Burnette v. Hooks

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

CIVIL CASE NO. 5:19-cv-00023-MR

)

DANIEL WAYNE BURNETTE, )

)

Petitioner, )

)

vs. ) ORDER

)

ERIK A. HOOKS, Secretary, )

N.C. Dept. of Public Safety, )

)

Respondent. )

)

THIS MATTER is before the Court on Respondent’s Motion for

Summary Judgment [Doc. 5] regarding Petitioner’s pro se Petition for Writ of

Habeas Corpus [Doc. 1] pursuant to 28 U.S.C. § 2254.

I. PROCEDURAL HISTORY

Petitioner Daniel Wayne Burnette is a prisoner of the State of North

Carolina. [Doc. 6 at 1]. On January 19, 2017, a jury trial was held in the

Superior Court of Lincoln County, with Judge Jeffrey P. Hunt presiding. [Id.]

Petitioner was represented at trial by attorney David M. Black.

The North Carolina Court of Appeals summarized the facts from

Petitioner’s trial as follows:

On 7 April 2015, Detective Adam Hicks (“Detective

Hicks”) of the Randolph County Sheriff’s Office was

browsing for-sale advertisements online in search of

property crimes. On a site that advertised guns for

sale, Detective Hicks saw two Browning 12–gauge

shotguns for sale in a post originating from

defendant’s Facebook site. Using personal

information obtained from defendant’s Facebook

site, Detective Hicks conducted a criminal records

search and learned that defendant was previously

convicted of a felony offense. Detective Hicks

contacted Detective Frank Runyon (“Detective

Runyon”) of the Lincoln County Sheriff’s Office, who

asked Detective Hicks to arrange to buy the guns

from defendant. After Detective Hicks sent Facebook

messages inquiring about the guns and expressing

interest in purchasing them, defendant’s profile

messaged a phone number to call. Detective Hicks

called the phone number and arranged a meeting in

a parking lot in Lincoln County.

After Detective Hicks arranged the meeting,

Detective Runyon went to the location at the agreed-

upon time. When Detective Runyon drove past a blue

truck fitting the description of defendant’s truck, he

observed defendant in the driver’s seat and a female

in the passenger’s seat. Detective Runyon parked

behind the truck and activated his blue lights, then

got out of his vehicle and ordered the occupants out

of the truck. On the back seat in the truck cab were

two Browning semi-automatic shotguns. The guns

were seized and defendant was placed under arrest.

On 9 May 2016, defendant was indicted for

possession of a firearm by a felon. The indictment

listed “TWO BROWNING SEMI-AUTOMATIC

SHOTGUNS” as the firearms under defendant’s

possession. On 14 March 2016, defendant was also

indicted for attaining habitual felon status.

State v. Burnette, No. COA17-847, 2018 WL 3029026, at *1 (N.C. Ct. App.

June 19, 2018). The jury convicted Petitioner of possession of a firearm by

a felon and of attaining habitual felon status. Id. Petitioner was subsequently

sentenced to 127-165 months in prison. Id.

Petitioner, represented by Ms. Charlotte Gail Blake, appealed his

conviction to the North Carolina Court of Appeals, arguing the trial court

committed reversible error in its jury instructions. The appellate court issued

an unpublished opinion finding no error on June 19, 2018. Id. Thereafter,

Petitioner filed a pro se motion for appropriate relief (“MAR”) in the Superior

Court of Lincoln County on December 18, 2018. That MAR was summarily

denied by Judge Forest Donald Bridges on December 27, 2018. [Doc. 6 at

1-2]. Petitioner then filed a pro se certiorari motion in the North Carolina

Court of Appeals, which was denied on February 19, 2019. [Id. at 2].

On March 6, 2019, Petitioner filed his pro se federal habeas petition in

this Court. [Doc. 1]. Respondent filed the instant Motion for Summary

Judgment on December 9, 2019, [Doc. 5], and the Court issued a Roseboro

notice on December 13, 2019, advising Petitioner of his right to respond to

the Motion [Doc. 7]. Petitioner moved for an extension of time to file his

response, [Doc. 8], which the Court granted in part to extend Petitioner’s

deadline to respond to February 12, 2020. [Doc. 9]. Petitioner, however,

has failed to file any response. Accordingly, Respondent’s Motion is ripe for

review.

II. LEGAL STANDARD

Summary judgment is appropriate where “the pleadings, the discovery

and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2); see also United

States v. Lee, 943 F.2d 366, 368 (4th Cir. 1991). Thus, to withstand a motion

for summary judgment, the non-moving party must proffer competent

evidence sufficient to reveal the existence of a genuine issue of material

fact. Fed. R. Civ. P. 56(e)(2); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

246-47 (1986).

