BURR v. JOYNER
Filing
168
MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 3/26/2020, that the Petitioner's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, (Doc. 2 ), is DENIED and that this action is dismissed with prejudice. A judgment dismissing this action will be entered contemporaneously with this Memorandum Opinion and Order. Finding no substantial issue for appeal concerning the denial of a constitutional right affecting the conviction, nor a debatable procedural ruling, a certificate of appealability is not issued. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOHN EDWARD BURR,
Petitioner,
v.
DENISE JACKSON, 1
Warden, Central Prison
Raleigh, North Carolina,
Respondent.
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1:01CV393
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Petitioner John Edward Burr, a prisoner of the State of
North Carolina, filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C § 2254, (Doc. 2), on April 12, 2001, which
this court granted, (Docs. 139, 140), on May 30, 2012. The
United States Court of Appeals for the Fourth Circuit reversed
the judgment, (Doc. 149), on March 11, 2013, and remanded
Petitioner’s case to this court for further proceedings. After
additional briefing and argument, the court finds that
Petitioner is not entitled to relief and therefore denies the
Petition.
1
Denise Jackson succeeded Mr. Carlton Joyner as Warden at
Central Prison. The case caption is hereby amended to accurately
reflect Ms. Jackson as the Respondent.
I.
BACKGROUND
On April 21, 1993, a jury in the Superior Court of Alamance
County convicted Petitioner of first-degree murder, felonious
child abuse, and assault on a female for the August 25, 1991
killing of four-month old Tarissa Sue O’Daniel (Susie). 2 The jury
recommended a death sentence for the murder conviction, and the
judge imposed that recommendation. (Recommendation (Doc. 28)
at 1.) The state supreme court affirmed the conviction and
sentence on September 8, 1995, State v. Burr, 341 N.C. 263, 461
S.E.2d 602 (1995), and the Supreme Court of the United States
denied a petition for certiorari, Burr v. North Carolina, 517
U.S. 1123 (1996). (Recommendation (Doc. 28) at 2)
Petitioner then filed a Motion for Appropriate Relief (MAR)
in the Alamance County Superior Court on September 27, 1996.
(Id. at 2.) The court granted the State’s motion for summary
denial on October 3, 1997. (Id.) The North Carolina Supreme
Court remanded the case for reconsideration on July 29, 1998.
(Id.); State v. Burr, 348 N.C. 695, 511 S.E.2d 652 (1998). The
superior court again denied the MAR on June 15, 2000.
(Recommendation (Doc. 28) at 2.) The state supreme court
2
The court has drawn the factual history of the case, except
where otherwise cited, from the Magistrate Judge’s original
Order and Recommendation of December 14, 2004, (Doc. 28).
- 2 -
affirmed the denial on October 9, 2000. State v. Burr, 352 N.C.
677. 545 S.E.2d 439 (2000).
Petitioner filed his habeas petition in this court on
April 12, 2001. (Recommendation (Doc. 28) at 3.) In his
petition, Petitioner alleged twenty-four grounds for relief,
including two claims for ineffective assistance of counsel
(“IAC”), arguing that (1) trial counsel were constitutionally
ineffective because they failed to develop exculpatory evidence
of accidental death, and (2) trial counsel were not adequately
prepared. (Id.) Petitioner also included a claim that the trial
court had committed constitutional error by failing to grant
Petitioner a continuance for further trial preparation. (Id.) In
his original analysis of Petitioner’s claims, the Magistrate
Judge determined that these three contained Petitioner’s
“primary contentions,” which alleged that Petitioner’s trial
counsel were not able to and did not develop a theory of the
case that the cause of Susie’s death was an accidental fall she
suffered on the day before her death. (Id. at 5-6.)
According to the evidence presented at trial, Petitioner,
while he was estranged from his wife, began dating Lisa Porter
Bridges, Susie’s mother, when Susie was a few weeks old. (Id.
at 7.) Upon discovery of this affair, John O’Daniel, Bridges’
husband, demanded a divorce, and Bridges and her four children
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moved into a trailer located behind a trailer owned by Bridges’
step-brother, Donald Wade. (Id.) Near the end of June 1991,
Petitioner moved into the trailer with Bridges and her children.
