Elrico Fowler v. Kenneth Lassiter
Filing
PUBLISHED AUTHORED OPINION filed. Motion disposition in opinion denying Motion to appoint/assign counsel [999268873-2] Originating case number: 3:09-cv-00051-FDW. [999367088]. [13-4]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4
ELRICO DARNELL FOWLER,
Petitioner − Appellant,
v.
CARLTON B. JOYNER, Warden, Central Prison, Raleigh, North
Carolina,
Respondent − Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
District Judge. (3:09-cv-00051-FDW)
Argued:
April 11, 2014
Decided:
June 2, 2014
Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS,
Senior Circuit Judge.
Judgment affirmed and motion denied by published opinion. Chief
Judge Traxler wrote the opinion, in which Judge Duncan joined.
Senior Judge Davis wrote an opinion concurring in the judgment
in part and dissenting in part.
ARGUED: Mark Jason Pickett, CENTER FOR DEATH PENALTY LITIGATION,
Durham, North Carolina, for Appellant.
Sonya M. CallowayDurham, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.
ON BRIEF: Shelagh Rebecca Kenney,
CENTER FOR DEATH PENALTY LITIGATION, Durham, North Carolina, for
Appellant.
Roy Cooper, Attorney General, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
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TRAXLER, Chief Judge:
Petitioner Elrico Darnell Fowler, a North Carolina death
row inmate, appeals the district court’s denial of his petition
for a writ of habeas corpus under 28 U.S.C. § 2254.
We granted
a certificate of appealability to consider Fowler’s claim that
an eyewitness’s in-court identification violated his due process
rights
under
the
Carolina
state
contrary
to,
established
Fourteenth
court’s
or
an
federal
Amendment.
rejection
of
Fowler’s
unreasonable
law,
as
Because
claim
application
determined
by
the
was
of,
the
North
not
clearly
United
States
Supreme Court, we affirm the district court’s denial of Fowler’s
petition for habeas relief.
While
this
appeal
was
pending,
Fowler
filed
a
motion
requesting that we designate his current, appointed counsel to
be “Martinez counsel,” referencing the Supreme Court decision in
Martinez
v.
Ryan,
132
S.
Ct.
1309
(2012),
and
our
decision
applying it in Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013),
and
remand
the
investigation
petition.
matter
and
Because
to
the
amendments,
Fowler
if
had
district
court
appropriate,
the
benefit
of
for
to
the
his
further
§
2254
qualified,
independent counsel called for in Juniper and he failed to raise
any Martinez-based claims below, we deny the motion as well.
2
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I.
A.
Fowler was convicted in North Carolina state court of the
first-degree murder of Bobby Richmond, assault with a deadly
weapon
with
intent
to
kill
Bharat
robbery with a dangerous weapon.
Shah,
and
two
counts
of
All of the convictions arise
out of an armed robbery that occurred at a Howard Johnson’s
Motel in Charlotte, North Carolina, on December 31, 1995.
The
circumstances surrounding the crime, as summarized by the North
Carolina Supreme Court, are as follows:
On 31 December 1995 at approximately 10:45 p.m., Bobby
Richmond (Richmond), an employee at a Howard Johnson’s
Motel in Charlotte, North Carolina, entered the motel
lobby looking for ice. Bharat Shah (Shah) was working
as the motel night clerk.
About five minutes later,
two black males entered the motel and approached the
check-in counter. One of the men pulled out a gun and
ordered Richmond to get on the ground. The other man
ordered Shah to “open the register and give [him] the
money.”
While Shah was handing over the money, the
man with the gun shot both Richmond and Shah. He then
ordered Shah to open the office safe.
When Shah
stated he did not have the combination, the man shot
Shah again. Both assailants then fled the motel.
The Charlotte–Mecklenburg Police arrived at the
scene at 11:04 p.m. and found Richmond and Shah lying
near the counter.
Richmond was unresponsive.
Shah
was struggling to speak with police.
He told the
police they had been robbed by two black males, one
wearing a green jacket.
When paramedics arrived, they found a large wound
in the middle of Richmond’s back.
Richmond had no
carotid pulse.
The paramedics determined Shah’s life
was in danger.
A hospital surgeon later found two
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wounds in Shah’s left thigh, two more wounds in Shah’s
back, and a wound in Shah’s right forearm.
A
high-velocity
weapon
caused
Shah’s
thigh
injury. Doctors removed two .44–caliber bullet jacket
fragments from his forearm during surgery.
A .44–
caliber bullet jacket was also found in Richmond’s
left lung.
Police located a .44–caliber bullet core
in the motel carpet beneath Richmond’s chest wound.
Police also found a .44–caliber bullet jacket and a
large fragment from a .44–caliber bullet jacket at the
scene. Both had been fired from the same weapon used
to shoot Richmond. Other pieces of metal found at the
scene
were
also
consistent
with
.44–caliber
ammunition.
Richmond had an entrance wound in his back and an
exit wound in his chest. His chest was against a hard
surface when he was shot.
The evidence showed
Richmond was likely shot from a distance of no more
than three feet.
Officers found Richmond’s wallet at the scene
next to his body. The wallet contained no money. The
cash register drawer and a plastic change drawer next
to
the
register
also
contained
no
money.
Approximately $300.00 was stolen from the motel during
the robbery.
State v. Fowler, 548 S.E.2d 684, 689-90 (N.C. 2001).
At
adjoining
trial,
the
Jimmy
motel
Guzman,
lobby,
the
owner
testified
that
around 11:00 p.m. in the lobby of the motel.
of
the
he
restaurant
heard
gunshots
He looked through
the glass door of the restaurant and saw one of the robbers
standing behind the check-in counter.
for
approximately
police.
five
seconds
before
Guzman observed the man
running
to
call
the
According to Guzman, “the man was black, in his late
twenties, and approximately six feet tall.”
Id. at 690.
He
“had a pointed nose and hair on his face but not a full beard”
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and “was wearing a green toboggan and a camouflage army jacket.”
Id. 1
Over Fowler’s objection, Guzman identified Fowler in court
as the man he saw behind the counter that night.
In addition to Guzman’s in—court identification of Fowler,
the prosecution presented the testimony of several witnesses to
whom Fowler had made incriminating statements.
Jermale Jones
testified
1995
that
Fowler
told
him
on
Thanksgiving
planned to rob a Howard Johnson’s motel.
additionally
admitted
to
Jones
“that
that
he
In March 1996, Fowler
he
entered
the
Howard
Johnson’s with a handgun to attempt a robbery and that when the
people working at the motel made him ask twice for the money,
[he] shot them [with] ‘a big old .44.’”
Id. at 691.
Leo
McIntyre testified that he went to the Sugar Shack, a local
nightclub, on December 31, 1995, and spoke with Fowler.
Fowler,
who was dressed in army fatigues, told McIntyre “that he shot
two people during a robbery at a Howard Johnson’s” motel.
Id.
Later in the week, Fowler also told McIntyre “that, although he
thought he had killed both people at the robbery, one of them
1
Bharat Shah survived the shooting and also described the
events to the investigating officers.
