Hagaman v. Dismukes

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CASE NO. 5:25-cv-00185-MR
MICHAEL JUSTIN HAGAMAN, )
)
Petitioner, )
) MEMORANDUM OF
vs. ) DECISION AND ORDER
)
LESLIE COOLEY DISMUKES, )
Secretary, North Carolina )
Department of Adult Correction, )
)
Respondent. )
________________________________ )
THIS MATTER is before the Court on the pro se Petition for Writ of
Habeas Corpus filed by Michael Justin Hagaman (“Petitioner”) pursuant to
28 U.S.C. § 2254 on November 4, 2025. [Doc. 1]. Also before the Court is
the Petitioner’s Motion for Reconsideration. [Doc. 6].
I. BACKGROUND
The Petitioner is a prisoner of the State of North Carolina.1 The
Petitioner was convicted by guilty plea on November 10, 2021, in Watauga
County Superior Court, on ten counts of Second-Degree Sexual Exploitation
1See https://webapps.doc.state.nc.us/opi/viewoffender.do?method=view&offenderID=05
10429&searchOffenderId=0510429&searchDOBRange=0&listurl=pagelistoffendersearc
hresults&listpage=1 (herein “NCDAC Database”); Fed. R. Evid. 201.
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of a Minor, file numbers 18-CRS-50759 to 18-CRS-50762, and one count of
Indecent Liberties with a Child, file number 18-CRS-50936. [Doc. 1 at 1]. The
pertinent part of the Petitioner’s plea agreement set forth that:
The [Petitioner] shall receive (3) judgments which shall consist of
2 class E judgments and 1 class F judgment. The [Petitioner]
shall receive 2 consecutive active sentences in the class E
judgments with a minimum of 30 months and a maximum of 96
months. At the expiration of the 2 consecutive class E judgments,
the [Petitioner] shall receive 1 active class F sentence consisting
of a minimum of 20 months and a maximum of 33 months.
[Doc. 1-1 at 3]. Critically, for purposes of this action, the Petitioner’s plea
agreement contained no provision concerning how the state trial court should
allocate the Petitioner’s 1,253 days of pretrial jail credit among the sentences
to be imposed upon him in the three judgments.
In accordance with the plea agreement, the state trial court
consolidated four counts of Second-Degree Sexual Exploitation of a Minor
into one judgment (file number 18-CRS-50759) and imposed on Petitioner
an active sentence of 30 to 96 months imprisonment. [Doc. 1-1 at 15]. That
court consolidated the remaining six counts of Second-Degree Sexual
Exploitation of a Minor into one judgment (file number 18-CRS-50761) and
imposed on Petitioner an active sentence of 30 to 96 months imprisonment,
consecutively to the term imposed in file number 18-CRS-50759. [Id. at 17].
Finally, the state trial court placed the Petitioner’s conviction for the single
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count of Indecent Liberties with a Child into its own judgment (file number
18-CRS-50936) and imposed on Petitioner an active sentence of 20 to 33
months imprisonment, consecutively to the terms imposed in file numbers
18-CRS-50759 and 18-CRS-50761. [Id. at 19].
Also on November 10, 2021, Petitioner appeared before the Watauga
County Superior Court for probation revocation proceedings involving two
prior drug convictions, file numbers 14-CRS-50086 and 14-CRS-50087 [Id.
at 20]. The Petitioner was previously convicted on June 4, 2015, of two
separate counts of selling heroin and received consecutive sentences of 13
to 25 months imprisonment, suspended, and placed on supervised probation
for 36 months. [Id.]. Due to the Petitioner’s commission of new criminal
conduct while on probation (the eleven sex offenses), the state trial court
revoked Petitioner’s probation in each instance and imposed active
sentences of 13 to 25 months imprisonment, consecutive to each other and
consecutive to the three sex offense judgments. [Id. at 22-23].
