Mbacke v. Jones

• Decision Date: 14 January 2016
• Docket Number: 1:13CV937
• Court: U.S. District Court — Middle District of North Carolina
• Parties: OMAR SIDY MBACKE, Petitioner, v. ROBERT JONES, Respondent.

OMAR SIDY MBACKE, Petitioner, v. ROBERT JONES, Respondent.

1:13CV937

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

January 14, 2016

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 1.) Respondent has filed an Answer (Docket Entry 13), a Motion for Summary Judgment (Docket Entry 14), and a Supporting Brief (Docket Entry 15). Petitioner has filed a Response (Docket Entry 16) and a Supporting Brief (Docket Entry 17). Respondent has filed a Reply. (Docket Entry 18.) This matter is now prepared for a ruling.

Background

On April 24, 2009, Petitioner was convicted after a jury trial in Superior Court, Forsyth County of trafficking cocaine by transportation, carrying a concealed weapon, trafficking cocaine by possession, and possession with intent to sell or deliver cocaine. (Docket Entry 1, §§ 1-6.) He was sentenced to 175 to 219 months of imprisonment. (Id., § 3.) Petitioner did not file a direct appeal but rather filed a MAR on May 1, 2009, requesting that his motion to suppress be granted and that his charges related to cocaine be dismissed.¹ (Docket Entry 15, Ex. 4 at 44-49.) It was denied on June 16, 2009. (Id. at 50-55.)

Petitioner appealed the denial of his MAR to the North Carolina Court of Appeals. That court reversed the denial of Petitioner's MAR on January 4, 2011 in a split decision, State v. Mbacke, 209 N.C. App. 35 (2011), and was itself reversed in a six to one decision on January 27, 2012 by the Supreme Court of North Carolina, State v. Mbacke, 365 N.C. 403 (2012), Petitioner next sought review by the United States Supreme Court, which denied him further review on October 1, 2012. State v. Mbacke, 133 S.C.t. 224 (2012).

Petitioner filed a second MAR in Superior Court, Forsyth County on October 1, 2013, this time through his current federal habeas counsel. (Docket Entry 15, Ex. 9.) Petitioner then filed the instant Petition with this Court on October 23, 2013 (Docket Entry 1) and it was stayed pending Petitioner's exhaustion of his state court remedies. (Docket Entries 3 and 8.) Petitioner's second MAR was denied on November 7, 2013 in Superior Court, Forsyth County. (Docket Entry 15, Ex. 10.)

Petitioner's Claims

Petitioner contends: (1) the "[t]rial court's denial of [his] Motion for Appropriate Relief violated the Petitioner's rights secured by the Fourth and Fourteenth Amendments"; (2) "[t]rial Counsel Kenneth Tisdale's failure to give Notice of Appeal to any issue other than the denial of the Motion for Appropriate Relief constituted ineffective assistance of counsel"; and (3) appellate counsel's failure "to present al[l] issues in the defendant's Brief in a way . . . [to][e]nsure review constitutes ineffective assistance of counsel." (Docket Entry 1, Grounds One through Four.) As explained below, none of these claims has merit.

Discussion

Respondent first argues that the Petition is time-barred under 28 U.S.C. § 2244(d). (Docket Entry 15 at 5-8.) Respondent's arguments concerning the timeliness of the Petition involve a number of complicated and somewhat unsettled issues. The other grounds set out in Respondent's summary judgment brief present no such difficulties. Moreover, the limitation period in § 2244(d) is not jurisdictional, so the Court need not consider it before proceeding to other arguments. Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002). Given all of these circumstances, the Court will not address the time bar issue further, but instead will analyze Respondent's other summary judgment arguments.²

Standard of Review

Where, as here, a state trial court adjudicated a petitioner's claims on their merits, this Court must apply 28 U.S.C. § 2254(d)'s highly deferential standard of review to such claims. That statute precludes habeas relief in cases where a state court has considered a claim on its merits unless the decision was contrary to or involved an unreasonable application of clearly established federal law as set out by the United States Supreme Court or the state court decision was based on an unreasonable determination of the facts. A state court decision is"contrary to" Supreme Court precedent if it either arrives at "a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite" to that of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state decision "involves an unreasonable application" of Supreme Court law "if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407. "Unreasonable" does not mean just "incorrect" or "erroneous" and the Court must judge the reasonableness from an objective standpoint. Id. at 409-11. State court factual findings are presumptively correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Where the claims below were denied on their merits, this standard will apply.

