Robinson v. Lewis, 5:12-HC-2021-F

• Decision Date: 21 March 2013
• Docket Number: NO. 5:12-HC-2021-F,5:12-HC-2021-F
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: FREDDIE ROBINSON, Petitioner, v. ROBERT LEWIS, Director of Prisons, N.C. Division of Adult Correction, Respondent.

FREDDIE ROBINSON, Petitioner,

v.ROBERT LEWIS, Director of Prisons, N.C. Division of Adult Correction, Respondent.

NO. 5:12-HC-2021-F

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

SO ORDERED: March 21, 2013

ORDER

This matter arises from the petition for writ of habeas corpus [D.E. # 1], pursuant to 28 U.S.C. § 2254, filed by petitioner Freddie Robinson. Petitioner is a state inmate under sentence based upon "his convictions for felonious larceny and having attained the status of an habitual felon." State v. Robinson, 716 S.E.2d 90, 2011 WL 3891041, *1 (N.C. Ct. App. Sept. 6, 2011) (unpublished table decision). Presently before the court are respondent's motion for summary judgment [D.E. # 6] and petitioner's response [D.E. # 22]. For the reasons that follow, the court orders that the motion for summary judgment will be granted and the petition dismissed.

STATEMENT OF THE CASE

Robinson was convicted in the Superior Court of Wake County on July 26,2010. Pet. [D.E. # 1] 1. The North Carolina Court of Appeals described the substantive and procedural facts surrounding petitioner's conviction and sentence as follows:

At approximately 11:00 a.m. on 26 February 2009, Katrina Jenkins, manager of the Raleigh Times Bar LLC, arrived at the restaurant, which opened for businessabout thirty minutes later. After the end of the lunch shift, Ms. Jenkins ordinarily deposited the proceeds from the prior night's business at the bank. Until the daily deposit is made, a white Wachovia deposit bag containing the monies to be deposited and the employees' tips from the preceding evening were stored in a blue accordion folder placed in an unlocked file cabinet in the upstairs office.

At approximately 1:00 p.m., Jonathan Peedin, the husband of a Raleigh Times employee, noticed someone rummaging around in the office. After Mr. Peedin told Ms. Jenkins about his observations, they both saw Defendant "open the door and peek [his] head out, and close it again." At that point, Ms. Jenkins and Mr. Peedin watched Defendant move directly across the hall from the office to the restroom. As Defendant emerged from the restroom, Ms. Jenkins asked him if he needed help with something and patted his back to ascertain if the deposit bag was there. Ms. Jenkins noted that the Defendant was nervous and that the front of his clothes looked "bulky." After indicating that he had gotten lost while looking for the bathroom, Defendant left the restaurant.

While Mr. Peedin kept track of Defendant's location, Ms. Jenkins went to the office to check on the status of the deposit bag and discovered that it was missing. After making this discovery, Ms. Jenkins yelled to Mr. Peedin that Defendant had taken the money. At that point, both Ms. Jenkins and Mr. Peedin began pursuing Defendant. Upon looking over his shoulder and realizing that he was being chased, Defendant began to run down the street.

Initially, Defendant pretended that he was going to board a bus. Next, Defendant attempted to enter a parked car on Blount Street. After realizing that Ms. Jenkins and Mr. Peedin were still chasing him, Defendant shut the car door and continued his flight. At that point, Defendant was "fumbling around with his pants," making "it look[ ] pretty obvious [that] he [wa]s trying to keep something from falling down."

Mr. Peedin and Ms. Jenkins enlisted the aid of several construction workers during their pursuit of Defendant. After this assistance had been obtained, Ms. Jenkins stopped to call 911. As the chase continued, Defendant turned a corner and then "motion [ed] ... as if he ha[d] a pistol;" however, Defendant did not have a weapon in his possession. Shortly thereafter, Defendant went into the First Baptist Church.

After Defendant entered the church, George Flemming, a Bible study teacher at the church, saw him walk through the chapel and go upstairs. According to Mr. Fleming, Defendant remained on the second floor for approximately twenty minutes before returning to the first floor. According to Mr. Fleming, there were no events taking place on the second floor of the church that day.

Officer Steven Wilner of the Raleigh Police Department arrested Defendant at the rear of the church. Although he told Officer Wilner that he had entered the church for the sole purpose of locating a bathroom, Defendant refused to answer any questions when he was taken to the station.

