Pierce v. Hooks
Decision Date | 26 June 2018 |
Docket Number | 5:17-cv-00207-FDW |
Parties | KELLY WINTON PIERCE, Petitioner, v. ERIK HOOKS, Respondent. |
Court | U.S. District Court — Western District of North Carolina |
THIS MATTER is before the Court upon Petitioner Kelly Winton Pierce's pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 1) and Respondent's Motion for Summary Judgment (Doc. No. 4.)
Petitioner is a prisoner of the State of North Carolina who, on November 7, 2013, was convicted by a Wilkes County Superior Court jury of failing to notify the sheriff's office of a change of address as a registered sex offender ("failure to notify"), in violation of N.C. Gen. Stat. § 14-208.9(a).1 State v. Pierce, 766 S.E.2d 854, 855 (N.C. Ct. App. 2014). He pled guilty to attaining habitual felon status. Id. The North Carolina Court of Appeals summarized theevidence presented at trial, as follows:
Petitioner filed a direct appeal, challenging only the failure to notify conviction. Pierce, 766 S.E.2d at 855. He argued that: (1) the indictment was fatally defective because it named the wrong sheriff's department where notification was required and failed to allege a "failure to report in person"; (2) the trial court erred in allowing the indictment to be amended with regard to the dates of offense; and (3) the trial court erred in denying defendant's motion to dismiss because the State failed to provide substantial evidence that he resided in Wilkes County. Id.
The North Carolina Court of Appeals issued a published opinion on December 16, 2014, finding no error at trial. Id. at 861. The North Carolina Supreme Court denied a petition for discretionary review on June 10, 2015. State v. Pierce, 772 S.E.2d 734 (N.C. 2015).
On or about January 29, 2016, Petitioner filed a pro se motion for appropriate relief ("MAR") in the Superior Court of Wilkes County; he was appointed counsel to represent him in post-conviction. The trial court denied the MAR on February 1, 2017, but the North Carolina Court of Appeals granted Petitioner's pro se petition for writ of certiorari for the limited purpose of remanding for an evidentiary hearing on the issue of whether Petitioner received ineffectiveassistance of counsel related to a plea offer.
A post-conviction MAR evidentiary hearing was held on July 14, 2017, in the Superior Court of Wilkes County; Petitioner was represented by counsel. On July 29, 2016, the court entered an order denying Petitioner relief on his ineffective assistance of counsel claim. Petitioner's pro se certiorari petition in the North Carolina Court of Appeals was denied on October 4, 2017.
Petitioner timely filed the instant § 2254 Petition on November 2, 2017, when he signed it under penalty of perjury and placed it in the prison mail box. See Houston v. Lack, 487 U.S. 266, 267 (1988). He raises the following grounds for relief: 1) trial counsel rendered ineffective assistance with respect to a plea offer; and 2) the trial court's jury instruction created a fatal variance in the indictment, thereby allowing the State to convict Petitioner on insufficient evidence that he had moved from Burke to Wilkes County. Respondent has filed a Motion for Summary Judgment (Doc. No. 4) and Petitioner has responded (Doc. No. 7).
Summary judgment is appropriate in those cases where there is no genuine dispute as to any material fact, and it appears that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)(2); United States v. Lee, 943 F.2d 366, 368 (4th Cir. 1991). Any permissible inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), habeas relief may be granted to a state prisoner only if the state court's last adjudication of a claim on the merits "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. § 2254(d)(2). To obtain relief under § 2254(d)(1), a petitioner "is required to 'show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
In his first ground for relief, Petitioner claims trial counsel was ineffective for advising him that the State did not have sufficient evidence to prove he had moved from Burke to Wilkes County and that he, therefore, should reject a plea offer from the State. Petitioner raised the substance of this claim in his MAR. After holding an evidentiary hearing on the claim, the trial court denied it on the merits.
According to Petitioner, prior to his indictment, the State made a plea offer whereby he would plead guilty to failure to notify, a Class F felony, in exchange for a mitigated sentence of 24 months in prison. (§2254 Pet. 5, Doc. No. 1.) His attorney informed him of the offer but advised him to reject it because the State did not have any evidence Petitioner had actuallymoved to Wilkes County; it only had evidence that Petitioner made frequent trips to Wilkes County. (§2254 Pet. 5, 16.) Relying on his attorney's advice and the fact that he had not moved to Wilkes County, Petitioner rejected the plea. Subsequently, a grand jury indicted him for failure to notify and for obtaining habitual felon status. Petitioner's attorney told him the prosecutor was using the habitual felon indictment to try to scare him into accepting the plea. (§2254 Pet. 16....
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