Rasul v. Ishee

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CASE NO. 3:21-cv-00304-MR

BILAL K. RASUL, )

)

Petitioner, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

TODD ISHEE, Secretary, North )

Carolina Department of Adult )

Correction,1 )

)

Respondent. )

___________________________ )

THIS MATTER comes before the Court on the Motion for Summary

Judgment filed by the Respondent on November 28, 2022. [Doc. 13].

I. PROCEDURAL BACKGROUND

Bilal K. Rasul (“the Petitioner”) is a prisoner of the State of North

Carolina. This is a 28 U.S.C. § 2254 habeas corpus proceeding that stems

from the Petitioner having received a loss of good-time credits in connection

with a January 27, 2021 disciplinary hearing. [Doc. 1 at 1]. The disciplinary

1 Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District

Courts requires that “the petition must name as respondent the state officer who has

custody” of the petitioner. Rule 2(a), 28 U.S.C. foll. § 2254. North Carolina law mandates

that the Secretary of the North Carolina Department of Adult Correction is the custodian

of all state inmates. See N.C. Gen. Stat. § 148-4 (2023). Accordingly, Todd Ishee, the

current Secretary of the North Carolina Department of Adult Correction, is the proper

respondent in this action.

hearing officer convicted the Petitioner of assault on a fellow inmate, theft of

property, and possession of contraband and sentenced the Petitioner to 30

days in segregation, with a loss of 60 days of good-time credits. [Id.]. The

Petitioner’s administrative appeal of the disciplinary conviction was denied.

[Docs. 14-2 at 2; 14-3 at 2; 14-4 at 2].

Following exhaustion of his state remedies, the Petitioner filed his §

2254 Petition for Writ of Habeas Corpus in this Court on June 24, 2021, and

an Amended Petition raising additional arguments on October 26, 2021.

[Docs. 1, 3-2]. The Petitioner claims that corrections officials violated his due

process rights with respect to the disciplinary hearing process and seeks to

have his disciplinary convictions overturned and his good-time restored.

[Doc. 1 at 5, 16-18]. The Petitioner alleges that corrections officials did not

advise him of his rights in the disciplinary process and coerced him into

signing forms purportedly advising of his rights, did not advise him of the

alleged misconduct, that the hearing officer did not read all of the

investigative statements during the hearing and made prejudicial comments,

and that officers from a different facility were assigned to conduct

investigations. [Id.].

The Court entered an Order on July 29, 2022 directing the Respondent

to respond to the § 2254 petition. [Doc. 6]. The Respondent filed its Motion

for Summary Judgment on November 28, 2022, moving this Court to grant

summary judgment in its favor and deny the § 2254 petition. [Docs. 13, 14].

In support, the Respondent submitted a brief along with documents from the

Petitioner’s disciplinary record and hearing, pleadings related to the

exhaustion of the Petitioner’s state remedies, and relevant policies governing

the prison disciplinary process. [Doc. 14].

The Court issued an Order on December 12, 2022 advising the

Petitioner of the requirements for filing a response to the summary judgment

motion and of the manner in which evidence could be submitted to the Court.

[Doc. 15]. To date, the Petitioner has filed no response. The Respondent’s

Motion for Summary Judgment is now ripe for review.

II. STANDARD OF REVIEW

Summary judgment shall be granted “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is

genuine “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material only if it might

affect the outcome of the suit under governing law. Id.

The movant has the “initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of ‘the pleadings,

depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any,’ which it believes demonstrate the absence of a genuine

issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct.

2548, 91 L.Ed.2d 265 (1986)(citing Fed. R. Civ. P. 56). The burden then

shifts to the nonmoving party to proffer competent evidence and specific

facts showing that there is a genuine issue for trial. Id. at 323-324. The

nonmoving party must oppose a summary judgment motion by going beyond

the pleadings and by their own affidavits, or by the “depositions, answers to

interrogatories, and admissions on file,” designate “specific facts showing

that there is a genuine issue for trial.” Id. (citing Fed. R. Civ. P. 56). The

nonmoving party “may not rest upon the mere allegations or denials of his

pleading” to defeat a motion for summary judgment. Id. at 322, n.3.