However, Shah told the
officers “that he did not get a good look at the shooter because
he was primarily focused on the man taking the money” and that
“he probably could not recognize the suspects.”
State v.
Fowler, 548 S.E.2d 684, 691 (N.C. 2001).
Shah moved to India
after he recovered from his wounds and, despite assurances that
he would be given police protection, refused to return for the
trial. See id.
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Fowler also told McIntyre “that he only got
two or three hundred dollars” from the robbery.
Id.
Waymon
Fleming was living with Fowler at the time of the robbery.
He
testified that Fowler admitted robbing the motel and shooting
the “people who would not open the safe.”
Id.
When Fowler told
Fleming that he was going to flee the state, Fleming notified
the authorities and Fowler was apprehended.
In addition to the above evidence, Edward Adams testified
that he was with Fowler at an apartment on the night of the
robbery.
He testified that Fowler left the apartment “between
9:00 and 10:00 p.m. with two other men and returned between
midnight and 1:00 a.m.”
Sugar Shack.
Id.
Fowler then left to go to the
Adams testified that he purchased a .44-caliber
revolver from Fowler the following evening.
Later, in April
1996, Fowler “asked Adams where the gun was located, and Adams
told him the gun had been destroyed.
[Fowler] responded, ‘I’m
glad,’ and asked Adams not to tell people about the gun.”
Id.
Fowler also told Adams that the prosecutor did not know who
purchased the gun.
See id.
Shenitra Johnson told officers that
Fowler arrived at her home shortly after 11:30 p.m. on December
31, 1995, and left between 12:30 and 1:00 a.m., and that Fowler
had a .44-caliber gun, which he later sold.
At trial, however,
Johnson testified that Fowler was at her home from 10:30 p.m. on
December 31, 1995, until 1:15 or 1:30 a.m. the next morning, and
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denied seeing Fowler sell or attempt to sell a handgun at her
apartment.
See id. at 692.
B.
In November 1997, Fowler was convicted by the jury of all
charges.
the
He was thereafter sentenced to death.
North
Carolina
convictions
should
Supreme
be
Court,
overturned
Fowler
On appeal to
argued
because
Guzman’s
that
his
in-court
identification deprived him of his right to due process.
The
North Carolina Supreme Court affirmed, see id. at 704, and the
United States Supreme Court denied certiorari, see Fowler v.
North Carolina, 535 U.S. 939 (2002).
Fowler’s motion for state
postconviction relief, which added a related claim that Fowler’s
trial counsel was constitutionally ineffective in the handling
of
Guzman’s
identification,
Fowler,
668
S.E.2d
Supreme
Court
again
343
was
(N.C.
denied
also
2008),
denied,
and
certiorari,
the
see
see
State
United
Fowler
v.
v.
States
North
Carolina, 129 S. Ct. 2392 (2009).
Fowler thereafter filed this petition for federal habeas
relief pursuant to 28 U.S.C. § 2254, raising sixteen separate
claims.
The district court denied the petition and declined to
issue a certificate of appealability.
granted
claim
a
that
certificate
the
state
of
At Fowler’s request, we
appealability
court’s
to
adjudication
7
consider
of
his
Fowler’s
in-court
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identification
claim
was
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contrary
to,
application of, Supreme Court precedent. 2
or
an
unreasonable
We now affirm.
II.
A.
We
begin
principles
The
with
the
to
in-court
applicable
clearly
United
States
Supreme
established
eyewitness
Court
has
set
constitutional
identifications.
forth
a
two-part
approach to determine whether an eyewitness identification must
be suppressed because it has been tainted by police procedures
or conduct.
(2012).
See Perry v. New Hampshire, 132 S. Ct. 716, 724
First, the court considers whether the identification
procedure
employed
unnecessary.”
by-case
Id.
basis,
substantial
by
the
whether
likelihood
under
identification
was
“both
suggestive
and
Second, the court must “assess, on a caseimproper
of
quotation marks omitted).
“whether
police
the
was
conduct
misidentification.”
Id.
created
a
(internal
That is, the court must determine
totality
reliable
procedure was suggestive.”
police
of
even
the
though
circumstances
the
the
confrontation
Neil v. Biggers, 409 U.S. 188, 199
(1972) (internal quotation marks omitted).
2
In his federal habeas petition, Fowler also reasserted his
claim that his trial counsel was constitutionally ineffective in
the handling of his in-court identification claim.
Fowler did
not seek a certificate of appealability on this issue.
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When considering the question of whether the identification
was reliable under the second prong, the Supreme Court has also
identified five factors for consideration.
They include:
(1)
“the opportunity of the witness to view the criminal at the time
of the crime”; (2) “the witness’ degree of attention”; (3) “the
accuracy of the witness’ prior description of the criminal”; (4)
“the
level
of
certainty
demonstrated
by
the
witness
at
the
confrontation”; and (5) “the length of time between the crime
and the confrontation.”
factors
are
weighed
Biggers, 409 U.S. at 199-200.
against
“the
corrupting
suggestive identification itself.”
effect
These
of
the
Manson v. Brathwaite, 432
U.S. 98, 114 (1977).
Thus, “[e]ven when the police use such a procedure . . .,
suppression
of
the
resulting
inevitable
consequence.”
Perry,
eyewitness
identification
need
procedures
used
identification
to
obtain
132
be
the
S.
Ct.
suppressed
is
at
not
724.
only
identification
if
were
the
The
the
“‘so
unnecessarily suggestive and conducive to irreparable mistaken
identification that [the defendant] was denied due process of
law.’”
Biggers, 409 U.S. at 196 (quoting Stovall v. Denno, 388
U.S. 293, 302 (1967).
Moreover, the exclusion of such evidence is the exception
to
the
rule
that
favors
the
admissibility
identification for the jury’s consideration.
9
of
eyewitness
Ordinarily, “[t]he
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Constitution . . . protects a defendant against a conviction
based
on
evidence
of
questionable
reliability,
not
by
prohibiting introduction of the evidence, but by affording the
defendant means to persuade the jury that the evidence should be
discounted as unworthy of credit.”
Perry, 132 S. Ct. at 723;
see also Harker v. Maryland, 800 F.2d 437, 443 (4th Cir. 1986)
(noting
that
the
drastic
sanction
exclusion
.
.
.
of
that
identification
is
limited
testimony which is manifestly suspect”).
evidence
to
is
“a
identification
In the absence of “a
very substantial likelihood of irreparable misidentification, .
. . such evidence is for the jury to weigh.”
Brathwaite, 432
U.S. at 116 (internal quotation marks omitted).
Courts should
be “content to rely upon the good sense and judgment of American
juries, for evidence with some element of untrustworthiness is
customary
grist
for
the
jury
mill.
Juries
are
not
so
susceptible that they cannot measure intelligently the weight of
identification
testimony
that
has
some
questionable
feature.”
Id.
B.
Prior to trial, Fowler moved to suppress Guzman’s expected
in-court identification of him from the Howard Johnson’s motel,
asserting that any such identification by Guzman would be the
product
of
impermissibly
suggestive,
10
photographic
arrays
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presented to Guzman in the immediate aftermath of the robbery
and murder. 3
The first photographic array occurred on January 8, 1996.
