Charles Richey v. Leroy Cartledge
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:13-cv-01329-MGL. Copies to all parties and the district court. [999864781]. [14-7438]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7438
CHARLES E. RICHEY,
Petitioner - Appellant,
v.
LEROY CARTLEDGE, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg.
Mary G. Lewis, District Judge.
(5:13−cv−01329−MGL)
Argued:
January 27, 2016
Decided:
June 23, 2016
Before DUNCAN and DIAZ, Circuit Judges, and Loretta C. BIGGS,
United States District Judge for the Middle District of North
Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED:
Milligan
Grinstead
Goldsmith,
MCGUIREWOODS,
LLP,
Raleigh, North Carolina, for Appellant.
Melody Jane Brown,
OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia,
South Carolina, for Appellee.
ON BRIEF: Matthew Allen
Fitzgerald,
MCGUIREWOODS,
LLP,
Richmond,
Virginia,
for
Appellant.
Alan Wilson, Attorney General, John W. McIntosh,
Chief Deputy Attorney General, Donald J. Zelenka, Senior
Assistant Deputy Attorney General, OFFICE OF THE ATTORNEY
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GENERAL OF
Appellee.
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SOUTH
CAROLINA,
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Columbia,
South
Carolina,
for
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Charles
South
Earl
Carolina,
Richey
of,
convenience store.
was
among
convicted
other
in
things,
Greenville
armed
County,
robbery
of
After an unsuccessful direct appeal, Richey
sought post-conviction relief in South Carolina state court.
relevant
here,
ineffective
(the
argued
assistance
incriminating
arrest
he
a
by
statement
that
failing
Richey
“post-arrest
his
trial
to
statement”)
move
to
gave
the
counsel
on
to
the
provided
suppress
police
As
an
after
his
that
the
ground
statement was taken in violation of his Fifth Amendment right to
remain silent.
Finding no relief in the state courts, Richey petitioned,
pro se, for a writ of habeas corpus in the U.S. District Court
for the District of South Carolina.
ineffective-assistance-of-counsel
arrest statement.
There, he again pressed his
claim
regarding
the
post-
He also argued, for the first time, that his
trial counsel was ineffective by failing to move to suppress—
this
time
on
Sixth
Amendment
grounds—another
incriminating
statement that Richey made to law enforcement after his bond
hearing (the “post-bond statement”).
The
district
court
denied
the
petition,
and
we
affirm.
Even assuming that trial counsel’s performance fell below an
objectively reasonable standard under Strickland v. Washington,
466 U.S. 668 (1984), Richey fails to show Strickland prejudice.
3
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Thus, he cannot establish that (1) he is entitled to relief on
the post-arrest-statement claim under the deferential standard
of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA),
28
U.S.C.
§ 2254(d),
or
(2) his
post-bond-statement
claim is sufficiently “substantial” under Martinez v. Ryan, 132
S. Ct. 1309, 1318 (2012), to excuse his procedural default.
I.
A.
1.
On the morning of November 2, 2002, a masked man committed
an
armed
robbery
of
the
Greenville, South Carolina.
BP
Pantry,
a
convenience
store
in
Although the store clerk, Sherri
Greene, could not see the robber’s face, she described him as a
black man wearing blue jeans, white sneakers, “a burgundy shirt
with something white on it,” a black baseball cap, and a black
bandana used as a mask.
The robber was armed with a black
revolver.
At some point during the robbery, the robber removed his
mask, and a Pantry customer, David Lee Durham, saw the robber’s
face twice.
The first time, Durham was about to enter the
Pantry through the front doors when the robber exited through
them.
Durham was “[a]bout six to eight feet” away from the
robber, J.A. 236, who covered the bottom half of his face with a
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black sweater and a blue Bi-Lo grocery bag, leaving the top half
of
his
face
exposed.
Durham
cigarettes in the Bi-Lo bag.
also
noticed
that
there
were
The robber then walked around the
side of the building and behind the Pantry.
Durham walked to the telephone booth outside the Pantry to
call 911.
At that point, the robber returned from behind the
store
with
and,
his
face
completely
exposed,
stood
“[a]bout
[ten] feet” in front of Durham, staring, for “at least a minute
to two minutes.”
J.A. 237, 241.
