France v. Perry

• Decision Date: 07 May 2015
• Docket Number: 1:13CV250
• Court: U.S. District Court — Middle District of North Carolina
• Parties: CLOREY EUGENE FRANCE, Petitioner, v. FRANK L. PERRY, Respondent.

CLOREY EUGENE FRANCE, Petitioner, v. FRANK L. PERRY,¹ Respondent.

1:13CV250

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

May 7, 2015

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Petitioner, a prisoner of the State of North Carolina, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket Entry 2.) On March 30, 2011, in the Superior Court of Cabarrus County, a jury found Petitioner guilty of felonious breaking or entering, breaking or entering a motor vehicle, attempted first degree burglary, possession of housebreaking implements, misdemeanor possession of stolen goods, and obtaining habitual felon status, in cases 09 CRS 052770 and 052771. (Docket Entry 2, ¶¶ 1, 2, 4-6; see also Docket Entry 9-2 at 178-82.)² The trial court sentenced Petitioner in the presumptive range as an habitual felon to four consecutive terms of 116 to 149 months'imprisonment. (Docket Entry 2, ¶ 3; see also Docket Entry 9-2 at 183-90.)

With the aid of appellate counsel, Petitioner appealed his convictions (Docket Entry 2, ¶¶ 8, 9(a)-(f); see also Docket Entries 9-2, 9-3, 9-4, 9-5), and the North Carolina Court of Appeals found no error as to Petitioner's convictions for felonious breaking or entering, breaking or entering a motor vehicle, and attempted first degree burglary, but vacated his convictions for possession of housebreaking implements and misdemeanor possession of stolen goods, State v. France, 222 N.C. App. 635 (table), 731 S.E.2d 274 (table), No. COA12-50, 2012 WL 3573920 (Aug. 21, 2012) (unpublished). Petitioner did not thereafter submit a certiorari petition to the North Carolina Supreme Court. (See Docket Entry 2, ¶ 9(g).)

Petitioner then filed a motion for appropriate relief ("MAR") with the state trial court (Docket Entry 2, ¶ 11(a)(1)-(6); see also Docket Entry 9-14), which that court denied (Docket Entry 2, ¶ 11(a)(7), (8); see also Docket Entry 9-11). Petitioner sought review of his MAR's denial by filing a certiorari petition in the North Carolina Court of Appeals (Docket Entry 2, ¶ 11(b)(1)-(6); see also Docket Entry 9-12), which that court denied (Docket Entry 2, ¶ 11(b)(7), (8); see also Docket Entry 9-13).

Petitioner subsequently submitted his instant Petition to this Court. (Docket Entry 2.) Respondent moved for summary judgment on the merits (Docket Entry 8) and Petitioner respondedin opposition (Docket Entry 11), and also filed a "Motion for Leave to Expand the Record" (Docket Entry 12), "Motion for Leave to Invoke Discovery" (Docket Entry 13), "Motion for Evidentiary Hearing and for Appointment of Counsel" (Docket Entry 14), "Request for Order for Production of Documents" (Docket Entry 15), "Motion for Mandamus" (Docket Entry 16), "Petitioner's Request for Leave to Amend" (Docket Entry 22), "Petitioner's Request for Leave for Modification of the Record" (Docket Entry 28), "Petitioner's Motion for Court Order for the Release of Documents" (Docket Entry 29), "Petitioner's Motion for Leave to Amend and Proposed Amendment" (Docket Entry 35), and "Motion for Leave to File Supplemental Citations, Authorities and Supplemental Memorandum" (Docket Entry 36).

In previous orders, the undersigned denied Petitioner's "Motion for Mandamus" (see Docket Entry 17 (denying Docket Entry 16)),³ denied as moot "Petitioner's Motion for Court Order for the Release of Documents" (see first Text Order dated Mar. 31, 2015 (denying Docket Entry 29)), and granted "Petitioner's Request for Leave for Modification of the Record" (see second Text Order dated Mar. 31, 2015 (granting Docket Entry 28)), the last of which permitted Petitioner to supplement the record inthe instant case with a copy of the trial court transcript from a hearing on August 26, 2010, on Petitioner's motions to quash, for bond reduction and to suppress (see Docket Entry 28 at 4-61). Additionally, the undersigned denied in part, found moot in part, and granted in part Petitioner's "Motion for Leave to File Supplemental Citations, Authorities and Supplemental Memorandum" (Docket Entry 36), and struck as unauthorized Petitioner's "Supplemental Memorandum" (Docket Entry 37). (See third Text Order dated Mar. 31, 2015.)⁴

