Reid v. WARDEN, CENT. PRISON, RALEIGH, NC, C-C-88-116-P.
| Decision Date | 11 January 1989 |
| Docket Number | No. C-C-88-116-P.,C-C-88-116-P. |
| Citation | 708 F. Supp. 730 |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | Joseph R. REID, Jr., Petitioner, v. WARDEN, CENTRAL PRISON, RALEIGH, NORTH CAROLINA, Respondent. |
708 F. Supp. 730
Joseph R. REID, Jr., Petitioner,
v.
WARDEN, CENTRAL PRISON, RALEIGH, NORTH CAROLINA, Respondent.*
No. C-C-88-116-P.
United States District Court, W.D. North Carolina, Charlotte Division.
January 11, 1989.
Joseph R. Reid, Jr., Troy, N.C., pro se.
Barry S. McNeill, Asst. Atty. Gen., Raleigh, N.C., for respondent.
ORDER
ROBERT D. POTTER, Chief Judge.
THIS MATTER is before the Court upon a Memorandum and Recommendation (M & R), filed November 16, 1988, by Magistrate Paul B. Taylor. In the M & R, Magistrate Taylor recommended that, first, the Court grant Petitioner's motion to withdraw all unexhausted claims and proceed only on the exhausted claims and, second, the Court grant Petitioner's request for a Writ of Habeas Corpus and order Petitioner's immediate release.
The Court will adopt and affirm the Magistrate's findings and recommendation that relate to the withdrawal of unexhausted claims. The Court, further, will adopt and affirm the Magistrate's findings and recommendation that the Attorney General's Motion to Dismiss relating to challenges of the sufficiency of the evidence for the uttering conviction be granted. For the reasons set forth below, the Court also will order that the Attorney General's Motion to Dismiss relating to Petitioner's conviction for forgery be denied and that Petitioner's Petition for a writ of habeas corpus be granted. The Court will order, further, that the State of North Carolina immediately release Petitioner from the custody resulting from the forgery conviction.
I. BACKGROUND
Petitioner was convicted of forgery and uttering a forged check and was sentenced to consecutive terms of imprisonment of five years and two years, respectively. The North Carolina Court of Appeals affirmed these convictions and the North Carolina Supreme Court denied discretionary review. See State v. Reid, 320 N.C. 796, 361 S.E.2d 85 (1987) (denying discretionary review); State v. Reid, 86 N.C.App. 377, 358 S.E.2d 140 (1987) (affirming convictions) (unpublished).
In his M & R, the Magistrate very thoroughly, yet concisely, presented the pertinent facts in evidence that gave rise to Petitioner's convictions for forgery and uttering a forged check. The Court will adopt the Magistrate's presentation of the facts and will refer to the facts contained in the M & R. Briefly, however, the State's evidence demonstrated that the following events transpired. On December 3, 1985, Petitioner and his girlfriend proceeded to a Sherwin Williams paint store, where Petitioner purchased with a forged check several gallons of paint. After making the purchase at one paint store, Petitioner and his girlfriend attempted three times to return the paint for a cash refund to paint stores other than the paint store from which Petitioner had purchased the paint.
Petitioner's evidence demonstrated that the following events took place. Petitioner received from his girlfriend an unsigned check. On the way to the paint store, Petitioner and his girlfriend stopped at residences belonging to friends of Petitioner's girlfriend. Petitioner testified that he did not know who signed the check. Petitioner's girlfriend testified that she neither saw Petitioner sign the check nor believed that the forged signature was the handwriting of Petitioner. Petitioner also testified that "we stopped at a few of her friends sic houses, and when she came out the check
In charging the jury, the trial judge gave the following instruction, among others:
I charge that for you to find the defendant guilty of forgery, the State must prove three things beyond a reasonable doubt:
FIRST, that the defendant falsely made a check by filling in the date, payee, amount, and signed the check on the account of Mr. & Mrs. Griffin with First Union Bank.
When one is found in the possession of a forged instrument and is endeavoring to obtain money or advances upon it, this raises a presumption that the defendant either forged or consented to the forging of such instrument.
SECOND, that at the time the defendant falsely made the check he intended to defraud.
AND THIRD, that the check appeared to be genuine.1
Trial Tr. 125-26 (emphasis added).
