Moore v. Dismukes

        IN THE UNITED STATES DISTRICT COURT                          
  FOR THE WESTERN DISTRICT OF NORTH CAROLINA                         
                 CHARLOTTE DIVISION                                  
              CASE NO. 3:22-cv-00374-MR                              

BREANNA REGINA DEZARA MOORE,            )                                 
                                   )                                 
     Petitioner,                   )                                 
vs.                                     )    MEMORANDUM OF                
                                   )    DECISION AND ORDER           
                                   )                                 
LESLIE COOLEY DISMUKES1,                )                                 
Secretary, North Carolina               )                                 
Department of Adult Correction,         )                                 
                                   )                                 
          Respondent.              )                                 
_____________________________________)                                    


THIS MATTER is before the Court on the Petition for Writ of Habeas   
Corpus filed by the Petitioner pursuant to 28 U.S.C. § 2254 on August 10, 
2022. [Doc. 1].  Petitioner raises four Constitutional claims in challenging her 
state court judgment.  [Id.].  Also before the Court is Respondent’s Motion 
for Summary Judgment [Doc. 9], to which Petitioner has filed her Response. 
[Doc. 13].                                                                


1 Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District 
Courts requires that “the petition must name as respondent the state officer who has 
custody” of the petitioner. Rule 2(a), 28 U.S.C. foll. § 2254.  In North Carolina, the 
Secretary of the Department of Adult Correction is the custodian of all state inmates. N.C. 
Gen. Stat. § 148-4 (2023).  Accordingly, Leslie Cooley Dismukes, the current Secretary 
of the North Carolina Department of Adult Correction, is now the proper respondent. 
I.   BACKGROUND                                                           
Breanna Regina Dezara Moore (“Petitioner”) is a prisoner of the State 

of North Carolina.  The Petitioner was convicted of first-degree murder on 
May 3, 2019, in the Union County Superior Court, and sentenced the same   
day to life in prison without the possibility of parole. [Doc. 1 at 2].  Immediately 

following her sentencing hearing, Petitioner gave oral notice of appeal in 
open court. [Doc. 1-2 at 1]. The trial court appointed the North Carolina 
Appellate Defender to represent Petitioner on direct appeal and thereafter 
made the appropriate appellate entries. [Doc. 10-7 at 169-70].            

Within ten days after entry of her criminal judgment, pursuant to N.C. 
Gen.  Stat.  §  15A-1414,  Petitioner  filed  a  Motion  for Appropriate  Relief 
(“MAR”) in the trial court on May 13, 2019. [Doc. 10-5]. Petitioner alleged 

three grounds for relief: (1) the State offered into evidence knowingly false 
testimony; (2) the trial court precluded Petitioner from putting before the jury 
a  full  and  complete  defense;  (3)  the  trial  court  impermissibly  precluded 
Petitioner from confronting and cross-examining adverse witnesses.  [Id.].  

The trial court denied the MAR on June 6, 2019.  [Doc. 1 at 4-5; Doc. 1-2 at 
1-10].  The Petitioner gave written notice of appeal, on June 13, 2019, to the 
North Carolina Court of Appeals from the trial court’s order denying her MAR.  

[Doc. 1-3]. The trial court made the appropriate appellate entries. [Doc. 10-7 
at  229-30].  The  North  Carolina Appellate  Defender,  on  June  26,  2019, 
appointed private counsel to represent Petitioner in both her appeals. [Doc. 

10-7 at 231].                                                             
On March 2, 2021, the North Carolina Court of Appeals issued its     
opinion affirming the Petitioner’s conviction.  [Doc. 1 at 3; Doc. 1-5 at 2-12].  