Guzman was presented with a six-person photographic array that
included a photograph of Fowler that had been taken in November
1995.
beard,
In the photograph, Fowler had a full head of hair, a full
and
a
mustache.
As
noted
above,
however,
Guzman’s
initial description of the robber was of a man with a toboggan
cap, some
hair
on
his
face,
but
not
a
full
beard.
Guzman
declined to identify any of the photographs as resembling the
man he saw in the motel lobby. 4
On January 14, 1996, police officers presented Guzman with
another six-person photographic array that included Fowler and
five additional photographs that had been selected as similar by
a computer program.
This array, however, contained an arrest
photograph of Fowler that had been taken just two days earlier,
on January 12, 1996.
In this photograph, Fowler had a shaved
head and light facial-hair stubble.
Although Guzman would not
positively identify any of the photographs as being of the man
3
Although Fowler initially moved to suppress both the pretrial photographic arrays and the in-court identification, he
later withdrew the motion to suppress the arrays.
4
On January 11, 1996, the police released the November 1995
photograph of Fowler to the media.
However, Guzman testified
that he did not see the media coverage.
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saw
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on
the
night
of
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the
robbery,
he
selected
Fowler’s
photograph as the one that “most closely resembled” the man.
J.A. 138.
On April 3, 1996, the police presented Guzman with another
photographic array, which contained the photograph of a man whom
police believed to be an accomplice of Fowler in an earlier
crime but which did not include a photograph of Fowler.
At the
time, police had not yet identified the second robber and the
purpose
of
suspected
this
array
was
accomplice.
to
Again,
see
if
Guzman
Guzman
recognized
would
not
the
positively
identify any of the men, but he chose two photographs that he
said most closely resembled the man he saw that night. 5
Just prior to the evidentiary hearing on Fowler’s motion to
suppress,
the
prosecutor
subpoenaed to testify.
Fowler
would
be
seated
met
with
Guzman,
who
had
been
During the meeting, Guzman was told that
between
table during the hearing.
his
attorneys
at
the
defense
At the hearing, Guzman confidently
identified Fowler -- who was dressed in an orange, jail jumpsuit
and seated between defense counsel -- as the man Guzman observed
5
Although not raised in connection with his motion to
suppress before the trial court, there was evidence presented at
the state MAR proceeding that Guzman was presented with two
additional arrays early on in the investigation that also did
not include Fowler. In one, Guzman declined to identify anyone.
In the other, he selected a photograph of Cullen Marshall, who
would later become Fowler’s co-defendant, as resembling one of
the robbers.
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in the motel lobby.
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Guzman testified that his identification
was based on his having seen Fowler on the night of the robbery
and not on his having seen any photograph of Fowler in the
interim.
Moreover, when Guzman was presented with the January
12, 1996, array at the suppression hearing, he was unable to
identify the photograph that he had earlier selected as the one
that most closely resembled the man he saw that night.
At the conclusion of the hearing on the motion to suppress,
the
trial
court
made
detailed
findings
of
Fowler’s challenge to Guzman’s identification.
fact
regarding
Of particular
note, the trial court found as follows:
Mr. Guzman was approximately 25 feet from the person
he observed behind the counter at the time of his
observations.
The lobby was lighted with fluorescent
lighting, and all the lights in the lobby appeared to
be turned on.
He was able to observe the individual
from the level of the counter up, which allowed him to
observe the other part of the body of that person,
including his face and facial features.
Mr. Guzman
was able to look at the face of the person for
approximately five seconds and see the face from
different angles. . . .
The individual was not
wearing a mask or anything covering his face. He was
wearing a toboggan on his head.
Mr. Guzman does not
wear
prescription
eyeglasses
nor
is
there
any
indication that he is in need of corrective lenses.
During the time that he observed the individual behind
the counter, there was no obstruction of his view of
the person’s face, there was no distraction of his
attention from the individual, and he was able to
focus his attention on the person.
J.A. 191-92.
The trial court also addressed Fowler’s claim that
the prosecutor’s pre-hearing statement to Guzman about Fowler’s
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expected location in the courtroom compounded the impermissibly
suggestive procedure:
Prior to his testimony in Court, Mr. Guzman met with
the prosecutors concerning his testimony and was
informed that the Defendant would be present in Court
and would be seated between his attorneys at the
defense counsel table.
Mr. Guzman indicated his
identification of the Defendant in open Court [was]
based upon his recollection [of] the appearance on the
Defendant as being the person behind the counter at
Howard Johnson’s Motel on December 31st, 1995 and not
based upon any suggestion or inference in conferences
with
the
police
officers
or
with
prosecuting
attorneys.
Mr. Guzman also indicated that he was
confident that the Defendant was the person he had
seen in Howard Johnson’s on December 31st, 1995.
J.A.
192-93.
identification
The
trial
procedures
court
concluded
relating
to
the
that
the
pretrial
photographic
arrays
were not impermissibly suggestive and, even if they were, “[t]he
identification
inherently
of
[Fowler]
incredible,
by
given
James
all
the
Guzman
.
.
.
is
not
circumstances
of
the
witness’s ability to view the accused at the time of the crime.
The credibility of the identification evidence is for the jury
to weigh.”
J.A. 197.
On direct appeal, the North Carolina Supreme Court rejected
Fowler’s challenge to the trial court’s denial of his motion to
suppress.
In pertinent part, the North Carolina Supreme Court
held as follows:
In the present case, the trial court made
extensive findings concerning the photographic arrays
shown to Guzman and concluded that Guzman’s in-court
identification
was
based
on
his
independent
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recollection of defendant from the night of the
crimes. . . . There is ample evidence in the present
record to support the trial court’s findings.
Guzman
testified he was confident that defendant was the man
he saw in the motel lobby on 31 December 1995. Guzman
stated that his identification was based on his memory
of seeing defendant in person in the motel lobby on
the night of the shootings and not on seeing
photographs of defendant.
Moreover, the record
reveals prosecutors told Guzman when they met with him
before the pretrial hearing that he should tell the
truth if he did not recognize defendant.
This evidence is sufficient to support the trial
court’s findings, which in turn support its ultimate
legal conclusion that Guzman’s identification was not
the result of an impermissibly suggestive procedure.
Fowler, 548 S.E.2d at 698.
argument
arrays
“that
and
the
meeting
identification
to
The court also rejected Fowler’s
cumulative
with
be
a
effect
prosecutors
violation
of
of
viewing
caused
photographic
Guzman’s
defendant’s
due
in-court
process
rights,” id., observing that:
[n]othing in the trial court’s findings or in the
evidence suggests that the prosecutors encouraged
Guzman to make a false identification.
The meeting
between prosecutors and Guzman appears to have been
nothing more than an opportunity to go over what would
happen in court.
