] that

[he] could not retract [the] plea[s], did not discuss with

[Petitioner] of [sic] appealability, failed to address [a] 4th

Amendment claim on removing [the] safe from [Petitioner’s]

residence, refus[ed] to turn over [the] case file, [made] repeated

[false] assurance[s] of working on seized property . . ., [and]

represent[ed] to [sic] many clients to be effective by American Bar

Assoc. standards” (id., ¶ 12(Ground One)(a)). In Petitioner’s

supporting Memorandum, he additionally asserted that retained

counsel failed him by negotiating the plea without informing

Petitioner (see Docket Entry 5 at 7), informing Petitioner he would

receive a 100-month prison sentence (see id. at 18), not objecting

to the prosecutor’s statement that the drugs were found in

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Petitioner’s brother’s pocket (see id.), failing to object to

multiplicitous charges (see id.), and failing to advise Petitioner

as to available defenses to the 2018 charges (see id.). None of

those ineffective assistance sub-claims, either individually or in

totality, entitles Petitioner to relief.

The Fourth Circuit has provided guidance in regards to the

clearly established law governing ineffective assistance claims:

In order to establish an ineffective assistance of

counsel claim. . ., [a petitioner must] establish that

his “counsel’s representation fell below an objective

standard of reasonableness,” measured by the “prevailing

professional norms,” [Strickland v. Washington, 466 U.S.

668, 688 (1984)], and “that there is a reasonable

probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

different,” id. at 694. “Unless a [petitioner] makes

both showings, it cannot be said that the conviction or

. . . sentence resulted from a breakdown in the adversary

process that renders the result unreliable.” Id. at 687.

In determining whether counsel’s performance was

deficient, “[i]lt is all too tempting for a [petitioner]

to second guess counsel’s assistance after conviction or

adverse sentence, and it is all too easy for a court,

examining counsel’s defense after it has proved

unsuccessful, to conclude that a particular act or

omission of counsel was unreasonable.” Id. at 689.

Hence, “court[s] must indulge a strong presumption that

counsel’s conduct falls within the wide range of

reasonable professional assistance . . . [and] that,

under the circumstances, the challenged action might be

considered sound trial strategy.” Id. (internal

quotation marks omitted).

Similarly, in evaluating whether [a petitioner] has shown

actual prejudice from any such deficient performance, it

is insufficient for the [petitioner] “to show that the

errors had some conceivable effect on the outcome of the

proceeding,” because “[vJirtually every act or omission

of counsel would meet that test.” Id. at 693. Rather,

a “reasonable probability” that the result would have

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been different requires “a probability sufficient to

undermine confidence in the outcome.” Id. at 694.

Fisher v. Lee, 215 F.3d 438, 446-47 (4th Cir. 2000) (parallel

citations omitted).

In the specific context of guilty pleas (as here), to

establish prejudice under Strickland, a petitioner “must show that

there is a reasonable probability that, but for counsel’s errors,

he would not have pleaded guilty and would have insisted on going

to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Furthermore,

“to obtain relief on this type of claim, a petitioner must convince

the court that a decision to reject the plea bargain would have

been rational under the circumstances,” Padilla v. Kentucky, 559

U.S. 356, 372 (2010), which constitutes an “objective inquiry”

focusing on “the likely outcome of a trial had the defendant not

pleaded guilty,” Meyer v. Branker, 506 F.3d 358, 369 (4th Cir.

2007); see also Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir.

1988) (declining to place “great weight” on the petitioner’s

statement that, absent trial counsel’s alleged errors, “he would

have chosen to go to trial,” because “such a statement suffers from

obvious credibility problems and must be evaluated in light of the

circumstances the defendant would have faced at the time of his

decision”).

As a threshold matter, Petitioner’s assertions that his

retained counsel mishandled certain collateral forfeiture matters,

such as by “fail[ing] to address [a] 4th Amendment claim on

12

removing [the] safe from [Petitioner’s] residence” and by making

false “repeated assurance[s] of working on seized property,” as

well as that counsel “refus[ed] to turn over [the] case file,”

(Docket Entry 4, ¶ 12(Ground One)(a)) remain 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[s] would have no impact on

the legality of [Petitioner]’s sentence.” 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).

Petitioner’s contention that retained counsel “represent[ed]

to [sic] many clients to be effective by American Bar Assoc.

standards” (Docket Entry 4, ¶ 12(Ground One)) fails as conclusory

and unsupported, see Nickerson v. Lee, 971 F.2d 1125, 1136 (4th

Cir. 1992) (holding that, “[i]n order to obtain an evidentiary

hearing . . . a habeas petitioner must come forward with some

evidence that the claim might have merit,” and that “[u]nsupported,

conclusory allegations do not entitle a habeas petition to an

evidentiary hearing”), abrogated on other grounds, Gray v.

