Clinton Smith v. Gerald Branker

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [998451585-2] Originating case number: 5:09-hc-02082-D. Copies to all parties and the district court/agency. [998764636]. Mailed to: David Weiss. [10-7417]

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Date Filed: 01/13/2012

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-7417

CLINTON SMITH,
Petitioner - Appellant,
v.
GERALD J. BRANKER, Administrator,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
District Judge. (5:09-hc-02082-D)

Submitted:

October 20, 2011

Decided:

January 13, 2012

Before KING, DAVIS, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Malcolm Ray Hunter, Jr., David Weiss, CENTER FOR DEATH PENALTY
LITIGATION, Durham, North Carolina, for Appellant. Clarence Joe
DelForge, III, Assistant Attorney General, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Clinton

Cebert

Smith

appeals

the

district

court’s

dismissal of his petition for a writ of habeas corpus under 28
U.S.C. § 2254 (2006).

The facts underlying Smith’s convictions

have been exhaustively recounted in the North Carolina courts.
See, e.g., State v. Smith, 524 S.E.2d 28, 33-36 (N.C. 2000).
brief,

Smith’s

ex-girlfriend,

Sylvia

Cotton,

and

their

In

three

children were poisoned with Di-Syston, a lethal organophosphate
pesticide,

in

January

1996.

One

of

the

children,

Britteny,

died; Cotton and the other two children were hospitalized but
eventually
Carolina
counts

recovered.

jury
of

of

Smith

one

attempted

count

was
of

later

convicted

first-degree

first-degree

murder

by

murder.

a

North

and

three

Although

Smith

initially received a capital sentence, it was reduced to life
imprisonment after a state court determined that he is mentally
retarded.
Following his convictions, Smith filed a motion for
appropriate

relief

(“MAR”)

in

state

court,

alleging,

in

pertinent part, that the State had violated Brady v. Maryland,
373 U.S. 83 (1963), and its progeny by failing to disclose the
existence

of

toxicologist

a

letter

written

whom

the

prosecution

by

Dr.

had

investigation of the case against Smith.

Darrell

consulted

Sumner,
during

a
its

The state MAR court

rejected Smith’s Brady claim, and the Court of Appeals of North
2

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Carolina

denied

Date Filed: 01/13/2012

certiorari.

Page: 3 of 7

Smith

then

filed

his

§ 2254

petition for federal habeas corpus relief, which the district
court dismissed.

We granted a certificate of appealability,

directing briefing on the issue of whether the State violated
Brady

and

Giglio

v.

United

States,

405

U.S.

150

(1972),

failing to disclose Dr. Sumner’s letter to the defense.

in

We now

affirm.
This court reviews de novo a district court’s denial
of habeas corpus relief on the basis of a state court record.
See

Tucker

v.

Nevertheless,
petitioner’s

Ozmint,
where

claim

350

the
on

F.3d
state

the

433,

438

court

merits,

(4th

has

the

Cir.

2003).

adjudicated

Antiterrorism

a
and

Effective Death Penalty Act of 1996 (“AEDPA”) provides that a
federal court may grant a habeas petition only if the state
court’s

adjudication

“(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.”

28

U.S.C. § 2254(d) (2006).
In addressing Smith’s Brady claim, the state MAR court
correctly recognized:

3

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“There are three components of a true Brady violation:
The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because
it is impeaching; that evidence must have been
suppressed
by
the
State,
either
willfully
or
inadvertently; and prejudice must have ensued.”
State v. Smith, No. 96-CRS-948 to -51, slip op. at 3 (N.C.
Super.

Ct.

Strickler

v.

June

19,

Greene,

2002)
527

(the

U.S.

263,

“MAR
281

Decision”)
(1999)).

(quoting
That

is,

evidence is favorable not only when it would tend to exculpate
the

accused,

but

also

prosecution’s witnesses.

when

it

can

be

used

to

impeach

the

See United States v. Bagley, 473 U.S.

667, 676 (1985); United States v. Trevino, 89 F.3d 187, 189 (4th
Cir. 1996).

Evidence tending to impeach a witness for the State

must be disclosed to the defendant if known to the prosecution.
See Giglio, 405 U.S. at 153-55.