The prosecutors did not provide
Guzman with any information that would not have been
readily apparent to him during the proceedings. Thus,
although prosecutors should avoid instructing the
witness as to defendant’s location in the courtroom,
there is nonetheless insufficient evidence to support
defendant’s
contention
that
prosecutors
rigged
Guzman’s identification. Accordingly, although Guzman
never explicitly testified that his meeting with
prosecutors
did
not
affect
his
in-court
identification, the evidence in the record supports
the
trial
court’s
conclusion
that
Guzman’s
identification was not a result of prosecutorial
suggestion.
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In sum, the court held that the procedures leading up to
Guzman’s
in-court
identification
were
not
unnecessarily
suggestive and that, even if they were, they did not create a
substantial
likelihood
id. at 698-99.
of
irreparable
misidentification.
See
In addition, the court held that any violation
of Fowler’s due process rights “was harmless beyond a reasonable
doubt” in light of the other evidence of Fowler’s guilt.
Id. at
699.
III.
A.
Because
the
North
Carolina
state
courts
adjudicated
Fowler’s constitutional claim on the merits, we may grant habeas
relief under 28 U.S.C. § 2254 only if that adjudication (1) “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), or (2) “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)(2).
As
the
cautioned,
United
this
States
review
of
Supreme
state
Court
court
has
decisions
constitutional claims is a highly constrained one.
increasingly
on
federal
We are not
at liberty to substitute our judgment for that of the state
court
on
matters
of
federal
constitutional
16
law,
even
if
we
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believe the state court decision was incorrect.
“The question .
. . is not whether a federal court believes the state court’s
determination was incorrect but whether that determination was
unreasonable – a substantially higher threshold.”
Schriro v.
Landrigan, 550 U.S. 465, 473 (2007) (emphasis added).
A state
court decision is unreasonable “only if it is so erroneous that
‘there is no possibility fairminded jurists could disagree that
the
state
court’s
decision
Court’s precedents.’”
conflicts
with
th[e]
[Supreme]
Nevada v. Jackson, 133 S. Ct. 1990, 1992
(2013) (per curiam) (quoting Harrington v. Richter, 131 S. Ct.
770, 786 (2011)).
the
state
Furthermore, our deference is not limited to
court’s
Court precedents.
interpretation
and
application
of
Supreme
When we review a state court’s decision, we
must also presume the correctness of the state court’s factual
findings, unless rebutted by clear and convincing evidence.
See
28 U.S.C. § 2254(e)(1).
B.
1.
The district court held that the North Carolina Supreme
Court reasonably applied the clearly established Supreme Court
precedents
process
in
in
determining
this
case
was
that
not
agree.
17
the
pre-trial
impermissibly
identification
suggestive.
We
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Law enforcement presented two photographic arrays to Guzman
that included Fowler’s photograph.
Fowler does not argue that
the photographic arrays, as individually composed, were unduly
suggestive.
Rather, Fowler complains only that the pre-trial
procedures were unduly suggestive because he appeared in both
arrays and because Guzman was told that Fowler would be seated
between his counsel prior to the suppression hearing.
However,
while a photograph of Fowler appeared in both arrays, the same
photograph did not appear in both, and it is undisputed that
Fowler’s appearance in the January 8 array was quite different
from
his
appearance
description
in
provided
the
by
January
Guzman
14
to
immediate aftermath of the crime.
array
the
and
from
authorities
the
in
the
Moreover, although Guzman
selected the photograph of Fowler from the April 14 array as the
one
most
closely
resembling
the
man
he
saw,
he
would
not
positively identify anyone as being the man he saw on the night
of the robbery and he was unable to select the same photograph
at the suppression hearing.
Nor are we persuaded by Guzman’s claim that the state court
unreasonably concluded that the prosecutor’s pre-hearing meeting
with Guzman was not so suggestive - singularly or in combination
with
the
process
photographic
rights,
erroneously
or
imposed
arrays
by
upon
his
him
–
as
to
argument
a
18
burden
violate
that
of
the
Fowler’s
state
proving
due
court
that
the
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prosecutors were driven by improper motives.
in
the
record
reasonable
that
calls
determination
into
that
question
the
There is nothing
the
state
meeting
court’s
between
the
prosecutors and Guzman was simply “an opportunity to go over
what would happen in court,” and that the challenged statement
only
provided
Guzman
with
information
that
would
readily apparent to him during the proceedings.”
“have
been
Fowler, 548
S.E.2d at 698; cf. United States v. Murray, 65 F.3d 1161, 1169
(4th Cir. 1995) (noting that a witness’s prior knowledge of a
defendant’s location at counsel table in a courtroom proceeding
was not per se impermissibly suggestive).
In the course of
concluding that “the evidence in the record supports the trial
court’s conclusion that Guzman’s identification was not a result
of
prosecutorial
suggestion,”
even
in
combination
with
the
photographic arrays, the state court also appropriately observed
that there was nothing in the record to “suggest[] that the
prosecutors encouraged Guzman to make a false identification” or
otherwise “rigged Guzman’s identification.”
at 698.
Fowler, 548 S.E.2d
And, as the state court pointed out, although the
prosecutors
told
Guzman
where
Fowler
would
be
seated
in
the
courtroom, they also told Guzman “that he should tell the truth
if he did not recognize defendant.”
19
Id.
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2.
As both the state court and district court correctly noted,
the
absence
of
an
unduly
suggestive
procedure
renders
it
unnecessary for us to go further.
Nevertheless, even assuming
arguendo that
police
unduly
the
actions
suggestive,
unreasonably
we
concluded
of
the
cannot
that
say
Guzman’s
and
that
prosecutor
the
state
identification
of
were
court
Fowler
was reliable under the totality of the circumstances.
Guzman observed the accused through a glass door from a
distance of 25 feet in fluorescent lighting for approximately
five seconds.
The accused wore no mask and nothing obstructed
Guzman’s view of him.
Guzman was able to and did observe his
facial
different
features
from
angles,
including
when
the
accused looked in Guzman’s direction, and nothing distracted his
view away from the man during the time that he observed him.
addition,
Guzman
was
aware
of
a
previous
robbery
that
In
had
occurred at the motel and, therefore, was immediately alert to
the
possibility
Furthermore,
that
Guzman
a
robbery
provided
a
might
detailed
be
in
description
progress.
of
the
accused immediately after the event, including a description of
his facial features and of the clothing he was wearing, which
turned out to match descriptions given by other witnesses who
saw Fowler on the night of the crime.
20
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We additionally note that Guzman was consistently hesitant
to conclusively identify a suspect from any of the photographic
arrays shown to him, whether or not they included a photograph
of Fowler.
Instead, he did exactly what was asked of him.
He
picked photographs only when he felt that they resembled the
person he saw that night and refused to conclusively identify
the culprit until he was sure.
When given the first opportunity
to observe Fowler in person in October 2007, Guzman, having been
told that he should only identify Fowler if he was sure, was
confident that Fowler was the person he saw in the lobby of the
Howard Johnson’s that night.
Guzman further testified that his
identification
seeing
was
based
on
Fowler
in
the
lobby
night and not on his having seen any photograph of Fowler.
that
In
sum, it was not unreasonable for the state court to find that
Guzman based his identification on his observations on the night
of the robbery and not on his prior viewing of photographs of
Fowler or his knowledge of where Fowler would be located in the
courtroom.
