Warren v. Keller

• Decision Date: 07 October 2011
• Docket Number: CIVIL CASE NO. 1:10cv247
• Parties: WILLARD WARREN, Petitioner, v. ALVIN W. KELLER, JR., Secretary, Department of Corrections, and CLIFF JOHNSON, Administrator, Craggy Correctional Institution, Respondents.
• Court: U.S. District Court — Western District of North Carolina

WILLARD WARREN, Petitioner,

v. ALVIN W. KELLER, JR., Secretary, Department of Corrections,and CLIFF JOHNSON, Administrator, Craggy Correctional Institution, Respondents.

CIVIL CASE NO. 1:10cv247

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

Signed: October 7, 2011

MEMORANDUM OF DECISIONAND ORDER

THIS MATTER is before the Court on the Respondents' Motion for Summary Judgment [Doc. 7]. Petitioner brings this action pursuant to 28 U.S.C. §§2254 and 2241(c)(3) seeking a writ of habeas corpus, arguing that he is entitled to immediate and unconditional release from his incarceration by the State of North Carolina. [Doc. 1]. For the reasons set forth herein, issuance of the writ is denied.

PROCEDURAL AND FACTUAL BACKGROUND

Petitioner was tried and convicted for the murder of Lee Jack Clark. Even though originally sentenced to death, Petitioner was ultimatelysentenced to life in prison¹ after North Carolina's death penalty statute was held unconstitutional in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). At the time Petitioner received his life sentence the version of N.C. Gen. Stat. §14-2 that applied² read as follows: "[a] sentence of life imprisonment shall be considered a sentence of imprisonment for a term of 80 years in the State's prison." Id. (Cum. Supp. 1974).

Petitioner contends that the aggregate of the time he has served, plus good time, gain time and merit time awarded to him, adds up to more than eighty years, and thus he is entitled to immediate unconditional release. During the service of Petitioner's sentence, the North Carolina Department of Corrections (DOC) had never deducted Petitioner's good time, gain time or merit time from his sentence. DOC, however, undertook in October 2009 to re-calculate release dates for Petitioner and others, believing that doing somay be mandated by the North Carolina Court of Appeals' decision in State v. Bowden, 193 N.C. App. 597, 668 S.E.2d 107 (2008), disc. rev. dismissed 363 N.C. 621, 683 S.E.2d 208 (2009). It was determined that Petitioner's release date, so calculated, would have been June 25, 2008. It was anticipated that all prisoners who had such re-calculated release dates that had passed would be released on October 29, 2009. Before Petitioner was released, however, DOC determined that further litigation was being undertaken regarding whether Bowden required the awarding of such time credits and informed Petitioner that he would not be release on the announced date. [Id. at 11]. Petitioner filed an administrative grievance with the DOC on December 9, 2009, asserting that he should have been released on October 29. This was rejected, and Petitioner then filed a petition for habeas corpus in state court pursuant to N.C. Gen. Stat. §17-6. [Doc. 1 at 26-29]. This was summarily denied on November 4, 2010 based on Jones v. Keller, 364 N.C. 249, 698 S.E.2d 49 (2010), cert. denied, ___ U.S. ___, 131 S.Ct. 2150, 179 L.Ed.2d 935 (2011). [Doc. 9-19]. Petitioner then filed the present petition in this Court. Respondents concede that Petitioner has exhausted his state court remedies. [Doc. 9 at 9]. Respondents have answered and have moved for summary judgment. [Docs. 6, 7]

STANDARD OF REVIEW

A federal court reviewing an application for a writ of habeas corpus on behalf of a person in custody pursuant to a state court judgment may not grant such relief unless the decision of the state court "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).

First, a state-court decision is contrary to th[e] ^reme Court's precedent if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law. Second, a state-court decision is also contrary to th[e] ^reme Court's precedent if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [it].

Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389, 425 (2000). "This is a 'difficult to meet' and 'highly deferential standard' for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557, 569 (2011) (citations omitted). The petitioner carries the burden of proof. Id. It is "not whether a federal court believes the state Court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 1939, 167 L.Ed. 2d 836, 844 (2007). This isa standard even higher than clear error. Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 1174-75, 155 L.Ed.2d 144, 158 (2003).