(Id.) The trailer was not connected to a power grid, so to get
electricity, Bridges and Petitioner had run extension cords into
the trailer from a nearby pole with an outlet. (Trial Tr. (Vol.
17) at 49-50, 53, Mar. 29, 1993.) 3
Bridges testified that the relationship with Petitioner
began well, but that after he moved into the trailer, he became
physically and verbally abusive toward her. (Recommendation
(Doc. 28) at 7.) Bridges and Petitioner also began to argue a
great deal. (Trial Tr. (Vol. 17) at 88-89, 93, 107-10.) On
August 24, 1991, Bridges and Petitioner spent most of the day
arguing because Petitioner had spent the previous night at his
wife’s apartment. (Recommendation (Doc. 28) at 7.) While Bridges
tended the baby and her older children played around the yard
between the two trailers, Petitioner did general maintenance
work in and around the trailer. (Trial Tr. (Vol. 17) at 119-20.)
Eventually, Bridges grew tired of arguing and decided to
spend some time in her brother’s trailer. (Id. at 121-22.) She
asked her seven-year-old son, Scott Ingle, to carry Susie up the
3
Transcript citations refer to the Jury Trial Transcript
filed manually with the Respondent’s motion to dismiss. (See
Doc. 8; Docket Entry 05/11/2011.)
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small hill to the trailer. (Recommendation (Doc. 28) at 7; Trial
Tr. (Vol. 17) at 121.) On the way up, Scott tripped over the
extension cord on the path and fell to the ground with Susie.
(Id.; Trial Tr. (Vol. 17) at 122.) Importantly, Scott testified
that Susie never actually hit the ground, but that he cradled
her in his arms as he fell to his knees. (Trial Tr. (Vol. 20) at
866-68, Apr. 1, 1993.) After the fall, Bridges and Petitioner
checked Susie for injuries and, finding only redness on her arm,
soothed her from the shock and continued about their day.
(Recommendation (Doc. 28) at 7; Trial Tr. (Vol. 17) at 123-26.)
Petitioner spent the rest of the evening mowing the lawn,
while Bridges cared for her children. (Id.; Trial Tr. (Vol. 17)
at 127.) At some point during the evening, after more bickering,
Bridges started to walk up to her brother’s trailer, and
Petitioner struck her in the back. (Id.; Trial Tr. (Vol. 17) at
133.) They both went into the brother’s trailer and argued.
(Id.) When they returned to Bridges’ trailer, they were still
arguing as Bridges placed Susie in an infant swing in the front
room. (Id.) Petitioner then pushed Bridges onto the couch,
narrowly missing the swing. (Id.) Petitioner held Bridges down
on the couch and attempted to prevent her from leaving the room.
(Id. at 8.)
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Eventually, Bridges went into the bedroom. (Id.) Petitioner
followed her and pushed her down onto the waterbed, causing the
base to break. (Id.) The couple started to repair the base of
the waterbed, when Susie began to cry. (Id.) Bridges retrieved
Susie, calmed her, and placed her on the waterbed. (Id.) She
then helped her sons Scott and Tony prepare for bed. (Id.) After
she got Susie to fall asleep, she placed her in her baby bed in
the bedroom and went back to her brother’s trailer so that she
could wash dishes. (Id.) She testified that when she left the
trailer, Petitioner was working on a plug in the living room,
and Susie had no marks on her. (Id.)
Scott testified that while his mother was away, he awoke to
“hammer noises” and heard Susie crying. (Id.) He also heard
Petitioner mumbling. (Id.) Then Susie stopped crying. (Id.)
Bridges returned to her trailer after forty-five minutes to
find Susie in the infant swing in the living room. (Id.) She
also found the Petitioner pacing; he told her to look at Susie.