To the extent that Guzman’s identifications were
subject to question, the state court reasonably held it was a
matter for the jury to consider and weigh and not a basis for
excluding the evidence altogether.
3.
Finally, the North Carolina Supreme Court additionally held
that,
even
assuming
that
error
21
occurred,
any
due
process
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violation “was harmless beyond a reasonable doubt,” in light of
the
other
evidence
at
trial.
Fowler,
548
S.E.2d
at
699.
Specifically, the court observed that:
Guzman’s in-court identification was by no means the
only evidence pointing to defendant’s guilt.
At
trial,
three
witnesses
testified
that
defendant
admitted entering the Howard Johnson’s to attempt a
robbery and that he shot two people.
One witness
testified that defendant told him he had only gotten
two or three hundred dollars from the robbery and that
he was broke because he had paid for his friends to
get into the Sugar Shack. Another person testified
that defendant sold him a .44–caliber revolver on the
evening of 1 January 1996, the day after the murders.
Id.
On federal habeas, Fowler argues that he was prejudiced by
the admission of Guzman’s identification because the only other
“evidence linking Fowler to the crime was the testimony of four
informants,
all
of
information
about
whom
approached
Fowler’s
case
the
in
State
the
with
hopes
of
supposed
receiving
favorable deals and sentencing reductions for their own criminal
activity.”
On
when
Brief of Appellant at 33.
direct
it
appears
complained
Mitchell
(internal
review,
of
v.
“[a]
beyond
did
not
Esparza,
quotation
a
constitutional
reasonable
contribute
540
U.S.
marks
12,
to
California, 386 U.S. 18, 24 (1967).
doubt
the
17-18
omitted);
error
is
that
verdict
(2003)
see
also
harmless
the
error
obtained.”
(per
curiam)
Chapman
v.
On federal habeas review,
however, we apply the more onerous, harmless error analysis set
forth in Brecht v. Abrahamson, 507 U.S. 619, 631 (1993).
22
“Under
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that standard, an error is harmless unless it had a substantial
and
injurious
verdict.”
effect
or
influence
in
determining
the
jury’s
Fry v. Pliler, 551 U.S. 112, 116 (2007) (internal
quotation marks omitted).
We “assess the prejudicial impact of
constitutional error in a state-court criminal trial under the
‘substantial and injurious effect’ standard set forth in Brecht
. . . whether or not the state appellate court recognized the
error
and
reviewed
standard.”
makes
no
it
for
harmlessness
under
the
[Chapman]
Fry, 551 U.S. at 121-22 (noting that “it certainly
sense
to
require
formal
application
of
both
tests
(AEDPA/Chapman and Brecht) when the latter obviously subsumes
the former”).
And “where an error is harmful under Brecht, any
state
decision
court
declaring
unreasonably applied Chapman.
Brecht
will
Bauberger
also
v.
satisfy
Haynes,
632
it
harmless
must
have
As a result, any error satisfying
AEDPA’s
F.3d
deference
100,
104
requirements.”
(4th
Cir.
2011).
“Federal habeas courts must always review constitutional errors
in state trials under Brecht, but they need not debate whether a
state
court’s
harmless
applied Chapman.”
Applying
error
determination
also
unreasonably
Id.
the
Brecht
standard,
we
conclude
that
the
admission of Guzman’s in-court identification, even if error,
was harmless.
other
evidence
As the state court observed, there was abundant
presented
on
the
23
issue
of
Fowler’s
guilt,
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including
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the
testimony
of
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several
acquaintances
that
Fowler
admitted that he committed the crime and provided details about
the shootings and the murder weapon that were corroborated by
the witnesses and forensic evidence from the motel that night.
4.
For the foregoing reasons, we hold that the state court’s
rejection of Fowler’s due process claim was not contrary to or
an
unreasonable
precedents.
application
of
the
governing
Supreme
Court
In the alternative, we hold that any such error was
harmless under Brecht.
IV.
We turn now to Fowler’s motion, filed for the first time on
appeal, which he styles as a Motion for Appointment of Qualified
and Independent Counsel.
Relying upon our decision in Juniper
v. Davis, 737 F.3d 288 (4th Cir. 2013), and the Supreme Court’s
decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012), Fowler
asks
that
designate
remand
that
his
this
investigate
we
defer
current
case
to
whether
resolution
counsel
the
to
district
there
assistance-of-trial-counsel
are
be
his
to
that
24
were
appeal,
counsel,”
allow
substantial
presented to the North Carolina state court.
reasons, we deny the motion.
habeas
“Martinez
court
any
claims
of
counsel
and
to
ineffectivenot
timely
For the following
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A.
1.
Ordinarily, a habeas petitioner is procedurally barred from
obtaining federal habeas review of a claim if he failed to raise
and exhaust the claim in state court.
See Coleman v. Thompson,
501 U.S. 722, 750 (1991); Wainwright v. Sykes, 433 U.S. 72, 8485
(1977).
Under
this
procedural
default
doctrine,
habeas
review of the claim will only be permitted if the petitioner can
demonstrate (1) cause for the default and prejudice resulting
therefrom or (2) that the failure to consider the claim will
result in a fundamental miscarriage of justice.
See Coleman,
501 U.S. at 750.
In some circumstances, a defendant may establish cause if
he
was
represented
by
counsel
whose
performance
was
constitutionally ineffective under the standards established in
Strickland v. Washington, 466 U.S. 668 (1984).
See Coleman, 501
U.S. at 752; Murray v. Carrier, 477 U.S. 478, 488 (1986).
In
Coleman, however, the Supreme Court held that because “[t]here
is
no
constitutional
conviction
right
proceedings,”
a
to
an
federal
attorney
habeas
in
state
“petitioner
postcannot
claim constitutionally ineffective assistance of counsel in such
proceedings” to establish cause.
25
Coleman, 501 U.S. at 752.
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In Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012), the
Supreme
Court
first
Coleman rule.
announced
a
“narrow
exception”
to
the
Specifically, the Court held that:
Where, under state law, claims of ineffective
assistance of trial counsel must be raised in an
initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance
at
trial
if,
in
the
initial-review
collateral
proceeding, there was no counsel or counsel in that
proceeding was [constitutionally] ineffective.
Id. at 1320 (emphasis added).
This limited qualification of the
Coleman rule was based on the fact that when an “initial-review
collateral proceeding is the first designated proceeding for a
prisoner to raise a claim of ineffective assistance at trial,
the collateral proceeding is in many ways the equivalent of a
prisoner’s
claim.”
direct
appeal
Id. at 1317.
as
to
the
ineffective-assistance
Thus,
[W]hen a State requires a prisoner to raise an
ineffective-assistance-of-trial-counsel
claim
in
a
collateral proceeding, a prisoner may establish cause
for a default of an ineffective-assistance claim . . .
where
appointed
counsel
in
the
initial-review
collateral proceeding, where the claim should have
been raised, was ineffective under the standards of
Strickland v. Washington, 466 U.S. 668 (1984).