Durham observed that the
robber was a black man wearing blue jeans, a burgundy t-shirt, a
black ball cap, with a black sweater wrapped around his hand. 1
After the robber had fled the scene and Durham had called
911 from the telephone booth, Greene called 911 from inside the
Pantry. 2
1
At trial, Durham initially remembered the robber as
wearing a black t-shirt with a burgundy sweater, rather than a
burgundy shirt with a black sweater.
See J.A. 235–36, 238–39.
But toward the end of his direct examination, the state
refreshed his memory by showing him his written statement to
police.
J.A. 238–39.
While the statement was not introduced
into evidence, the trial testimony indicates that Durham
described the robber to the police as wearing a burgundy shirt
with a black sweater wrapped around his hand.
See J.A. 239,
247.
And
on
cross-examination,
Durham
confirmed
this
description. See J.A. 247.
2
Greene twice alerted law enforcement prior to this 911
phone call.
During the robbery, she pulled the silent alarm
from one of the offices in the back of the Pantry. Later, she
called 911, leaving the phone on the office desk.
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total,
the
robber
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stole
six
cartons
of
Newport
cigarettes, the Pantry’s cordless phone, money from the cash
register in one-, two-, five-, and ten-dollar denominations and
at least two money tubes 3 from the safe, all together totaling
over $100.
Greene recalled the robber putting the money taken
from the cash register into his pocket.
Officers
responded
to
the
searching the area for the robber.
emergency
call
and
began
Several blocks away from the
Pantry, Officer Emily Lybrand spotted a man (later identified as
appellant Charles Richey) matching the robber’s description and
running across a field, and she relayed that information via
radio.
In the brush nearby, which was “swaying as if somebody
had just come through,” she found a “cotton twill gray men’s
jacket”
down.”
that
“looked
J.A.
254–55.
like
it
Not
had
just
knowing
recently
whether
the
been
thrown
jacket
was
relevant to the robbery, Lybrand picked up the jacket and put it
into property and evidence.
Officer Trace Skardon arrived near the field where Lybrand
spotted Richey.
At the edge of the field, Skardon found a black
ball cap lying on the ground.
Shortly after, he saw Richey and
tried to confront him, but Richey fled.
Skardon radioed other
units and, joined by Detective Bobby Carias and Officer William
3
Money tubes are two- to four-inch-long clear or white
plastic tubes that are meant to hold twenty dollars’ worth of
bills.
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Albert,
pursued
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Richey
couple hundred yards.
by
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foot
through
a
wooded
area
for
a
Throughout the pursuit, Skardon called to
Richey, ordering him to stop, but Richey continued running.
During the chase, Carias observed that Richey was holding a
gun.
On Carias’s orders, Richey tossed the gun aside, but he
continued running.
Shortly after, Richey fell, and Carias and
Albert apprehended him.
Albert handcuffed and, with Skardon’s assistance, searched
Richey.
The officers found in Richey’s right front pants pocket
three
money
packs
of
tubes,
Newport
totaling
sixty
cigarettes.
dollars,
After
and
two
Richey’s
unopened
arrest,
law
enforcement returned to collect the black ball cap and revolver
from along Richey’s flight path.
Lybrand then drove Richey to the Pantry to conduct an inperson
identification
During
the
show-up,
(or
Richey
“show-up”)
stood
in
with
Greene
and
Durham.
the
parking
lot
by
the
police car, Durham stood outside about ten feet away, and Greene
remained inside the store.
hear
one
identified
another
Richey
from
as
Greene and Durham could not see or
where
the
they
robber.
were
standing,
Although
and
Greene
both
later
testified that Richey was not wearing a burgundy shirt during
the show-up, 4 other witnesses confirmed that Richey was in fact
4
She testified that, instead, Richey was wearing a “tee
shirt.” J.A. 231.
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wearing blue jeans and a burgundy shirt, but not a ball cap,
black jacket, or bandana-mask.
Durham subsequently identified
the ball cap Officer Skardon found as that worn by the robber.
The bandana-mask, Bi-Lo bag, remaining cigarette cartons, and
cordless phone were never recovered.
Once
Lybrand
Greene
and
Durham
positively
searched
him,
finding
in
identified
Richey’s
left
Richey,
front
pants
pocket $52.75 in quarters, one-, two-, five-, and ten-dollar
bills.