(Id.) Petitioner explained that he had moved Susie to the swing
when she awoke crying and that he had seen bruises and grease
spots on her when he moved her. (Id.) When Bridges attempted to
clean off the grease, she discovered that the spots were instead
bruises in Susie’s ears, under her neck, and on her arms and
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legs. Id. She also noticed that Susie’s eyes did not “look
right” and that the child was unresponsive. (Id.)
Bridges was worried and suggested that they take Susie to
the hospital, but Petitioner refused. (Id. at 8-9.) Bridges
instead called a hospital from her brother’s trailer and was
advised to bring Susie in for an examination. (Id. at 9.)
Bridges then convinced Petitioner to drive them to the hospital
by threatening to call an ambulance. (Id.) On the way to the
hospital, while Susie was “jerking,” Petitioner stopped to get
gas in his truck. (Id.)
At 2:55 a.m. on August 25, 1991, Susie was admitted to the
Alamance County Hospital, where she was examined and treated by
Dr. Will Willcockson. (Id.) Dr. Willcockson observed that Susie
was unconscious, with wandering eyes, and that she appeared
lethargic but suffered from occasional seizures that caused
twitching. (Id.) He noted that she had multiple bruises and
swelling over her head, ears, face, neck, arms, and torso. (Id.)
Upon having X-rays taken, the doctor discovered that both legs,
both arms, and some ribs were broken. He also observed that the
soft spot on her head was bulging, which indicated that her
brain was swelling. (Id.) Although Bridges told Dr. Willcockson
about Scott’s falling with Susie the previous day, Dr.
Willcockson did not believe that a fall could have produced
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Susie’s injuries. (Id.) He suspected that Susie had been abused
and called the Alamance County sheriff’s department and social
services. (Id.)
Less than two and a half hours after Susie was admitted to
Alamance County Hospital, doctors had her transferred by
ambulance to the intensive-care unit at Memorial Hospital in
Chapel Hill, where she was examined by Dr. Michael Azizkhan,
chief of pediatric surgery and associate professor of surgery at
the University of North Carolina. (Id. at 10.) Dr. Azizkhan
observed significant bruising on Susie’s neck, particularly on
the left side and in a two-by-two-centimeter section under the
mastoid and mandible. (Id.) He noted that the bruising on the
right side of Susie’s face extended onto her ear. (Id.) She also
was bruised around her right arm and on her back. (Id.) Dr.
Azizkhan testified that Susie had lost “half of her blood
volume” and that her bones could only have broken with
significant force. (Id.) He opined that her injuries were
purposely inflicted. (Id.)
Professor of pediatric radiology Dr. David Merten testified
regarding his analysis of Susie’s X-rays. (Id.) Dr. Merten
opined that the fractures in Susie’s thigh bones may have been
eight-to-nine days old and had to have been “produced simply by
bending the knee[s] with violence, significan[t] force, forward,
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and hyperextending [the knees.]” (Id.) He also discussed the
fractures in Susie’s shoulders, dating them as more recent than
the thigh fractures and describing the bending motion it would
have taken to break the arms in those places. (Id.) He testified
that Susie also had a depressed skull fracture in an unusual
place with brain swelling and injury; he opined that this injury
took place within hours before Susie’s admission to the
hospital. (Id. at 10-11.)
Child neurologist Dr. Michael Tennison testified regarding
Susie’s depressed skull fracture, which he observed after
analyzing a CT scan of Susie’s head. (Id. at 11.) Noting that
Susie had “multifocal intercranial injuries,” as well as
bleeding behind both eyes, he opined that the skull fracture was
caused by “quite a force . . . by some blunt object” to the side
of the head. (Id.)
The doctors could not reduce the swelling in Susie’s brain,
and she died at approximately 6:30 p.m. on August 27, 1991. Dr.
Tennison concluded that the cause of death was brain swelling,
herniation, and death caused by multiple trauma to the head.
(Id.) Pathologist Dr. Karen Chancellor, who performed an
autopsy, testified that Susie had multiple bruises on her neck
consistent with marks caused by a hand and bruises on her cheek
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consistent with marks caused by fingers. Bruises on her back and
head were caused by a blunt object. (Id.)
