Stubbs v. Perritt
| Decision Date | 10 February 2018 |
| Docket Number | NO. 5:15-HC-2239-BO,5:15-HC-2239-BO |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | LARRY CONNELL STUBBS, Petitioner, v. BRAD PERRITT, Respondent. |
On October 15, 2015, Larry Connell Stubbs ("Stubbs"), a North Carolina inmate, filed pro se a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 [D.E. 1]. The matter is before the court to address respondent's pending motion for summary judgment [D.E. 25]. For the reasons discussed below, the court will grant the motion and dismiss Stubbs' petition.
Background:
On June 4, 1973, Stubbs was indicted by a grand jury in Cumberland County on charges of first degree burglary, rape, and larceny. See [D.E. 11-1] at 5-9. On August 6, 1973, Stubbs pleaded guilty to one count of second-degree burglary and one count of assault with the intent to commit rape. Id. at 10-11. The court sentenced Stubbs to life imprisonment for second-degree burglary and a concurrent sentence of 15 years for assault with the intent to commit rape. Id. at 12. Stubbs was represented by Sol Cherry and did not appeal. Id. at 12-13; see also Pet. [D.E. 1] at ¶ 8. Stubbs was seventeen years old at the time of the offense and had turned eighteen at the time of his guilty plea. See State v. Stubbs, 232 N.C. App. 274, 285, 754 S.E.2d 174, 181 (2014), writ dismissed, 771 S.E.2d 292 (N.C. 2015), and aff'd, 368 N.C. 40, 770 S.E.2d 74 (2015).
On October 8, 1974, Stubbs committed the felony offense of attempted escape from prison. See [D.E. 11-2] at 50. On January 16, 1975, Stubbs was convicted of that offense and received an active term of imprisonment of six months maximum to run consecutive to his life sentence. Id.
On August 11, 1977, the Cumberland County Superior Court summarily denied Stubbs' pro se "application for post conviction review" dated August 1, 1977. See id. at 28.
On February 25, 1980, Stubbs filed pro se a motion for appropriate relief ("MAR") in Cumberland County Superior Court. See id. at 29-30. On March 14, 1980, Stubbs, through counsel, amended his MAR. Id. at 31-32. On May 14, 1980, Stubbs received an evidentiary hearing on the MAR. Id. at 33. On May 22, 1980, the MAR was denied by written order. Id. at 34-35.
On August 3, 1981, while incarcerated, Stubbs committed the offense of assault with a deadly weapon. Id. at 50. Stubbs was convicted of that offense on September 16, 1981, and received an active term of imprisonment of two years maximum to run consecutive to his life sentence. Id.
On June 15, 1983, Stubbs completed his sentence for the assault with intent to commit rape conviction, but remained in prison on his life sentence for the second-degree burglary. See id. at 36.
Stubbs was paroled in December 2008. Id. at 36-37. On June 19, 2009, while still on parole, Stubbs committed the offense of driving while impaired ("DWI") in Cumberland County and was convicted of that offense on November 9, 2010. See id. at 36, 48-49. After his DWI conviction, Stubbs' parole was revoked and his life sentence reinstated. Id. at 37. On March 21, 2011, Stubbs completed his sentence for the DWI conviction. Id. at 50.
On May 11, 2011, Stubbs filed a pro se a new motion for appropriate relief ("MAR2") in the Cumberland County Superior Court. See id. at 14-18. The court found the petition non-frivolous and appointed North Carolina Prison Legal Services, Inc., ("NCPLS") to represent Stubbs. Id. at 14-15. On August 13, 2012, the Honorable Gregory A. Weeks, presiding judge, held a hearing and ordered further briefing. See [D.E. 11-3]. On December 5, 2012, Judge Weeks entered a written order granting Stubbs' MAR2, vacating count one of the August 6, 1973, judgment and re-sentencing Stubbs to a term of 30 years for the second-degree burglary conviction. See [D.E. 11-2] at 74-76.
On December 5, 2012, the State filed a petition for writ of certiorari, an application for temporary stay, and a petition for writ of supersedeas in the North Carolina Court of Appeals, seeking review of, and a temporary stay of, Judge Weeks' order granting Stubbs' MAR2. See [D.E. 11-4]. On December 10, 2012, Stubbs filed through counsel a response. See [D.E. 11-5]. On December 13, 2012, the North Carolina Court of Appeals granted certiorari review and stayed the MAR2 order pending disposition of the State's appeal. See [D.E. 11-2] at 79-80. On February 4, 2014, the North Carolina Court of Appeals reversed Judge Weeks' MAR2 order and remanded to the trial court for reinstatement of the original August 6, 1973, judgment and commitment. Stubbs, 232 N.C. App. at 275, 754 S.E.2d at 175. Although the opinion resulted in a divided panel of the North Carolina Court of Appeals, the issue raised by the dissenting judge concerned whether that court possessed subject-matter jurisdiction to review Judge Weeks'MAR2 order. See Stubbs, 232 N.C. App. at 288, 754 S.E.2d at 183 (Stephens, J., dissenting) (). In these appellate proceedings, Stubbs was represented by counsel. See [D.E. 11-2] at 95; [D.E. 11-8] at 25-26; [D.E. 11-10] at 13; [D.E. 11-13] at 29.