Lybrand then transported Richey to the law enforcement
center.
2.
Captain Edward Blackburn met Officer Lybrand at the law
enforcement
center
interrogation room.
and,
together,
they
placed
Richey
in
an
Not long after, Blackburn read Richey his
Miranda 5 rights and presented a Waiver of Rights form, which
Richey refused to initial or sign.
After being advised of his
rights, Richey “stated that he did not have anything to say.”
J.A. 487.
Subsequently, Richey began speaking to Blackburn about the
events leading up to his arrest.
Although Richey said he would
not sign anything, he confessed to the robbery.
Specifically,
Richey stated that he “had been out smoking crack with a girl”
5
Miranda v. Arizona, 384 U.S. 436 (1966).
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all night, that he and the girl needed money, and that “he
didn’t think [the robbery] would work” but he “went out there
and
that’s
what
happened.”
J.A.
180,
313.
Blackburn
then
reduced Richey’s oral confession to writing, which Richey also
refused to sign.
Later
that
day,
a
magistrate
judge
held
a
bond
where Richey was advised of his right to counsel.
hearing
The record
does not show whether Richey invoked his right to counsel at
that time; rather, Detective Carias’s supplemental police report
says only
that
the
detective
obtained
warrants
and
magistrate judge set Richey’s bond at $35,000.
that
the
See J.A. 35.
Richey was held overnight in the Greenville Detention Center.
The next day, on November 3, 2002, Detective W.C. Bruce met
with
Richey
at
the
detention
center.
Bruce
told
Richey
he
wanted to talk to him about several cases, including the instant
one.
Richey said “he didn’t have no problem with [speaking with
Bruce],” and after being escorted to the law enforcement center,
Richey was again read his Miranda rights.
J.A. 185.
Richey
replied that “he understood his rights” and that “he wouldn’t
sign [a waiver form], but he would talk to [Bruce].”
During
the
questioning,
Richey
again
J.A. 186.
confessed.
Specifically, he said that “he did go up [to the Pantry] and
robbed it” because he and a girlfriend “needed some money to go
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get some more crack.”
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J.A. 187.
Richey offered to talk to
Bruce about other cases but refused to sign anything.
B.
1.
Richey was indicted for armed robbery, resisting arrest,
pointing and presenting a firearm, kidnapping, and possession of
a weapon by a person convicted of a crime of violence.
Before trial, the defense challenged both the post-arrest
and post-bond statements on involuntariness grounds.
Counsel
urged
confess
that
Richey
did
not
knowingly
and
voluntarily
because he was under the influence of crack-cocaine.
ruled
that
Richey
was
“[c]learly”
in
custody
The court
and
being
interrogated, but determined that whether the statements were
voluntarily,
question.
knowingly,
J.A. 193.
and
intelligently
given
was
a
jury
Accordingly, the post-arrest and post-bond
statements were admitted. 6
The state’s evidence centered on proving that Richey was
the person identified by the eyewitnesses.
in-court
identification
of
Richey
as
the
Ms. Greene made an
robber,
and
she
identified the clothes Richey was wearing when he was arrested
as the clothes worn by the robber.
Greene also testified that
the gun and baseball cap found in the field where Richey fled
6
Counsel
moved
successfully
to
suppress
a
third
incriminating statement that is not relevant to this appeal.
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were the same items she had seen on the day of the robbery.
Mr.
Durham testified that he was “absolutely sure” that Richey’s
burgundy shirt was the shirt he saw the robber wearing.
249.
J.A.
The jury also heard the voice recordings of the 911 calls,
and saw the videotape of the robbery captured on the Pantry’s
security camera.
After a two-day trial, Richey was convicted on all charges
and sentenced to concurrent terms of life imprisonment without
parole for the armed robbery and kidnapping charges, and to a
total of seven years’ imprisonment on the remaining charges.
2.
After
Richey’s
direct
appeal
was
dismissed,
State
v.
Richey, No. 2008-UP-686, 2008 WL 9848530 (S.C. Ct. App. Dec. 11,
2008) (per curiam), he sought state post-conviction relief.
In
addition to other arguments, Richey asserted that trial counsel
was ineffective for failing to move to suppress the post-arrest
statement on the ground that it was obtained in violation of his
Fifth Amendment right to remain silent.
