MERIS v. ISHEE

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CLYDE JUNIOR MERIS, )
)
Petitioner, )
)
v. ) 1:25CV18
)
TODD ISHEE, )
)
Respondent. )
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner of the State of North Carolina, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (Docket Entry 3.) Respondent has filed an answer (Docket
Entry 7), a motion for summary judgment (Docket Entry 8), and a supporting brief (Docket
Entry 9). Petitioner then filed a response in opposition (Docket Entry 11) to the motion for
summary judgment, to which Respondent filed a reply (Docket Entry 12). Petitioner then filed
what is in effect a sur-reply (Docket Entry 13), a motion for a preliminary injunction (Docket
Entry 14), and a motion to appoint a special master (Docket Entry 15). This matter is now
prepared for a ruling.
Background1
On April 16, 2018, Petitioner entered an Alford plea to five counts of felony larceny,
felony possession of stolen goods, possession of a stolen motor vehicle, and attaining the
status of a habitual felon. (Docket Entry 9, Ex. 1 at 2.) The State provided the following factual
1 Petitioner’s state court filings are voluminous and apparently ongoing. The Court only
directly addresses in this Recommendation those filings material to the resolution of the
pertinent legal issues.
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basis at the plea hearing: In late 2015, Detective Brown was assigned to patrol the area near
the Greensboro airport. (Id., Ex. 2 at 28.) During that time, Detective Brown noticed an
increase in trailer and commercial thefts. (Id.) Two such thefts occurred in 2016 from a
business called Trailco Equipment, whose video surveillance showed a suspect vehicle, a
distinct gold-over-black Ford F-350 dually with black wheels. (Id. at 28-29.) Detective Brown
began surveilling the suspect vehicle, which returned to Trailco several times. (Id. at 29-30.)
On a return visit to Trailco, the gold-over-black dually met up with a white Ford F350
dually truck. (Id. at 30.) An officer identified Petitioner as the driver of the white truck after
approaching the truck as Petitioner parked in an apartment complex. (Id. at 30.) At that time,
the officer noticed Petitioner was trying to start the truck up with a screwdriver in the ignition.
(Id.) Petitioner fled and drove the truck off a retaining wall in the apartment complex. (Id.)
Petitioner escaped on foot. (Id. at 30-31.)
Detective Brown applied for a search warrant to be executed on Petitioner’s residence
and his business. (Id. at 31.) As a result of the search warrant, Detective Brown found evidence
of stolen property taken from numerous companies. (Id. at 32.) Petitioner was then charged
in connection with those cases and placed on electronic monitoring awaiting trial. (Id. at 33.)
Detective Brown later found out Petitioner was slipping the ankle monitor off and continuing
to commit new thefts. (Id.) At that point, Detective Brown obtained a court order to place a
tracker on Petitioner’s truck, which led law enforcement to confirm Petitioner committed a
new theft at a construction site. (Id. at 33-34.) Shortly after being charged with the new theft,
Petitioner cut his ankle monitor and was “loose for several months” before bounty hunters
returned him to custody. (Id. at 35.)
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Petitioner and his attorney stipulated Petitioner was a prior record level VI for habitual
felon sentencing purposes. (Id., Ex. 1 at 3.) The plea agreement provided Petitioner’s
convictions would be consolidated into two habitual felon Class D judgments, and “all
sentencing [would] be determined by the court.” (Id.) Pursuant to the plea agreement, on April
18, 2018 the trial court consolidated at sentencing Petitioner’s charges into two Class D
judgments and sentenced him as prior record level VI to two consecutive sentences of a
minimum 128 to a maximum of 166 months in the custody of the North Carolina Department
of Adult Corrections. (Id.; Docket Entry 9, Ex. 3 at 1, 3.) Petitioner did not appeal to the
North Carolina Court of Appeals from his conviction. (See Docket Entry 3, § 8.)
