Ramos v. Harkleroad

• Decision Date: 19 September 2012
• Docket Number: 1:11-cv-169-RJC
• Parties: ROBERT BILLY RAMOS, Petitioner, v. SIDNEY HARKLEROAD, Administrator, Marion Correctional Institution, Respondent.
• Court: U.S. District Court — Western District of North Carolina

ROBERT BILLY RAMOS, Petitioner, v. SIDNEY HARKLEROAD, Administrator, Marion Correctional Institution, Respondent.

1:11-cv-169-RJC

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION

Signed: September 19, 2012

ORDER

THIS MATTER comes before the Court on Respondent Sidney Harkleroad's ("Respondent") Motion for Summary Judgment. (Doc. No. 6).

I. BACKGROUND

Petitioner Robert Billy Ramos ("Petitioner") pled guilty to two counts of possession of a firearm by a felon, maintaining a dwelling, and two counts of attempted trafficking in marijuana on July 3, 2008. (Doc. Nos. 1 at 18; 7 at 1). Under a plea bargain, the court sentenced Petitioner to 7-9 months' imprisonment for the drug offenses and a suspended sentence of 13-16 months' imprisonment on the firearm offenses. (Doc. No. 7 at 1). Petitioner stipulated to having committed certain criminal offenses and that he had a Level IV criminal history. (Id.). Petitioner did not appeal. On June 10, 2009, Petitioner filed a Motion for Appropriate Relief ("MAR"). (Id. at 2). The court denied Petitioner's motion on January 14, 2010. (Id.).

On August 20, 2010, the Buncombe County Superior Court revoked Petitioner's probation and activated his 13-16 month sentence for the firearm offenses. (Id.). Petitioner filed another MAR on May 11, 2011. (Id.). The court denied Petitioner's second MAR on May 20, 2010. (Id.). Petitioner filed a certiorari petition with the North Carolina Court of Appeals onJune 3, 2011, which that court denied on June 17, 2010. (Id.). Petitioner filed this 2254 action on July 11, 2011. Nearly one year later, Petitioner filed a writ of certiorari in the North Carolina Supreme Court on June 22, 2012, which that court denied on August 23, 2012. State v. Ramos, No. 274P12, 2012 WL 3775964 (N.C. Aug. 23, 2012).

II. DISCUSSION

A. Summary Judgment Standard

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. 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).

B. Section 2254 Standard

In addition to the motion for summary judgment standard set forth above, this Court must also consider the Petition for Writ of Habeas Corpus under the requirements set forth in 28 U.S.C. § 2254. Section 2254(d) provides that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim:

(1) 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; or

(2) resulted in a decision that was based on an unreasonable determination of the facts inlight of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Tice v. Johnson, 647 F.3d 87, 103 (4th Cir. 2011).

A claim is considered "adjudicated on the merits" when it is "substantively reviewed and finally determined as evidenced by the state court's issuance of a formal judgment or decree." Young v. Catoe, 205 F.3d 750, 755 (4th Cir. 2000) (quoting Thomas v. Davis, 192 F.3d 445, 455 (4th Cir. 1999)). A state court adjudication is "contrary to" clearly established federal law only if "the state court arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "It is not enough for us to say that, confronted with the same facts, we would have applied the law differently; we can accord [the petitioner] a remedy only by concluding that the state court's application of the law in his case was objectively unreasonable." See Tice, 647 F.3d at 103 (citing Williams v. Ozmint, 494 F .3d 478, 483-84 (4th Cir. 2007)). "[W]e will not discern an unreasonable application of federal law unless 'the state court's decision lies well outside the boundaries of permissible differences of opinion.'" Id. at 108 (quoting Goodman v. Bertrand, 467 F.3d 1022, 1028 (7th Cir. 2006)).

When examining whether a state court's judgment "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), a reviewing court must be mindful that a "determination of a factual issue made by a State court shall be presumed to be correct" unless a petitioner rebuts this presumption "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

In contrast, "[a] federal habeas court will not review a claim rejected by a state court if the decision of [the state] court rests on a state law ground that is independent of the federalquestion and adequate to support the judgment." Walker v. Martin, 131 S.Ct. 1120, 1127 (2011) (internal quotations and citations omitted). "The state-law ground may be a substantive rule dispositive of the case, or a procedural barrier to adjudication of the claim on the merits." Id. (citation omitted). A procedural default also occurs "when a habeas petitioner fails to exhaust available state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Hyman v. Keller, No. 10-6652, 2011 WL 3489092, at *9 (4th Cir. July 21, 2011) (quoting Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998)); see also 28 U.S.C. § 2254(b)(1)(A).

Section 2254's exhaustion requirement demands that a petitioner give "the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." Larry v. Branker, 552 F.3d 356, 366 (4th Cir. 2009) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). This includes filing petitions for discretionary review when that review is part of the ordinary appellate procedure in the state. See id. In North Carolina, a petitioner may satisfy § 2254's exhaustion requirement by directly appealing his conviction to the North Carolina Court of Appeals and then petitioning the North Carolina Supreme Court for discretionary review, or by filing a state post-conviction proceeding in the trial court division and then petitioning the North Carolina Court of Appeals for a writ of certiorari. See N.C. GEN. STAT. §§ 7A-31, 15A-1422.

However, a petitioner may overcome a finding of procedural default by showing cause and prejudice arising from the asserted constitutional error. McCarver v. Lee, 221 F.3d 583, 591-92 (4th Cir. 2000). To show "cause," a petitioner may make "a showing that the factual or legal basis for the claim was not reasonably available to counsel." Id. at 591 (quotingMcCleskey v. Zant, 499 U.S. 467, 494 (1991)). To establish "prejudice," a petitioner must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. at 592 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).

A habeas petitioner may also overcome his procedural default by demonstrating that the court's failure to consider the claim will result in a fundamental miscarriage of justice. Hedrick v. True, 443 F.3d 342, 359 (4th Cir. 2006) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). The "fundamental miscarriage of justice" exception applies only to a narrow class of cases involving extraordinary instances "where a constitutional violation has 'probably resulted' in the conviction of one who is 'actually innocent' of the substantive offense." Dretke v. Haley, 541 U.S. 386, 392-94 (2004) (citing Murray v. Carrier, 477 U.S. 478, 494-96 (1986)).

III. ANALYSIS

A. Ineffective Assistance

Petitioner argues ineffective assistance of counsel for his attorney's failure to appeal the calculation of his prior record level and the court's denial of 238 days of jail credit he should have been awarded. (Doc. No. 1-1 at 4). He further alleges that counsel did not consult him about any right to appeal despite his efforts to raise these issues in open court himself. (Doc. No. 8 at 3). However, Petitioner does not allege that he asked counsel to appeal on his behalf. The first MAR court found that:

There is no evidence from which the Court could find that Defendant's attorney was ineffective and in fact it appears that he made a Plea Agreement on behalf of Defendant that was substantially lower punishment than had he been convicted of the charges.

The transcript of Plea states that the Defendant swore that he knew what he was pleading guilty to, knew what the potential punishment was and in fact, knewwhat punishment he would receive. He also swore that he was satisfied with his counsel.

(Doc. No. 7-7). These factual and legal determinations were reasonable.

[C]ounsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In

...