The Petitioner gave oral notice that he was appealing all three
judgments encompassing his eleven sex offense convictions. [Doc. 1-1 at
24]. On direct review to the North Carolina Court of Appeals, Petitioner raised
the single ground he reserved in his plea agreement – challenging the trial
court’s adverse decision on his motion to suppress filed in his Indecent
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Liberties case, file number 18-CRS-50936. “As [Petitioner] states in his brief
and confirmed by the record, ‘[h]e only filed a motion to suppress in file
number 18-CRS-50936, in which he ultimately pled guilty to one count of
indecent liberties. . . . Accordingly, [Petitioner’s] appeal and appellate brief
focuses [sic] exclusively on file number 18-CRS-50936.” State v. Hagaman,
292 N.C. App. 194, 196, 897 S.E.2d 163, 165 (2024).
Ultimately, the appellate court found no error in the trial court’s order
denying Petitioner’s suppression motion and thereby affirmed the
Petitioner’s convictions and sentences in a published opinion filed January
16, 2024. Id. Petitioner did not seek further direct review with the North
Carolina Supreme Court or the U.S. Supreme Court. [Doc. 1 at 2-3].
While Petitioner’s direct appeal was pending, he filed his first Motion
for Appropriate Relief (“MAR1”) November 16, 2022. [Doc. 1 at pp. 3; 17;
30]. According to Petitioner, the
MAR1 raised claims in the sentencing phase of his guilty plea
proceedings, as well as claims in the other file numbers unrelated
to the matters raised in this habeas petition. MAR1 was
dismissed without prejudice in part, and denied as procedurally
defaulted in part on April 26, 2023. The court did award Petitioner
one additional day of jail credit.
[Doc. 1 at 17]. The Petitioner sought appellate review of the trial court’s
adverse order on his MAR1 which the North Carolina Court of Appeals
dismissed without prejudice December 8, 2023. [Id. at pp. 4; 30].
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According to Petitioner, he then
[R]efiled the certiorari petition September 17, 2024. It was
dismissed with prejudice on procedural grounds in part, denied
in part, dismissed without prejudice in part, and allowed in part
December 18, 2024. Petitioner sought an en banc rehearing on
January 6, 2025, which was denied February 4, 2025. He moved
the Court of Appeals for reconsideration on February 13, 2025,
and following denial of that motion February 21, 2025, Petitioner
petitioned the N.C. Supreme Court for discretionary review
March 4, 2025, which was denied May 21, 2025 see State v.
Hagaman, 915 S.E.2d 178 (NCSC 2025).
[Doc. 1 at 18].
Petitioner filed his second Motion for Appropriate Relief (“MAR2”)
November 15, 2024, which the trial court denied May 15, 2025. [Id.]. The
Petitioner sought appellate review of the trial court’s adverse order on his
MAR2 which the North Carolina Court of Appeals denied September 11,
2025. [Id.].
On June 16, 2025, Petitioner filed a state habeas petition in the North
Carolina Supreme Court “challenging the validity of the judgment revoking
his probation in 14CRS050086 due to there being a change in the sentence
contained in the written judgment from the sentence pronounced in open
court[.]” [Doc. 1 at 18]. The state habeas petition was denied June 18, 2025.
[Id.].
Petitioner filed his § 2254 action in this Court on November 4, 2025.
[Doc. 1]. In this matter, the Petitioner asserts four claims for relief with regard
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to his three sex offense judgments (Grounds One through Four), and one
claim for relief with regard to his probation revocation judgments (Ground
Five). [Doc. 1 at 23-29]. On March 9, 2026, the Court conducted its initial
review of the petition filed in this matter. [Doc. 5]. The Court came to the
preliminary conclusions that Petitioner was not entitled to any relief on his
claims regarding his three sex offense judgments, and that Petitioner’s claim
regarding his probation revocation judgments was untimely.2 The Court then
directed the Petitioner to show cause why his § 2254 action should not be
dismissed. [Id.].
On March 31, 2026, the Petitioner filed three documents. In the first
document, his “Response to Court Order and Notice of Dismissal of Claim,”
Petitioner voluntarily dismisses without prejudice the claim contained in
Ground Five of his § 2254 petition pertaining to the probation revocation
judgments. [Doc. 6]. Petitioner’s second and third documents are his motion
asking the Court to reconsider dismissing this action [Doc. 7], and his brief
in support thereof. [Doc. 8].
2 The Court notes that the Petitioner dismissed without prejudice his single claim in
Ground Five pertaining to the judgments entered following the revocation of his
probationary sentences. [Doc. 6]. Accordingly, this claim is dismissed, and no further
discussion of the Petitioner’s probation revocation judgments is warranted.
