Brooks v. N.C. Dept. of Correction

• Decision Date: 25 September 1997
• Docket Number: No. 5:96-HC-752-BR2.,5:96-HC-752-BR2.
• Citation: 984 F.Supp. 940
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Michael Edward BROOKS, Petitioner, v. N.C. DEPARTMENT OF CORRECTION, Respondent.

984 F.Supp. 940

Michael Edward BROOKS, Petitioner, v. N.C. DEPARTMENT OF CORRECTION, Respondent.

No. 5:96-HC-752-BR2.

United States District Court, E.D. North Carolina, Western Division.

September 25, 1997.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

G. Alan DuBois, Raleigh, NC, for Petitioner.

Teresa L. Harris, Assoc. Atty. Gen., Raleigh, NC, for Respondent.

ORDER

BRITT, District Judge.

On 25 August 1997, Magistrate Judge Alexander B. Denson filed his Memorandum and Recommendation (M & R) in the above-captioned case in which he recommended that respondent's motion for summary judgment be denied, that the petition for writ of habeas corpus be granted, and that petitioner's conviction be vacated. Respondent filed objections to the M & R on 17 September 1997 contesting Magistrate Judge Denson's M & R as to: (1) certain factual findings therein; (2) the failure to apply the doctrine of procedural bar: (3) the conclusion that N.C. Gen.Stat. § 14-223 impermissibly criminalizes protective speech, and; (4) the conclusion that N.C. Gen.Stat. § 14-223 was unconstitutionally applied to petitioner.

The court has conducted the required de novo review of the M & R, paying specific attention to the portions of the M & R to which respondent objected. Respondent's objections are without merit, and the same are hereby, OVERRULED. The court ADOPTS the well-reasoned M & R of Magistrate Judge Denson as its own and, for the reasons stated therein, respondent's motion for summary judgment is DENIED, the petition for writ of habeas corpus is GRANTED, and petitioner's conviction is VACATED.

MEMORANDUM AND RECOMMENDATION

DENSON, United States Magistrate Judge.

THIS CAUSE comes before the court on Respondent's motion for summary judgment on Petitioner's application for writ of habeas corpus filed under 28 U.S.C. § 2254. This matter was initially referred to the undersigned on March 11, 1997. After reviewing the file, the undersigned concluded that this petition presented a substantial constitutional question and appointed counsel for Petitioner. The undersigned also ordered the parties to submit additional briefing on several issues. They have done so, and this matter is therefore ripe for ruling.

I. Background

On August 31, 1994, Petitioner was convicted of Delaying and Obstructing a Public Officer in violation of N.C. Gen.Stat. § 14-223 (1993) after a jury trial in the Superior Court of Pasquotank County, North Carolina. The facts surrounding his conviction are as follows.

On February 6, 1994, officers of the Elizabeth City Police Department responded to an armed robbery complaint near the Debrier Housing Projects in Elizabeth City, North Carolina. After Officer Aubrey Sample arrived at the residence of the alleged victim, Tavarus Crutch ("Tavarus"), he received a second call reporting a fight nearby. He told Tavarus to stay at home until he returned and went to investigate the fight. Officer Sample was the first police officer to arrive at the scene. As he was speaking to a group of people, he saw a crowd running toward the intersection of Carver Street and Winston Street.

Officer Sample radioed for assistance and walked over to the crowd, where he saw that Wesley Crutch ("Wesley"), Tavarus's cousin, was beating Torrace Rogers, the alleged robber, as Rogers lay on the ground. Officer Sample and Officer Mark Byrum, who had also arrived on the scene, broke up the fight and took Rogers and Wesley into custody. The crowd, which consisted mostly of children and teenagers, told the officers that they had arrested the wrong man and allegedly screamed death threats and racial slurs at Rogers. Fearing for Rogers' safety, Officers Sample and Byrum attempted to keep the crowd under control. Soon thereafter, approximately seven to ten law enforcement officials, including police officers, sheriff's deputies, and a marine fishery officer, arrived as backup. At the beginning of this confrontation, Petitioner, who lives on Carver Street near the Winston Street intersection, was at home asleep in preparation for working the night shift as a correctional officer at nearby Currituck Correctional Facility. After being awakened by the noise, Petitioner went outside to see what was happening.

