McCabe v. State of North Carolina

• Decision Date: 13 July 1970
• Docket Number: No. C-123-G-69.,C-123-G-69.
• Citation: 314 F. Supp. 917
• Court: U.S. District Court — Middle District of North Carolina
• Parties: John McCABE, Petitioner, v. STATE OF NORTH CAROLINA, Respondent.

314 F. Supp. 917

John McCABE, Petitioner, v. STATE OF NORTH CAROLINA, Respondent.

No. C-123-G-69.

United States District Court, M. D. North Carolina, Greensboro Division.

July 13, 1970.

MEMORANDUM OPINION AND ORDER

GORDON, District Judge.

The petitioner, John McCabe, a prisoner of the State of North Carolina, has filed with this Court a petition for writ of habeas corpus pursuant to the provisions of Title 28 U.S.C. § 2241 et seq., and accompanied the petition with an affidavit of poverty. The petition was filed pro se, and an order has heretofore been entered permitting the petition to be filed without prepayment of costs or fees, or security therefor.

Following the filing of the petition, the Court entered an order entertaining same and directing the respondent, through the Attorney General of the State of North Carolina, to file answer, together with certified copies of pertinent State court records and transcripts. The answer, records and transcripts were timely filed.

The Court has examined the entire record and has found that the allegations of constitutional infringement are without merit. For the reasons which follow, the relief sought will be denied without a hearing and the action will be dismissed.

The unrefuted testimony and facts found in the record indicate that at approximately 11:30 on the morning of June 27, 1967, Jack George Perlmutter rented a 1966 Ford, four-door sedan bearing North Carolina license number 2757C from the Avis Rent-A-Car station at the O. Henry Hotel in Greensboro, North Carolina. At approximately 2:30 that afternoon the Ford automobile pulled into a parking space on Elm Street at the corner of North Elm and West Market, in the last position headed south. The occupants of the rear seat, later identified as Perlmutter and petitioner, got out and walked in a northerly direction on Elm Street and entered the Local Finance Company, located at 121 North Elm Street. Perlmutter pulled a gun and advised the only employee in the office at the time, Miss Sylvia Ann Cole,¹ that "this is a holdup." He asked for the keys to the office, and either he or petitioner locked the front door. Perlmutter then told her to give him the cash, and she gave him some $2,100.00, which he stuffed in his pockets. Thereafter, the manager attempted to get in through the front door. Perlmutter advised the employee to tell him they were police officers and to come in. Upon the manager's refusal to enter, Perlmutter and petitioner ran out the front door, proceeded north on North Elm Street, rounded the corner and headed west on Friendly Avenue. A witness who had seen them go in the loan company started pursuing them and called for help to a police officer across the street. They started east on Friendly Avenue in an attempt to intercept Perlmutter and petitioner at their car. Another witness who heard the call pursued the armed robbers around the block. All three witnesses testified that Perlmutter and petitioner jumped in the rear seat of the parked car, and the car immediately "took off," crossed four lanes of traffic and turned north on North Elm Street. The car was chased by a police officer accompanied by one of the witnesses who had joined in the pursuit. The Ford automobile was never out of sight of the police car except momentarily. After a chase of several blocks the Ford was wrecked, and the occupants fled on foot. A few minutes after the police officer and witness arrived on the scene, Perlmutter came up and surrendered, and the money was recovered from his person. A bloodhound was brought to the scene to aid in the apprehension of the other three occupants. A blue coat, later identified as that worn by petitioner during the robbery and subsequent chase, had been found in some bushes in the area and this was used for the dog to get a scent. The dog led the officers to a nearby house and the other defendants, including petitioner, came out of the basement on orders of the officers. No defendant, other than Perlmutter, had on his person any of the money taken in the robbery. A .38 special Colt revolver was recovered from underneath the house. Petitioner was arrested immediately upon his apprehension, duly warned of his constitutional rights and taken to the police station.

Petitioner, along with his three co-defendants, was charged in a bill of indictment on July 10, 1967, with the armed robbery of the Local Finance Company. On September 28, 1967, Mr. Jerry Weston was appointed to represent petitioner, and at the December 4, 1967, Regular Criminal Session of Guilford County Superior Court, petitioner and his co-defendants were tried upon their pleas of not guilty, convicted by the jury of armed robbery, and sentenced by the Honorable Walter E. Crissman, Judge presiding.

