Paradise
v.
Perry

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISIONAug 3, 2018
No. 5:16-HC-02096-D (E.D.N.C. Aug. 3, 2018)

No. 5:16-HC-02096-D

08-03-2018

Thomas Kenneth Paradise, Petitioner, v. Frank L. Perry and Nora Hunt, Respondents.


Order & Memorandum & Recommendation

Petitioner Thomas Kenneth Paradise, a state inmate proceeding pro se, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (D.E. 1). This matter is before the court upon respondent's motion for summary judgment (D.E. 12). For the following reasons, the undersigned recommends that the district court grant respondent's motion for summary judgment.

I. Background

On May 5, 2011, Paradise pleaded guilty to second degree murder. Pet. at 1, D.E. 1. The trial court sentenced Paradise to 151 to 191 months imprisonment. Id. Paradise did not appeal. Id. at 2. On February 21, 2012, Paradise filed a motion for appropriate relief ("MAR") in Columbus County Superior Court. Id. at 3. The court denied the motion on May 22, 2013. Id. Paradise then waited nearly three years, until March 31, 2016, to file a petition for writ of certiorari in the North Carolina Court of Appeals. Id. The Court of Appeals denied Paradise's petition for certiorari on April 11, 2016. Id. at 4.

Paradise filed his § 2254 petition on April 29, 2016. Pet. at 15, D.E. 1. His claims survived initial review (D.E. 8). Respondent filed this motion for summary judgment in November, 2017 (D.E. 12). Paradise initially failed to respond. Therefore, the court directed Paradise to show cause why his petition should not be dismissed for failure to prosecute (D.E. 17). Paradise responded to the show cause order by filing motions for counsel and for an extension of time (D.E. 20). The motion for counsel was denied (D.E. 22). Moreover, Paradise's filings did little to address the court's show cause order. Nonetheless, out of an abundance of caution, the court granted Paradise additional time to respond to the summary judgment motion. Id. Thereafter, Paradise filed a timely response (D.E. 23).

The court gives petitioner the benefit of the mailbox rule. See Houston v. Lack, 487 U.S. 266, 276 (1988) (holding that a pro se prisoner's notice of appeal is filed at the moment it is delivered to prison authorities for mailing to the district court).

In his response, Paradise renews his request for counsel. For the reasons previously stated by the court (D.E. 22), that request is DENIED.

II. Discussion

A. Motion for Summary Judgment

Summary judgment is appropriate when there is 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); Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the burden of initially coming forward and establishing an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmoving party then must establish that there is a genuine issue of material fact requiring trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 250.

The standard of review for habeas petitions brought by state inmates, where the claims have been adjudicated on the merits in the state court, is set forth in 28 U.S.C. § 2254(d). That statute provides that courts cannot grant habeas relief in cases where a state court considered a claim on its merits unless the decision was contrary to or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court, or the state court decision was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1) and (2).

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, 406 (2000).

A state court decision "involves an unreasonable application" of Supreme Court law "if the state court identifies the correct governing legal principle from [the Supreme] Court's cases but unreasonably applies it to the facts of the state prisoner's case." Id. at 407; see White v. Woodall, 134 S. Ct. 1697, 1702-07 (2014); Nevada v. Jackson, 133 S. Ct. 1990, 1992 (2013) (per curiam). A state court decision also may apply Supreme Court law unreasonably if it extends existing Supreme Court precedent to a new context where it does not apply, or unreasonably refuses to extend existing precedent to a new context where it should apply. Id.

The applicable statute does not require that a state court cite to federal law in order for a federal court to determine whether the state court's decision is an objectively reasonable one, nor does it require a federal habeas court to offer an independent opinion as to whether it believes, based upon its own reading of the controlling Supreme Court precedents, that the [petitioner's] constitutional rights were violated during the state court proceedings. Bell v. Jarvis, 236 F.3d 149, 160 (4th Cir. 2000), cert. denied, 534 U.S. 830 (2001). Moreover, a determination of a factual issue made by a state court is presumed correct, unless rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

1. Timeliness

Respondent argues that petitioner's section 2254 petition is time-barred. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires that any application for a writ of habeas corpus filed by a person in custody pursuant to the judgment of a state court be filed within one year of the latest of certain dates. 28 U.S.C. § 2244(d)(1); see Frasch v. Peguese, 414 F.3d 518, 521 (4th Cir. 2005). The limitation period begins running from the latest of:

(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 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.