In 2020, after filing numerous miscellaneous motions (Docket Entry 9, Ex. 6 at 1-3),
Petitioner began filing motions for appropriate relief (“MARs”) in the trial court. (See Docket
Entry 9, Ex. 6 at 1-3.) On March 2, 2020, Petitioner filed a document titled “Motion to Review
Audio Recorded Transcript” in Guilford County Superior Court, raising claims that North
Carolina’s Structured Sentencing scheme was unconstitutional under the Sixth Amendment
and the Due Process Clause of the Fourteenth Amendment, and his sentence violated the
Eighth Amendment’s protection against cruel and unusual punishment. (Id., Ex. 7.) The court
treated Petitioner’s motion as a MAR because he asked for an evidentiary hearing, for his
sentence to be vacated, for his habitual felon enhancement to be stricken, and other relief. (Id.,
Ex. 8 at 1.) In this Recommendation, the Court follows the trial court’s characterization and
refers to this motion as Petitioner’s first MAR. The trial court summarily denied the first MAR
by order filed March 24, 2020. (Id., Ex. 8.) Petitioner did not file a petition for writ of certiorari
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in the North Carolina Court of Appeals to seek review of the denial of his first MAR. (Docket
Entry 3, § 11(d).)2
On November 10, 2020, Petitioner filed a document titled “Motion” in Guilford
County Superior Court, arguing that his sentence violated the Eighth Amendment, among
other claims. (Docket Entry 9, Ex. 9.) The court treated Petitioner’s motion as a MAR. (Id.,
Ex. 10.) In this Recommendation, the Court refers to this motion as Petitioner’s subsequent
MAR. The subsequent MAR was summarily denied on the merits and pursuant to the
procedural bar by order filed December 9, 2020. (Id. at 2.) Petitioner does not indicate he filed
a petition for writ of certiorari seeking review of the denial of the November 10, 2020 MAR.
Meanwhile, on October 26, 2021, following a hearing, Guilford County Superior Court
Judge William A. Wood entered a gatekeeping order against Petitioner. (Id., Ex. 6.) The order
detailed Petitioner’s history of filing “redundant, frivolous and baseless post-conviction
motions” and provided that for a period of eighteen months, Petitioner’s post-conviction
filings would be placed in a “holding file” unless they were determined by a reviewing judge
to be meritorious. (Id. at 11-12.) Petitioner appealed the gatekeeping order to the North
Carolina Court of Appeals. (See id., Docket Entry 9, Exs. 4, Ex. 5 for the parties’ briefs.)
While this appeal of the gatekeeping order was pending at the North Carolina Court of
Appeals, on December 17, 2021, Petitioner filed a petition for writ of habeas corpus in
Mecklenburg County Superior Court, and it was forwarded to Guilford County Superior
2 Petitioner’s answer of “Yes” to the question, “Did you appeal to the highest state
court having jurisdiction over the action taken on your petition, application, or motion,” may
unintentionally be referencing his latest MAR filed in 2024 even though he answered the
prompt: “First petition.” (Docket Entry 3, §§ 10, 11(a) and (d).)
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Court. (See id., Ex. 11, 12.) In his petition for writ of habeas corpus, Petitioner argued his
sentence violated the Equal Protection Clause of the Fourteenth Amendment because an
offender of a higher class could receive the same sentence as Petitioner. (Id., Ex. 11 at 6-12.)
On December 20, 2021, Guilford County Superior Court Judge Wood denied Petitioner’s
petition for writ of habeas corpus on the merits. (Id., Ex. 12.)
On September 16, 2022, Petitioner filed a second petition for writ of habeas corpus in
Durham County Superior Court raising the same claims as in his first petition for writ of
habeas corpus and adding a claim that his sentence violated the Eighth Amendment’s
prohibition against cruel and unusual punishment. (Id., Ex. 13.) By order filed September 20,
2022, Resident Superior Court Judge Michael J. O’Foghludha dismissed and denied
Petitioner’s second petition for writ of habeas corpus. (Id., Ex. 14.)
On December 20, 2022, the North Carolina Court of Appeals filed its opinion
upholding the Guilford County gatekeeping order. (Id., Ex. 15.) Petitioner does not allege he
sought discretionary review in the North Carolina Supreme Court. (Docket Entry 3 at § 9(g).)
Petitioner did not file a petition for a writ of certiorari in the United States Supreme Court.