Favorable evidence is material

when “there is a reasonable probability that, had the evidence
been

disclosed

to

the

defense,

would have been different.”

the

result

of

the

proceeding

Kyles v. Whitley, 514 U.S. 419,

433-34 (1995) (internal quotation marks omitted).

A reasonable

probability is one sufficient “to undermine confidence in the
verdict.”

Id. at 435.
The letter that is the genesis of Smith’s Brady claim

was addressed to the manufacturer of Di-Syston, and a copy was
sent to the prosecutor’s office.

In it, Dr. Sumner identified

four areas of concern with the prosecution’s theory that Smith

4

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had introduced the pesticide to his victims by dissolving it in
some Kool-Aid that they later drank.

Dr. Sumner first observed

that “[t]he time lapsed between ingestion and onset of symptoms
seems unusually long.”

Second, he queried whether Di-Syston is

soluble enough in water to produce a lethal dose in only “a
couple of swallows.”

Third, he questioned whether the “tissue

levels” recorded in Britteny’s autopsy were sufficient to cause
her

death.

omitted

And

fourth,

certain

data

he

wondered

pertaining

why
to

the

autopsy

report

“acetylcholinesterase

determinations.”
In this appeal, Smith declines to pursue any argument
with respect to the third and fourth concerns outlined in Dr.
Sumner’s letter.

In fact, Smith concedes that Britteny’s death

was caused by Di-Syston poisoning.

Nevertheless, Smith contends

that, if he had known of Dr. Sumner’s hesitations with respect
to

the

time

lapse

and

solubility

issues

identified

in

his

letter, Smith would have pursued those issues more assiduously
and hired an additional expert to further scrutinize them.

In

essence, Smith contends that he would have been able to raise
enough

uncertainty

introduced

to

the

about
victims

poisonings were accidental.
a

reasonable

precisely

probability

to

how

support

the
a

pesticide

theory

that

was
the

As a result, claims Smith, there is
that,

5

had

Dr.

Sumner’s

letter

been

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disclosed to the defense, the jury would have returned verdicts
of not guilty.
Having thoroughly reviewed the record and the parties’
briefs,

however,

we

cannot

say

that

the

state

MAR

court’s

adjudication of Smith’s Brady claim resulted in a decision that
was contrary to, or involved an unreasonable application of,
Supreme Court precedent, or that was based on an unreasonable
determination of the facts.

At bottom, the State was under no

obligation to prove that Smith sprinkled Di-Syston into Kool-Aid
as opposed to some other medium.
needed

only

to

prove

that

Smith

premeditation and deliberation.
45, 46 (N.C. 2000).
killed

Britteny,

purposes

only

acted

with

malice

and

with

See State v. Coble, 527 S.E.2d

Given that Smith concedes that Di-Syston

Dr.

if

On the contrary, the State

Sumner’s

further

letter

is

specificity

material

about

the

for

Brady

particular

carrier for the pesticide could implicate a third party or show
that the victims were poisoned accidentally.
latter,

contending

definitively

the

that,

precise

if

the

medium

State

by

which

Smith argues the
failed
the

to

prove

Di-Syston

was

introduced to the victims, the jury could have concluded that
the

pesticide

Nevertheless,

may

Smith

have
never

been
identifies

accident he envisions as plausible.
state

MAR

court

that

the

introduced

evidence
6

precisely

accidentally.
what

type

of

Indeed, we agree with the
that

Smith

introduced

the

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pesticide

into

Date Filed: 01/13/2012

Cotton’s

home

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for

the

express

purpose

of

perpetrating lethal harm is “overwhelming,” see MAR Decision 19,
regardless

of

any

residual

lack

of

clarity

regarding

the

particular medium by which the pesticide was introduced to the
victims.
At the very least, it was certainly within the bounds
of

reason

for

the

state

MAR

court

to

conclude

that

the

nondisclosure of Dr. Sumner’s letter did not deprive Smith of a
verdict that is worthy of confidence.
435.

Accordingly,

we

affirm

the

See Kyles, 514 U.S. at

district

Smith’s pending motion to appoint counsel.
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

court.

We

deny

We dispense with

legal
before

contentions
the

court

are
and

argument will not aid the decisional process.
AFFIRMED

7