The Petitioner filed a petition for discretionary review in the North Carolina 
Supreme Court which was denied on August 10, 2021.  [Id.; at 3-4; Doc. 1-5 
at 1].                                                                    
The Petitioner filed her Petition for Writ of Habeas Corpus in this Court 

on August 10, 2022. [Doc. 1].   The Court conducted an initial review of the 
petition, and on May 11, 2023, ordered Respondent to answer or otherwise  
respond to the petition.  [Doc. 2]. On September 8, 2023, Respondent filed 

an  answer  [Doc.  8] to the  petition  and  also  filed  a  motion  for  summary 
judgment [Doc. 9]. Petitioner thereafter replied to Respondent’s summary  
judgment motion on October 23, 2023.  [Doc. 13]. This matter is now ripe for 
review.                                                                   

II.  STANDARD OF REVIEW                                                   
A federal habeas petitioner who is “in custody pursuant to the judgment 
of a State court” may seek relief pursuant to 28 U.S.C. § 2254(a).  Habeas 

relief may be granted to a state prisoner if the state court's last adjudication 
of a claim on the merits “resulted in a decision that was contrary to, or 
involved an unreasonable application of, clearly established Federal law, as 

determined  by  the  Supreme  Court  of  the  United  States[.]”  28  U.S.C.  § 
2254(d)(1).  Alternatively, relief may be granted to a state prisoner if the state 
court's last adjudication of a claim on the merits “resulted in a decision that 

was based on an unreasonable determination of the facts in light of the   
evidence presented in the State court proceeding.”  Id. § 2254(d)(2).     
III.  DISCUSSION                                                          
As  grounds  for  relief,  Petitioner  alleges  four  constitutional  errors: 

(Ground One) the trial court violated her right to confront and cross examine 
her  accusers  in  violation  of  the  Sixth  Amendment;  (Ground  Two)  the 
prosecution presented testimony which it knew or should have known was    

likely  false  in  violation  of  the  Due  Process  Clause  of  the  Fourteenth 
Amendment as prohibited by Napue v. Illinois, 360 U.S. 264 (1959); (Ground 
Three)  the  trial  court  violated  the  Petitioner’s  Due  Process  rights,  as 
prohibited by Chambers v. Mississippi, 410 U.S. 284 (1973), by denying her 

the  opportunity  to  present  a  full  and  fair  defense;  and  (Ground  Four) 
appellate counsel was ineffective, in violation of the Sixth Amendment, for 
neglecting to raise on appeal all of the preceding issues as the same were 

presented in Petitioner’s MAR to the trial court.  [Doc. 1 at 6-12].      
Respondent contends that Petitioner is entitled to no relief at all as a 
matter of law.  According to Respondent, Petitioner procedurally defaulted 

her first three grounds. [Doc. 10 at 10]. As for Petitioner’s fourth ground, the 
ineffectiveness of her appellate counsel, Respondent asserts that such claim 
is  unexhausted  and  otherwise  without  merit.    [Id.  at  16].    As  such, 

Respondent argues all Petitioner’s claims fail, and her petition should be 
dismissed.  [Id.].                                                        
A.   Exhaustion of Claims and Procedural Default                     
The Court must consider the requirements under 28 U.S.C. § 2254(d)   

of the Antiterrorism and Effective Death Penalty Act (“AEDPA”).  That section 
of the AEDPA applies to “a person in custody under a state-court judgment 
who seeks a determination that the custody violates the Constitution, laws, 

or treaties of the United States.” Rule 1(a)(1), 28 U.S.C. foll. § 2254.  A 
federal court may not grant § 2254 relief as to any claim “adjudicated on the 
merits” in state court unless the state court’s adjudication of such claim: 
(1) resulted in a decision that was contrary to, or involved an      
   unreasonable application of, clearly established Federal law,     
   as determined by the Supreme Court of the United States; or       

(2) resulted in a decision that was based on an unreasonable         
   determination of the facts in light of the evidence presented     
   in the State court proceeding.                                    

Id. § 2254(d).                                                            
Accordingly, under the AEDPA, a petitioner must exhaust her available 
state remedies – permit the state in the first instance to adjudicate all federal 

claims  on  the  merits  –  before  she  may  pursue  habeas  relief  in  federal 
court.   28  U.S.C.  § 2254(b)(1)(A).  “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)).  Exhaustion thus requires the prisoner to give 
the state the opportunity to review and correct any alleged violations of the 

prisoner's federal rights.  Duncan v. Henry, 513 U.S. 364, 365-366 (1995). 
“[T]he prisoner must ‘fairly present’ his claim in each appropriate state court, 
thereby alerting that court to the federal nature of the claim. 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).                       