(Id., § 9(h).) On May 15, 2023, following a hearing, a state court trial judge extended the
gatekeeping order through November 15, 2024. (Docket Entry 9, Ex. 16.)
Petition also filed a federal habeas petition in this Court in October of 2024.
(1:24CV887, Docket Entry 2.) It was dismissed without prejudice so that he could correct
various deficiencies. (Id., Docket Entries 3 and 5.) On January 6, 2025, Petitioner filed the
current petition. (Docket Entry 3 at 1.)
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Petitioner’s Grounds
Petitioner raises two overlapping grounds for relief. (Docket Entry 3, Grounds One
and Two.) First, he contends the state statute for sentencing habitual felons, N.C.G.S. § 14-
7.6, and the North Carolina sentencing statute, N.C.G.S. § 15A-1340.17, are unconstitutional
because punishment classes sometimes overlap on the North Carolina state punishment grid.
(Id., Ground One.) Second, and relatedly, Petitioner contends that other defendants with a
higher offense class and the same prior record level are serving a sentence of the same length
as he is. (Id., Ground Two.)
Discussion
I. Petitioner’s Grounds Are Time-Barred
Respondent requests dismissal on the ground that the petition was filed beyond the
one-year limitation period imposed by 28 U.S.C. § 2244(d)(1). (Docket Entry 9 at 7-13.) In
order to assess this argument, the Court first must determine when Petitioner’s one-year
period to file his § 2254 petition commenced. In this regard, the United States Court of
Appeals for the Fourth Circuit has explained that:
Under § 2244(d)(1)(A)-(D), the one-year limitation period begins to
run from the latest of several potential starting dates:
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
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recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
Green v. Johnson, 515 F.3d 290, 303-04 (4th Cir. 2008) (emphasis added). The record does not
reveal any meaningful basis for addressing subparagraph (C) of § 2244(d)(1) and Petitioner has
not invoked this subparagraph.
Under subparagraph (A), Petitioner’s one-year limitation period began on “the date on
which the judgment became final by the conclusion of direct review or the expiration of the
time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The Court must therefore ascertain
when direct review (or the time for seeking direct review) of Petitioner’s underlying
conviction(s) ended. Here, Petitioner’s criminal State court judgment was entered on April 18,
2018. (Docket Entry 9, Ex. 3; Docket Entry 3, § 2.)
Petitioner did not pursue a timely direct appeal of his conviction with the North
Carolina Court of Appeals.3 Petitioner’s conviction thus became final, at the latest, fourteen
days later in early May of 2018. See 28 U.S.C. § 2244(d)(1)(A) (providing that a conviction is
final “the date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review”); see also N.C. R.App. P. 4(a) (10 days to serve
notice of appeal, amended effective October 18, 2001 to allow 14 days). Therefore, Petitioner’s
3 Only a timely notice of appeal of a conviction extends the limitation period. See Fair
v. United States, No. 5:03CR55-2-V, 2009 WL 159802, at *1 (W.D.N.C. Jan. 22, 2009)
(“Petitioner’s untimely appeal did not operate to extend his limitation period.”) (collecting
cases). Petitioner’s later appeal in this case of the state court gatekeeping order was not such a
filing and does not serve to extend the limitations period.
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one-year period of limitation under 28 U.S.C. § 2244(d)(1) commenced in early May of 2018
and expired 365 days later in early May of 2019. Petitioner dated and filed his petition in
December of 2024.4 (Docket Entry 3.) It is more than four years late.
Petitioner’s federal habeas petition would have been subject to statutory tolling if a
“properly filed” post-conviction petition was pending in state court during the one-year
limitations period. See 28 U.S.C. § 2244(d)(2) (“The time during which a properly filed
application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of limitation under this
subsection.”). However, statutory tolling does not apply here. Petitioner did not file a MAR
until March of 2020, well after the expiration of the one-year deadline in early May of 2019.5
(Docket Entry 9, Exs. 7 and 8.) State filings after this limitation period passes do not restart
4 As noted, Petitioner also filed a federal habeas Petition in October of 2024
(1:24CV887, Docket Entry 2), which was dismissed without prejudice so that he could correct
various deficiencies, (Id., Docket Entries 3 and 5). However, it too was filed beyond the one-
year limitation discussed above. It has no material impact here on the time bar analysis.