In determining whether a “genuine issue of material fact” exists, any

permissible inferences to be drawn from the underlying facts must be viewed

in the light most favorable to the non-moving party. Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Erwin v. United

States, 591 F.3d 313, 327 (4th Cir. 2008). However, “the mere existence of

some alleged factual dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment.” Anderson, 477 U.S. at

247-48. Rather, “only disputes over facts that might affect the outcome of

the suit under the governing law will properly preclude summary

judgment.” Thompson v. Carlisle, 2010 WL 382044, at *1 (4th Cir. Feb. 3,

2010). Where the record taken as a whole could not lead a rational trier of

fact to find for the non-moving party, disposition by summary judgment is

appropriate. Anderson, 477 U.S. at 248-49.

In addition to the motion for summary judgment standard set forth

above, this Court must also consider the petition for writ

of habeas corpus under the requirements set forth in the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d). The habeas

statute at 28 U.S.C. § 2254 articulates that a district court “shall entertain an

application for a writ of habeas corpus on 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). “[I]t is not the province of a federal habeas

court to reexamine state-court determinations on state-law questions.”

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Absent violation of a Federal

constitutional right, a habeas petitioner fails to state a cognizable claim for

relief. Wilson v. Corcoran, 562 U.S. 1, 14 (2011) (“Federal courts may not

issue writs of habeas corpus to state prisoners whose confinement does not

violate federal law.”).

The AEDPA, 28 U.S.C. § 2254(d), limits the federal court’s power to

grant habeas relief:

An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a

State court shall not be granted with respect to any

claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the

claim – (1) resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or (2) resulted

in a decision that was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.

28 U.S.C. § 2254(d). The “contrary to” and “unreasonable application”

clauses contained in § 2254(d)(1) are to be given independent meaning—in

other words, a petitioner may be entitled to habeas corpus relief if the state

court adjudication was either contrary to or an unreasonable application of

clearly established federal law. This standard is intentionally “difficult to

meet.” White v. Woodall, 572 U.S. 415, 419 (2014) (internal quote and

citation omitted). “‘[C]learly established Federal law’ for purposes of §

2254(d)(1) includes only ‘the holdings, as opposed to the dicta, of th[e

Supreme] Court's decisions.’” Id. (quoting Howes v. Fields, 565 U.S. 499,

505 (2012)) (internal quote and citation omitted) (first alteration in original).

A state court decision can be “contrary to” clearly established federal

law in two ways: (1) “if the state court arrives at a conclusion opposite to that

reached by [the Supreme Court] on a question of law,” or (2) “if the state

court confronts facts that are materially indistinguishable from a relevant

Supreme Court precedent and arrives at a result opposite to [the Supreme

Court].” Williams v. Taylor, 529 U.S. 362, 405 (2000) (plurality opinion).

“And an ‘unreasonable application of’ [clearly established Federal law] must

be ‘objectively unreasonable,’ not merely wrong; even ‘clear error’ will not

suffice.” Woodall, 572 U.S. at 419 (quoting Lockyer v. Andrade, 538 U.S.

63, 75–76 (2003)). “Rather, ‘[a]s a condition for obtaining habeas corpus

from a federal court, a state prisoner must show that the state court's ruling

on the claim being presented in federal court was so lacking in justification

that there was an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.’” Woodall, 572 U.S. at

419-20 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).

III. DISCUSSION

Pro se pleadings are held to a less stringent standard than those

drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v.

Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, the

requirement of liberal construction does not mean that the Court can ignore

a clear failure in the pleading to allege facts which set forth a claim

cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901

F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009)

(outlining pleading requirements under Rule 8 of the Federal Rules of Civil

Procedure for “all civil actions”). With these principles in mind, the Court

turns to Petitioner’s grounds for relief.

A. Ineffective Assistance of Counsel Claims

Petitioner’s first and third grounds for relief state claims of ineffective

assistance of counsel. Petitioner claims that the advice provided by trial

counsel was deficient, having been informed “that the most time I would

receive by going to trial, if found guilty would be 5 years minimum to 7 years

maximum. I relied on this information in my decision to go to trial.” [Doc. 1-

1 at 2]. Petitioner received a sentence of imprisonment of 127 to 165

months.

In Strickland v. Washington, the Supreme Court identified two

necessary components of an ineffective assistance claim. 466 U.S. 668, 687

(1984). First, “the defendant must show that counsel's performance was

deficient. This requires showing that counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment.” Id. Second, “the defendant must show that the

deficient performance prejudiced the defense.” Id.

When assessing counsel's performance, “a court must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’” Id. at 689. To establish prejudice, a

defendant “must show that there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient to

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

“[W]hen a petitioner's habeas corpus claim is based on alleged

ineffective assistance of counsel .... [t]he AEDPA standard and the Strickland

standard are dual and overlapping, and [the court] appl[ies] the two

standards simultaneously rather than sequentially.” Lee v. Clarke, 781 F.3d

114, 123 (4th Cir. 2015), as amended (Apr. 15, 2015) (quoting Richardson

v. Branker, 668 F.3d 128, 139 (4th Cir. 2012)) (internal quotation marks

omitted). Because both standards of review are “‘highly deferential’ to the

state court's adjudication ..., ‘when the two apply in tandem, the review is

doubly so.’” Id. (quoting Richardson, 688 F.3d at 139).