Any permissible inferences to be drawn from the underlying facts must

be viewed in the light most favorable to the party opposing the summary

judgment motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Where, however, 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. Id. at 599. A court is bound to enter summary judgment

“against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party's case, and on which that

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.

at 322.

In reviewing the Respondent’s Motion for Summary Judgment, the

Court must also consider the requirements governing petitions for habeas

corpus as set forth in the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), 28 U.S.C. § 2254(d). The AEDPA applies to “a person in custody

under a state-court judgment who seeks a determination that the custody

violates the Constitution, laws, or treaties of the United States.” Rule

1(a)(1), 28 U.S.C. foll. § 2254. Under the AEDPA, a state prisoner's claims

are limited to allegations that challenge either the fact or duration of their

confinement. Preiser v. Rodriguez, 411 U.S. 475, 489, 93 S.Ct. 1827, 36

L.Ed.2d 439 (1973). “Federal courts may not issue writs of habeas corpus

to state prisoners whose confinement does not violate federal law.” Wilson

v. Corcoran, 562 U.S. 1, 131 S.Ct. 13, 178 L.Ed.2d 276 (2011).

III. FACTUAL BACKGROUND

The forecast of evidence viewed in the light most favorable to the

Petitioner is as follows:

A. January 1, 2021 Contraband Charge

On January 1, 2021 at Lincoln Correctional Center, Sgt. Ellis conduct

a routine search and discovered that the Petitioner possessed 10 hard-boiled

eggs and 20 slices of cheese that had been taken from the corrections facility

kitchen. [Doc. 14-2 at 5]. Sgt. Ellis completed a DC-138B “Statement By

Witness” form describing the items discovered during the routine search.

[Doc. 14-2 at 13].

Officer Meeks completed the investigation report and read the

Petitioner his rights in the offender disciplinary process on the DC-138A

“Notice to Offender” form,2 which the Petitioner signed as “under duress”

instead of his name. [Doc. 14-2 at 10-12]. Officer Meeks noted in his report

that he provided the Petitioner with a copy of the DC-138A form. [Id.].

2 The DC-138A “Notice to Offender” form provides prisoners with notice of their rights in

the disciplinary process, which includes the right to 24-hour advance written notice of the

charges prior to the hearing, right to be informed of the alleged misconduct and to make

statements to the investigating officer, right to request witness statements or evidence be

gathered on the prisoner’s behalf, right to be present at the hearing, right to have staff

assistance present at the hearing, right to have evidence read during the hearing and

right to refute that evidence, and right to an administrative appeal. [Doc. 14-2 at 12].

Officer Meeks also provided the Petitioner with the DC-138B form on

which to make a statement. [Doc. 14-2 at 10-11, 14-15]. The Petitioner

checked the boxes on the form for “No,” indicating that he did not wish to

request written statements be gathered on his behalf, witnesses be present

at the hearing, physical evidence be reviewed at the hearing, or staff

assistance at the hearing. [Doc. 14-2 at 14-15]. The Petitioner provided a

statement accusing Officer Meeks of coercing him into the signing the

“Notice to Offender” DC-138A form and not providing him with a copy. [Id.].

The Petitioner stated that he did not understand the charges against him and

that his due process rights were violated. [Id.]. The Petitioner provided his

initials on the witness statement form and wrote that a civil action would

follow if staff did not dismiss the charges against him. [Id.]. The Petitioner’s

statement made no defense against the alleged contraband items. [Id.].

Officer Meeks noted in his report that he never coerced the Petitioner,

that he explained and provided a copy of the offender rights, and that the

Petitioner’s statement was pre-written before the investigation began. [Doc.

14-2 at 11]. Officer Meeks recommended the Petitioner be charged with a

C17 disciplinary infraction for contraband possession. [Id.]. The “Offense

and Disciplinary Report” prepared on January 11, 2021 advised the

Petitioner of the charges and he pleaded not guilty. [Doc. 14-2 at 8-9].

B. January 12, 2021 Contraband/Property Theft Charge

During a routine search on January 12, 2021, Officer Sweat and Sgt.