Netherland, 518 U.S. 152, 165-66 (1996). Petitioner has not

provided the Court with any information regarding retained

13

counsel’s client load or which American Bar Association standard

that client load supposedly violated, and has failed to detail how

that client load actually impacted retained counsel’s performance,

i.e., counsel failed to return Petitioner’s telephone calls, to

meet with Petitioner, or to file certain documents or take other

actions necessary for a proper defense. (See Docket Entries 4, 5,

9, 16.) Such “[v]ague and conclusory allegations . . . may be

disposed of without further investigation by the [] Court.” United

States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013).

Petitioner’s voluntary and knowing guilty pleas bar his

complaint that retained counsel “failed to object to multiplicitous

charges” (Docket Entry 5 at 18), because “a guilty plea represents

a break in the chain of events which has preceded it in the

criminal process” and, “[w]hen a criminal defendant has solemnly

admitted in open court that he is in fact guilty of the offense

with which he is charged, he may not thereafter raise independent

claims relating to the deprivation of constitutional rights that

occurred prior to the entry of the guilty plea,” Tollett v.

Henderson, 411 U.S. 258, 267 (1973). This ineffective assistance

sub-claim also falls short as conclusory under Nickerson, 971 F.2d

at 1136. In order to show that any of Petitioner’s charges qualify

as multiplicitous, “[t]he applicable rule is that where the same

act or transaction constitutes a violation of two distinct

statutory provisions, the test to be applied to determine whether

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there are two offenses or only one, is whether each provision

requires proof of a fact which the other does not,” Blockburger v.

United States, 284 U.S. 299, 304 (1932). Here, Petitioner has made

no effort, beyond his own bald assertions, to demonstrate how any

of his charges meet the test for impermissible multiplicity under

Blockburger. (See Docket Entries 4, 5, 9, 16.)

Petitioner’s challenge to retained counsel’s failure to

“investigate other charges” (Docket Entry 4, (Ground One) (a) □

fares no better. In that regard, Petitioner faults retained

counsel for not interviewing his girlfriend and his brother as to

their ownership of the drugs which led to Petitioner’s 2016

charges. (See Docket Entry 5 at 15-16; see also Docket Entry 16 at

6-7; Docket Entry 9-1 (Affidavit of Everette Neal Clement); Docket

Entry 9-2 (Affidavit of Tara Galene Hawks}.) Those arguments miss

the mark for three reasons.

First, as Respondent argues (see Docket Entry 13 at 11-12),

Petitioner fails to acknowledge that the fact that sheriff’s

deputies found the drugs in question in the pocket of Petitioner’s

brother did not preclude prosecutors from charging Petitioner with

possession of those drugs, see State v. Bowens, 140 N.C. App. 217,

222 (2000) (noting that drug “[p]ossession may be either actual or

constructive” and detailing evidence sufficient to establish

constructive possession (citing State v. Broome, 136 N.C. App. 82,

15

87 (1999), disc. review denied, 351 N.C. 362 (2000))).2 Given the

state of North Carolina law with regard to constructive possession,

Petitioner simply has not shown that retained counsel’s alleged

failure to interview Petitioner’s brother and girlfriend amounted

to constitutionally deficient performance.

Second, contrary to Plaintiff’s assertion that the affidavits

of his brother and girlfriend reflect “their willingness to testify

on [Petitioner’s] behalf” (Docket Entry 16 at 3), neither affidavit

contains any statement indicating that those individuals ever

offered (or would have offered) to testify at Petitioner’s trial

(see Docket Entries 9-1, 9-2). More critically, those affidavits

also fail to state that the affiants conveyed to Petitioner’s

retained counsel that they would have offered credible exculpatory

evidence at Petitioner’s trial. (See id.)3

2 As an attorney with North Carolina Prisoner Legal Services (“NCPLS”)

informed Petitioner in response to his request for legal assistance:

[w]hen you took an Alford plea, you agreed to be treated as guilty

even if you disputed the State’s evidence. Therefore, you gave up

the argument that the State did not have enough proof that you

possessed the drugs. Also, it is legal for multiple people to be

charged and sentenced for possession of the same drugs. [NCPLS]

can’t file anything because the drugs were found in your brother’s

pocket.

(Docket Entry 4-7 at 3.)

3 Petitioner maintains that his retained counsel informed Petitioner that

a “conflict of interest” prevented counsel from speaking with Petitioner’s

brother. (Docket Entry 16 at 6; see also Docket Entry 9-2 at 1 (affidavit of

Petitioner’s girlfriend averring that staff at retained counsel’s office “refused

to talk to [her], stating ‘conflict of interest’”).) In light of the fact that

Petitioner’s girlfriend (a co-defendant in Petitioner’s 2016 drug charges)

admitted representation by an appointed counsel (see Docket Entry 9-2 at 1), and

that Petitioner’s brother (also a co-defendant in those same charges) admitted

that he pleaded guilty to those charges (see Docket Entry 9-2 at ), Petitioner’s

retained counsel’s alleged reference to a “conflict of interest” likely would

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Third, to the extent Petitioner wished to assert his innocence