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II. DISCUSSION
In reviewing a § 2254 petition, this Court is guided by Rule 4 of the
Rules Governing Section 2254 Cases, which directs the district courts to
dismiss a petition when it plainly appears from the petition and any exhibits
that the petitioner is not entitled to relief. Rule 4, 28 U.S.C. foll. § 2254.
A. The Petitioner is Entitled to No Relief on His Remaining
Claims in Grounds One through Four.
1. The Petitioner Raises No Federal Claims.
In this action, the Petitioner raises four purported federal constitutional
claims regarding the convictions and sentences contained in his three sex
offense judgments. In Ground One, the Petitioner asserts that N.C. Gen.
Stat. § 15-196.2 is unconstitutional as applied to him in violation of the due
process and equal protection clauses of the U.S. Constitution. [Doc. 1 at 5].
In Ground Two, the Petitioner asserts his attorney was ineffective for allowing
him to enter guilty pleas “unknowingly” because counsel did not include in
the plea agreement specific allocations of pretrial detention time credit. [Id.
at 7]. In Ground Three, the Petitioner asserts the state trial court’s plea
acceptance procedure was constitutionally infirm. [Id. at 8]. Finally, in
Ground Four, the Petitioner alleges the state trial court’s “misapprehension
of the law deprived Petitioner of his liberty interest without due process
required by U.S.C.A. Const. Amend. V and XIV.” [Id. at 10]. Even though
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the Petitioner has adorned his claims in federal constitutional garb, the
central theme of his grievance is simply that he is serving more prison time,
pursuant to the operation of state law, than he expected – an expectation
that he never demanded become a formal component or material part of his
written plea agreement.
While the Petitioner was a pretrial detainee awaiting the resolution of
his sex offender charges, he accumulated 1,253 days of sentencing credit
that he ultimately wanted apportioned to his three consecutive sex offense
judgments in a particular way. [Doc. 1-1 at 5-7]. The Petitioner, during his
plea/sentencing hearing, provided the state trial court with three certifications
of confinement credit, and asked the court to allocate his pretrial detention
time in the following manner: 450 days credited to his first judgment, 450
days credited to his second judgment, and 353 days credited to his third
judgment. [Id.]. Doing so, according to the Petitioner, would consume his
total pretrial detention time, and equally important, allocating the specified
jail time credits to each judgment would still enable him to earn in prison
additional credits “to reduce each sentence down to its respective minimum.”
[Doc. 1 at 24]. As the Petitioner explains,
Under [North Carolina’s] Structured Sentencing Act (the Act),
N.C.G.S. 15A-1340.10 et seq, sentences are imposed in a range
of months, with each sentence having a minimum and a
corresponding maximum term. Sentences may be reduced to
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their minimum by earning sentence reduction credits (SRC)
during the service of that particular sentence. N.C.G.S. 15A-
1340.13 and 148-13. However, SRC only effect the sentence
currently being served – SRC may not be applied retroactively to
completed sentences or banked to roll over to future sentences.
In the case of future consecutive sentences, each individually
imposed sentence is calculated and executed independently.
Each individual sentence must be completed before the next
sentence begins.
[Doc. 1 at 19 (errors uncorrected)]. Accordingly, if too much pretrial detention
time were allocated to any one of the Petitioner’s three judgments, the jail
credit so applied would reduce the sentence under such judgment to an
extent that insufficient time would remain to allow the Petitioner to earn SRCs
during his prison stay so as to lower that sentence to the minimum permitted
by North Carolina law.
During the Petitioner’s proceedings in the state trial court, that court
did not allocate the Petitioner’s jail credit time as he requested. Instead, it
credited the first sex offense judgment with 1,080 days pretrial confinement
[Doc. 1-1 at 15], credited the second sex offense judgment with 173 days
pretrial confinement [id. at 17], and credited the third sex offense judgment
with none. [Id. at 19]. “The court used 1,080 of the 1,253 days of available
credit against the 30-96 month sentence in the Petitioner’s first judgment …
leaving only 15 days remaining on the maximum active portion of that
sentence (96 months – 60 months post release). This precluded any
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possibility of Petitioner reducing this sentence through earning SRC[.]” [Doc.
1 at 20].
In this habeas action, the Petitioner essentially contends that the state
trial court misinterpreted or misapplied N.C. Gen. Stat. § 15-196.2 when
failing to allocate his pretrial detention time credits as he requested. While
the Petitioner seeks to recast this claim as regarding the deprivation of
certain federal constitutional rights, it is really a claim grounded solely in
North Carolina sentencing law.