Id.
at
1318
(citation
omitted).
Not
long
thereafter,
the
Supreme Court held that the Martinez exception also applies to
ineffective-assistance-of-trial-counsel
claims
that
state
law
might, on its face, permit to be brought on direct appeal, if
the
“structure
and
design”
of
26
the
state
“system
in
actual
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operation
Filed: 06/02/2014
.
.
.
make
it
Pg: 27 of 42
‘virtually
impossible’”
to
Trevino v. Thaler, 133 S. Ct. 1911, 1915 (2013).
“state
procedural
framework,
by
reason
of
do
so.
Where the
its
design
and
operation, makes it highly unlikely in a typical case that a
defendant will have a meaningful opportunity to raise a claim of
ineffective assistance of trial counsel on direct appeal, [the]
holding in Martinez applies.”
Id. at 1921.
To summarize, then, Martinez held that a federal habeas
petitioner
who
defaulted
claim
before
the
seeks
federal
of
to
raise
an
otherwise
procedurally
ineffective-assistance-of-trial-counsel
court
may
do
ineffective-assistance-of-trial-counsel
so
only
claim
if:
is
(1)
a
the
substantial
one; (2) the “cause” for default “consist[s] of there being no
counsel or only ineffective counsel during the state collateral
review proceeding”; (3) “the state collateral review proceeding
was the initial review proceeding in respect to the ineffectiveassistance-of-trial-counsel claim”; and (4) state law “requires
that an ineffective-assistance-of-trial-counsel claim
in an initial-review collateral proceeding.”
be raised
Trevino, 133 S.
Ct. at 1918 (internal quotation marks, alterations, and emphasis
omitted); see also Martinez, 132 S. Ct. at 1318.
Trevino held
that the Martinez exception would also apply in states that have
procedures which “make[] it highly unlikely in a typical case
that a defendant will have a meaningful opportunity to raise
27
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[the] claim on direct appeal.”
Id. at 1921.
Absent these
“limited circumstances,” “[t]he rule of Coleman [continues] to
govern[].”
Martinez,
132
S.
Ct.
at
1320.
The
Martinez
exception “does not concern attorney errors in other kinds of
proceedings,
including
appeals
proceedings,
second
successive
petitions
courts.
for
or
discretionary
from
initial-review
collateral
review
in
a
collateral
proceedings,
State’s
and
appellate
It does not extend to attorney errors in any proceeding
beyond the first occasion the State allows a prisoner to raise a
claim
of
ineffective
assistance
at
trial,
even
though
that
initial-review collateral proceeding may be deficient for other
reasons.”
Id. (emphasis added) (citations omitted).
2.
In Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013), we held
that a habeas petitioner, who has been sentenced to death and
appointed counsel pursuant to 18 U.S.C. § 3599(a)(2) to pursue
federal postconviction relief, is entitled to the appointment of
qualified,
independent
legal
counsel
for
the
purpose
of
investigating whether he has any Martinez-based claims if his §
3599 counsel also represented him in the state postconviction
proceedings. 6
6
Pursuant to 18 U.S.C. § 3599, “[i]n any post conviction
proceeding under section 2254 or 2255 of title 28, United States
Code, seeking to vacate or set aside a death sentence, any
(Continued)
28
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In Virginia, where Juniper was convicted, state prisoners
cannot
raise
ineffective-assistance-of-trial-counsel
claims
on
direct appeal and, therefore, the state fell plainly within the
Martinez exception.
769,
781
(Va.
See Johnson v. Commonwealth, 529 S.E.2d
2000).
Upon
the
filing
of
the
petition
for
federal habeas relief, the district court appointed Juniper’s
state postconviction counsel to continue representation of him
in the federal habeas proceedings.
However, when the Supreme
Court issued its decision in Martinez, Juniper moved to have new
counsel
appointed
under
§
3599,
in
addition
to
his
existing
counsel, for the purpose of investigating and presenting any
substantial, ineffective-assistance-of-trial-counsel claims that
had been procedurally defaulted in state court.
In particular,
Juniper argued that he was entitled to such new counsel because
his existing counsel would otherwise be required to investigate
his own ineffectiveness in the state court proceedings.
The
district court denied the motion, but granted a certificate of
appealability.
On appeal, we held that “if a federal habeas petitioner is
represented by the same counsel as in state habeas proceedings,
defendant who is or becomes financially unable to obtain
adequate [legal] representation . . . shall be entitled to the
appointment of one or more attorneys” meeting the practice
qualifications set forth in subsections (b) through (d).
29
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and
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the
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petitioner
requests
Pg: 30 of 42
independent
counsel
in
order
to
investigate and pursue claims under Martinez in a state where
the petitioner may only raise ineffective assistance claims in
an
‘initial-review
collateral
proceeding,’
independent counsel is ethically required.”
at
290
(emphasis
in
original).
This
qualified
and
Juniper, 737 F.3d
is
because
“‘a
clear
conflict of interest exists in requiring [petitioner’s] counsel
to
identify
and
investigate
potential
errors
that
they
themselves may have made in failing to uncover ineffectiveness
of
trial
counsel
while
they
represented
state post-conviction proceedings.”
[petitioner]
in
his
Id. at 289-90 (quoting Gray
v. Pearson, 526 Fed. Appx. 331, 334 (4th Cir. 2013)); see also
id. at 290 (noting that it would be “ethically untenable to
require
counsel
ineffectiveness
adequately
counsel
to
in
the
present
claims
assert
state
defaulted
under
claims
habeas
of
his
or
proceedings
in
her
own
order
to
ineffective-assistance-of-trial-
Martinez
in
the
federal
habeas
proceedings”).
We further held that, while Martinez requires that any such
claim be ultimately deemed substantial, the “district court must
grant the motion for appointment of counsel” for purposes of
investigation “without regard to whether the underlying motion
identifies
a
‘substantial’
Martinez.”
ineffective
Id.
30
assistance
claim
under
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B.
The
state
of
North
Carolina
argues
that
the
Martinez
exception does not apply in North Carolina because its laws and
procedures neither prohibit nor make it “virtually impossible”
for
a
defendant
to
raise
an
ineffective–assistance-of-trial-
counsel claim on direct appeal.
Fowler, on the other hand,
argues that Martinez does apply in North Carolina because, as in
Trevino, defendants are ordinarily required to raise claims of
ineffective
assistance
appropriate relief.
of
trial
counsel
in
a
motion
for
We disagree with both assertions.
Under North Carolina law, “a motion for appropriate relief,
including motions filed in capital cases,” must be denied if
“[u]pon a previous appeal the defendant was in a position to
adequately raise the ground or issue underlying the . . . motion
but did not do so.”
N.C.G.S. § 15A-1419(a)(3), (b).
However,
the statute “is not a general rule that any claim not brought on
direct appeal is forfeited on state collateral review.
Instead,
the rule requires North Carolina courts to determine whether the
particular
review.”
claim
at
issue
could
have
been
brought
on
direct
McCarver v. Lee, 221 F.3d 583, 589 (4th Cir. 2000).