Motion for Leave to Expand the Record

Petitioner seeks to expand the record under Rule 7 of the Rules Governing Section 2254 Cases by inclusion of the following materials: (1) reporting officer narrative ("Narrative") (see Docket Entry 11 at 41-42); (2) photocopy of a hand print lifted by Cabarrus County Sheriff's Detective Mitch Queen (see id. at 43-44); (3) notes from interview of Cabarrus County Sheriff's Deputy Eugene Roberts (see id. at 45); (4) notes from interview of victim Michelle Furr (see id. at 66); (5) investigative file report (see id. at 46-47); (6) felony case summary (see id. at 48); (7) transcript of officers' radio transmissions (see id. at 56-64); (8) certificate of request for and delivery of August 26, 2010, pre-trial hearings transcripts (see id. at 65); (9)transcript of victim Michelle Furr's 911 call (see id. at 49-55); (10) victim Darren Furr's statement to Detective Queen (see id. at 67-73); and (11) attorney/client correspondence from April 1, 2011, through July 21, 2012 (see, e.g., Docket Entry 2-3 at 9-10). (Docket Entry 12 at 1-2.) For the reasons that follow, the undersigned will deny Petitioner's Motion for Leave to Expand the Record.

Rule 7 of the Rules Governing Section 2254 Cases provides that, "[i]f the petition is not dismissed, the judge may direct the parties to expand the record by submitting additional materials relating to the petition." When a petitioner seeks to introduce evidence pursuant to Rule 7, he must meet the same conditions prescribed by § 2254(e)(2) for obtaining an evidentiary hearing. See Holland v. Jackson, 542 U.S. 649, 652-53 (2004) (per curiam) (recognizing that § 2254(e)(2)'s "restrictions apply a fortiori when a prisoner seeks relief based on new evidence without an evidentiary hearing"); see also Bradshaw v. Richey, 546 U.S. 74, 79 (2005) (holding federal appellate court erred by relying on evidence not properly presented to state courts without first determining whether habeas petitioner had met § 2254(e)(2) criteria).

"Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420, 429-32 (2000); see also Wolfe v. Johnson, 565 F.3d140, 167 (4th Cir. 2009) (applying Williams standard to review denial of evidentiary hearing). "Diligence for purposes of the opening clause depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend . . . upon whether those efforts could have been successful." Williams, 529 U.S. at 435.

If a habeas petitioner has failed to develop the factual basis of his claim in the state court proceedings, he must show either that his claim relies upon "a new rule of constitutional law, made retroactive to cases on collateral review," or "a factual predicate that could not have been previously discovered through the exercise of due diligence," § 2254(e)(2)(A), and that the evidence clearly and convincingly establishes "that but for constitutional error, no reasonable fact-finder would have found [him] guilty," 28 U.S.C. § 2254(e)(2)(B).

As an initial matter, with respect to the Narrative, investigative file report, and the transcript of the 911 call, those matters already constitute part of the record before the state court. (See Docket Entry 9-9 at 81-82, 88 (911 call); 120-23 (investigative file report); Docket Entry 9-10 at 61-64 (Narrative).) Thus, no need exists to "expand" the record to include such materials, and the undersigned will deny as moot Petitioner's request to add those items to the record.

As to the remaining items at issue, the record establishes that Petitioner failed to develop the state court record.Petitioner either already possessed, or had access through his stand-by trial and/or appellate counsel to, such items prior to the date on which he filed his MAR in the state trial court (December 21, 2012 (see Docket Entry 9-14 at 2 (reflecting date MAR filed)). (See Docket Entry 2-2 at 14 (February 2, 2010 letter from prosecutor to Petitioner regarding disclosure of radio transmissions and 911 call), 17 and 20 (September 30, 2009 and September 22, 2010 letters from prosecutor to Petitioner regarding disclosure of felony case summary), 19 (February 3, 2010 letter from prosecutor to Petitioner regarding disclosure of notes from interview of Deputy Roberts); Docket Entry 11 at 65 (court reporter's certification regarding August 26, 2010 hearing transcript provided to stand-by counsel on March 1, 2011); Docket Entry 9-14 at 23 (Petitioner's MAR argument demonstrating his awareness of his correspondence with appellate counsel), 26 (Petitioner's MAR argument specifically referencing notes from interview of Michelle Furr), 28 (Petitioner's MAR argument expressly referencing Darren Furr's statement), 31 (Petitioner's MAR argument referencing photograph of hand print he received in discovery). Notwithstanding his possession of (or access to) those items, Petitioner failed to submit them to the MAR court or otherwise ensure that such materials became a part of the state court record. (See Docket Entries 9-2, 9-12, 9-14.) Petitioner's omission of those items from the state court record constitutes a failure to develop the factual basis of his underlying claims in the state court proceedings, 28 U.S.C.§ 2254(e)(2). See Swann v. Taylor, No. 98-20, 1999 WL 92435, at *8 (4th Cir. Feb. 18, 1999) (unpublished) (finding that the petitioner "failed to develop the factual basis of his . . . claim within the meaning of § 2254(e)(2), because he did not present the [new evidence] at any point during the...