5 None of the filings Petitioner made in state court prior to filing his first MAR (Docket
Entry 9, Ex. 6 at 1-3) constitute a “properly filed application” warranting statutory tolling, see
28 U.S.C. § 2244(d)(2); see Smeltzer v. Beck, No. 1:05CV00493, 2006 WL 208871, at *2
(M.D.N.C. Jan. 26, 2006) (“Petitioner’s miscellaneous filings in state court during the relevant
period cannot serve to toll the statute of limitations. None are motions for appropriate
relief.”). These miscellaneous filing sought documents, transcripts, recordings, and/or the
return of seized property. See id. (“motions for transcripts do not toll”);White v. Phelps, No.
CIV.A.07-740-JJF, 2008 WL 4327031, at *4 (D. Del. Sept. 22, 2008) (“Petitioner’s quest for
the return of his property does not constitute ‘a properly filed application for State post-
conviction or other collateral review with respect to the pertinent judgment or claim’ under §
2244(d) (2).”); Kluttz v. North Carolina, No. 1:20CV647, 2021 WL 2435554, at *5 (M.D.N.C.
June 15, 2021) (collecting cases demonstrating that discovery and other similar motions do
not statutorily toll the one year deadline). Nor does Petitioner suggest any of these filings
warrant statutory tolling.
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the filing period. See Minter v. Beck, 230 F.3d 663, 665 (4th Cir. 2000). His Petition is time-
barred under subparagraph (A).6
Beyond this, any argument that subparagraphs (B) or (D) apply to provide a new
starting date for the one-year deadline also fail. Under subparagraph (B), Petitioner’s one-year
limitations period would begin on “the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of the United States is removed,
if the applicant was prevented from filing by such State action.” 28 U.S.C. § 2244(d)(1)(B).
Petitioner does not invoke this subparagraph. However, in his sur-reply, he appears to
contend that the written transcript of his plea hearing is not correct and that if it were
compared to an audio-recording of the same hearing, this would show that the judge made
Petitioner an oral promise for a shorter sentence than the one imposed. (Docket Entry 13.)
Petitioner states that “it took two years to get the stenographic transcript” of his plea hearing
and that “[t]his prevented [him] from timely filings to the courts.” (Id. at 1, 4.) He states further
that “he tried every avenue to get the backup audio” from his plea hearing. (Id. at 4.)
None of this warrants a later starting date under suparagraph (B). First, Petitioner’s
grounds for relief in the federal habeas petition currently before the Court (Docket Entry 3,
Grounds One and Two) are legal claims and did not require an audio recording or a transcript
6 Despite the fact that they are subject to a mandatory procedural bar, see Rose v. Lee,
252 F.3d 676, 683 (4th Cir. 2001), Petitioner continues to raise grounds in post conviction
filings in state court (Docket Entry 11 at 13). He asks for a stay pending their resolution. (Id.)
However, just as his current claims are time-barred, any future ones would be too.
Consequently, a stay is not warranted in this matter.
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of the guilty plea to raise them in the instant action. There was no impediment to Petitioner
raising these claims at any time.
Second, Petitioner has not shown that he needed an audio recording or a transcript of
his guilty plea to raise any of his claims in state court post-conviction proceedings, including
the claim that the judge at his change of plea made an oral promise that he would receive a
shorter sentence than was ultimately imposed. Given that Petitioner was present at his own
guilty plea and sentencing, he would have been aware of what occurred there, and he would
have been aware of the factual predicate of any related claim at that time. Third, Petitioner in
fact did raise this claim in his subsequent MAR in November of 2020 and apparently did so
without a transcript or audio-recording. (Docket Entry 9, Ex. 9 at 3-6.) For all of these reasons,
Petitioner is not entitled to a later starting date under subparagraph (B).
Subparagraph (D) provides that a petitioner may file an application for a writ of habeas
corpus within one year of “the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.” 28 U.S.C. §
2244(d)(1)(D). Petitioner contends that he should receive the benefit of a later start date from
28 U.S.C. § 2244(d)(1)(D) because he did not discover the “erroneous conviction in his case
with constitutional violations” until he had “availability to limited access to West Law library
on the prison issued tablet.” (Docket Entry 11 at 6.)