of the charges and to argue that that only his brother and

girlfriend bore responsibility for the drugs in question,

Petitioner should have rejected the prosecution’s plea offer and

insisted on a trial. See Stroupe v. United States, 664 F. Supp. 2d

598, 608 (D.S.C. 2009) (“If [the p]etitioner honestly believed that

the indictment was based upon [] lies . . ., he was entitled to a

trial, where he could have tested the merits of such an argument

and the credibility of his accusers[; however, the p]etitioner’s

plea acts as an acceptance of their credibility, and collateral

review of the matter is simply an inappropriate forum to review

[the p]etitioner’s willing acceptance of the charges.”); see also

Sunal v. Large, 332 U.S. 174, 179 (1947) (“[T]he writ [of habeas

corpus] is not designed for collateral review of . . . the

existence of any evidence to support the conviction . . . .”);

United States v. Ochsner, Crim. No. 89–220, 1992 WL 6279, at *1

(E.D. La. Jan. 6, 1992) (unpublished) (“[The petitioner] cannot,

after entering a guilty plea, challenge the evidence upon which the

indictment against him rested.”).

Petitioner also alleges that retained counsel provided

ineffective assistance by not investigating James Robert Brintle as

the “actual mastermind” of the events leading to Petitioner’s 2018

have represented a short-hand invocation of the rule prohibiting communication

with represented individuals, see N.C. R. Prof. Resp. 4.2. No inference of

deficient performance arises from retained counsel’s compliance with the rules

governing the professional conduct of attorneys in North Carolina.

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larceny and drug charges. (Docket Entry 5 at 17; see also id.

(alleging that Petitioner’s “role would be that of the intended

fraud victim”); Docket Entry 16 at 3 (describing “Christopher

Hatcher [as] owner of property involved in [Petitioner’s] cases”),

11-12 (discussing Brintle and identifying Mike Goins as a witness

to such matters); Docket Entry 9-3 (Affidavit of Christopher

Hatcher); Docket Entry 9-4 (Affidavit of Mike Goins).)

Petitioner’s arguments fail for two reasons. First, neither

affidavit contains any averment that Hatcher or Goins ever offered

(or would have offered) to provide exculpatory testimony at

Petitioner’s trial or that Petitioner’s retained counsel possessed

any awareness that those individuals willingly would provide such

testimony. (See Docket Entries 9-3, 9-4.) Second, and more

significantly, to the extent Petitioner possessed information about

Brintle’s allegedly heightened role in the larceny conspiracy (or

of Petitioner’s innocence of that conspiracy), Petitioner should

have declined the plea offer and proceeded to trial to pursue his

vindication. See Stroupe, 664 F. Supp. 2d at 608 (“If [the

p]etitioner honestly believed that the indictment was based upon []

lies . . ., he was entitled to a trial, where he could have tested

the merits of such an argument and the credibility of his

accusers[; however, the p]etitioner’s plea acts as an acceptance of

their credibility, and collateral review of the matter is simply an

inappropriate forum to review [the p]etitioner’s willing acceptance

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of the charges.”); see also Sunal, 332 U.S. at 179 (“[T]he writ [of

habeas corpus] is not designed for collateral review of . . . the

existence of any evidence to support the conviction . . . .”);

Ochsner, 1992 WL 6279, at *1 (“[The petitioner] cannot, after

entering a guilty plea, challenge the evidence upon which the

indictment against him rested.”).

Next, Petitioner faults retained counsel for not securing a

ruling on the pending motion to suppress prior to Petitioner’s

acceptance of the plea offer and not reserving the right to contest

on direct appeal the trial court’s ruling on the motion to

suppress. (See Docket Entry 4, ¶ 12(Ground One)(a); see also

Docket Entry 5 at 6-7; Docket Entry 16 at 2.) Those contentions

fail to show deficient performance for two reasons. First,

Petitioner’s knowing and voluntary decision to accept the plea

offer on May 23, 2018, mooted the pending motion to suppress filed

on November 9, 2017 (see Docket Entry 16 at 25-29), and ended any

duty on the trial court’s part to rule on that motion. If

Petitioner had desired to obtain a ruling on the motion to suppress

before weighing his prospects at trial, he could have simply

rejected the prosecution’s plea offer. Second, Petitioner has not

shown that the prosecutor would have agreed, as part of the plea

offer, to permit Petitioner to reserve the right to challenge the

trial court’s suppression ruling on appeal. See Williams v. United

States, No. 1:11CV909, 2015 WL 13548372, at *4 (M.D.N.C. Feb. 2,

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2015) (unpublished) (Webster, M.J.) (rejecting the petitioner’s

ineffective assistance claim premised on counsel’s “fail[ure] to

secure [] a conditional plea or open plea, which would have

preserved [the petitioner’s] right to appeal an adverse pretrial

ruling on a suppression motion,” because “there [wa]s nothing in

the record to indicate that the Government would have made such a

concession”), recommendation adopted, 2015 WL 13548160 (M.D.N.C.

Mar. 10, 2015) (unpublished) (Osteen, Jr., C.J.).