Ellis discovered that the Petitioner possessed the following contraband items

that were taken from the kitchen at Lincoln Correctional Center: one clear

bottle with red lid; several pieces of cheese; one boiled egg; one coffee bag

with cocoa; one carton of milk; a shampoo bottle of cooking oil; and one bag

of powdered sugar. [Doc. 14-3 at 10, 13-14]. The officers cited the Petitioner

for a C17 disciplinary infraction for possession of non-threatening

contraband and a C08 disciplinary infraction for theft of property. [Doc. 14-

3 at 5]. Both Sgt. Ellis and Sgt. Sweat provided witness statements

explaining the discovery of the contraband and Officer Luperchio prepared

the Investigating Officer’s Report. [Doc. 14-3 at 10-11; 13-14].

Officer Curtis provided a statement explaining that he read the

Petitioner his DC-138A “Notice to Offender” rights and obtained a statement

from him on January 25, 2021. [Doc. 14-3 at 10-12; 16]. The Petitioner

stated that he did not have any questions regarding his notice of rights but

declined to sign the form, which Officer Curtis and Officer Shoemake

witnessed. [Id.]. Officer Curtis then read the reporting statement to the

Petitioner as written by Sgt. Ellis and Officer Sweat, explained how to request

information and assistance, and provided a copy of the DC-138A form. [Id.].

On the witness statement form, the Petitioner checked the boxes for

“No,” indicating that he did not wish to request written statements be

gathered on his behalf, witnesses be present at the hearing, physical

evidence be reviewed at the hearing, or staff assistance at the hearing. [Doc.

14-3 at 15]. The Petitioner stated that he did not receive due process and

that officials failed to inform him of his rights or the alleged misconduct,

thereby making it impossible to prepare and defend himself. [Id.]. The

Petitioner also stated that he would file a civil action if officials did not dismiss

the alleged misconduct. [Id.]. The Petitioner provided his initials on the

witness statement form and Officer Curtis reported that the Petitioner used

the same blue ink pen to check the boxes declining request for information

as he did to state that officials did not inform him of the alleged misconduct

or his rights. [Doc. 14-3 at 15-16].

The “Offense and Disciplinary Report” prepared on January 26, 2021

advised the Petitioner of the charges and he entered a plea of not guilty. The

Petitioner waived his right to 24 hour written notice before the disciplinary

hearing but refused to acknowledge that his right or charges were explained

to him. [Doc. 14-3 at 8].

C. January 15, 2021 Assault Charge

Prison officials charged the Petitioner with an A04 disciplinary

infraction for assault with a weapon or other means likely to cause injury on

January 15, 2021 after observing him striking another inmate at Lincoln

Correctional Center. [Doc. 14-4 at 5]. Associate Warden Brown provided a

statement explaining that upon reviewing video footage, he observed an

inmate running laps around the dormitory when the Petitioner began striking

the inmate with closed fists in the facial and upper torso area. [Doc. 14-4 at

9-10, 13]. The inmate attempted to push the Petitioner back to prevent

further assault and they both fell to the ground, wherein the Petitioner

continued throwing numerous punches. [Id.]. Associate Warden Brown

concluded that the Petitioner’s assault was unprovoked. [Id.].

The Petitioner was placed on restrictive housing and transferred to

Caldwell Correctional Center pending the outcome of the disciplinary

investigation. [Id.]. Sgt. Ellis prepared the investigating officer’s report and

called Caldwell Correctional Center to have an investigative officer read the

Petitioner his rights and obtain a statement. [Doc. 14-4 at 9-11]. Sgt. Ellis

met with the other inmate involved in the assault who declined to write a

statement but agreed with Associate Warden Brown’s description of event.

[Id.]. Sgt. Ellis also watched the video footage and concluded that the assault

was unprovoked. [Id.]. Sgt. Ellis e-mailed Associate Warden Brown’s

statement to the investigating officer so that he could inform the Petitioner of

the alleged misconduct. [Id.].