Officers M. Walton and J.D. Ellington, also of the Raleigh Police Department, searched the First Baptist Church for the stolen money. During that process, Officer Walton noticed "some dirt which appeared to be like sheet rock dust" on the back of a toilet in the upstairs men's restroom. Upon examining the ceiling, Officer Walton noted that one of the ceiling tiles was slightly out of place, so he stood on a toilet, reached up into the ceiling, and discovered the Wachovia deposit bag. After reaching further into the ceiling, Officer Ellington discovered the accordion file containing the missing tips.

At that point, Officers Ellington and Walton returned the Wachovia deposit bag and the accordion file to Ms. Jenkins, who counted the money in the deposit bag and verified, using a computer printout, a signed bartender's receipt, and the deposit slip that was still in the deposit bag, that it contained the same $ 1,898.00 amount that had been received at the restaurant on the preceding evening. Although the blue accordion file contained $453.00, that amount could not be verified because there was no written record of the amount of tips that had been received by Raleigh Times employees and placed in the file folder. Officers Ellington and Walton gave the deposit bag and accordion file back to Ms. Jenkins, who signed a receipt stating that she received the property in question. Photographs of the Wachovia bag and the stolen currency were introduced into evidence at Defendant's trial for illustrative purposes.

On 26 February 2009, a warrant for arrest was issued charging Defendant with felonious larceny. On 4 May 2009, the Wake County grand jury returned a bill of indictment charging Defendant with felonious larceny. On 28 July 2009, the Wake county grand jury returned a bill of indictment charging Defendant with having attained the status of an habitual felon.

The charges against Defendant came on for trial before the trial court and a jury at the 22 July 2010 criminal session of the Wake County Superior Court. Prior to trial, Defendant filed a motion seeking to either have the photographs of the allegedly stolen bank bag and currency suppressed pursuant to N.C. Gen.Stat. § 15A-825(3) or the charges against Defendant dismissed on the grounds that investigating officers unlawfully failed to preserve the cash and deposit bag that were recovered from the bathroom ceiling. The trial court denied Defendant's motion. On 26 July 2010, the jury returned a verdict finding Defendant guilty of felonious larceny.

After the jury convicted Defendant of felonious larceny, Defendant unsuccessfully sought to have the habitual felon charge dismissed on the grounds that sentencing him as an habitual felon would result in the imposition of cruel and unusual punishment. Following the presentation of evidence and the arguments of the parties at the habitual felon proceeding, the jury returned a verdict finding that Defendant had attained habitual felon status.

At the ensuing sentencing hearing, the trial court found that Defendant had accumulated seventeen prior record points and should be sentenced as a Level V offender. Based upon these determinations, the trial court sentenced Defendant to a minimum term of 121 months and a maximum term of 155 months imprisonment in the custody of the North Carolina Department of Correction. Defendant noted an appeal to this Court from the trial court's judgment.

Robinson, 2011 WL 3891041 at *1-*3.

Petitioner appealed to the North Carolina Court of Appeals, arguing that the trial court erred by

(1) refusing to dismiss the felonious larceny charge that had been lodged against him for insufficiency of the evidence; (2) denying his motion to suppress photographs of a Wachovia bank bag, tip folder and United States currency; (3) refusing to intervene in the absence of an objection to preclude the presentation of testimony tending to show that Defendant refused to make a statement after being taken into custody; (4) failing to deliver a curative instruction to the effect that the jury should not consider the testimony concerning Defendant's refusal to make a statement to investigating officers in deciding the issue of his guilt; and (5) refusing to dismiss the habitual felon indictment as violative of the provisions of the federal and state constitutions prohibiting cruel and unusual punishment.

Id. at * 1. The Court of Appeals found that petitioner "received a fair trial that was free from prejudicial error and that [his] challenges to the trial court's judgment lack merit" and therefore affirmed his conviction and sentence. Id. at *9. Petitioner did not file a notice of appeal or a petition for discretionary review with the North Carolina Supreme Court. Instead, on October 3, 2011, he filed a motion for appointment of counsel, which was denied on December 8, 2011. State v. Robinson. 365 N.C. 368,719 S.E.2d 47 (N.C. 2011). Petitioner did not file a motion for appropriaterelief or other form of post-conviction relief in the state courts before filing the instant federal habeas corpus petition on January 19, 2012, at the earliest. On June 12, 2012, respondent filed his motion for summary judgment and supporting memorandum with exhibits. On October 1,2012, petitioner filed his response. The matter is now ripe for ruling.

DISCUSSION

I. Standard of Review

A. Summary Judgment

Summary judgment is appropriate when there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24...