Petitioner additionally complains that retained counsel failed

to object to the prosecutor’s statement during the plea hearing

that deputies found the drugs giving rise to Petitioner’s 2018 drug

charges in the pocket of his brother. (See Docket Entry 4,

¶ 12(Ground One)(a); see also Docket Entry 5 at 15; Docket Entry 16

at 6.) However, counsel could not have “objected,” as Petitioner

admits that deputies, in fact, found the drugs in his brother’s

pocket (see Docket Entry 5 at 15; see also Docket Entry 16 at 6).

Moreover, as discussed above, the fact that deputies found the

drugs in the pocket of Petitioner’s brother did not preclude the

prosecution from charging Petitioner with possession of those

drugs, see Bowens, 140 N.C. App. at 222. “[C]ounsel was not

constitutionally ineffective in failing to object to . . . certain

remarks made by the prosecutors . . . because it would have been

futile for counsel to have done so . . . .” Oken v. Corcoran, 220

F.3d 259, 269 (4th Cir. 2000).

20

Petitioner lastly blames retained counsel for negotiating the

plea agreement without informing Petitioner (see Docket Entry 5 at

5), failing to discuss any defense to the 2018 charges (see Docket

Entry 5 at 18), informing Petitioner that the judge would sentence

him to 100 months in prison (see id.), coercing Petitioner to plead

guilty (see Docket Entry 4, @ 12(Ground One) (a); see also Docket

Entry 5 at 15 (alleging that retained counsel “informed

[Petitioner] in a threatening manner that, ‘[counsel] d[id]n’t have

time for one jury trial must [sic] less five’”)), advising

Petitioner that he could not retract his guilty pleas (see Docket

Entry 4, I 12 (Ground One) (a)), and failing to discuss

“appealability” with Petitioner (see id.). All of those

ineffective assistance sub-claims fail as a matter of law.

“Representations of the defendant, his lawyer, and the

prosecutor at [] a [plea] hearing as well as any findings made by

the judge in accepting the plea constitute a formidable barrier in

subsequent collateral proceedings.” Blackledge v. Allison, 431

U.S. 63, j$.73-74 (1977). A petitioner challenging his plea

“necessarily . . . assert[s] that not only his own transcribed

responses, but [also] those given by two lawyers, were untruthful

2...” Id. at 80 n.19. “In the absence of clear and convincing

evidence to the contrary, [a petitioner] must be bound by what he

said at the time of the plea.” Little v. Allsbrook, 731 F.2d 238,

239 n.2 (4th Cir. 1984).

21

Here, Petitioner’s contentions that retained counsel

misadvised Petitioner about the plea agreement, coerced his guilty

pleas, and failed to discuss with him possible defenses and appeal

rights (see Docket Entry 4, ¶ 12(Ground One)(a); see also Docket

Entry 5 at 5, 15, 18) contradict the transcript of plea form which

Petitioner signed under oath (Docket Entry 13-2). In that

document, Petitioner, a 52-year-old college-educated man, swore

that 1) he “underst[oo]d the nature of the charges” against him and

“every element of each charge,” 2) retained counsel had “discussed

the possible defenses, if any, to the charges” with him, 3) he

remained “satisfied with his lawyer’s legal services,” and 4) he

underst[oo]d that following a plea of guilty or no contest there

[we]re limitations on [his] right to appeal.” (Id. at 2 (emphasis

added).) Petitioner then agreed, under oath, that the following

plea agreement remained “correct” and constituted the “full plea

arrangement”:

[Petitioner] agrees to plead guilty to all charges

listed. The State agrees that Defendant will receive an

active sentence on the 12/22/2015 Class E Trafficking

Methamphetamine charge of 90-120 months and an active

sentence of 10-21 months in the Class H PWISD from

10/31/2016, to run at the expiration of the trafficking

sentence. [Petitioner] will then receive three (3)

separate suspended sentences for the Class G Possession

of Firearm by Felon, Class H PWISD Cocaine and, Class F

attempted Trafficking in Methamphetamine charges from

2/2/2018, which will begin after his active sentences are

22

finished. The State further agrees that all other guilty

charges will be consolidated into those listed above.

(Id. at 3.) Petitioner thereafter denied that “anyone promised

[him] anything or threatened [him] in any way to cause [him] to

enter thle guilty] pleals] against his wishes,” and that he

“entered th[e guilty] pleal[s] of [his] own free will, fully

understanding” his actions. (Id. (emphasis added)

Petitioner further indicated that he “agree[d] that there

[we]re facts to support [his guilty] plea[s],” and that he did not

“have any questions about [the plea colloquy] or about anything

else connected to [his] case.” (Id.) Retained counsel and the

prosecutor each certified that Petitioner had agreed to plead

guilty as reflected in the plea arrangement. (Id.) Petitioner’s

self-serving, after-the-fact contentions that retained counsel

misadvised Petitioner about the plea agreement, coerced his guilty

pleas, and failed to discuss with him possible defenses and appeal

rights (see Docket Entry 4, Q{@ 12(Ground One) (a); see also Docket

Entry 5 at 5, 15, 18) fall far short of the “clear and convincing

evidence” necessary for this Court to disregard his sworn and

unambiguous statements, and those of retained counsel and the

prosecutor, to the contrary at the plea hearing, Little, 731 F.2d

at 239 n.2.