At Caldwell Correctional Center, Officer Shoemake explained the DC-

138A form “Notice to Offender” rights and the Petitioner responded that he

did not have questions but declined to sign the form. [Doc. 14-4 at 10-12;

15]. Both Officer Shoemake and Officer Poteet witnessed the Petitioner’s

refusal to sign and noted it on the form. [Doc. 14-4 at 12]. Officer Shoemake

gave the Petitioner a copy of the form. [Doc. 14-4 at 15].

Officer Shoemake read Associate Warden Brown’s reporting

statement to the Petitioner and advised him how to request information and

assistance. [Id.]. The Petitioner checked the boxes for “No,” indicating that

he did not wish to request written statements be gathered on his behalf,

witnesses be present at the hearing, physical evidence be reviewed at the

hearing, or staff assistance at the hearing. [Doc. 14-4 at 14]. The Petitioner

stated on the DC-138B form that the officers did not inform him of the alleged

misconduct, denied him due process, and that he was unable to request

assistance, live witnesses, physical evidence, or written statements. [Id.].

The Petitioner also stated that a civil action would follow if staff did not

dismiss the charges. [Id.]. Officer Shoemake reported that the Petitioner

used the same blue ink pen to check the boxes declining assistance as he

did to state that he was unable to request information or assistance. [Doc.

14-4 at 15].

The “Offense and Disciplinary Report” prepared on January 19, 2021

notified the Petitioner of the charges and he pleaded not guilty. The

Petitioner waived his right to 24 hour written notice before the hearing but

refused to acknowledge that his rights or charges were explained to him.

[Doc. 14-4 at 8].

D. Disciplinary Hearing

A disciplinary hearing for the three disciplinary charges took place on

January 27, 2021 at Caldwell Correctional Center. [Doc. 14-2 at 7; 14-3 at

7; 14-4 at 7]. The hearing officer explained the waiver and appeal options

and the Petitioner acknowledged the receipt and reading of his rights. [Id.].

The hearing officer read all witness statements and the investigating officers’

reports and summarized the evidence. [Id.]. The Petitioner provided no live

witnesses or witness statements, no physical evidence, and requested no

staff assistance. [Id.]. The Petitioner made a verbal statement during the

hearing alleging his rights were violated but did not make any defense

against the charges. [Id.].

The disciplinary hearing officer found the Petitioner guilty and he

received a loss of 10 days of good-time credits for each contraband and theft

charge and a loss of 30 good-time credits for the assault charge, for a total

loss of 60 good-time credits. [Doc. 14-2 at 6; 14-3 at 6; 14-4 at 5].

IV. DISCUSSION

Respondent moves for summary judgment on grounds that the

disciplinary proceedings complied with due process. [Doc. 14 at 3].

Respondent argues that the forecast of evidence is undisputed that the

corrections officials provided adequate notice and explanation of the charges

to the Petitioner and appropriately advised him of his rights in the disciplinary

process. [Id. at 3-16]. Respondent points out that the Petitioner made the

decision not to request information or present any witnesses or evidence on

his behalf. [Id. at 6, 10, 12]. Respondent also argues that there is no

evidence in the record to support the Petitioner’s allegations regarding

improper statements made by the hearing officer and points out that the

Petitioner did not raise this issue in his administrative appeal or initial § 2254

petition. [Id. at 16-17].

A prisoner may challenge a disciplinary conviction under § 2254 to the

extent that it increased the duration of the prisoner’s custody, including loss

of gain time credits. Wilkinson v. Dotson, 544 U.S. 74, 79, 125 S.Ct. 1242,

161 L.Ed.2d 253 (2005)(“Because an action for restoration of good-time

credits in effect demands immediate release or a shorter period of detention,

it attacks ‘the very duration of ... physical confinement,’ ... and thus lies at

‘the core of habeas corpus[.]’ ”)(quoting Preiser v. Rodriguez, 411 U.S 475,

487-488, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)).