28 U.S.C. § 2244(d)(1)(A)-(D).

Subsection (A) of section 2244(d)(1) requires the court to determine when Paradise's judgment became final. See 28 U.S.C. § 2244(d)(1)(A). Here, because Paradise did not seek direct review in the North Carolina Court of Appeals, his conviction became final when the 14 day period to serve a notice of appeal expired. See N.C. R. App. P. 4(a)(2) (providing that notice of appeal may be filed within fourteen days of judgment); Gonzalez v. Thaler, 565 U.S. 134, 149-50 (2012). As a result, Paradise's conviction became final on May 19, 2011, fourteen days after his May 5, 2011 conviction. The statutory period then ran for 278 days until Paradise filed his MAR on February 21, 2012. See, e.g., Holland, 560 U.S. at 638; Hernandez, 225 F.3d at 438.

Ordinarily, the one-year statute of limitations would begin to run again at the "expiration of the period of time to seek further appellate review [of the state post-conviction motion]." Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999). That date is impossible to calculate with certainty in this case, however, because the North Carolina Rules of Appellate Procedure do not provide a firm deadline for prisoners to file a petition for writ of certiorari to review orders denying an MAR. See N.C.R. App. P. 21(e) (providing petitions for writ of certiorari to review orders denying an MAR shall be dismissed "in the event the petitioner unreasonably delays in filing the petition").

In Evans v. Chavis, 546 U.S. 189 (2006), the United States Supreme Court considered the effect of a similar California rule on § 2244(d)(2)'s tolling provision. Evans, 546 U.S. at 198-201. The California rule at issue provided that prisoners in California seeking appellate review of an adverse post-conviction ruling must file a new habeas petition with the California Supreme Court within a "reasonable time." Id. at 192-93. The Supreme Court held that "[i]n the absence of . . . clear direction or explanation from the California Supreme Court about the meaning of the term 'reasonable time' in the present context . . . [the district court] must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness." Id. at 198. The Court further explained that delays exceeding the time period for filing other types of appeals (such as direct appeals of criminal convictions or appeals in civil cases) should be considered unreasonable in most cases. See id. at 201.

The North Carolina Supreme Court has not defined the phrase "unreasonable delay" for purposes of North Carolina Rule of Appellate Procedure 21(e). Coley v. Hooks, No. 5:16-HC-2308-FL, 2018 WL 1570799, at *4 (E.D.N.C. Mar. 30, 2018); McConnell v. Beck, 427 F. Supp. 2d 578, 582 (M.D.N.C. 2006). Thus, under Evans, the court looks to the time periods for filing other appeals in North Carolina to determine when petitioner's right to seek appellate review of the order denying his MAR expired. Evans, 546 U.S. at 201; Taylor, 186 F.3d at 561 (section 2244(d)(1) statute of limitations tolled from the initial filing of motion for post-conviction relief until the expiration of the period of time to seek further appellate review); Coley, 2018 WL 1570799, at *4 .

In North Carolina, the time period for filing appeals is thirty days in civil cases and fourteen days in criminal cases. N.C.R. App. P. 3(c) & 4(a). The largest amount of time to seek appellate review is sixty days, which is reserved for post-conviction review of death penalty cases. N.C.R. App. P. 21(f). Because the 60-day period is reserved for death penalty cases, the court predicts the North Carolina Supreme Court would find that a delay of more than 30 days in filing a petition for writ of certiorari to review the order denying petitioner's MAR would be unreasonable in this case. See Evans, 546 U.S. at 201; McConnell, 427 F. Supp. 2d at 582 (concluding "it is unlikely North Carolina would interpret N.C.R. App. P. 21(e) to extend beyond thirty days, except perhaps for brief, limited periods in very unusual circumstances, which do not arise in this case"); Coley, 2018 WL 1570799, at *4 (applying 30 day deadline to file petition for writ of certiorari seeking review of denied MAR). Therefore, AEDPA's one-year statute of limitations was tolled from the date petitioner filed his MAR until his time for filing an appeal expired thirty days after the state court denied the MAR. See Evans, 546 U.S. at 201; Taylor, 186 F.3d at 561; Coley, 2018 WL 1570799, at *4.