Petitioner’s evidence about the events of August 24 was
nominally consistent with the State’s account of the day’s
activities but denied any abuse of Bridges or Susie. (Id.) In
describing the most crucial events of the night, Petitioner
testified that he continued to repair the waterbed when Bridges
went to her brother’s trailer to wash dishes. (Id. at 12.) Susie
was in her crib at that time, and when he looked to seek if he
had awakened her with drilling noises, he noticed her eyes were
open. (Id.) He then picked her up and put her in the swing in
the living room, with her bottle and blanket. (Id.) Petitioner
testified that when Bridges returned to the trailer, they both
repaired the waterbed, then Petitioner retrieved Susie from the
swing and noticed her diaper was wet. (Id.) He stated that when
he picked up Susie’s legs, her eyes started rolling, and he told
Bridges that she was having a seizure. (Id.) Petitioner then
claimed that Bridges gently shook Suzie to stop the seizure.
(Id.) When they took her out of the bedroom, they noticed
bruises. (Id. at 13.
Petitioner denied that he beat Susie and that he initially
refused to take her to the hospital. (Id.) His defense team
attempted to shift the blame to Bridges, with testimony that she
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had been accused of neglect of her other children and that one
witness saw her once smack Susie, causing her to fall off a
couch. (Id.) Petitioner’s trial counsel also suggested that a
stranger may have come into the trailer and hurt Susie. (Doc.
123 at 42 (citing Trial Tr. (Vol. 27) at 2172-73, Apr. 15,
1993).) The jury did not believe Petitioner’s version of the
case and convicted him of Susie’s murder, recommending that he
be sentenced to death.
In his original Order and Recommendation, filed on
December 14, 2004, the magistrate judge recommended that the
court grant habeas relief on Petitioner’s claim that he was
deprived of his Sixth Amendment right to effective assistance of
counsel during the guilt phase of his trial. (Recommendation
(Doc. 28) at 16.) The magistrate judge concluded that trial
counsel had “an inadvisably short period of time to prepare for
a capital murder trial,” particularly for a complex one with
“crucial expert medical testimony,” and other obstacles
preventing their ability to prepare a defense. (Id. at 20-21.)
The magistrate judge further concluded that trial counsel “made
no significant investigation into the medical evidence regarding
Susie’s death,” nor did they hire a medical expert to examine
that evidence. (Id. at 24.) In considering the prejudice prong
of the IAC analysis, the magistrate judge noted that Petitioner
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had proffered expert medical opinions that Susie’s death was the
result of her accidental fall, aggravated by the medical
condition osteogenesis imperfecta (OI), which causes a child’s
bones to be unusually brittle and prone to breaking. (Id. at
27.) Because trial counsel failed to investigate other medical
reasons for Susie’s death and thus failed to present a
potentially viable defense, the magistrate judge concluded that
the state MAR court’s application of Strickland v. Washington,
466 U.S. 668 (1984), was unreasonable and recommended
Petitioner’s habeas petition be granted on the basis of IAC.
(Recommendation (Doc. 28) at 30-31, 38, 44.
In response to objections and motions for discovery, the
magistrate judged entered an order staying the recommendation
and permitting expansion of the record on February 1, 2006.
(Doc. 68). The court allowed this supplementation of the record
because it found that information regarding the revocation of
the medical license of one of Petitioner’s experts “would cause
the Court, at the very least, to afford his opinion considerably
less weight than previously assigned in the Recommendation.”
(Doc. 123 at 2.) After both parties submitted other expert
testimony, conducted additional discovery, and filed
supplemental briefs, the magistrate judge filed an Order and
Supplemental Recommendation on May 6, 2009. (Doc. 123.)
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In the supplemental recommendation, the magistrate judge
re-entered and incorporated his original recommendation, except
as to his discussion of the evidence presented by the
Petitioner’s expert. (Suppl. Recommendation (Doc. 123) at 3.)
The magistrate judge then supplemented his opinion with a
discussion of the new evidence added to the record. The new
evidence factored into the court’s analysis of the prejudice
prong of Strickland and did not change the court’s original
conclusion about Petitioner’s having received constitutionally
ineffective assistance of counsel.