A state inmate may invoke federal habeas jurisdiction only if he can
establish that he is a person convicted under a state court judgment and that
he is in “custody in violation of the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 2254. The Supreme Court has made clear that a
federal habeas court will not review any claim that concerns how a state court
construes or applies its own statutory law and precedent.
We have stated many times that “federal habeas corpus relief
does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S.
764, 780, 110 S. Ct. 3092, 3102, 111 L.Ed.2d 606 (1990); see
also Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871, 874–75,
79 L.Ed.2d 29 (1984). Today, we reemphasize that it is not the
province of a federal habeas court to reexamine state-court
determinations on state-law questions. In conducting habeas
review, a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States.
Estelle v. McGuire, 502 U.S. 62, 63 (1991).
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Despite Petitioner’s unsuccessful effort to persuade the state trial court
to adopt his state-law claim concerning the allocation of his jail credit, he
cannot now seek review of the state’s judgments in this habeas action absent
some genuine federal law violation. Because no such federal law violation
is present, the Petitioner’s remaining claims in Grounds One through Four of
his § 2254 petition are without merit.
2. Exhaustion and Procedural Default.
To the extent that any federal constitutional claims might exist at all,
the Petitioner has not properly exhausted them, and they are procedurally
defaulted. Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a state prisoner, before seeking habeas relief under § 2254, must
exhaust his available state remedies. 28 U.S.C. § 2254(b)(1)(A). This
exhaustion requirement is not a jurisdictional prerequisite to federal habeas
corpus relief but rather a matter of comity imposed by statute. Granberry v.
Greer, 481 U.S. 129, 132–33 (1987). Exhaustion in the context of a § 2254
action simply means that the state courts are to be afforded the first review
of federal constitutional challenges to state convictions in order to give the
state court system “an opportunity to correct its own constitutional errors.”
Preiser v. Rodriguez, 411 U.S. 475, 490 (1973); Duncan v. Henry, 513 U.S.
364 (1995). Further, a prisoner must seek review of his federal claims all the
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way through to the highest state court with jurisdiction to consider the claim.
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); 28 U.S.C. § 2254(b) & (c).
“The habeas petitioner must raise his claim before every available state
court, including those courts . . . whose review is discretionary.” Jones v.
Sussex I State Prison, 591 F.3d 707, 712–13 (4th Cir. 2010) (quoting Baldwin
v. Reese, 541 U.S. 27, 29 (2004)) (internal alterations omitted). “The
exhaustion requirement is not satisfied if the petitioner presents new legal
theories or factual claims for the first time in his federal habeas petition.”
Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998) (citing Matthews v. Evatt,
105 F.3d 907, 911 (4th Cir.), cert. denied, 522 U.S. 833 (1997)).
As relevant to the present matter, the exhaustion requirement
demands that the petitioner “do more than scatter some makeshift needles
in the haystack of the state court record. The ground relied upon must be
presented face-up and squarely; the federal question must be plainly
defined. Oblique references which hint that a theory may be lurking in the
woodwork will not turn the trick.” Mallory v. Smith, 27 F.3d 991, 994–95 (4th
Cir. 2001) (quoting Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988)).
Phrased differently, if a defendant convicted in state court fails to
identify and pursue a federal constitutional claim in the appropriate state
forum through final review, the state is deprived of the opportunity to evaluate
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the claim, and the defendant thereby forfeits it. Kornahrens v. Evatt, 66 F.3d
1350, 1357 (4th Cir. 1995) (by not following proper state appellate procedure,
petitioner caused the state courts to rule against him solely on state-law
procedural grounds). Federal habeas review in this circumstance is
inappropriate because the state’s judgment in such a case is based on an
“independent and adequate state ground” since no federal constitutional
claim was ever presented to or reviewed by the state. Coleman v.
Thompson, 501 U.S. 722, 729–30 (1991).
With the foregoing in mind, the Petitioner would need to have raised
the substance of his claims contained in each of the four Grounds with the
state trial court during his plea/sentencing hearing in order to preserve them
for § 2254 review. Beginning with Ground Two for example, the Petitioner
asserts that his attorney was ineffective because “counsel did not make the
division of jail credit explicit in the written plea agreement.” [Doc. 1 at 7]. The
Petitioner, however, was not a mere bystander to his state criminal
proceedings, subject to the whim of his attorney. On the contrary, the
Petitioner, together with his attorney, negotiated a unique and nuanced plea
agreement with the state. [Doc. 1-1 at 1-4]. More importantly, however, and
according to the Petitioner himself, he is very experienced with North
Carolina sentencing law.