Thus, the statute of limitations was tolled from February 21, 2012, until June 21, 2013 (i.e. 30 days after his MAR was denied by the Columbus County Superior Court). It then ran for another 87 days until it expired on September 16, 2013. Paradise did not file his petition in this court until April 29, 2016, more than two years out-of-time. Thus, absent equitable tolling, the district court must dismiss his petition as untimely.

Under the AEDPA, the one-year statute of limitations is subject to equitable tolling. Holland, 560 U.S. at 655. Equitable tolling applies only if 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." Id. (quotations omitted); see Green v. Johnson, 515 F.3d 290, 304 (4th Cir. 2008). A court may allow equitable tolling under section 2244 "in those rare instances where—due to circumstances external to the party's own conduct—it would be unconscionable to enforce the limitation period against the party and gross injustice would result." Green, 515 F.3d at 304 (quotations omitted); see Jackson v. Kelly, 650 F.3d 477, 491-92 (4th Cir.), cert. denied, 549 U.S. 1122 (2011). "[A]ny invocation of equity to relieve the strict application of a statute of limitations," however, "must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes." Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000).

Paradise makes no argument for equitable tolling on the face of his petition or in his summary judgment response. Pet. at 13, D.E. 1; Pet'r. Resp., D.E. 23. Paradise has not put forth any reason he did not or could not file the present petition within ADEPA's one-year statute of limitations period. Nor has Paradise shown that he diligently pursued his rights or that any extraordinary circumstance prevented him from filing his petition in a timely manner. See Whiteside v. United States, 775 F.3d 180, 186 (4th Cir. 2014). On the contrary, his claims were nearly dismissed for failure to prosecute (D.E. 17, 22). Thus, his petition should be dismissed as time-barred.

2. Merits Determination

Alternatively, Paradise's claims fail on the merits. Paradise's asserts the following grounds for relief: (1) his guilty plea was unknowing and involuntary; (2) his sentence was grossly disproportionate; (3) he received ineffective assistance of counsel; (4) the trial court abused its discretion at sentencing; and (5) his indictment was facially defective. Pet at 5-10, D.E. 1.

A valid guilty plea constitutes the admission of the material elements of a crime. See McCarthy v. United States, 394 U.S. 459, 466 (196). A voluntary guilty plea normally forecloses an attack based on any antecedent, non-jurisdictional errors. See Tollett v. Henderson, 411 U.S. 258, 267 (1973); Meyer v. Branker, 506 F.3d 358, 367 (4th Cir. 2007) ("[I]t is well known that a defendant's guilty plea itself serves as a 'conviction,' supplying 'both evidence and verdict.") (citing Boykin v. Alabama, 395 U.S. 238, 242, 243 n. 4 (1969)). Therefore, "[w]hen a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims related to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett, 411 U.S. at 267. In short, Paradise raises issues in his petition that are largely foreclosed by his guilty plea. With this in mind, the court address his grounds for relief in turn.

a. Unknowing and Involuntary Guilty Plea

Paradise asserts that his guilty plea was unknowing and involuntary because:

[H]e was wrongfully induced and coerced to take a guilty plea when he was promised a lesser offense such as felonious death by motor vehicle and/or involuntary manslaughter. Additionally, petitioner never admitted to the factual basis.

Pet. at 5, D.E. 1. The MAR court dismissed this claim. Pet'r. Ex. at 15-20, D.E. 1-2.

A criminal defendant's decision to plead guilty must be knowing and voluntary. See, e.g., Boykin v. Alabama, 395 U.S. 238, 242-43 (1969); McCarthy v. United States, 394 U.S. 459, 466 (1969). In assessing the validity of a guilty plea, courts should not lightly disregard sworn statements in a plea hearing. Specifically, the Supreme Court has stated:

the representations of the defendant, his lawyer, and the prosecutor at [a guilty plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.

Blackledge
v. Allison, 431 U.S. 63, 73-74 (1977).

Paradise's claims directly contradict his plea colloquy, which clearly indicates that his plea was knowing and voluntary. See Pet'r. Ex. at 41-44, D.E. 1-2. During his plea colloquy, Paradise swore that that he could hear and understand the court, could read and write at the 12th grade level, and was not under the influence of alcohol, narcotics, medicines, pills, or any other substance. Id. at 41. Paradise also swore that his attorney had explained the charges to him, that they had discussed possible defenses, and that his guilty plea carried with it a waiver of certain rights, including the right to a jury trial and limitations on his right to appeal. Id.