Alternatively, even assuming, arguendo, that Petitioner’s

ineffective assistance contentions (either individually or in

totality) could establish constitutionally deficient performance by

23

retained counsel, Petitioner still cannot demonstrate sufficient

prejudice under Strickland. As well-argued by Respondent:

At the time of Petitioner’s guilty plea, he was facing at

least 36 [] individual charges. If Petitioner [had] been

convicted of all charges then pending against him, he was

susceptible to a total maximum punishment of more than

1,288 months (or roughly 107.33 years) imprisonment, and

between a $100,000 to $400,000 fine. Even if Petitioner

serves the maximum cumulative term of imprisonment under

his plea agreement, 141 months, the plea arrangement

reduced his exposure to imprisonment by more than 89

percent. . . . Petitioner was facing a massive term of

imprisonment for his various crimes and the plea

agreement he voluntarily accepted greatly reduced his

term of incarceration.

(Docket Entry 13 at 8-9.) “[Petitioner], in other words, was lucky

to receive the deal that he did.” United States v. Fugit, 703 F.3d

248, 260 (4th Cir. 2012).

Under such circumstances, Petitioner has failed as a matter of

law to show that “a decision to reject the plea bargain would have

been [objectively] rational under the circumstances,” Padilla, 559

U.S. at 372. See, e.g., United States v. Harris, 404 F. App’x 264,

267 (10th Cir. 2010) (“[The petitioner] offers nothing more than

his own word that he would not have pleaded guilty but for

counsel’s actions, and conclusory allegations are insufficient to

support an ineffective assistance of counsel claim.”); Peacock v.

Sherry, No.07-12215, 2009 WL 2900701, at *l (E.D. Mich. Sept. 3,

2009) (unpublished) (“[The p]etitioner’s conclusory statement that

he would have insisted on going to trial absent his counsel’s

ineffective representation falls well short of the standard

24

required to state an ineffective-assistance claim in the

plea-bargain context.”); Simon v. McDonough, No. 3:05CV396, 2007 WL

4181030, at *12 (N.D. Fla. Nov. 20, 2007) (unpublished)

(“Conclusory, self-serving, after-the-fact statements that [the

p]etitioner would not have pled and would have insisted on going to

trial do not meet [the prejudice] requirement.”); see also United

States v. Basham, 789 F.3d 358, 375 (4th Cir. 2015) (“[T]o succeed

on his ineffective assistance claims, [the petitioner] is not

entitled to satisfy the prejudice requirement though rank

speculation . . . .” (internal quotation marks omitted)).

In sum, Ground One warrants no relief.

2. Ground Two

Petitioner’s second Ground for Relief alleges ineffective

assistance of his court-appointed counsel (Docket Entry 4,

¶ 12(Ground Two)), in that she “[d]id not investigate [the]

charges, [a]dvised [Petitioner] to take plea[s] that she had not

reviewed, was not present at [the] plea hearing, [r]efuse[d] to

correspond or relinquish [the] case file, [and] did not address

civil controlled substance tax resulting from [the] criminal

charges as she stated she would” (id., ¶ 12(Ground Two)(a)).

Petitioner’s supporting Memorandum further contends that appointed

counsel “never advised [Petitioner] of possible defenses.” (Docket

Entry 5 at 14.) Those assertions lack merit.

25

To begin, the Court should deem Petitioner’s contentions that

his appointed counsel failed to “address” certain collateral tax

matters and “[r]efuse[d] to correspond or relinquish [the] case

file” (Docket Entry 4, ¶ 12(Ground One)(a)) 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[], 411 U.S. [at] 484 . . . .

[C]orrecting such error[s] would have no impact on the legality of

[Petitioner]’s sentence.” Morton, 2012 WL 1410252, at *14.

Petitioner’s next ineffective assistance sub-claim, that

appointed counsel “never advised [him] of possible defenses”

(Docket Entry 5 at 14) fails as conclusory and unsupported, see

Nickerson, 971 F.2d at 1136 (holding that, “[i]n order to obtain an

evidentiary hearing . . . a habeas petitioner must come forward

with some evidence that the claim might have merit,” and that

“[u]nsupported, conclusory allegations do not entitle a habeas

petition to an evidentiary hearing”). Petitioner has not

identified any defenses to his drug trafficking, drug possession,

larceny, and firearm charges that appointed counsel should have

discussed with him, nor has he asserted the likely success at trial

of any such defense or otherwise explained how discussion of such

unidentified defenses would have resulted in his rejection of the

plea offer and a decision to proceed to trial. (See Docket Entries

26

4, 5, 9.) Moreover, in Petitioner’s response in opposition to the

instant Motion for Summary Judgment, he contradicts his assertion

that appointed counsel failed to discuss any defenses to the

charges:

[Appointed counsel] was appointed in three sets of cases

on 2/19/18, 2/23/18, and 3-13-18; yet by plea hearing on

5/23/20 [sic] she had advised me to take the plea she had

discussed with [retained counsel]. This was less than

three months from her appointment until the plea hearing.