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Because Petitioner had previously served consecutive
sentences in the custody of Respondent, he was familiar with
how those sentences are calculated. He knew that he had more
jail credit than the 36 month active maximum term of the
sentence in 18CRS5050759 (30-96 minus 60 months post-
release=36), and that if that credit was used to complete that
maximum term, he would lose the opportunity to reduce that
sentence by earning SRC [sentence reduction credits], and
would not get the full benefit of the agreement.
[Doc. 1 at 19].
Given the Petitioner’s significant knowledge of North Carolina
sentencing law and his experience serving time in the state’s prison,3 it was
incumbent upon him either to insist that his plea agreement contain the exact
jail credit division he sought, or refuse to sign the plea agreement. If the
Petitioner perceived that his counsel was standing in the way in this regard,
he could have moved the state trial court to discharge his court-appointed
attorney and then could have explained to the court why he wished to do so.
At the very least, the Petitioner had the opportunity to inform the state trial
court not once, but twice – during his plea colloquy and later during his
sentencing hearing – that his decision to plead guilty was premised at least
in part on the manner in which he desired his pretrial detention time
apportioned among the judgments, if that were indeed the case. The
3 The Petitioner’s criminal history is further borne out by the NCDAC Database which
catalogues his numerous convictions and sentences spanning the last 30 years.
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Petitioner chose not to speak up either time:
THE COURT: So is this plea arrangement as set forth within the
transcript and as I have just described it to you correct as
being your full plea arrangement?
THE DEFENDANT: Yes, sir.
THE COURT: Do you now personally accept this arrangement?
THE DEFENDANT: I do.
THE COURT: Other than the plea arrangement between you
and the prosecutor, has anyone promised you anything or
threatened you in any way to cause you to enter this plea
against your wishes?
THE DEFENDANT: No, sir.
THE COURT: Do you enter this plea of your own free will, fully
understanding what you’re doing?
THE DEFENDANT: I do.
[Doc. 1-1 at 9].
Following his plea colloquy, at the sentencing phase of Petitioner’s
hearing, and even after the court allocated his pretrial detention time far
differently than Petitioner’s counsel requested, Petitioner still said nothing:
THE COURT: … I believe that concludes all of his judgments
unless there are any questions.
[DEFENSE COUNSEL]: I have one thing to put on the record.
Mr. Hagaman will give notice of appeal as it relates to 18-
CRS-50759 through 762. And, again, to the offense of [sic]
in 18-CRS-50936, he would give notice of appeal.
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THE COURT: An appeal as to those file numbers?
[DEFENSE COUNSEL]: Yes, sir.
THE COURT: All right. Note that the defendant has given notice
of appeal in 18-CRS-50759, 50760, 50761, 50762 and 18-
CRS-50936. I will appoint the Appellate Defender but his
release is denied. All right. And that will conclude this
matter unless there are any questions.
[DEFENSE COUNSEL]: No, sir.
THE COURT: Mr. Hagaman, do you have any questions?
THE DEFENDANT: No, sir.
[Doc. 1-1 at 24].
Had the Petitioner alerted the state trial court “face-up and squarely” to
his contention that his plea depended upon the allocation of his jail credit
during his plea/sentencing proceeding, or how the trial court’s failure to
address this claim implicated his federal constitutional rights, that court
would have addressed all the issues head-on. At that same time, if the trial
court remained steadfast in its jail time division, the Petitioner could have
brought directly to the court’s attention the substance of his purported federal
constitutional claims asserted in Grounds One, Two, Three, and Four. If all
these efforts proved unsuccessful before the state trial court, the Petitioner
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could then have moved to withdraw his plea and proceed to trial.4 If such
withdrawal motion were denied, the Petitioner, not more than 10 days after
entry of said judgments, could have filed a motion for appropriate relief for
any error committed by the trial court. N.C. Gen. Stat. § 15A-1414(a). The
Petitioner took none of these actions.
If the Petitioner had taken any of the aforesaid actions in the state trial
court and been denied relief, he could then have sought redress on appeal.