Without the exhaustion requirement, if a defendant convicted in state 
court fails  to  identify  and  pursue  a federal  constitutional  claim  on  direct 
appeal or in state post-conviction proceedings, the state court is deprived of 

the opportunity to evaluate the claim and the defendant thereby abandons  
the claim “by not following proper state appellate procedure, causing the 
state courts to rule against him solely on state-law procedural grounds.” 

Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995). Federal habeas   
review in this circumstance is foreclosed 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).                 
In  North  Carolina,  a  petitioner  may  satisfy § 2254’s  exhaustion 
requirement in one of two ways: (1) by directly appealing her conviction to 

the North Carolina Court of Appeals and then petitioning the North Carolina 
Supreme Court for discretionary review; or (2) by filing a state post-conviction 
proceeding and then seeking review in the North Carolina Court of Appeals. 

N.C.  Gen.  Stat.  §  7A–31; N.C.  Gen.  Stat.  §  15A–1422;  and  McNeil  v. 
Whitener, 2012 WL 4086510, *5 (E.D.N.C. 2012) (to satisfy the exhaustion  
requirement, a petitioner must show that “his instant federal claims followed 
along one of these two tracks to completion of review in the state courts”).  

All four of Petitioner’s claims are unexhausted.  Petitioner’s first three 
claims (the MAR claims) are unexhausted because Petitioner did not pursue 
them  in  the  North  Carolina  Court  of Appeals.    Petitioner’s  fourth  claim 

(ineffectiveness of appellate counsel) is unexhausted because Petitioner has 
yet to raise this claim in any MAR following her unsuccessful direct appeal. 
Under the doctrine of procedural default, Petitioner is barred from pursuing 

in this Court her three MAR claims. The procedural history in Petitioner’s 
case pursuant to North Carolina law makes the foregoing analysis clear.   
“A procedural default ... occurs when [1] a habeas petitioner fails to 

exhaust available remedies and [2] ‘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, 

Petitioner gave oral notice of appeal following her conviction sustained in the 
trial court and sought review of various trial errors in the North Carolina Court 
of Appeals. Petitioner also filed a notice of appeal from the trial court’s order 

denying her MAR but none of the MAR claims were pursued on appeal by      
Petitioner’s appellate counsel.  Pursuant to N.C.R. App. P. 28(a), all such 
MAR claims were therefore abandoned (“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.”).  If Petitioner were to 
raise her three defaulted claims in a new MAR, such a successive MAR      
would be barred by N.C. Gen. Stat. § 15A-1419(a)(2) (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).     
Petitioner acknowledges that N.C. Gen. Stat. § 15A-1419(a)(1) also   

precludes her from filing a successive MAR to resurrect her defaulted claims. 
[Doc. 13 at 5]. Section 15A-1419(a)(1) provides as follows:               
Upon  a  previous  motion  made  pursuant  to  this  Article,  the   
defendant was in a position to adequately raise the ground or        
issue underlying the present motion but did not do so.  This         
subdivision does not apply when the previous motion was made         
within 10 days after entry of judgment or the previous motion was    
made during the pendency of the direct appeal.                       

Id.; see also, Bacon v. Lee, 225 F.3d 470, 476 (4th Cir. 2000), cert. denied, 
532 U.S. 950 (2001) (“We have consistently held that this provision [N.C. 
Gen. Stat. § 15A–1419(a)(1)] constitutes an independent and adequate state 
ground that may give rise to procedural default of federal habeas claims.”).  
While Petitioner’s first three claims are procedurally defaulted, she has 
not exhausted her ineffectiveness of appellate counsel claim which is the 
linchpin to the State potentially reaching the merits of her three defaulted 
claims. Section 15A-1419(a)(1) does not preclude Petitioner from filing a 
successive MAR in state court raising her ineffective assistance of appellate 
counsel  claim.   As  Petitioner  points  out,  “[a]fter the  lapse  of  her  [MAR] 

appeal, petitioner had no other route for pursuing her appeal of the trial 
court’s order denying her 15A-1414 MAR claims, … but she is not precluded 
from filing a further motion for relief at this point by virtue of 15A-1419(a)(1) 
being inapplicable.” Petitioner was not in a position to raise the ineffective 
assistance of appellate counsel ground in her MAR because her appeal of   

the order denying her MAR was yet to occur.  The successiveness exception, 
contained  in  the  second  sentence  of  §  15A-1419(a)(1),  proves the  rule.  
Accordingly, Petitioner’s ineffective assistance of appellate counsel claim is 

an  unexhausted  claim  that  can  be  pursued  in  state  court  under  North 
Carolina law.                                                             
The Petitioner should be permitted to pursue her IAC claim regarding 
her  appellate  counsel.  Respondent  disagrees,  generally  asserting  that 