Although prisoners retain rights under the Due Process Clause,

“[p]rison disciplinary proceedings are not part of a criminal prosecution, and

the full panoply of rights due a defendant in such proceedings does not

apply.” Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed. 2d

935 (1974). However, prisoners are entitled to certain due process

protections, which include: (1) no less than 24 hours advance written notice

of the disciplinary charges; (2) a written statement by the fact finder regarding

the evidence relied upon and the reasons for any disciplinary action; and (3)

a hearing where the prisoner has the opportunity to call witnesses and

present documentary evidence. Id. at 546-566. The requirements of due

process are satisfied if “there is any evidence in the record that could support

the conclusion reached by the disciplinary board.” Superintendent, Mass.

Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455–56, 105 S.Ct. 2768, 86 L.Ed.2d

356 (1985). Federal courts do not review the correctness of a disciplinary

hearing officer's findings of fact. Kelly v. Cooper, 502 F.Supp. 1371, 1376

(E.D.Va. December 29, 1980).

The Respondent has presented an undisputed forecast of evidence

that shows the disciplinary proceedings satisfied the due process

requirements set forth in Wolff and Hill. As to the contraband and theft

charges, the officers provided witness statements describing the items they

discovered during their routine searches. [Doc. 14-2 at 13; Doc. 14-3 at 13-

14]. The Petitioner was read the reporting statements and advised of the

alleged misconduct. [Doc. 14-2 at 7-9, Doc. 14-3 at 7-8]. Officer Meeks and

Officer Curtis read the Petitioner his notice of rights as set forth in the DC-

138A form and provided the Petitioner with a copy of the form for his records.

[Doc. 14-2 at 10-12; Doc. 14-3 at 10-12; 16].

The DC-138A form advised the Petitioner of his rights, including the

right to written notice, right to be informed of alleged misconduct, right to

make statements, right to request witnesses and evidence, right to staff

assistance, right to have the substance of the evidence read at the hearing,

and opportunity to refute the evidence. [Doc. 14-2 at 12; 14-3 at 12].

However, the Petitioner voluntarily declined to exercise those rights, checked

the boxes declining to request information, and presented no evidence at the

hearing to contest the alleged items of contraband. Neither the Petitioner’s

written statement nor administrative appeals made any defense against the

charges. [Doc. 14-2 at 3-4, 14-15; Doc. 14-3 at 3-4, 15-16].

As to the assault charge, both Associate Warden Brown and Sgt. Ellis

reviewed the recorded video footage and observed the Petitioner striking the

other inmate. [Doc. 14-4 at 5; 9-10, 13]. The Petitioner was read his rights

in the offender disciplinary process along with the officer’s reporting

statement and notified of the charges. [Doc. 14-4 at 8, 10-12, 15]. However,

the Petitioner voluntarily declined to exercise his rights, declined request for

assistance, and presented nothing at the hearing to contest the evidence of

the assault. [Doc. 14-4 at 14-15].

The Petitioner waived his right to 24-hour written notice. [Doc. 14-3 at

8; Doc. 14-4 at 8]. Nonetheless, the Petitioner was advised of the charges

against him more than 24-hours prior to the hearing. [Doc. 14-2 at 7, Doc.

14-3 at 7-8; Doc. 14-4 at 7-8]. The hearing officer read the officers’

statements at the hearing and advised the Petitioner of his rights, which he

acknowledged. The hearing officer also explained her findings and the

evidence relied upon in a written report that the Petitioner received. [Doc.

14-2 at 7; 14-3 at 7; 14-4 at 7].

The Petitioner’s initial § 2254 petition is signed and verified under

penalty of perjury and therefore constitutes summary judgment evidence.

See Goodman v. Diggs, 986 F.3d 493, 498 (4th Cir. 2021). The amended

petition is not verified or signed under the penalty of perjury and therefore,

the additional allegations contained therein do not constitute summary

judgment evidence. [Doc. 3-2]. Although the initial § 2254 petition is verified,

the Petitioner did not respond to the Respondent’s Motion for Summary

Judgment and has not come forward with any additional evidence to rebut

the official prison records submitted by the Respondent that detail the

disciplinary proceedings and include all statements reviewed by the hearing

officer.

The only thing offered by the Petitioner is his conclusory and self-

serving statements. The Court cannot accept this as a forecast of evidence

that can be used to rebut an absence of a genuine issue of material fact.