During this time we had talked about strategy for defense

and was [sic] waiting on discovery.

The strategy we discussed was an illegal traffic stop for

stop light violation at the egress of a business parking

area, and the subsequent K-9 search because I had prior

drug charges.

(Docket Entry 16 at 8 (emphasis added).) Such “[v]ague and

conclusory allegations . . . may be disposed of without further

investigation by the [] Court,” Dyess, 730 F.3d at 359.

Next, Petitioner maintains that appointed counsel “had been

appointed to represent [him] less than three months when she

advised [him] to take the plea bargain” and thus “had no reasonable

time to investigate [the] charges.” (Docket Entry 5 at 14; see

also Docket Entry 4, ¶ 12(Ground Two)(a) (accusing appointed

counsel of “not investigat[ing] charges”); Docket Entry 16 at 11

(complaining that appointed counsel “obviously did no investigation

other than the prosecutors [sic] file, if she even had that”).)

Although Petitioner’s assertions lack clarity, he appears to fault

appointed counsel for failing to investigate grounds to contest the

search and seizure of his vehicle and other property on February 2,

27

2018 (see Docket Entry 16 at 8-10; see also Docket Entry 5 at 3-4),

as well as for not interviewing several witnesses regarding the

2018 larceny and drug charges (see Docket Entry 16 at 11-12).

Petitioner’s arguments fall short on two fronts.

First, as discussed above, to the extent the “witnesses” to

Petitioner’s 2018 larceny and drug charges constituted persons

represented by counsel as co-defendants in the same matter,

appointed counsel could not have spoken directly with such

witnesses, in light of the rule prohibiting communication with

represented individuals, see N.C. R. Prof. Resp. 4.2. Second, if

Petitioner believed deputies conducted an illegal search and

seizure of his vehicle and property in February 2018 and/or viewed

himself as the victim of the larceny conspiracy, he should have

rejected the plea offer and insisted on proceeding to trial. See

Stroupe, 664 F. Supp. 2d at 608 (“If [the p]etitioner honestly

believed that the indictment was based upon [] lies . . ., he was

entitled to a trial, where he could have tested the merits of such

an argument and the credibility of his accusers[; however, the

p]etitioner’s plea acts as an acceptance of their credibility, and

collateral review of the matter is simply an inappropriate forum to

review [the p]etitioner’s willing acceptance of the charges.”); see

also Sunal, 332 U.S. at 179 (“[T]he writ [of habeas corpus] is not

designed for collateral review of . . . the existence of any

evidence to support the conviction . . . .”); Ochsner, 1992 WL

28

6279, at *1 (“[The petitioner] cannot, after entering a guilty

plea, challenge the evidence upon which the indictment against him

rested.”).

Petitioner’s final ineffective assistance sub-claim blames

appointed counsel for “[a]dvis[ing Petitioner] to take plea[s] that

she had not reviewed” and for failing to appear on Petitioner’s

behalf at the plea hearing. (Docket Entry 4, ¶ 12(Ground Two)(a).)

Petitioner’s assertion that appointed counsel failed to review the

plea agreement rests on Petitioner’s speculative assumption that,

because “less than three months [passed] from [counsel’s]

appointment until the plea hearing” (Docket Entry 16 at 8), she

could not have had time to review the plea agreement. Petitioner

fails to explain why he believes three months constitutes an

insufficient period of time for appointed counsel to review the

plea agreement. (See Docket Entries 4, 5, 9, 16.) Moreover,

Petitioner admits that appointed counsel actually discussed the

plea agreement with retained counsel. (See Docket Entry 16 at 8

(asserting that, by the time of the plea hearing, appointed counsel

“had advised me to take the plea[s] she had discussed with

[retained counsel]” (emphasis added)).)

With regard to appointed counsel’s alleged absence from the

plea hearing, the record before the Court provides some support for

Petitioner’s assertions. (See Docket Entry 13-2 (Transcript of

Plea reflecting signature of retained counsel but not appointed

29

counsel) .) However, the Transcript of Plea demonstrates that the

plea agreement encompassed all of Petitioner’s underlying charges

from 2015, 2016, and 2018 (see id. at 3, 5, 6), including those

assigned to appointed counsel (see Docket Entry 16 at 34-36) and,

as stated above, Petitioner admits that appointed counsel discussed

the plea agreement with retained counsel (see id. at 8). Thus,

Petitioner has not shown that appointed counsel’s absence from the

plea hearing prejudiced him in any way.