However, the discovery of legal authorities or a new legal theory is not what starts
AEDPA’s one-year statute of limitations under this subparagraph. It is the discovery of the
factual predicate underlying the theory that starts AEDPA’s one-year statute of limitations. See
Casteel v. Thornell, No. CV 23-01516-PHX-GMS (MTM), 2024 WL 5169893, at *2 (D. Ariz.
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Aug. 28, 2024) (collecting cases). Here, the factual predicate underlying Petitioner’s legal
claims/legal theories (that the statutes governing his sentencing are unconstitutional and that
his specific sentence is unconstitutional) was discoverable by the time of the entry of his State
court judgment on April 18, 2018. (Docket Entry 9, Ex. 3; Docket Entry 3, § 2.) Subparagraph
(D) does not render the Petition timely.
To the extent Petitioner is asking for equitable tolling, his arguments also fail.
Equitable tolling may apply when a petitioner “shows ‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely
filing.” See Holland v. Florida, 560 U.S. 631, 648 (2010) (quoting Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005)). Petitioner fails to satisfy either of these requirements.
First, to the extent Petitioner pleads ignorance of the one-year deadline (see Docket
Entry 3, § 18), this is not a basis for equitable tolling. United States v. Sosa, 364 F.3d 507, 512
(4th Cir. 2004). Second, unfamiliarity with the legal process and lack of representation (see
Docket Entry 3, § 18) do not constitute grounds for equitable tolling, because they represent
ordinary, rather than extraordinary, circumstances for a prisoner. See id.; see also Harris v.
Hutchinson, 209 F.3d 325, 331 (4th Cir. 2000). Third, the potential merits of a claim do not
impact the timeliness analysis, nor is there a “public interest” exception to the one-year
deadline, so any argument (see Docket Entry 3, § 18) along these lines also fails. See Rouse v.
Lee, 339 F.3d 238, 251-52 (4th Cir. 2003).
Last, to the extent Petitioner asserts he is actually innocent of the crimes to which he
pled guilty, that allegation would also fail to render his petition timely. The Supreme Court
recognized in McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013), an actual innocence exception
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to the one-year deadline. To establish actual innocence, “a petitioner must show that it is
more likely than not that no reasonable juror would have found petitioner guilty beyond a
reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 327 (1995); see McQuiggin, 133 S.Ct. at 1935.
“To be credible, such a claim requires petitioner to support his allegations of constitutional
error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513
U.S. at 324.
Here, Petitioner contends that he “claimed innocence to the Court” in his plea hearing
transcript. (Docket Entry 11 at 6.) Petitioner has also attached an exhibit of a camper that he
claims was never in his possession and disputes a detail about the suspect vehicle of his
underlying crimes. (Id. at 6.) To the extent Petitioner is currently asserting an actual innocence
claim, that claim is materially unsupported. (Id.) Moreover, Petitioner explicitly agreed to the
conditions of the plea agreement which provided that he was a prior record level VI for
habitual felon sentencing purposes, his cases would be consolidated into two habitual felon
Class D judgments, and “all sentencing [would] be determined by the court.” (Docket Entry
9, Ex 1 at 4). No “new reliable evidence” supports Petitioner’s actual innocence claim. For all
these reasons, the Petition is time-barred.
II. Petitioner’s Grounds Are Without Merit
Petitioner’s grounds also very clearly fail on the merits irrespective of whether they are
time-barred. Where a state trial court adjudicated a petitioner’s claims on their merits, this
Court must apply 28 U.S.C. § 2254(d)’s highly deferential standard of review to such claims.