The Petitioner has failed to meet his burden on summary judgment to rebut

the admissible evidence submitted by the Respondent which directly refutes

the Petitioner’s self-serving statements. See Nat’l Enterprises, Inc. v.

Barnes, 201 F.3d 331, 335 (4th Cir. 2000)(holding that a self-serving affidavit

was insufficient to survive summary judgment); Larkin v. Perkins, 22 Fed.

App’x 114, 115 (4th Cir. 2001)(holding that plaintiff’s “own, self-serving

affidavit containing conclusory assertions and unsubstantiated speculation”

was insufficient to withstand summary judgment); Spencer v. Hutchens, 471

F. Supp. 2d 548, 552 (M.D.N.C. September 1, 2006)(explaining “[w]hen a

defendant presents specific facts in support of a motion for summary

judgment, a plaintiff may not rest on general statements set out in a verified

complaint”).3

In his amended § 2254 petition, the Petitioner accuses the disciplinary

hearing officer of making prejudicial statements.4 [Doc. 3-2]. However, the

Petitioner’s amended petition is unverified and his allegations are conclusory

and unsupported. The Petitioner did not respond to the Respondent’s Motion

for Summary Judgment with any admissible evidence to support these

allegations. The Petitioner also did not raise these allegations in his

administrative appeal or initial petition. [Docs. 14-2 at 3-4; 14-3 at 3-4; 14-4

at 3-4]. As set forth above, the forecast of evidence shows that the

disciplinary hearing officer observed the requirements for due process and

provided a fair hearing with the opportunity to present evidence and

3 The Petitioner also complains that the officer who read his rights and obtained his

witness statement was different from the investigating officer and from a different facility.

[Doc. 1 at 16-17]. This allegation is conclusory and without merit. The Petitioner cannot

show he suffered prejudice and there is nothing in the administrative procedures

governing the disciplinary proceedings that prohibits the use of different officers to carry

out disciplinary investigations. See [Doc. 14-10].

4 The Petitioner accuses the hearing officer of stating the following: “...I am going to side

with staff and find you guilty if you do not plead guilty, no matter the evidence,” “you know

what you did,” and “[b]y now you know the drill, the evidence doesn’t matter, I’m always

on staff’s side. You are guilty.” [Doc. 3-2 at 1-3]. The Petitioner also accuses the hearing

officer of stating “sue me” when he accused her of violating his constitutional rights. [Id.].

witnesses. The Petitioner’s assertions of partiality on behalf of the hearing

officer and due process violations are without merit and cannot withstand

summary judgment.

V. CONCLUSION

For the reasons set forth above, the Court rejects the Petitioner’s

claims that his due process rights were violated in connection with his

dictionary convictions. The Petitioner fails to support his self-serving

allegations with admissible evidence and the forecast of evidence shows that

his claims are wholly lacking in evidentiary support. Accordingly, the

Respondent's Motion for Summary Judgment will be granted and the § 2254

petition and amended petition will be denied.

Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases,

the Court declines to issue a certificate of appealability. See 28 U.S.C. §

2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338 (2003)(noting that, 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); Slack v. McDaniel, 529 U.S. 474, 484 (2000)(holding

that, when relief is denied on procedural grounds, a petitioner must establish

both that the dispositive procedural ruling is debatable and that the petition

states a debatable claim of the denial of a constitutional right).

IT IS, THEREFORE, ORDERED that:

1) The Respondent's Motion for Summary Judgment [Doc. 13] is

GRANTED;

2) The Petition for Writ of Habeas Corpus and Amended Petition for

Writ of Habeas Corpus [Docs. 1, 3-2] are DENIED;

3) The Clerk of Court is respectfully directed to substitute Todd

Ishee, Secretary of the North Carolina Department of Adult

Correction as the proper Respondent in this action;

4) The Court declines to issue a certificate of appealability pursuant

to Rule 11(a) of the Rules Governing Section 2254 Cases; and

5) The Clerk is directed to terminate this case.

IT IS SO ORDERED.

Signed: September 18, 2023

ie ey

Chief United States District Judge Ale

20