Petitioner’s  appellate  counsel  should  be  presumed  to  have  acted   
competently just by filing a brief on Petitioner’s behalf.  [Doc. 10 at 37 (“In 
this case Petitioner’s counsel filed a merits brief with the North Carolina Court 

of  Appeals,  which  raises  the  presumption  of  competence.”).  Appellate 
counsel  in  Petitioner’s  case,  however,  not  only  failed  to  raise  any  of 
Petitioner’s MAR claims on appeal, but she also failed even to mention    
Petitioner’s MAR in the procedural history [Doc. 10-8 at 12], in the grounds 

for appellate review [Id.], or anywhere else in her opening brief. [Id., passim].  
The State should be provided the opportunity in the first instance to 
address  the  merits  of  Petitioner’s  unexhausted  IAC  claim  and  whether 

appellate counsel’s ineffectiveness, if any, supplies the necessary cause and 
prejudice permitting the State to examine the merits of Petitioner’s defaulted 
claims as well. Ineffective assistance of appellate counsel may serve as  

cause to excuse a procedural default in some instances, but “the exhaustion 
doctrine . . . generally requires that a claim of ineffective assistance be 
presented to the state courts as an independent claim before it may be used 

to establish cause for a procedural default.” Murray v. Carrier, 477 U.S. 478, 
488-89 (1986).                                                            
The Court is thus presented with a “mixed petition,” that is, one which 
includes both exhausted and unexhausted grounds for relief.  In Rose v.   

Lundy,  455  U.S.  509,  522  (1982),  the Supreme  Court  held  that “mixed” 
habeas petitions cannot be adjudicated.  And while the Supreme Court later 
held, in Rhines v. Weber, 544 U.S. 269 (2005), that the federal district courts 

may stay a § 2254 proceeding, hold it in abeyance, and direct the petitioner 
to  pursue  her  unexhausted  claims  in  state  court,  district  courts  are  not 
required to do so.  See, e.g., Bonneau v. LaManna, No. 18CIV2228CSAEK,    
2023 WL 5526717, at *6 (S.D.N.Y. Aug. 27, 2023) (observing that courts    

confronted  with  habeas  petitions  asserting  unexhausted  claims  have 
declined to stay the proceedings to allow petitioners to exhaust their claims 
in state court so as to avoid turning the federal court into a “jurisdictional 

parking lot for unexhausted claims and undermin[ing] the comity interests 
promoted by the exhaustion requirement”).  Given the potential interplay of 
Petitioner’s unexhausted claim with her three exhausted claims, the Court, 

in its discretion, will dismiss Petitioner’s action without prejudice to provide 
her the opportunity to exhaust her IAC claim regarding appellate counsel in 
state court.                                                              

III.  CONCLUSION                                                          
The Petitioner’s first three claims are procedurally defaulted and the 
Petitioner’s final claim is unexhausted. The Court, therefore, will dismiss the 
mixed petition without prejudice and deny Respondent’s summary judgment   

motion as moot.                                                           
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases,    
the Court declines to issue a certificate of appealability.  See 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 prisoner 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. 474, 484 (2000) (holding 

that, when relief is denied on procedural grounds, a prisoner 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).        
                            ORDER 
IT IS, THEREFORE, ORDERED that: 
 1.  The  Petition  for  Writ  of  Habeas  Corpus  [Doc.  1]  is  DISMISSED 
    without prejudice. 
 2.  The  Respondent's  Motion  to  for  Summary  Judgment  [Doc.  9]  is 
    DENIED as moot. 
 3.  Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, 
    the Court declines to issue a certificate of appealability. 
 4.  The  Clerk  of  Court  is  respectfully  requested  to  substitute  Leslie 
    Cooley Dismukes as the Respondent in this action. 
IT IS SO ORDERED. 

                      Signed: July 29, 2025 

                      Martifi   Reidinger                  ee 
                      Chief United States District  Judge  AS 

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