The state court held an evidentiary hearing in which Richey
and
his
trial
counsel
testified.
In
its
order
denying
and
dismissing Richey’s application with prejudice, the state court
determined that Richey failed to show that his trial counsel
performed
deficiently
and
that
11
he
suffered
prejudice
as
a
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result.
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Richey v. State (Richey I), No. 2009-CP-23-0702, slip
op. at 6, 8, 10–11 (S.C. Ct. Com. Pl. Dec. 22, 2009).
Thereafter,
Richey
petitioned
for
a
writ
of
certiorari,
which was denied.
C.
Richey
then
sought
federal
habeas
relief.
As
relevant
here, he again raised the ineffective-assistance claim regarding
the post-arrest statement.
Richey also raised, for the first
time, another ineffective-assistance claim regarding the postbond statement.
As to this second claim, Richey contended that
he “was formally charged and appointed counsel as an indigent”
on November 2, 2002—referring to the bond hearing—so the next
day’s questioning by Detective Bruce, without a lawyer present,
violated Richey’s Sixth Amendment right to counsel.
J.A. 26–27.
Richey acknowledged that the claim was procedurally defaulted,
but he argued that his post-conviction-relief counsel’s failure
to
raise
should
the
excuse
claim
the
before
default
the
under
post-conviction-relief
Martinez.
Richey
court
sought
an
evidentiary hearing on the defaulted claim.
The
state
filed
a
motion
for
summary
judgment.
A
magistrate judge recommended that the district court grant the
state’s
motion
prejudice.
that
the
and
dismiss
Richey’s
habeas
petition
with
On the post-arrest-statement issue, the judge found
post-conviction-relief
12
court’s
Strickland-performance
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determination
“contrary
“was
to,
supported
nor
an
Pg: 13 of 21
by
the
record”
unreasonable
established federal law.”
and
application
was
neither
of,
clearly
Richey v. Cartledge (Richey II), No.
5:13-cv-01329-MGL-KDW, 2014 U.S. Dist. LEXIS 124238, at 37–38
(D.S.C. Apr. 22, 2014) (citing 28 U.S.C. § 2254(d)(1)).
post-bond-statement
issue,
the
judge
found
that
On the
Richey’s
“conclusory allegations concerning an arraignment that allegedly
took
place
establish
on
that
adequately
November
his
2,
2002,
is
insufficient
[post-conviction-relief]
raise
‘substantial’
counsel
claims
pointed
to
objected
to
the
Report
Detective
Carias’s
failed
concerning
admissibility of th[e post-bond] statement.”
Richey
evidence
to
to
the
Id. at 28.
and
Recommendation
supplemental
police
and
report
as
evidence that Richey “was arraigned on November 2, 2002,” where
he
was
“giv[en]
accepted.”
his
right[s]
and
offered
counsel
which
he
J.A. 625.
The district court denied Richey’s motion for a hearing,
overruled
Richey’s
magistrate
summary
judge’s
judgment,
prejudice.
Richey’s
objections,
report,
and
adopted
granted
dismissed
and
the
incorporated
state’s
Richey’s
motion
petition
for
with
The court added only a brief discussion related to
objections
regarding
the
alleged
arraignment
invocation of his Sixth Amendment right to counsel:
found
the
that
“[Detective]
Carias’s
13
report
shows
and
The court
neither
that
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[Richey] was arraigned on November 2, 2002, nor that he was
offered and [that] he accepted counsel on that date.”
Richey v.
Cartledge (Richey III), No. 5:13-1329-MGL-KDW, 2014 U.S. Dist.
LEXIS 123955, at 7 (D.S.C. Sept. 5, 2014).
Rather, the police
report “states only that (1) Carias obtained and served what
appears
to
be
arrest
warrants
on
[Richey]
and
magistrate judge] set bond for [Richey] at $35,000.
says
nothing
counsel.”
about
an
arraignment
or
the
(2) [the
The report
appointment
of
Id.
This appeal followed.
II.
We review de novo the district court’s grant of summary
judgment,
Bostick
v.
Stevenson,
589
F.3d
160,
163
(4th
Cir.
2009), to determine whether the state demonstrated that “there
is no genuine dispute as to any material fact and the [state] is
entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a).
See Brandt v. Gooding, 636 F.3d 124, 132 (4th Cir. 2011).