Ineffective-assistance-of-trial-counsel
“claims
brought
on
direct review will be decided on the merits when the cold record
reveals that no further investigation is required, i.e., claims
that
may
be
developed
and
argued
31
without
such
ancillary
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procedures as the appointment of investigators or an evidentiary
hearing.”
State
v.
Fair,
557
S.E.2d
500,
524
(N.C.
2001).
Otherwise, the claims “should be considered through motions for
appropriate relief and not on direct appeal.”
557 S.E.2d 544, 547 (N.C. Ct. App. 2001).
State v. Stroud,
“Thus, while in some
situations a defendant may be required to raise an [ineffectiveassistance-of-trial-counsel] claim on direct appeal, a defendant
will not be required to do so in all situations.”
Long, 557 S.E.2d 89, 93 (N.C. 2001).
State v.
Accordingly, “to avoid
procedural default under N.C.G.S. § 15A-1419(a)(3), defendants
should necessarily raise those [ineffective-assistance-of-trialcounsel]
claims
record.”
on
appeal
that
are
apparent
from
the
Fair, 557 S.E.2d at 525 (“commend[ing]” counsel “for
properly
raising
counsel]
on
determine
have
direct
direct
that
been
[five]
claims
appeal”).
[of
ineffective
“[S]hould
the
assistance
reviewing
[ineffective-assistance-of-trial-counsel]
prematurely
asserted
on
direct
appeal,
it
of
court
claims
shall
dismiss those claims without prejudice to the defendant’s right
to reassert them during a subsequent MAR proceeding.”
Id.
In sum, North Carolina does not fall neatly within Martinez
or Trevino.
Ineffective-assistance-of-trial-counsel claims that
are apparent from the record must be brought by the prisoner on
direct appeal and, as to those claims, “the state collateral
review
proceeding
[is
not]
the
32
initial
review
proceeding
in
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respect
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to
the
(internal
.
.
.
quotation
Pg: 33 of 42
claim.”
marks
Trevino,
omitted).
133
S.
Ct
1918
they
Accordingly,
at
are
subject to procedural default under N.C.G.S. § 15A-1419, and the
Martinez
exception
relief
on
counsel
claims
to
federal
Coleman
habeas.
that
are
will
provide
the
prisoner
no
Ineffective-assistance-of-trial-
not
so
apparent,
however,
will
fall
within the Martinez exception.
In Juniper and Gray, we held that qualified, independent
counsel must be appointed in a Martinez state for the purpose of
determining
whether
trial-counsel
habeas.
any
claims
Because
additional,
exist
some
which
claims
ineffective-assistance-of-
were
may
not
fall
brought
within
on
the
state
Martinez
exception to Coleman, North Carolina petitioners are therefore
entitled
upon
request
to
the
appointment
of
qualified,
independent counsel for the purposes of investigating whether
any such claims exist.
still
be
whether
claim
called
the
upon
However, the federal habeas court will
to
particular
identified,
determine,
on
a
case-by-case
basis,
ineffective-assistance-of-trial-counsel
regardless
of
its
merit,
is
nonetheless
procedurally defaulted because it could have been and should
have been raised on direct appeal.
C.
That said, Fowler is not entitled to the relief he seeks
before this court.
Unlike the petitioners in Juniper and Gray,
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Fowler had the benefit of qualified, independent counsel during
the pendency of his federal habeas petition below who had ample
opportunity
to
pursue
any
Martinez-based
arguments
on
his
behalf.
During the various stages of Fowler’s trial and collateral
proceedings, he has had the benefit of at least nine deathpenalty qualified attorneys.
At trial, Fowler was represented
by Kevin Barnett and Harold Bender.
On direct appeal, he was
appointed new counsel, James Glover, to review the trial court
record
and
pursue
appropriate
claims,
including
ineffective-
assistance-of-counsel claims.
After
his
certiorari
conviction
review
denied,
and
sentence
Fowler
was
were
affirmed
appointed
and
qualified
postconviction counsel, Zephyr Teachout and Stephen Greenwald,
to pursue postconviction relief.
Fowler’s original Motion for
Appropriate Relief was filed on November 12, 2002, and amended
on August 12, 2004.
During the pendency of his MAR proceeding,
however, Fowler’s postconviction counsel were relieved and he
was appointed a second set of qualified postconviction counsel,
Faith Bushnaq and Reita Pendry, who also reviewed the matter and
filed
an
amendment
to
the
MAR,
which
included
an
additional
ineffective-assistance-of-trial counsel claim.
After
proceedings,
relief
Bushnaq
was
and
denied
Pendry
34
in
state
sought
and
postconviction
received
an
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appointment
to
proceedings.
represent
Pg: 35 of 42
Fowler
in
his
federal
habeas
Pendry filed an affidavit attesting to both her
and Bushnaq’s qualifications to represent Fowler under § 3599(c)
and (d).
On February 12, 2009, Pendry and Bushnaq filed a
Petition
for
Writ
of
Habeas
Corpus.
The
state
filed
its
response in May 2009, and Fowler filed a reply to the response
in August 2009.
On
October
11,
2011,
however,
Fowler’s
current
counsel,
Shelagh Kenney with the Center for Death Penalty Litigation,
successfully moved on Fowler’s behalf for an order appointing
her to replace Pendry.
also
represented
to
In conjunction with this motion, Kenney
the
district
court
that
she
met
the
qualifications to undertake representation under § 3599(c) and
(d),
and
additionally
asserted
that
her
entire
practice
is
devoted to the representation of indigent defendants who have
been sentenced to death.
The district court also granted, at
Kenney’s request, “a sixty (60) day abeyance of any rulings” on
the federal habeas petition, “without prejudice to [Fowler’s]
requesting additional time, if necessary,” Docket Entry No. 21,
Fowler v. Branker, No. 3:09-cv-00051 (W.D.N.C. Oct. 19, 2013),
in
order
to
give
newly
appointed
federal
habeas
counsel
“sufficient time to inform herself about Mr. Fowler’s case,”
Docket
Entry
No.
20,
Fowler
v.
(W.D.N.C. Oct. 11, 2011).
35
Branker,
No.
3:09-cv-00051
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Martinez,
argument
in
appointment,
district
which
the
was
court
had
been
Supreme
decided
did
not
Pg: 36 of 42
fully
Court
on
at
March
issue
briefed
the
20,
its
and
time
2012.
decision
was
of
pending
Kenney’s
Moreover,
denying
the
Fowler’s
federal habeas petition until March 27, 2013, a year after the
decision in Martinez was issued.
pendency
of
her
federal
habeas
However, at no time during the
representation
petition
to
assistance-of-trial-counsel
did
Kenney
assert
claims,
seek
to
additional
or
amend
the
ineffective-
request
a
further
abeyance of the case to allow for any additional investigation
of any potential new claims.
Thus,
although
styled
as
a
“Motion
for
Appointment
of
Qualified and Independent Counsel in Light of Juniper,” it turns
out that Fowler’s motion, filed before this court for the first
time,
does
pursuant
to
not
seek
Juniper
appointment
at
all.
of
new,
Although
independent
Fowler
was
counsel
initially
represented in his federal habeas proceedings by his second set
of state postconviction counsel, he was appointed and had the
benefit of qualified, independent counsel pursuant to § 3599 for
a substantial period of time during the pendency of his federal
habeas petition in the district court.