After timely objections and responses and a de novo review,
on May 30, 2012, this court adopted the Original Report in full
and the Supplemental Report in part, (Doc. 139), ordering that
the writ of habeas corpus be granted because Petitioner received
constitutionally ineffective assistance of counsel. The court
based its findings only on the record that was before the State
MAR court, in compliance with Cullen v. Pinholster, 563 U.S. 170
(2011). The court made clear that its analysis was consistent
with the “double deference” standard that should be applied to
habeas corpus review of IAC claims, as highlighted in Harrington
v. Richter, 562 U.S. 86 (2011).
In an unpublished, per curiam opinion, the United States
Court of Appeals for the Fourth Circuit reversed the grant of
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habeas corpus on March 11, 2013. Burr v. Lassiter, 513 F. App’x
327 (Mar. 11, 2013). (Doc. 149.) The Fourth Circuit ruled that
“the district court’s decision granting Burr relief is contrary
to the deference that federal courts must afford state court
decisions adjudicating the merits of such constitutional
claims.” Id. at 329. The court found that the State MAR court’s
decision was not “so lacking in justification that there was an
error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Harrington, 562
U.S. at 103. It concluded that the State court’s finding of no
deficient performance under Strickland was not unreasonable and
that the State court did not rule unreasonably when it rejected
Petitioner’s proffered evidence on OI and the fall with Scott
under the Strickland prejudice prong. Burr, 513 F. App’x at 345.
Concluding that the State MAR court’s rejection of Petitioner’s
IAC claims was not unreasonable, the Fourth Circuit reversed the
ruling of this court.
Following the Fourth Circuit’s ruling, this court held
telephone conferences with counsel, (see Minute Entry 03/25/2015
and 04/24/2015), to determine the appropriate process. An order
was entered providing for additional briefing. (Doc. 156.) In
January, 2016, oral argument was held and the remaining claims
are ripe for resolution.
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Because this court originally granted the petition on the
basis of Petitioner’s IAC claims alone, on remand, the court
must consider Petitioner’s remaining grounds for relief. Those
claims include:
•
Ground Four: The State knowingly presented false evidence
and created a materially false impression regarding the
facts of the case and the credibility of the witnesses, in
violation of Napue v. Illinois, 360 U.S. 264 (1959).
(Brady/Napue Claims)
•
Ground Five: The State failed to reveal exculpatory
evidence of other explanations for the injuries to Susie in
violation of Brady v. Maryland, 373 U.S. 85 (1963).
(Brady/Napue Claims)
•
Ground Six: The State affirmatively presented the case
against Petitioner in a false light. (Brady/Napue Claims)
•
Ground Seven: Newly discovered evidence warrants a new
trial.
•
Ground Eight: The trial court denied Petitioner the right
to counsel by ruling that defense counsel could not attempt
to rehabilitate any venire-person who had been challenged
by the prosecution based on that person’s ability to vote
for a death sentence. (Jury-Selection Claims)
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•
Ground Nine: The trial court erroneously dismissed a juror
who may have been able to vote for a death sentence.
(Jury-Selection Claims)
•
Ground Ten: The trial court erroneously excluded evidence
regarding Lisa Bridges.
•
Ground Eleven: The trial court erroneously overruled an
objection to prosecutorial misconduct. (Prosecutorial
Misconduct)
•
Ground Twelve: The trial court erroneously denied a motion
to order that Lisa Bridges’ medical records be made
available to defense counsel.
•
Ground Thirteen: The trial court erroneously allowed the
prosecutor to argue beyond the facts of the case during the
penalty phase of the trial. (Prosecutorial Misconduct)
•
Ground Fourteen: The trial court erroneously overruled an
objection to improper argument the prosecutor made during
the penalty phase of the trial. (Prosecutorial Misconduct)
•
Ground Fifteen: The trial court failed to give a jury
instruction that adequately limited the unconstitutionally
vague aggravating factor that the murder was “especially
heinous, atrocious, or cruel.” (Jury-Instruction Claims)
•
Ground Sixteen: The trial court erroneously failed to
prevent the prosecutor from misstating the law regarding
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the aggravating circumstance found in the case.