Once police and sheriff backup arrived, the officers continued to try to bring the crowd, which was still voicing its anger toward Rogers, under control. Tavarus had come to the scene and twice ran toward Rogers, who was still in Officer Sample's custody. Each time, Officer Sample told him to go away, and he complied. On the third time that Tavarus approached, he accused Rogers of robbing him and allegedly threatened to kill him. There was a dispute as to what Officer Sample said in response to Tavarus's statements. According to Officer Sample's testimony and that of several other officers, he told Tavarus, "why in the hell didn't you stay home, like I told you to?" On the other hand, Petitioner testified that Officer Sample said that Tavarus should "take his mother fucking black ass back over in the project somewhere."¹ Petitioner's version was corroborated by his cousin, Brenda Willis, who was in the vicinity of the disturbance.

After overhearing Officer Sample's comments, Petitioner, a minister and leader of a community organization, became upset at what he perceived to be the officer's use of profanity toward Tavarus, who was thirteen years old at the time. His subsequent actions and statements were heavily disputed at trial, and are discussed more fully below. The police officers generally testified that Petitioner began loudly complaining to them about Officer Sample's statement to Tavarus. He was told to file any complaint he had at the police station and was repeatedly asked to leave, but refused and became more agitated, insisting that they would have to arrest him. The police lieutenant at the scene and another officer accepted Petitioner's invitation. They each grabbed one of Petitioner's arms, placed him against the trunk of the patrol car, and handcuffed him. They then walked him up Carver Street to a patrol car and, when he refused to get into the car, they placed him there forcibly by using an abdominal knee thrust.

Petitioner was convicted and sentenced to four to six months' imprisonment, but his sentence was suspended and he was placed on two years' unsupervised probation. He was also ordered to pay a $300 fine and to complete 72 hours of community service. He appealed to the North Carolina Court of Appeals on the grounds that the charging document did not allege that the officers were performing an official duty at the time of his alleged offense. That court found no error on August 1, 1995, and his petition for discretionary review to the North Carolina Supreme Court was denied on October 5, 1995. Petitioner then filed a pro se motion for appropriate relief on May 31, 1996, alleging that N.C. Gen.Stat. § 14-223 violates the First and Fourteenth Amendments and that he received ineffective assistance of counsel at trial and on appeal. This motion was denied on June 27, 1996. He filed a petition for writ of certiorari in the North Carolina Court of Appeals seeking review of the denial of his motion, but that court denied the petition on July 19, 1996. He then brought this action on August 28, 1996.

II. Analysis

Respondent now moves the court to enter summary judgment in its favor on the grounds that Petitioner's claims fail as a matter of law. Summary judgment is appropriate when there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The party seeking summary judgment must come forward and demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the non-moving party must then affirmatively demonstrate that there is a genuine issue of material fact that requires trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). When making the summary judgment determination, the facts and all reasonable inferences must be viewed in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-14.

A. "In Custody" and Mootness

Before addressing the merits of Petitioner's claims, the court must determine whether Petitioner was "in custody" at the time he filed this petition and whether his subsequent unconditional release from probation moots this action. The first inquiry is jurisdictional. "The federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are `in custody in violation of the Constitution or laws or treaties of the United States.'" Maleng v. Cook, 490 U.S. 488, 490, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989) (per curiam) (quoting 28 U.S.C. § 2241(c)(3)) (emphasis in original); see 28 U.S.C. § 2254(a). A habeas petitioner must be in custody "at the time his petition is filed," or the court is without jurisdiction to hear his petition. Maleng, 490 U.S. at 490, 109 S.Ct. at 1924-25.

The Supreme Court has not taken a literal view of the "in custody" requirement, observing that "besides physical imprisonment, there are other restraints on a man's liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus." Jones v. Cunningham, 371 U.S. 236, 240, 83 S.Ct. 373, 376, 9 L.Ed.2d 285 (1963) (holding that persons released from incarceration on parole are "in custody" under 28 U.S.C. § 2241). Like parolees, probationers are also subject to "restraints not shared by the public generally," and should therefore be considered "in custody" for habeas...