When the state post-conviction-relief court adjudicates a
habeas petitioner’s claim on the merits, our review under AEDPA
is “highly constrained” and based on the record before the state
post-conviction-relief
700,
707
(4th
Cir.
court.
2008).
Lawrence
We
“shall
v.
Branker,
not”
grant
517
F.3d
Richey’s
petition unless the state court’s decision “was contrary to, or
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involved
an
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unreasonable
Pg: 15 of 21
application
of,
clearly
established
Federal law, as determined by the [U.S.] Supreme Court,” or if
the decision “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.”
§ 2254(d).
When, on the other hand, a habeas petitioner raises a claim
in
his
federal
petition
conviction-relief
court,
not
the
raised
claim
before
is
the
barred
state
for
post-
procedural
default.
See § 2254(b).
If the petitioner shows sufficient
cause
his
raise
for
failure
prejudice
resulting
claim.
Coleman
to
from
v.
that
the
claim
failure,
Thompson,
501
we
U.S.
below
may
and
actual
consider
722,
750
the
(1991).
“Inadequate assistance of counsel at initial-review collateral
proceedings
may
establish
cause
for
a
prisoner’s
procedural
default of a claim of ineffective assistance at trial,” but the
petitioner
“must
also
demonstrate
that
ineffective-assistance-of-trial-counsel
claim
one”—that is, that it has “some merit.”
the
is
a
underlying
substantial
Martinez, 132 S. Ct. at
1315, 1318.
We review Richey’s ineffective-assistance claim regarding
the
post-arrest
statement
under
AEDPA’s
deferential
and the post-bond-statement claim under Martinez.
to Richey’s post-arrest-statement claim.
15
standard,
We turn first
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A.
“At
claim[]
Frye
the
threshold,
[is]
v.
premised
Lee,
§ 2254(d)).
235
we
on
F.3d
must
‘clearly
897,
903
It certainly is.
consider
whether
[Richey’s]
established
Federal
(4th
2000)
Cir.
law.’”
(quoting
Under Strickland, Richey must
show both that his trial counsel’s representation “fell below an
objective
standard
and
“there
that
of
is
reasonableness”
a
reasonable
(deficient
probability
performance)
that,
but
for
counsel’s unprofessional errors, the result of the proceeding
would have been different” (prejudice).
466 U.S. at 688, 694.
We conclude that, even assuming Richey could establish his trial
counsel’s
deficient
performance,
he
cannot
show
that
such
performance prejudiced him.
Richey’s theory of prejudice turns on what he perceives as
the weakness of the state’s case against him if the post-arrest
statement had been excluded.
To show this supposed weakness,
Richey argues that: (1) Ms. Greene’s and Mr. Durham’s in-court
descriptions of what the robber was wearing were “flawed and
confusing”;
(2) the
description
of
the
robber
was
not
“particularly specific” and none of the arresting officers saw
Richey wearing a black ball cap, a black jacket, or a mask;
(3) the arresting officers found Richey in the field near an
apartment complex rather than “near the Pantry;” and (4) “key”
evidence was never found or admitted into evidence, i.e., the
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robber’s bandana-mask, the stolen cordless phone, the Bi-Lo bag,
the remaining stolen cigarettes, or the robber’s black jacket.
Appellant’s Br. at 26–30.
Accordingly, the argument goes, but
for counsel’s failure to move to suppress the statement, there
is
a
reasonable
probability
that
Richey
would
not
have
been
convicted.
Prejudice, however, must be analyzed with the “totality of
the evidence” in mind.
without
the
overwhelming
Strickland, 466 U.S. at 695.
post-arrest
evidence
of
statement,
Richey’s
the
guilt,
state
Even
presented
foreclosing
any
reasonable probability that, absent counsel’s error, the trial’s
result would have been different.
Richey overstates the impact of the alleged weaknesses in
the state’s case.
Although there were some discrepancies in
Durham’s and Greene’s recollections at trial of the robber’s
dress, these were either corrected or rendered immaterial in
light
of
the
overwhelming
following
the
robbery,
evidence
Durham
and
of
guilt.
Greene
Immediately
provided
matching
descriptions of the robber: a black man wearing blue jeans, a
burgundy shirt, and a black ball cap—most of which Richey was
wearing when police spotted him nearby the Pantry just minutes
after the robbery. 7
7
That Greene later suggested Richey was not
Durham also noted that the robber was wearing a black
jacket.