Factual Background

Here, the Supreme Court of North Carolina recited the factual background in this case as follows:

[O]n 5 September 2007, Winston-Salem police officers were dispatched to 1412 West Academy Street in response to a 911 call placed by Sala Hall. Hall reported that a black male who was armed with a black handgun, wearing a yellow shirt, and driving a red Ford Escape was parked in his driveway. Hall added that the male had "shot up" his house the previous night. The dispatcher relayed this information to the officers.

Officers Walley and Horsley arrived at the scene at approximately 3:08 p.m., less than six minutes after Hall called 911. They observed a black male (later identified as defendant) who was wearing a yellow shirt and backing a red or maroon Ford Escape out of the driveway at the reported address. The officers exited their patrol cars, drew their service weapons, and moved toward defendant while ordering him to stop his car and put hishands in the air. At about the same time, Officer Woods arrived and blocked the driveway to prevent the Escape's escape.

Defendant initially rested his hands on his vehicle's steering wheel, but then lowered his hands towards his waist. In response, the officers began shouting louder commands to defendant to keep his hands in sight and to exit his vehicle. Defendant raised his hands and stepped out of his car, kicking or bumping the driver's door shut as he emerged. The officers ordered defendant to lie on the ground and then handcuffed him, advising him that while they were not arresting him, they were detaining him because they had received a report that a person matching his description was carrying a weapon. In response to a question from the officers, defendant said that he had a gun in his waistband. Officer Walley lifted defendant's shirt and saw a black handgun. After Officer Woods retrieved the pistol and rendered it safe, defendant was arrested for the offense of carrying a concealed gun.

The officers secured defendant in the back seat of a patrol car, then returned to defendant's Escape and opened the front door on the driver's side. Officer Horsley immediately saw a white brick wrapped in green plastic protruding from beneath the driver's seat where defendant had been sitting. As Officer Horsley was showing Officer Walley what he had found, defendant slipped one hand out of his handcuffs, reached through the partially opened window of the police car in which he had been placed, and attempted to open the vehicle door using the exterior handle. After resecuring defendant, the officers searched the entirety of his car incident to the arrest but found no other contraband. A field test of powdery material from the white brick was positive for cocaine, and a subsequent analysis by the State Bureau of Investigation laboratory determined that the brick consisted of 993.8 grams of cocaine.

Mbacke, 365 N.C. at 404-05.

Claim One

Petitioner first contends the trial court's denial of his MAR violated his rights secured by the Fourth and Fourteenth Amendments. (Docket Entry 1, Ground 1.) Petitioner essentially contends that the Supreme Court of North Carolina's resolution of this case is atodds with Arizona v. Gant. (Id.; Docket Entry 17 at 2.) It is therefore instructive to review the analysis of the Supreme Court of North Carolina in this case, which, in pertinent part, was as follows:

Our review necessarily begins with a discussion of Arizona v. Gant, in which the Supreme Court considered whether searching an automobile incident to arrest violated the defendant driver's Fourth Amendment rights when he had been arrested for a traffic offense only and had no access to his car at the time of the search. 556 U.S. at 335-37, 129 S.Ct. at 1714-15, 173 L.Ed.2d at 491-92. Gant's car was not searched until he had been arrested, handcuffed, and locked in the back of a patrol car. Id. at 336-37, 129 S.Ct. at 1715, 173 L.Ed.2d at 492. Although the officers had no apparent reason to suspect at the time of the search that Gant's vehicle contained any contraband, they found cocaine and a weapon in the car. Id. at 336-37, 129 S.Ct. at 1715, 173 L.Ed.2d at 492.

The Supreme Court's analysis of the propriety of the search focused on its opinion in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), in which the Court held that an officer may search the passenger area of a vehicle incident to the arrest of the driver. Gant, 556 U.S. at 337-51, 129 S.Ct. at 1716-23, 173 L.Ed.2d at 493-501 (citing Belton, 453 U.S. at 460, 101 S.Ct. at 2864, 69 L.Ed.2d at 774-75). The majority in Gant noted that the Court in Belton had reasoned that such an approach was consistent with the purposes set out in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), of

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