Furthermore, as discussed in the context of Ground One, even

if Petitioner’s assertions regarding appointed counsel could

establish constitutionally deficient performance, Petitioner still

has not shown sufficient Strickland prejudice. In light of the

lengthy prison sentences Petitioner faced if he took his charges to

trial, Petitioner has failed to establish that that “a decision to

reject the plea bargain would have been [objectively] rational

under the circumstances,” Padilla, 559 U.S. at 372. see, €.g.,

Harris, 404 F. App’x at 267 (“[The petitioner] offers nothing more

than his own word that he would not have pleaded guilty but for

counsel’s actions, and conclusory allegations are insufficient to

support an ineffective assistance of counsel claim.”); Peacock,

2009 WL 2900701, at *1 (“[The p]letitioner’s conclusory statement

that he would have insisted on going to trial absent his counsel’s

ineffective representation falls well short of the standard

required to state an ineffective-assistance claim in the

30

plea-bargain context.”); Simon, 2007 WL 4181030, at *12

(“Conclusory, self-serving, after-the-fact statements that [the

p]etitioner would not have pled and would have insisted on going to

trial do not meet [the prejudice] requirement.”); see also Basham,

789 F.3d at 375 (“[T]o succeed on his ineffective assistance

claims, [the petitioner] is not entitled to satisfy the prejudice

requirement though rank speculation . . . .” (internal quotation

marks omitted)).

In short, Petitioner has failed to demonstrate ineffective

assistance by his appointed counsel and thus the Court should deny

Ground Two.

3. Ground Three

Next, Petitioner maintains that “[p]rosecutorial misconduct”

occurred in his case (Docket Entry 4, ¶ 12(Ground Three)), in that

“[n]o indictments or waivers [were] entered in several cases, nor

probable cause hearings held or waived[, r]equest[s] for

materials/records to proceed in litigation went unanswered,

therefore denying ‘due process’ and ‘access to courts[,]’ [and i]n

[the] summary of evidence [the] prosecutor stated ‘the drugs were

found in [Petitioner’s] brother’s pocket,’ yet [Petitioner] was

sentenced for them[ and Petitioner’s brother,] Everette Neil

Clement had previously plead [sic] guilty to the offense” (id.,

¶ 12(Ground Three)(a)). Petitioner’s supporting Memorandum

31

additionally complains of “[m]ultiplicitous indictments in several

charges.” (Docket Entry 5 at 13.)

In order to establish prosecutorial misconduct, Petitioner

must show that the prosecutor’s actions “‘so infected the

[proceedings] with unfairness as to make the resulting conviction

a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181

(1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643

(1974)). “[A] court making a due process inquiry must consider the

challenged conduct in relation to the proceeding as a whole[ and

thus t]he analysis of a due process claim premised on unfair

prosecutorial conduct may [] depend upon numerous factors, which

include the nature of the prosecutorial misconduct, the extent of

the improper conduct, the issuance of curative instructions from

the court, any defense conduct inviting the improper prosecutorial

response, and the weight of the evidence.” Humphries v. Ozmint,

397 F.3d 206, 218 (4th Cir. 2005) (internal citations omitted)

(citing Darden, 477 U.S. at 181-82, and DeChristoforo, 416 U.S. at

645).

Here, Petitioner’s assertions utterly fail to show a denial of

due process by the prosecutor. As an initial matter, Petitioner

fails to identify which of the 36 charges to which he pled guilty

allegedly lacked indictments or waivers (see Docket Entries 4, 5,

9, 16) and thus his contentions fail as conclusory, Nickerson, 971

F.2d at 1136. Furthermore, the record before the Court contradicts

32

Petitioner’s contentions in that each of his cases contained either

a valid indictment or a waiver of indictment. See Docket Entry 13

at 10-11; see also Docket Entry 4-8 (letter from NCPLS to

Petitioner advising him appropriate charging documents existed in

all of his cases).)4

Moreover, Petitioner’s voluntary and knowing guilty pleas bar

Ground Three’s assertions of prosecutorial misconduct relating to

indictments and probable cause hearings, because “a guilty plea

represents a break in the chain of events which has preceded it in

the criminal process” and, “[w]hen a criminal defendant has

solemnly admitted in open court that he is in fact guilty of the

offense with which he is charged, he may not thereafter raise

independent claims relating to the deprivation of constitutional

rights that occurred prior to the entry of the guilty plea,” see

Tollett, 411 U.S. at 267.

Petitioner next maintains that the prosecutor’s failure to

answer Petitioner’s “[r]equest for materials/records to proceed in

litigation . . . den[ied him] ‘due process’ and ‘access to

courts.’” (Docket Entry 4, ¶ 12(Ground Three)(a).) In that regard,

Petitioner asserts that “A.D.A. Miller stated in open court in one

4 Respondent’s Brief cites to Exhibit G pages 2 through 48 as “enclosing

copies of each indictment or waiver” (Docket Entry 13 at 11; see also Docket

Entry 13-1 at 2 (listing an Exhibit G as containing “[i]ndictments in case nos.