Applying these dual standards of review to Petitioner’s ineffective

assistance of counsel claims, the Court first looks to Judge Bridges’ Order

addressing the merits of this claim in denying Petitioner’s MAR. [Doc. 6-7 at

3]. Judge Bridges explained:

With regard to allegations concerning the advice of

counsel relating to the plea offer and possible

sentence if convicted, this court takes judicial notice

of the fact that Local Rules within the 27B Judicial

District and local practice pertaining thereto require

that every case be addressed at least twice during

Criminal Administrative Sessions of Court, once at a

"Conference" setting and later at an "Arraignment"

setting. Through locally required process, every

Defendant is advised of his right to accept or reject

any plea offer from the State, his right to a jury trial,

and the range of possible outcomes, including the

sentence to be entered upon a guilty plea and the

possible range of sentences if convicted before a

jury. Through this locally required process, the

Defendant was fully advised of his right to a jury trial,

as well as the possible risks associated therewith.

[Id.]. Petitioner is unable to establish prejudice sufficient to state a claim for

ineffective assistance of counsel. Petitioner asserts that the ineffective

assistance consisted of erroneous advice regarding the potential penalties

Petitioner faced if he proceeded to trial. Even assuming Petitioner’s

allegations to be true, however, Petitioner was not prejudiced by such advice

because the state court thoroughly informed him of the potential outcomes

of accepting a plea deal or proceeding to trial. Regardless of whether

counsel’s performance was deficient, the second prong of the Strickland

analysis is not met here because Petitioner is unable to show that deficient

performance prejudiced the defense when Petitioner was advised of his

rights and the risks associated with proceeding to trial. Strickland, 466 U.S.

at 687. The Court also finds no merit on federal habeas review using the

high standard of deference in § 2254(d) to the state court’s resolution of

Petitioner’s ineffective assistance claims. Consequently, grounds one and

three fail to state a claim and are denied.

B. Sufficiency of the Evidence Claim

The applicable standard for claims of insufficient evidence on federal

habeas review is “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Wright v.

West, 505 U.S. 277, 284 (1992) (quoting Jackson v. Virginia, 443 U.S. 307,

319 (1979) (emphasis in original)). Insufficient evidence claims necessarily

implicate federal due process considerations. See id. Accordingly, a federal

habeas court reviews the sufficiency of the evidence only to the extent

necessary to determine if the state court’s adjudication is contrary to, or an

unreasonable application of, clearly established federal law as discussed

above. 28 U.S.C. § 2254(d).

Petitioner’s claim regarding the sufficiency of the evidence supporting

his firearms convictions was addressed on appeal and, like grounds one and

three above, was summarily denied in the MAR. The supporting facts

presented in the Petition state: “I never possessed any gun, and available

evidence that was not submitted by defense counsel would corroborate my

testimony.” [Doc. 1 at 7]. Judge Bridges reiterated the North Carolina Court

of Appeals’ discussion of Petitioner’s claims about constructive possession,

which noted Petitioner “does not contest the fact that evidence was

introduced showing that the guns were found in a vehicle and that defendant

exercised control over that vehicle . . . [P]ower to control the automobile

where [contraband] was found is sufficient, in and of itself, to give rise to the

inference of knowledge and possession sufficient to go to the jury. . . .”

Burnette, 2018 WL 3029026, at *2 (citing State v. Best, 713 S.E.2d 556, 562

(N.C. App. 2011)); [Doc. 6-7 at 3].

Petitioner’s challenge to the possession element of his conviction for

possession of firearm by a felon has been addressed twice on the merits by

North Carolina courts. The state courts’ application of North Carolina law to

Petitioner’s case does not implicate or conflict with clearly established

federal law and accordingly fails to state a claim on federal habeas review.

The Court therefore denies habeas relief for ground two of the petition.

IV. CONCLUSION

For the foregoing reasons, Respondent’s Motion for Summary

Judgment is granted, and the Petition for Writ of Habeas Corpus is denied.

The Court further finds that Petitioner has not made a substantial

showing of a denial of a constitutional right. See generally 28 U.S.C. §

2253(c)(2); see also Miller El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in

order to satisfy § 2253(c), a “petitioner must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong”) (citing Slack v. McDaniel, 529 U.S. 473, 484-85

(2000)). The Petitioner has failed to demonstrate both that this Court’s

dispositive procedural rulings are debatable, and that the petition states a

debatable claim of the denial of a constitutional right. Slack v. McDaniel, 529

U.S. 473, 484-85 (2000). As a result, the Court declines to issue a certificate

of appealability. See Rule 11(a), Rules Governing Section 2254 Cases in

the United States District Courts, 28 U.S.C. § 2254.

O R D E R

IT IS, THEREFORE, ORDERED that Respondents’ Motion for

Summary Judgment [Doc. 5] is GRANTED, and Petitioner’s Petition for Writ

of Habeas Corpus [Doc. 1] is DENIED.

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules

Governing Section 2254 Cases, the Court declines to issue a certificate of

appealability.

IT IS SO ORDERED.

Signed: July 3, 2020

Martifi Reidinger Ls,

Chief United States District Judge “lly

14