II. PETITIONER'S CLAIM FOR HABEAS RELIEF
On March 16, 1988, Reid petitioned for a writ of habeas corpus. Petitioner asserted several claims contending essentially that the evidence produced at trial was insufficient to convict Petitioner. Petitioner also contended that by instructing the jury that proof that Petitioner possessed a forged instrument and attempted to obtain money or an advance on it raises a presumption that Petitioner either forged the instrument or consented to the forgery of the instrument, the trial judge violated Petitioner's due process rights because the instruction created a mandatory presumption and improperly shifted the burden of proof to Petitioner.
On May 19, 1988, in response to Petitioner's claims for relief, the Attorney General of North Carolina filed an Answer to Petition and Motion to Dismiss. The Attorney General conceded that Petitioner correctly had exhausted his state court remedies. Regarding Petitioner's claim about the allegedly erroneous jury instruction, the Attorney General contended, first, that by failing to object at trial to the instruction alleged to be erroneous, Petitioner procedurally had defaulted. The Attorney General argued that unless Petitioner could show both cause for and prejudice from the procedural default, the procedural default barred Petitioner's habeas claim. The Attorney General argued that Petitioner could show neither cause for nor prejudice from the procedural default and that the Court's failure to consider Petitioner's defaulted claim would not constitute a miscarriage of justice. The Attorney General contended, second, that even if the Court determined that the trial court erred in charging the jury with the instruction in issue, the error was harmless. The Attorney General argued that ample circumstantial evidence existed from which the jury, without relying on the presumption, permissibly could infer that Petitioner either forged or participated in the forgery of the check.
Regarding the sufficiency of the evidence to sustain Petitioner's conviction for forgery, the Attorney General contended
On May 5, 1988, and May 13, 1988, Petitioner filed motions with the Court, which the Magistrate construed as adding new claims of relief.
On July 21, 1988, the Attorney General filed a Supplemental Answer to Petition and Motion to Dismiss, in which the Attorney General responded to Petitioner's additional claims for relief. The Attorney General contended that because Petitioner failed to exhaust state court remedies for the new claims for relief, the Court should dismiss Petitioner's cause of action for mixing exhausted and non-exhausted claims for relief.
On August 12, 1988, Petitioner moved the Court to allow the withdrawal of the non-exhausted claims for relief.
III. THE MAGISTRATE'S M & R
In response to the Attorney General's Motion to Dismiss and Petitioner's Motion, the Magistrate filed the M & R now before this Court recommending that, first, the Court grant Petitioner's motion to withdraw all unexhausted claims and proceed only on the exhausted claims and, second, the Court grant Petitioner's request for a Writ of Habeas Corpus and order Petitioner's immediate release.
On November 25, 1988, the Attorney General timely filed Objections to Magistrate's M & R. The Attorney General specifically objected to the following six Magistrate's conclusions:
1. That there was no evidence that Petitioner himself created the forged check, or that he was in sole possession of the check from the time that it was stolen until the time that it was uttered;
2. That the uncontradicted evidence presented by Petitioner and Joyce Smith indicated that the check was forged after Ms. Smith took possession of the unsigned check and went into a friend's house while Petitioner waited outside;
3. That the State failed to meet its burden of proving every element of the forgery beyond a reasonable doubt since there was no evidence tending to show that Petitioner falsely made the check;
4. That the presumption of forgery does not comport with due process of law and cannot be used to support Petitioner's forgery conviction;
5. That the use of the presumption constituted error and unconstitutionally shifted the burden of proof to Petitioner in violation of his rights to due process, and, consequently, that his conviction on the forgery count must be reversed; and
6. That federal habeas review of Petitioner's claim is not barred by his state procedural default since the State failed to prove that Petitioner was guilty of the crime of forgery and the unconstitutional use of the presumption resulted in the conviction of one who is "actually innocent."
Section 636(b)(1)(C) of Title 28 of the United States Code provides that when objections are filed to a Magistrate's proposed findings or recommendations, the district court must conduct a de novo review of the specific findings or recommendations to which the objections are made. Further, section 626(b)(1)(C) authorizes district courts to "accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate."
This Court has conducted a de novo review of those portions of the Magistrate's M & R to which the Attorney General has objected. The Court carefully and thoroughly has reviewed the applicable law, the entire case file, and the M & R.
A. Exhaustion
The Attorney General did not object to the Magistrate's recommendation that the...
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