Moreover, review "is limited to the record that was before the state court that adjudicated the claim on the merits." Id. "It would be contrary to [the statutory] purpose to allow a petitioner to overcome an adverse state-court decision with new evidence introduced in a federal habeas court and reviewed by that court in the first instance effectively de novo." Cullen, 131 S.Ct. at 1399. The statutory deference "applies even where there has been a summary denial" by the state supreme court, as was the case here. Id., at 1402; Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 784, 178 L.Ed.2d 624, 638 (2011).

This matter is before the Court on the Respondent's motion for summary judgment, wherein the standard would ordinarily be that

Under the Federal Rules of Civil Procedure [Rule 56], summary judgment shall be awarded "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, ... show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." ... As the Supreme Court has observed, "this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact."

Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 519 (4th Cir. 2003), certiorari den. 541 U.S. 1042, 124 S.Ct. 2171, 158 L.Ed.2d 732 (2004)(emphasis in original). Moreover, a party opposing a properly supported motion for summary judgment

"may not rest upon the mere allegations or denial of [his] pleadings," but rather must "set forth specific facts showing that there is a genuine issue for trial." Furthermore, neither "[u]nsupported speculation," nor evidence that is "merely colorable" or "not significantly probative," will suffice to defeat a motion for summary judgment; rather, if the adverse party fails to bring forth facts showing that "reasonable minds could differ" on a material point, then, regardless of "[a]ny proof or evidentiary requirements imposed by the substantive law," "summary judgment, if appropriate, shall be entered."

Id. (citations omitted). In light of the fact that this matter is brought to this Court pursuant to 28 U.S.C. §2254, however, this matter will be decided on the record presented. Cullen, __ U.S. __, 131 S.Ct. at 1398, 179 L.Ed.2d at 569.

PETITIONER'S REQUEST FOR AN EVIDENTIARY HEARING

In the prayer for relief in his Petition, Warren asks that the Court "grant Petitioner an evidentiary hearing on all issues where a hearing is indicated, to allow him a full and fair opportunity to present the facts which support his claims." [Doc. 1 at 58]. In his memorandum in opposition to the Respondent's motion for summary judgment, Petitioner supports his request by stating that he "is entitled to an evidentiary hearing to develop his own factual record, pursuant to 28 U.S.C. §2254 (d), (e)." [Doc. 12 at 24]. Petitioner, however, is only entitled to an evidentiary hearing if

(A) the claim relies on -

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. §2254 (e)(2). Petitioner has neither alleged nor provided a forecast of evidence to show that he is able to meet either prong of this test, much less both. Therefore, Petitioner's request for an evidentiary hearing must be denied.

DISCUSSION

Petitioner argues that he is entitled to have his sentence reduced by the good time, gain time and merit time he has earned, and when that is done and his life sentence is treated as one of eighty years per N.C. Gen. Stat. §14-2, that he became eligible for release as of June 25, 2008.

This underlying issue is governed by state law. The applicable version of N.C. Gen. Stat. §14-2 states that "[a] sentence of life imprisonment shall be considered a sentence of imprisonment for a term of 80 years in the State's prison." Id. (Cum. Supp. 1974). In November 2008, the North Carolina Courtof Appeals held in State v. Bowden, 193 N.C. App. 597, 601, 668 S.E.2d 107, 110 (2008), that for that class of prisoners sentenced to life prior to the repeal of §14-2,³ a "life sentence is considered as an 80-year sentence for all purposes" and therefore remanded "to determine how many sentence reduction credits [the prisoner] was eligible to receive and how those credits [were] to be applied." Id. (emphasis added). The North Carolina Supreme Court subsequently declined to review the Court of Appeals' ruling. State v. Bowden, 363 N.C. 621, 683 S.E.2d 208 (2009).

Prior to the Bowden decision, the North Carolina Department of Corrections (DOC) regulations...