Our holding in Juniper
was limited and explicit:
To be clear, if a federal habeas petitioner is
represented by the same counsel as in state habeas
proceedings, and the petitioner requests independent
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counsel in order to investigate and pursue claims
under Martinez in a state where the petitioner may
only
raise
ineffective
assistance
claims
in
an
‘initial review collateral proceeding,” qualified and
independent counsel is ethically required.
Juniper, 737 F.3d at 290 (third emphasis in original).
However,
where, as here, counsel who represents the petitioner in federal
habeas proceedings “undertook representation after the initialreview collateral proceeding concluded, that counsel cannot be
found ineffective before or after Martinez.
Ethically, this
means there is no potential conflict of interest in light of
Martinez because there is no chance that the attorney would have
to argue his or her own ineffectiveness or forego a potentially
valid
ineffective
assistance
of
counsel
claim.”
David
M.
Barron, Martinez Casts Doubt on State PostConviction and Federal
Habeas Representation, 27-Fall Crim. Just. 42 (2012) (emphasis
added).
Kenney
is
without
death penalty matters.
doubt
well
qualified
and
informed
in
She represented Fowler for a year and a
half during the pendency of the district court proceedings, and
she did not represent Fowler at any stage of the state MAR
proceedings.
Thus, she did not labor under any conflict of
interest that would have hindered her ability to investigate
whether there were any Martinez-based ineffective-assistance-oftrial-counsel claims that had not already been ferreted out by
Fowler’s
prior
trial
and
postconviction
37
counsel,
or
entitled
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Fowler to the appointment of new, “conflict-free” counsel under
§ 3599. 7
We are also unpersuaded by Fowler’s half-hearted argument
that a special designation of “Martinez counsel” and remand for
further investigation is warranted because the Juniper decision
was
not
decisions
issued
in
until
both
after
Juniper
Fowler
and
filed
Gray
his
appeal.
addressed
a
The
conflict-of-
interest argument that was timely made before the district court
immediately after the Martinez decision was handed down by the
Supreme Court, and were based upon its reasoning and holding.
See e.g. Juniper, 737 F.3d at 289 (“In accordance with Martinez,
the
Gray
panel
held
independent
counsel
investigate
and
that
in
pursue
his
the
the
petitioner
federal
habeas
ineffectiveness
was
entitled
to
proceedings
to
of
state
habeas
counsel.”); Gray, 526 Fed. Appx at 332 (“[U]nder the reasoning
and holding of Martinez, [petitioner] is entitled to counsel who
could
vigorously
examine
and
present
if
available
potential
claims of ineffective assistance by [his] counsel in his state
habeas proceedings.”).
Juniper’s counsel was qualified, but not
7
In Juniper, the petitioner had a second appointed counsel
who had not represented him in the state postconviction
proceedings, but this counsel was not qualified under 18 U.S.C.
§ 3599(c) to represent him independently.
Here, in contrast,
Kenney
was
qualified
and,
therefore,
“serve[d]
as
the
independent counsel called for in” Juniper.
Juniper v. Davis,
737 F.3d 288, 290 n.2 (4th Cir. 2013).
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independent, and therefore Juniper was in a position to argue
that his appointed counsel operated under a conflict of interest
entitling him to new counsel under § 3599.
Kenney, in contrast,
has at all times been independent and conflict-free.
Moreover,
there is no magic to the term “Martinez counsel,” which does not
appear
in
reference
Juniper
to
the
or
Gray.
qualified,
The
term
independent
is
but
counsel
a
shorthand
that
Juniper
held was ethically required under § 3599 in the narrow set of
circumstances presented.
Juniper did not grant a federal habeas
petitioner and his independent counsel any right, on appeal, to
return to the district court and conduct additional Martinez
investigations
or
to
otherwise
vary
our
normal
rule
that
arguments such as these, including a petitioner’s motion for new
counsel in light of Martinez, should have been made in the first
instance to the district court.
In sum, Martinez provided Fowler’s counsel with all the
authority necessary to request an additional abeyance of the
district court’s ruling and, if appropriate, to file an amended
habeas
petition.
No
explanation
for
this
delay
has
been
offered.
Unlike the petitioners in Juniper and Gray, Fowler did
not
appointment
seek
Martinez
criteria.
in
the
of
independent,
district
court.
qualified
Kenney
counsel
already
met
under
that
Nor did Fowler or Kenney, upon her appointment, seek
additional time to investigate whether there were any additional
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ineffective-assistance-of-trial-counsel
claims
which
Martinez
might allow the district court to consider, leaving us with the
unmistakable impression that there was nothing of substance left
to
investigate.
whether
Fowler’s
Counsel
two
sets
may
of
or
may
not
qualified,
have
state
investigated
postconviction
counsel were constitutionally ineffective in failing to identify
and
present
an
ineffective-assistance-of-trial-counsel
claim.
But even if such Martinez-based claims existed, they have been
waived by Fowler’s failure to raise the issue below, and any
ineffectiveness on Kenney’s part provides Fowler with no relief
here.
V.
For the foregoing reasons, we affirm the judgment of the
district court denying Fowler’s petition for habeas relief.
also
deny
Fowler’s
motion
for
appointment
of
qualified
We
and
independent counsel under Martinez and Juniper.
JUDGMENT AFFIRMED;
MOTION DENIED
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DAVIS, Senior Circuit Judge, concurring in the judgment in part
and dissenting in part:
I strongly disagree with the weathered notion that when it
comes to eyewitness identification evidence, “[c]ourts should be
‘content to rely upon the good sense and judgment of American
juries, for evidence with some element of untrustworthiness is
customary grist for the jury mill,’” and that “‘[j]uries are not
so susceptible that they cannot measure intelligently the weight
of
identification
testimony
that
has
some
questionable
feature.’” See maj. op. at 10 (quoting Manson v. Brathwaite, 432
U.S.
98,
116
(1977)).
The
hundreds
of
exonerations
splashed
across the headlines of popular and legal media over the last
decade put the lie to the Supreme Court’s outworn hope that
juries
can
be
counted
on
routinely
to
reject
unreliable
eyewitness identification evidence without special guidance from
courts. See generally Laura Sullivan, Exonerations On The Rise,
And Not Just Because Of DNA, National Public Radio (Feb. 4,
2014, 3:47 AM) (saved as ECF Opinion Attachment). Nevertheless,
largely
for
reasons
set
forth
in
the
Chief
Judge’s
thorough
opinion, I concur in the judgment that Fowler is not entitled to
relief under 28 U.S.C. § 2254.
As
for
the
motion
to
appoint
counsel
pursuant
to
the
teachings of Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013), I
would remand determination of the issue to the district court
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for its examination in the first instance. If the district court
denied the motion, then Fowler would be free to seek from the
district court or this Court a certificate of appealability.
Accordingly, I dissent from the panel’s denial of the motion.
42
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