But he did not do this either. As the Petitioner candidly points out, he raised
none of the claims in his first four Grounds before the North Carolina Court
of Appeals, shifting the blame to appointed appellate counsel who allegedly
“refused to raise them.” [Doc. 1 at 6; 7; 9-10]. Since Petitioner did not bring
any of his purported constitutional claims directly before the state trial court,
and thereafter on direct appeal to the North Carolina Court of Appeals and
Supreme Court, they are unexhausted, and as will be seen immediately
below, procedurally defaulted. This is so, as explained in Section II.A.1.
above, because federal courts are only permitted to review “those state-court
decisions that implicate federal constitutional rights.” Kornahrens v. Evatt, 66
4 Ironically, the Petitioner was not apprehensive at all about the prospect of going to trial.
“Petitioner felt certain of acquittal at trial for the charges in 18CRS5050936. He didn’t
believe the State’s evidence could support convictions for more than the lesser included
offenses of 3rd Degree Sexual Exploitation of a Minor in the 18CRS5050759-62 cases.”
[Doc. 1 at 24-25].
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F.3d 1350, 1357 (4th Cir. 1995).
“A procedural default ... occurs when a habeas petitioner fails to
exhaust available remedies and ‘the court to which the petitioner would be
required to present his claims in order to meet the exhaustion requirement
would now find the claims procedurally barred.’” Breard v. Pruett, 134 F.3d
615, 619 (4th Cir. 1998) (quoting Coleman, 501 U.S. at 735 n.1).
In this case, the Petitioner never brought any of his purported
constitutional claims before the state trial court in the first instance when he
was twice provided the opportunity to do so, and likewise never pursued any
of them on direct appeal. Any such arguments were therefore waived in the
trial court, In re M.R.J., 378 N.C. 648, 657, 862 S.E.2d 639, 645, (2021)
(unlike the issue of subject matter jurisdiction, which may be raised at any
time, objections to procedural matters like venue are waived if not taken in
apt time in the trial court), and abandoned on appeal. N.C.R. App. P. 28(a)
(“The scope of review on appeal is limited to issues so presented in the
several briefs. Issues not presented and discussed in a party’s brief are
deemed abandoned.”). The Petitioner, who was present throughout his
plea/sentencing hearing in state court, was also aware of everything that
transpired during those proceedings. Had the Petitioner brought his
purported constitutional claims in his MAR1, they would have been barred
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by N.C. Gen. Stat. § 15A-1419(a)(2)5 (MAR should be denied when, upon a
previous appeal, the defendant was able to adequately raise the ground or
issue underlying the present motion but did not do so). And if the Petitioner
attempted to raise these purported constitutional claims now in yet another
MAR, they would be barred by N.C. Gen. Stat. § 15A-1419(a)(1) (MAR
should be denied when, upon a previous MAR, the defendant was able to
adequately raise the ground or issue underlying the present motion but did
not do so).
The only way for the Petitioner to avoid procedural default is through a
showing of “cause and actual prejudice.” Reed v. Ross, 468 U.S. 1, 11 (1984)
(citation omitted). “Cause for a procedural default . . . ordinarily requires a
showing of some external impediment preventing [the party] from
constructing or raising the claim.” Murray, 477 U.S. at 492. Then, to establish
prejudice, the prisoner must show not merely a substantial federal claim,
such that “ ‘the errors at ... trial created a possibility of prejudice,” but rather
that the constitutional violation “worked to his actual and substantial
disadvantage.’ ” Id. at 494 (quoting United States v. Frady, 456 U.S. 152, 170
(1982)).
5 This appears to be what, in fact, happened. According to the Petitioner, “MAR1 was
dismissed without prejudice in part, and denied as procedurally defaulted in part on
April 26, 2023.” [Doc. 1 at 17 (emphasis added)].
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The Petitioner can show neither cause nor actual prejudice for his
defaulted claims. Again, the Petitioner was present throughout the entirety of
his state criminal case and has not shown (nor does the record reflect) any
“external impediment” that prevented him from informing the trial court that
the allocation of his pretrial detention credit among his three judgments was
a material part of his agreement to plead guilty as he now asserts. This is
especially so given that the trial court explicitly permitted him the opportunity
to do so on two occasions. Even if the Petitioner could make a proper “for
cause” showing, which he cannot, any alleged error could not have worked
to his actual and substantial disadvantage because his purported federal
claims are meritless.