Moreover, Paradise specifically swore that there was a factual basis to support his plea. Id. at 42. Likewise, Paradise specifically swore that he was not wrongfully induced or coerced into pleading guilty. Id. Paradise's plea arrangement required him to plead guilty to second-degree murder and driving while impaired ("DWI"). Id. The agreement stated Paradise would be sentenced for the second-degree murder charge to 151-191 months imprisonment. Id. at 42. In exchange, the prosecutor agreed to arrest or stay any sentence for the DWI. Id. Paradise swore that no other promise or threat induced him to plead guilty. Id. Paradise's sworn admissions bind him. See, e.g., Blackledge, 431 U.S. at 73-74.

For the aforementioned reasons, the undersigned finds that the MAR court's disposition of this claim is neither contrary to, nor an unreasonable application of, federal law as determined by the United States Supreme Court. Nor was the MAR court decision based on an unreasonable determination of the facts. Accordingly, the court should grant summary judgment on this claim.

b. Grossly Disproportionate Sentence

Paradise argues that his term of 151 to 191 months imprisonment for second degree murder is grossly disproportionate, in violation of the Eighth Amendment to the United States Constitution. Pet. at 7, D.E. 1. The MAR court dismissed this claim. Pet'r. Ex. at 15-20, D.E. 1-2.

The United States Supreme Court in Harmelin v. Michigan, 501 U.S. 957 (1991), held that the Eighth Amendment does not contain a proportionality guarantee. Harmelin, 501 U.S. at 965. "Rather, it forbids only extreme sentences that are grossly disproportionate to the crime." Id. at 1001 (citing Solem v. Helm, 463 U.S. 277, 288 (1983)). "Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." Rummel v. Estelle, 445 U.S. 263, 272 (1980). Paradise's claim does not fit within the exceedingly rare parameters because his sentence is not more extreme or disproportionate than other sentences previously upheld under the Eighth Amendment. See e.g., Ewing v. California, 538 U.S. 11, 28-31 (2003) (sentence of twenty-five years to life under recidivism statute for theft of $1,200 worth of golf clubs not grossly disproportionate under the Eighth Amendment); Grimes v. Pszczolkowski, No. 1:14CV13, 2015 WL 144619, at *9 (N.D.W. Va. Jan. 12, 2015) (finding that a term of 40 years imprisonment for second-degree murder is not grossly disproportionate).

For the aforementioned reasons, the undersigned finds that the MAR court's disposition of this claim is neither contrary to, nor an unreasonable application of, federal law as determined by the United States Supreme Court. Nor was the MAR court decision based on an unreasonable determination of the facts. Accordingly, the court should grant summary judgment on this claim.

c. Ineffective Assistance of Counsel

Paradise argues that he received ineffective assistance of counsel. Pet. at 8, D.E. 1. Specifically, he asserts that:

[D]ue to his counsel's error and gross misadvice, petitioner sign[ed] a guilty plea agreement where he understood that he would receive a sentence for felonious death by vehicle and that he will be sentenced at the mitigated range. Otherwise, petitioner would have opted to go to trial. Counsel failed to inform petitioner of his right of appeal.

Id
. at 8. The MAR court dismissed this claim. Pet'r. Ex. at 15-20, D.E. 1-2.

In his MAR, Paradise only alleged that counsel failed to properly advise him during plea negotiations. Pet'r Ex. at 30-39, D.E. 1-2. He did not assert that counsel failed to advise him of his appellate rights. He is now procedurally barred from asserting any further ineffectiveness claims in North Carolina Courts under N.C.G.S. § 15A-1419. Pet'r. Ex. at 20, D.E. 1-2. Therefore, this claim could alternatively be dismissed as unexhausted and procedurally defaulted. See Breard v. Pruett, 134 F.3d 615 (4th Cir.), cert. denied, 523 U.S. 371 (1998). --------

As noted, the record reflects that Paradise's guilty plea was knowing and voluntary. Pet'r Ex. at 41-44, D.E. 1-2. Furthermore, Paradise specifically testified at his plea hearing that he was satisfied with his attorney's services. Id. at 41. Paradise's in-court representations during his plea hearing are deemed conclusive.