That statute precludes habeas relief in cases where a state court has considered a claim on its
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merits unless the decision was contrary to or involved an unreasonable application of clearly
established federal law as set out by the United States Supreme Court or the state court
decision was based on an unreasonable determination of the facts. A state court decision is
“contrary to” Supreme Court precedent if it either arrives at “a conclusion opposite to that
reached by [the Supreme] Court on a question of law” or “confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite”
to that of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state decision
“involves an unreasonable application” of Supreme Court law “if the state court identifies the
correct governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to
the facts of the particular state prisoner’s case.” Id. at 407. “Unreasonable” does not mean
just “incorrect” or “erroneous” and the Court must judge the reasonableness from an
objective standpoint. Id. at 409-11. State court factual findings are presumptively correct
unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Here, as shown
below, Petitioner’s grounds fail without resort to AEDPA’s deferential standard of review.
As noted, Petitioner raises two overlapping grounds for relief. (Docket Entry 3,
Grounds One and Two.) First, he contends the state statute for sentencing habitual felons,
N.C.G.S. § 14-7.6, and the North Carolina sentencing statute, N.C.G.S. § 15A-1340.17, are
unconstitutional because punishment classes sometimes overlap on the North Carolina state
punishment grid. (Id., Ground One.) Second, and relatedly, Petitioner contends that other
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defendants with a higher offense class and the same prior record level are serving a sentence
of the same length as he is. (Id., Ground Two.) As explained below, both grounds lack merit.7
As an initial matter, although Petitioner names a number of constitutional provisions
that he contends the statutes violate (Docket Entry 3, Grounds One and Two), he only
develops arguments regarding the Eighth Amendment and the Equal Protection Clause.8 (See,
e.g., Docket Entries 3 and 11.) He thus waives any other arguments. See Grayson O Co. v. Agadir
Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (“A party waives an argument by failing to present
it in its opening brief or by failing to ‘develop [the] argument’—even if [the] brief takes a
passing shot at the issue.”) (quoting Brown v. Nucor Corp., 785 F.3d 895, 923 (4th Cir. 2015).
However, neither constitutional provision affords Petitioner relief here.
The Eighth Amendment requires only that a sentence not be “grossly
disproportionate” to the crime. Graham v. Florida, 560 U.S. 48, 59 (2010) (“The concept of
proportionality is central to the Eighth Amendment. Embodied in the Constitution’s ban on
cruel and unusual punishments is the precept of justice that punishment for crime should be
graduated and proportioned to the offense.”) (citation omitted). The Eighth Amendment’s
proportionality inquiry, therefore, is simply whether, “given all the circumstances in a
7 Given the overlapping nature of Petitioner’s grounds, the Court addresses both of
them simultaneously below in a single analysis.
8 In any event, regardless of whatever provision he invokes, Petitioner’s argument, that
the potential sentences in different cells in the North Carolina structured sentencing grid
impermissibly overlap in a manner offending the Constitution, or in a way that renders his
sentence unconstitutional, is entirely without merit. Likewise, any objection that the statutes
in question are unconstitutionally vague because of the overlap described herein is likewise
without merit. It is the Court’s intention to deny all of Petitioner’s grounds and sub-grounds
for relief for the reasons contained herein.
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particular case,” “the sentence is unconstitutionally excessive.” Id. Because this necessarily
requires a fact-intensive, case-by-case approach, the Supreme Court has produced numerous
decisions over the years upholding over proportionality challenges numerous sentences
imposed for various crimes. See id. at 59-60. As recognized in Graham, the Supreme Court
has rejected several Eighth Amendment challenges to aggravated sentences that—as in this
case—were the product of state recidivist sentencing schemes. See id. (citing Ewing v. California,
538 U.S. 11 (2003)) (noting that the Court has “rejected a challenge to a sentence of 25 years
to life for the theft of a few golf clubs under California’s so-called three-strikes recidivist
sentencing scheme”); see also id. (citing Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133 (1980)
(noting that the Court has “upheld a sentence of life with the possibility of parole for a
defendant’s third nonviolent felony, the crime of obtaining money by false pretenses”).
In light of the above, two consecutive sentences of a minimum of 128 months to a
maximum of 166 months of imprisonment for felony larceny, felony possession of stolen
goods, possession of a stolen motor vehicle, and attaining the status of a habitual felon is not
unconstitutionally excessive. (Docket Entry 9, Ex. 1 at 3 and Ex. 3 at 1, 3.) Beyond this, the
Eighth Amendment is immaterial to Petitioner’s observation that his presumptive sentencing
range as a Class D, prior record level VI offender under the North Carolina state sentencing
grid overlaps to some degree with the presumptive range of a hypothetical Class C, prior
record level VI offender. (See, e.g., Docket Entry 3 at 18.) The Eight Amendment is also
irrelevant to Petitioner’s observation that other defendants with a higher offense class and the
same prior record level are serving a sentence of the same length as he is. This claim fails on
its merits with or without resort to AEDPA’s deferential standard of review.