On March 11, 2014, Stubbs filed through counsel a notice of appeal and petition for discretionary review in the North Carolina Supreme Court seeking the following review: (1) whether the North Carolina Court of Appeals had subject-matter jurisdiction to review the MAR2 order; and (2) whether the North Carolina Court of Appeals erroneously applied Eighth Amendment jurisprudence when it reversed the order granting Stubbs' MAR2. See [D.E. 11-10]. On March 24, 2014, the State filed a motion to dismiss Stubbs' notice of appeal on the Eighth Amendment constitutional question and a response to Stubbs' petition for discretionary review. See [D.E. 11-11].
On June 11, 2014, the North Carolina Supreme Court issued an order denying discretionary review "as to issues in addition to those presented as the basis for the dissenting opinion in the Courtof Appeals," and an order allowing the State's motion to dismiss the appeal for lack of substantial constitutional question on the Eighth Amendment constitutional question. See [D.E. 11-12]. Stubbs' appeal proceeded solely on the issue of whether the North Carolina Court of Appeals had subject matter jurisdiction to review the MAR2 order. On April 10, 2015, the North Carolina Supreme Court affirmed the North Carolina Court of Appeals' decision as to the issue of the court's subject-matter jurisdiction. State v. Stubbs, 368 N.C. 40, 770 S.E.2d 74, 76 (2015).
On October 15, 2015, Stubbs filed pro se his instant habeas petition [D.E. 1]. After review pursuant to Rule 4 of the Rules Governing Section 2254 cases, the court allowed the petition to proceed [D.E. 5]. Respondent answered the petition and moved for summary judgment. See [D.E. 8, 9]. Stubbs filed a response in opposition to the summary judgment motion. See [D.E. 14, 15, 16].
On February 28, 2017, the court denied without prejudice respondent's motion for summary judgement and appointed NCPLS to represent Stubbs in the matter [D.E. 17]. Stubbs filed through counsel an amended petition [D.E. 22] and an accompanying memorandum in support [D.E. 23].
On June 21, 2017, respondent filed a response to the amended petition [D.E. 24], a motion for summary judgment [D.E. 25], a statement of material facts [D.E. 26], various appendices [D.E. 27, 28, 29], and a memorandum in support of the motion for summary judgment [D.E. 30]. On July 12, 2017, Stubbs filed a statement of material facts [D.E. 31] and a response in opposition to the motion for summary judgment [D.E. 32]. On July 17, 2017, respondent filed a reply [D.E 33].
Arguments:
Stubbs argues that the North Carolina Court of Appeals' "decision is contrary to established federal law concerning proportionality in sentencing and the sentencing of juvenile offenders." Pet'r Mem. [D.E. 23] at 4. Stubbs contends that his sentence violated the Eighth Amendment's prohibition on cruel and unusual punishment because an effective life sentence for second-degree burglary was unconstitutionally disproportionate. Id. at 5-7 (); Adkins v. Virginia, 536 U.S. 304 (2002); Harmelin v. Michigan, 501 U.S. 957, 996 (1991); Solem v. Helm, 463 U.S. 277, 284 (1983); Enmund v. Florida, 458 U.S. 782 (1982); Coker v. Georgia, 433 U.S. 584 (1977)). Stubbs further contends that the reinstatement of his life sentence is also unconstitutional because he was juvenile at the time of the offense. Id. at 7-8 ().
Respondent argues: (1) Stubbs' petition is barred under the one-year limitation of 28 U.S.C. § 2244(d); (2) Stubbs' sentence is not unconstitutionally disproportionate under Supreme Court precedent; (3) the North Carolina Court of Appeals' decision was neither contrary to, nor an unreasonable application of, clearly established federal law; (4) the Supreme Court's cases regarding juvenile defendants are substantially distinguishable from this case and no precedent supports Stubbs' arguments; (5) a decision in favor of Stubbs' arguments would violate the "new rule" prohibition announced in Teague v. Lane, 489 U.S. 288 (1989); and (6) Stubbs failed to exhaust in state court any claim as to juvenile defendant sentencing/parole. See Resp't Mem. [D.E. 30].
Stubbs responds that one-year period of limitations in 28 U.S.C. § 2244(d) should not apply because he was not subject to life imprisonment for a second time until his DWI convection on November 9, 2010, the "date on which the factual...
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