15 CRS 054481-054495 and 16 CRS 054084-054088; waivers of indictment in case nos.

18 CRS 050132-050133; 18 CRS 050135; 18 CRS 050389-050393; and 18 CRS

050431-050433”)); however, the electronic version of Respondent’s Brief does not

contain an Exhibit G.

33

of the return of seized property hearings (Approx. 2/3/20), that

[Petitioner] had requested the Discovery for these cases and

[Miller] was denying it,” as well as that Petitioner “needed [that

material] to successfully file post conviction petitions.” (Docket

Entry 16 at 13.) Because Petitioner’s above-described complaint

implicates the prosecutor’s actions after the conclusion of

Petitioner’s underlying criminal cases and in connection with

Petitioner’s attempt to seek post-conviction relief, and correction

of the asserted error would not impact Petitioner’s underlying

convictions and sentences, his assertions remain non-cognizable in

this Section 2254 action. See Preiser, 411 U.S. at 484; Morton,

2012 WL 1410252, at *14.

Lastly, Petitioner’s objection to the prosecutor’s statement

during the plea hearing that “‘the drugs were found in

[Petitioner’s] brother’s pocket’” (Docket Entry 4, ¶ 12(Ground

Three)(a)) fails to establish prosecutorial misconduct because, as

discussed above, the fact that deputies found drugs in the pocket

of Petitioner’s brother did not preclude the prosecution from

charging Petitioner with possession of those drugs, see Bowens, 140

N.C. App. at 222.

In light of foregoing analysis, Ground Three does not entitle

Petitioner to habeas relief.

34

4. Ground Four

In Ground Four, Petitioner alleges “[j]udicial [m]isconduct”

by the “Surry County N.C. Clerk of Court” and the “North Carolina

Administrative Office of the Courts” (Docket Entry 4, ¶ 12(Ground

Four)), in that “[r]epeated request[s] to [the] clerk for case

records: complied with in part, denied in majority[, e]ach reply

contained [a] flier referning [sic] AOC as directing [the] court to

provide copies[, l]etter to and reply from N.C.A.O.C. stating

differently[,] AOC forwarded a copy of [Petitioner’s] letter to

‘[his] attorney’ who does not exist because [Petitioner’s] case is

final[, and] AOC being advocate [sic] ineffective defense attorney”

(id., ¶ 12(Ground Four)(a) (internal parenthetical citations

omitted); see also Docket Entry 5 at 12-13).

As all of the above-detailed contentions involve actions taken

by entities after the conclusion of Petitioner’s underlying

criminal cases and in the context of Petitioner’s pursuit of post-

conviction remedies, and correction of the errors asserted would

not affect Petitioner’s underlying convictions and sentences,

Ground Four remains non-cognizable in this Section 2254 action.

See Preiser, 411 U.S. at 484; Morton, 2012 WL 1410252, at *14.

5. Ground Five

Lastly, Petitioner asserts that the “North Carolina Department

of Public Safety” denied him “‘Due Process’” and “‘Access to

Courts.’” (Docket Entry 4 at 18; see also id. (setting forth as

35

“[s]upporting facts” that “[r]equire[ment] t[hat Petitioner] work

forty (40) and fifty (50) hour work weeks in North Carolina

Correctional Enterprises sewing plant for slave wages, under threat

of displinary [sic] action for not doing so [gave him n]o viable

coarse [sic] to receive time off of job to prepare legal claims[,]

N.C.D.P.S. has contracted with North Carolina Prisoner Legal

Services Inc to provide legal services and eliminate ‘Law Librarys

[sic] [,]’ NCPLS are ‘ineffective counsel’ as provided by

constitutional law[, t]hey do not provide legal assitance [sic],

services, or resources for legitimate actions or anyone who wishes

to proceed on thier [sic] own[, and] N.C.D.P.S. does not provide

any outlet for making photocopies or even the use of a simple

staple to secure legal papers together” (internal parenthetical

citation omitted)); see also Docket Entry 5 at 11-12.)

Because Ground Five concerns actions taken by entities after

the conclusion of Petitioner’s underlying criminal cases and in the

context of Petitioner’s pursuit of post-conviction remedies, and

correction of the errors asserted would not affect Petitioner’s

underlying convictions and sentences, Ground Five remains non-

cognizable in this Section 2254 action. See Preiser, 411 U.S. at

484; Morton, 2012 WL 1410252, at *14.

36

IV. Conclusion

Petitioner’s claims provide no basis for collateral relief.5

IT IS THEREFORE RECOMMENDED that Respondent’s Motion for

Summary Judgment (Docket Entry 12) be granted, that the Petition

(Docket Entry 4) be denied, and that a judgment be entered

dismissing this action, without issuance of a certificate of

appealability.

IT IS ORDERED that Petitioner’s motion to appoint counsel and

for discovery (Docket Entry 17) is DENIED.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

June 25, 2021

5 In view of the Petition’s lack of merit, Petitioner’s motion to appoint

counsel and for discovery (Docket Entry 17) will be denied.

37