17
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wearing a burgundy shirt when she saw him at the show-up is of
little moment, given that Durham and the officers all recalled
that Richey was in fact wearing a burgundy shirt.
Moreover, the
witnesses’ matching descriptions of what the robber was wearing
during
the
robbery,
which
were
provided
to
law
enforcement
separately, are more probative than one witness’s memory of the
robber’s clothing during a later identification.
Additionally, both Greene and Durham identified, in court,
the burgundy shirt worn by Richey on the day of his arrest as
the shirt worn by the robber.
And in broad daylight, within
half an hour of the robbery, Greene and Durham identified Richey
as the robber, with Durham having seen the robber’s face without
a mask for at least one minute from within ten feet. 8
made
an
robber.
saw
additional
in-court
identification
of
Greene
Richey
as
the
Plus, the jury heard recordings of the 911 calls and
video
opportunity
footage
to
of
weigh
the
any
robbery
and
inconsistencies
therefore
in
the
had
ample
witnesses’
after-the-fact recollections against those recordings.
That
Richey
was
later
spotted
by
the
police
wearing
somewhat generic clothes and without the ball cap, black jacket,
or bandana-mask does not minimize the weight of the state’s case
8
Richey argues that the show-up identifications were
“influenced by the police.”
Appellant’s Br. at 28.
We are
satisfied, however, that the show-up was properly conducted and
that any statements by police beforehand did not influence the
witnesses’ identifications of Richey.
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Rather, that Richey’s appearance matched (and in
no way contradicted) the description of the robber is compelling
probative evidence of his guilt.
Moreover, contrary to Richey’s
assertion, Officer Lybrand spotted him walking-distance from the
store minutes after the robbery, and immediately after Officer
Skardon attempted to engage with him, he fled.
importantly,
distinct
when
items
the
officers
reported
searched
stolen
Perhaps more
Richey,
during
the
they
found
offense:
most
memorably, two-dollar bills, money tubes, and unopened packs of
Newport cigarettes.
A jury would not likely cast aside such
evidence as the product of a series of coincidences.
Officers also found in Richey’s pocket—where Greene saw the
robber put the money from the cash register—other bills in the
precise
denominations
Greene
recalled
being
in
the
cash
register.
The black ball cap identified as that of the robber
was
abandoned
found
along
Richey’s
flight
path,
and
Officer
Lybrand found a gray jacket (albeit not a black one) in the
field where Richey was first found running.
Significantly, too,
Richey’s gun was identified by Greene as the one used in the
robbery.
In sum, even without the post-arrest statement, the state’s
case against Richey was robust.
a
reasonable
probability
Thus, Richey has failed to show
that,
19
but
for
counsel’s
deficient
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performance regarding that statement, the outcome of trial would
have been different.
B.
Turning
to
Richey’s
belated
ineffective-assistance
claim
regarding the post-bond statement, recall that Richey must show
cause to excuse his procedural default by demonstrating that the
underlying
1318.
claim
is
“substantial.”
Martinez,
132
S.
Ct.
at
He cannot; even assuming that trial counsel performed
deficiently, Richey cannot show prejudice.
As
direct
we
have
and
summarized,
the
circumstantial
conviction.
Even
without
state
presented
evidence
the
overwhelming
supporting
post-bond
Richey’s
statement—indeed,
without any confessions—the strength of the remaining evidence
forecloses
the
reasonable
probability
that
Richey’s trial would have been different.
ineffective-assistance
claim
is
therefore
must be rejected for procedural default.
the
result
of
Richey’s underlying
not
substantial
and
See id. at 1319 (“When
faced with the question whether there is cause for an apparent
default, a State may answer that the ineffective-assistance-oftrial-counsel claim is insubstantial . . . .”). 9
9
Richey also argues that his Fifth Amendment rights were
violated when Detective Bruce spoke with him on November 3. But
because Richey did not raise this issue in the district court,
we decline to consider it.
Pruett v. Thompson, 996 F.2d 1560,
1574 (4th Cir. 1993).
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III.
The district court properly granted the state’s motion for
summary judgment and dismissed Richey’s habeas petition.
We
therefore
AFFIRM.
21
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