Likewise, Paradise has not established that counsel was ineffective for failing to file a direct appeal or failing to inform him of his statutory right to appeal. The United States Supreme Court in Roe v. Flores-Ortega, 528 U.S. 470 (2000), discussed an attorney's obligation to consult with his client about an appeal. In particular, the court in Flores-Ortega, provided:

counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.

Flores-Ortega
, 528 U.S. at 480. In assessing whether an attorney had a constitutional duty to consult, the Court [in Flores-Ortega] indicated that several factors were relevant, including whether the conviction followed a trial or guilty plea. In cases involving guilty pleas, the Court instructed lower courts to consider whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived appeal rights. United States v. Poindexter, 492 F.3d 263, 268 (4th Cir. 2007) (internal quotation marks omitted).

Here, Paradise has not presented evidence to establish either prong of the Flores-Ortega test. First, Paradise has provided no evidence to establish that a rational defendant in his position would have wanted to file an appeal. Rather, the evidence in the record suggests otherwise. The trial court specifically advised Paradise of the limitations that a guilty plea would place upon his right to appeal. Pet'r. Ex. at 41, D.E. 1-2. Paradise swore that he understood these limitations. Id. Moreover, the record reflects that Paradise received a sentence within the terms set forth in his plea agreement. Id. at 42. In exchange for his guilty plea, he avoided sentencing on a DWI charge. Id. Thus, Paradise has failed to establish that a rational defendant in his circumstances would have wanted to file an appeal. See Pencille v. Warden Lee Corr. Inst., No. C/A No. 1:09-1862-RBH-SVH, 2010 WL 4386942, at *12 (D.S.C. Aug. 4, 2010) ("Even if Petitioner could show that his counsel's duty to consult were not excused under the circumstances, Petitioner must still demonstrate that he was prejudiced. . . . .The defendant may do this by demonstrating either that a) there were non-frivolous issues for appeal, or b) he had adequately indicated his interest in appealing.") (internal quotation omitted)), appeal dismissed, 440 F. App'x 182 (4th Cir. 2011).

Paradise, secondly, does not argue that he expressed interest in filing an appeal or directed his counsel to file an appeal on his behalf. Trial counsel does not provide ineffective assistance by failing to notice an appeal in the absence of a request to do so from the client. See Wood v. Woodson, No. 3:14-cv-136-JAG, 2014 WL 5410633, at *5 (E.D. Va. Oct. 23, 2014) (rejecting ineffective assistance claim premised on failure to file appeal where no facts showed the petitioner requested counsel to appeal). Because there is no evidence that Paradise reasonably demonstrated to his counsel that he was interested in appealing, petitioner cannot establish the second prong of the Flores-Ortega test. Thus, counsel did not breach any duty to consult with petitioner regarding Paradise's appellate rights.

In sum, Paradise's ineffective assistance of counsel claims are without merit. Accordingly, the undersigned finds that the MAR court's disposition of this claim is neither contrary to, nor an unreasonable application of, federal law as determined by the United States Supreme Court. Nor was the MAR court decision based on an unreasonable determination of the facts. Therefore, the court should grant summary judgment on this claim.

d. Abuse of Discretion at Sentencing

Paradise argues that the trial court abused its discretion at sentencing because he "should have been sentenced at the bottom of the mitigated range." Pet. at 10, D.E. 1. The MAR court dismissed this claim. Pet'r. Ex. at 15-20, D.E. 1-2.

It is well established that the scope of federal habeas review is limited to questions of either the federal Constitution or laws, and does not extend to reexamination of a state court's interpretation and application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Wright v. Angelone, 151 F.3d 151, 157 (4th Cir. 1998). Allegations that a state tribunal abused its discretion under state law do not implicate a constitutional question. Therefore, habeas challenges to a state court's sentencing discretion are unreviewable by a federal court so long as the sentence lies within statutory guidelines. Townsend v. Burke, 334 U.S. 736, 741 (1948) (finding that when a state "sentence [is] within the limits set by the statute, its severity would not be grounds for [habeas] relief"); Jones v. Superintendent. Rahway State Prison, 725 F.2d 40,42-43 (3d Cir. 1984) (holding that a challenge to a state court's sentencing discretion is not cognizable on federal habeas review); Brooks v. McCoy, No. 5:11-HC-2222-F, 2012 WL 3629233, at *12 (E.D.N.C. Aug. 22, 2012) ("there is no separate federal constitutional claim flowing from the state courts' purported misapplication of state sentencing law"); Ramos v. Watson, No. 1:10CV718(LO/IDD), 2010 WL 11530669, at *1 (E.D. Va. July 6, 2010) ("petitioner's argument that this sentence represents an abuse of discretion states no claim under § 2254"). Here, Paradise concedes on the face of his petition that he was sentenced within statutory guidelines. Pet. at 10, D.E. 1; See also N.C.G.S. § 15A-1340.17. Therefore, this claim is without merit.