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Any equal protection claim likewise fails. “The Equal Protection Clause embodies a
simple principle of government: ‘All persons similarly situated should be treated alike.’” Doe v.
Settle, 24 F.4th 932 (4th Cir. 2022) (citation omitted). Application of this principle involves a
two-part test: the defendant must prove that he has been treated differently than others who
are similarly situated, and, if so, the court considers whether the classification can be justified
under a rational basis assuming no fundamental right or suspect class applies. Id. at 939. Thus,
for Petitioner to establish that he was denied equal protection of the law, he must show that
similarly situated persons were subject to disparate treatment, and, if so, that the disparate
treatment had no rational basis. See United States v. Roberts, 915 F.2d 889, 891 (4th Cir. 1990)
(citation omitted).
Here, Petitioner satisfies neither part of this test. He essentially argues that the
Structured Sentencing Act in tandem with the habitual felon statute is over-inclusive in
violation of the Equal Protection Clause because offenders in Classes C and D are treated alike
in some instances. But Petitioner is not a Class C offender and he was sentenced in the
presumptive range of Class D to which he belonged. (Docket Entry 9, Ex. 3.) This halts the
Equal Protection inquiry at the first part of the test because Petitioner has not shown he was
treated differently than others who are similarly situated. See Roberts, 915 F.2d at 891.
Even if Petitioner made the proper showing in the first part of the test, he does not
allege that a fundamental right or suspect classification is at issue here, and there is no question
that the Structured Sentencing Act and the habitual felon statue pass the rational basis test. It
is rational for the legislature to adopt sentencing guidelines based on the crime committed and
a defendant’s criminal history. See United States v. Hayden, 898 F.2d 966, 967 (5th Cir. 1990)
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(“The imposition of greater punishment based on the nature of the crime and on the recidivist
nature of the perpetrator is recognized as a legitimate sentencing principle.”); see also United
States v. Baker, 953 F.2d 639 (4th Cir. 1992) (rejecting a defendant’s Equal Protection argument
that the federal sentencing guidelines were over-inclusive and under-inclusive using the
rational basis test). A state may rationally decide that the possible sentences of different classes
of offenders overlap. Indeed,
the entire federal sentencing scheme operates in such a
fashion. See generally U.S. Sentencing Guidelines Manual Sentencing Table, ch. 5, pt. A (any
year). This claim fails on its merits with or without resort to AEDPA’s deferential standard of
review. For all of these reasons, Petitioner’s grounds for relief both fail.
Motion for Preliminary Injunction and Motion to Appoint Special Master
Petitioner has also filed a motion for a preliminary injunction (Docket Entry 14) and a
motion seeking the appointment of a special master (Docket Entry 15). However, as explained
in greater detail above, Petitioner’s grounds are time barred and without merit. There is
therefore no reason for a preliminary injunction nor is there any reason to appoint a special
master. These motions should be denied.
CONCLUSION
Petitioner’s grounds are time-barred and without merit. Neither discovery, an
evidentiary hearing, nor the appointment of counsel are warranted here.
IT IS THEREFORE RECOMMENDED that Respondent’s motion for summary
judgment (Docket Entry 8) be GRANTED, that Petitioner’s motion for a preliminary
injunction (Docket Entry 14) and motion for the appointment of a special master (Docket
Entry 15) both be DENIED, that the Petition (Docket Entry 3) be DISMISSED and in the
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alternative DENIED, that Judgment be entered dismissing this action, and that, there being
no substantial issue for appeal concerning the denial of a constitutional right affecting the
conviction nor a debatable procedural ruling, a certificate of appealability not issue.
/s/ Joe L. Webster
United States Magistrate Judge
December 2, 2025
Durham, North Carolina
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