Petitioner and two of his co-defendants appealed their convictions and sentences to the North Carolina Court of Appeals which found no error and affirmed petitioner's conviction in State v. McCabe, 1 N.C.App. 461, 162 S.E.2d 66 (1968). Petitioner did not seek certiorari to the Supreme Court of North Carolina.

On September 8, 1968, petitioner filed an application for a post-conviction hearing. The Honorable Eugene G. Shaw denied post-conviction relief, without a hearing, on September 27, 1968. Thereupon, on October 28, 1968, petitioner filed a petition for writ of certiorari with the North Carolina Court of Appeals to review Judge Shaw's judgment and on November 1, 1968, the Court of Appeals entered an order denying the petition for writ of certiorari. On March 6, 1969, petitioner filed a "supplemental petition" for post-conviction relief, which was denied by the Honorable Eugene G. Shaw by judgment dated March 11, 1969. Petitioner's application for writ of certiorari, filed on April 16, 1969, to review that order was denied by the North Carolina Court of Appeals on April 29, 1969.

Petitioner then filed his petition for Federal habeas corpus relief in this Court on July 2, 1969, and by Memorandum Opinion and Order dated August 19, 1969, this Court directed the State of North Carolina, inter alia, to afford petitioner a plenary post-conviction hearing pursuant to the provisions of N.C.G.S. § 15-217 et seq. The State of North Carolina appointed Mr. Harold C. Mahler of the Greensboro Bar to represent petitioner and a plenary hearing was held on October 15, 1969. By judgment dated January 8, 1970, the Honorable James G. Exum, Jr., Resident Judge, denied post-conviction relief.

It is elementary that Federal Courts should not consider and determine constitutional claims made by State prisoners unless it has been alleged and shown that there has been a prior exhaustion of all remedies available in the courts of the State with respect to such claims. 28 U.S.C. § 2254. Ganger v. Peyton, 4 Cir., 379 F.2d 709 (1967). Exhaustion and presentation of claims to the highest court of this State includes seeking review by the North Carolina Supreme Court of an adverse decision of the North Carolina Court of Appeals on direct appeal from conviction and by the North Carolina Court of Appeals for review of any order denying post-conviction relief after a hearing. Loften v. State of North Carolina, Memorandum and Order, No. M-101-69 (M.D.N.C. February 27, 1969). A study of the records before this Court indicates that only one of the contentions raised by petitioner at his post-conviction hearing or in his petition for writ of habeas corpus have ever been submitted for review before a State appellate court.² In other words, petitioner has not exhausted his State court remedies.

Even if the exhaustion requirements had been satisfied, petitioner's contentions are wholly without merit. Filed with the petition for writ of habeas corpus was a seven-page addendum in which the petitioner sets out his contentions and the reasons, both legal and factual, therefor.

1. Illegally Obtained Evidence

Taking the contentions in order, petitioner's first allegation that his constitutional rights were violated— when illegally obtained evidence was presented at his trial—is without merit. First, petitioner fails to allege in his petition any factual background whatsoever describing the manner in which the evidence was obtained illegally. It is well settled that a petitioner's vague, naked and conclusory allegation "without any background factual substantiation whatsoever" will not raise "a factual issue entitling him to a plenary hearing * * *" Midgett v. Warden, Maryland State Penitentiary, 4 Cir., 329 F.2d 185 (1964). "In a collateral attack on a criminal judgment the prisoner must state some factual basis for the relief sought." Atkins v. State of Kansas, 10 Cir., 386 F.2d 819 (1967). Second, the grounds supplied by petitioner in support of his claim appear to be directed solely at the procedure employed by the trial judge in ruling on the admissibility of the evidence. Procedural matters such as jury instructions, sufficiency of evidence, admissibility of evidence, and the like are normally matters of state law and procedure and do not involve federal constitutional issues. "It is only in circumstances impugning fundamental fairness or infringing specific constitutional protections that a federal question is presented." Grundler v. State of North Carolina, 4 Cir., 283 F.2d 798 (1960). Finally, the admissibility of the evidence and the procedure employed therefor were carefully reviewed by the North Carolina Court of Appeals and found to be error-free. Without repeating the court's discussion, suffice it to say that after an examination of the record before this Court, no possible support for petitioner's contention can be found.

2. Lack of Cooperation of State's Witness

Petitioner's second allegation, that his attorney was unable to prepare an adequate defense due to the lack of cooperation of State witnesses, "especially the chief witness Ann Cole," likewise does not rise to the proportions of constitutional infringement necessary to warrant this...