For the aforementioned reasons, the undersigned finds that the MAR court's disposition of this claim is neither contrary to, nor an unreasonable application of, federal law as determined by the United States Supreme Court. Nor was the MAR court decision based on an unreasonable determination of the facts. Accordingly, the court should grant summary judgment on this claim.

e. Defective Indictment

Finally, Paradise alleges that his indictment was facially defective. Pet. at 10, D.E. 1. The MAR court dismissed this claim. Pet'r. Ex. at 15-20, D.E. 1-2. There is no federal constitutional requirement for an indictment in a state criminal proceeding. See Hartman v. Lee, 283 F.3d 190, 195 n. 5 (4th Cir. 2002); Dilworth v. Markle, 970 F. Supp. 2d 498, 507 (N.D.W. Va. 2013). All that is constitutionally required is that the defendant receive adequate notice of the charge in order to allow him to prepare a defense. See Cole v. Arkansas, 333 U.S. 196, 201 (1948). Alleged errors in state court indictments do not warrant federal habeas relief unless they rendered the entire state court proceeding fundamentally unfair, which Paradise has not established in this action. See Asheford v. Edwards, 780 F.2d 405, 407 (4th Cir. 1985). Moreover, the indictments from the grand jury provided petitioner with adequate notice of his criminal charges. See Pet'r. Ex. at 45, D.E. 1-2. Thus, Paradise is not entitled to habeas relief on this claim.

For the aforementioned reasons, the undersigned finds that the MAR court's disposition of this claim is neither contrary to, nor an unreasonable application of, federal law as determined by the United States Supreme Court. Nor was the MAR court decision based on an unreasonable determination of the facts. Accordingly, the court should grant summary judgment on this claim.

B. Certificate of Appealability

Rule 11 of the Rules Governing Section 2254 Cases ("Habeas Rules") provides "the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Having determined petitioner is not entitled to relief and respondent is entitled to dismissal of the petition, the court considers whether petitioner is still entitled to a certificate of appealability about one or more of the issues presented in his habeas petition.

A certificate of appealability may issue only upon a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When the district court has adjudicated and denied a petitioner's constitutional claims on the merits, the petitioner must establish that reasonable jurists could debate whether the court should have decided the issue differently or show the issue is adequate enough to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

When a petitioner's constitutional claims are dismissed on procedural grounds, a certificate of appealability will not issue unless the petitioner can establish both "(1) 'that jurists of reason would find it debatable whether the petition [or motion] states a valid claim of denial of a constitutional right' and (2) 'that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.'" Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting Slack, 529 U.S. at 484). "Each component of the § 2253(c) showing is part of a threshold inquiry, and a court may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments." Slack, 529 U.S. at 484-85.

After reviewing the claims presented in the habeas petition in light of the applicable standard, the court finds reasonable jurists would not find the court's treatment of any of Paradise's claims debatable or wrong and none of the issue are adequate to deserve encouragement to proceed further. Accordingly, the undersigned recommends denying a certificate of appealability.

III. Conclusion

For the aforementioned reasons, Paradise's motion to appoint counsel (D.E. 23) is DENIED. In addition, the undersigned recommends that the district court grant respondent's motion for summary judgment (D.E. 12) and dismiss Paradise's petition. The undersigned also recommends denying a certificate of appealability.

Furthermore, the court directs that the Clerk of Court serve a copy of this Memorandum and Recommendation on petitioner. Petitioner shall have until 14 days after service of the Memorandum and Recommendation on petitioner to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.

If petitioner does not file written objections to the Memorandum and Recommendation by the foregoing deadline, petitioner will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, petitioner's failure to file written objections by the foregoing deadline will bar petitioner from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985). Dated: August 3, 2018

/s/_________


Robert T. Numbers, II


United States Magistrate Judge