Nevertheless, the Petitioner insists he “is not serving the sentence he
agreed to. What he agreed to was a sentence that would afford him the
opportunity to be released back into the community after serving 106 months
in prison. What he is serving is a sentence under which release isn’t possible
until at least 112 months have been served.” [Doc. 1 at 19]. That, however,
was the Petitioner’s desired expectation and not what he and the state
agreed upon as formally set forth in writing. The Petitioner executed a
detailed plea agreement with the state knowing full well he faced an
aggregate sentence of 106 months up to 275 months in prison. [Doc. 1 at 1].
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The fact that the Petitioner might serve more than 106 months is of no
moment since he will not and cannot serve more than 275 months in custody.
That was his bargain. The Petitioner, therefore, is entitled to no relief.
B. The Sex Offense Judgments Have Expired
Pursuant to 28 U.S.C. § 2254(b)(1), a federal district court may only
entertain an application for writ of habeas corpus if the applicant is “a person
in custody pursuant to the judgment of a State court[.]” Id.
The Petitioner in this matter is indeed an applicant; however, he is no
longer in custody pursuant to any of the sex offense judgments he seeks to
challenge. NCDAC Database at 1-3. Petitioner’s Sexual Exploitation
sentences in cases numbered 18-CRS-50759 and 18-CRS-50760 expired
November 25, 2021. Id. at 2. Petitioner’s Sexual Exploitation sentences in
cases numbered 18-CRS-50761 and 18-CRS-50762 expired December 2,
2023. Id. Finally, Petitioner’s Indecent Liberties sentence in case numbered
18-CRS-50936 expired July 29, 2025. Id. As the Supreme Court explained,
“once the sentence imposed for a conviction has completely expired, the
collateral consequences of that conviction are not themselves sufficient to
render an individual ‘in custody’ for the purposes of a habeas attack upon it.”
Maleng v. Cook, 490 U.S. 488, 492 (1989).
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The Petitioner contends that the extinguishment of his three sex
offense judgments is irrelevant because he in custody “serving five
consecutive sentences imposed by the same court, on the same day.” [Doc.
8 at 2]. In support of his position, the Petitioner points to the decision in
Garlotte v. Fordice, 515 U.S. 39 (1995). In that case, the Supreme Court held
that a § 2254 petitioner, imprisoned under multiple consecutive sentences,
remains “in custody” under any such sentence until all are served and may
therefore attack the convictions underlying any sentence. Garlotte, 515 U.S.
at 41.
The Petitioner, however, reads that decision too broadly. In Garlotte,
the petitioner was in custody under a single state judgment that ordered him
to serve a three year sentence for a drug conviction to run consecutively with
two concurrent life sentences for two murder convictions. Id. In the present
matter, the Petitioner was imprisoned based upon judgments arising from his
commission of separate and distinct criminal episodes: he was in custody
under three judgments encompassing his eleven sex offenses that occurred
in 2018, which judgments have expired, and he remains in custody under
two judgments for drug offenses that occurred in 2014. Given that the
Petitioner’s 2014 drug crimes have no temporal or factual relationship to his
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2018 sex crimes, the Petitioner is not “in custody” under any of the three
expired sex offense judgments as contemplated by Garlotte.
III. CONCLUSION
The Petitioner voluntarily dismissed Ground Five of the petition. [Doc.
6]. As explained herein, the Court rejects the Petitioner’s remaining claims
and will deny Grounds One through Four, inclusive of the § 2254 petition.
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases,
the Court declines to issue a certificate of appealability. 28 U.S.C.
§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (noting that, in
order to satisfy § 2253(c), a petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding
that, when relief is denied on procedural grounds, a petitioner must establish
both that the dispositive procedural ruling is debatable and that the petition
states a debatable claim of the denial of a constitutional right).
O R D E R
IT IS, THEREFORE, ORDERED that:
1. Grounds One through Four, inclusive, of the Petition for Writ of
Habeas Corpus [Docs. 1] are DENIED and DISMISSED;
2. The Petitioner’s Motion for Reconsideration [Doc. 7] is DENIED;
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3. The Court DECLINES to issue a certificate of appealability
pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases; and
4. The Clerk of Court is respectfully directed to close this case.
IT IS SO ORDERED.
Signed: May 20, 2026
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