(Prosecutorial Misconduct)
•
Ground Seventeen: The trial court erroneously failed to
instruct the jury regarding the mitigating factor that
Petitioner had the ability to adjust to prison life.
(Jury-Instruction Claims)
•
Ground Eighteen: The trial court erroneously instructed
jurors to decide whether non-statutory mitigating
circumstances have mitigating value. (Jury-Instruction
Claims)
•
Ground Nineteen: The trial court erroneously instructed the
jury regarding the weighing of aggravating and mitigating
circumstances. (Jury-Instruction Claims)
•
Ground Twenty: North Carolina’s death penalty procedure is
unconstitutional, and Petitioner’s death sentence was
imposed in an arbitrary and capricious manner, and
constructive denial of counsel made his conviction and
sentence constitutionally unreliable. (IAC)
•
Ground Twenty-One: Trial counsel were constitutionally
ineffective in their pre-trial practice. (IAC)
•
Ground Twenty-Two: The jury was improperly death-qualified.
(Jury-Selection Claims)
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•
Ground Twenty-Three: Trial counsel were constitutionally
ineffective because they failed to develop mitigation
evidence. (IAC)
•
Ground Twenty-Four: The indictment did not include all of
the essential elements of first-degree murder and did not
allege the aggravating factors necessary to make Petitioner
eligible for a death sentence.
The court has organized Petitioner’s grounds for relief
according to what the court has determined is each claim’s
argument. Both Petitioner and Respondent briefed the remaining
issues originally and have also submitted additional briefs
since the Fourth Circuit’s ruling. After consideration of all of
the remaining issues and arguments, the court denies the
petition.
II.
DISCUSSION
When a habeas corpus claim has been “adjudicated on the
merits in state court proceedings,” a federal district court may
not grant relief unless the state court’s adjudication “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 . . . was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
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§ 2254(d); see also Williams v. Taylor, 529 U.S. 362, 412
(2000). “Clearly established Federal law” includes only “the
holdings, as opposed to the dicta,” of the Supreme Court of the
United States. Williams, 529 U.S. at 412. A state court decision
is “contrary to”-Supreme Court precedent if the state court
decision either “arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law” or
“confronts a set of facts that are materially indistinguishable
from a decision of [the Supreme] Court and nevertheless arrives
at a result different” from the Court. Id. at 405-06.
A state court decision involves an “unreasonable
application” of Supreme Court case law “if the state court
identifies the correct governing legal rule from [the Supreme]
Court’s cases but unreasonably applies it to the facts of the
particular state prisoner’s case.” Id. at 407. “Unreasonable”
does not mean merely “incorrect” or “erroneous.” Id. at 410-11.
“[E]ven ‘clear error’ will not suffice.” White v. Woodall, 572
U.S. 415, 419 (2014) (quoting Lockyer v. Andrade, 538 U.S. 63,
75-76 (2003)). “[A]s a condition for obtaining habeas corpus
from a federal court, a state prisoner must show that the state
court’s ruling on the claim being presented in federal court was
so lacking in justification that there was an error well
understood and comprehended in existing law beyond any
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possibility for fairminded disagreement.” Harrington, 562 U.S.
at 103. 4
Section 2254 provides that the state court’s determination
of factual issues is “presumed to be correct” and may only be
overturned by “clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1); Lenz v. Washington, 444 F.3d 295, 300 (4th Cir.
2006). Additionally, a federal court “will not overturn the
[trial] court’s credibility judgments unless its error is ‘stark
and clear.’” Elmore v. Ozmint, 661 F.3d 783, 850 (4th Cir. 2011)
(quoting Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008)).
A.
Cronic Standard
Petitioner asserts in many of his grounds that the events
leading to his trial and the decisions of the trial court
constructively deprived him of his Sixth Amendment right to the
assistance of counsel. He relies on United States v. Cronic, 466
U.S. 648 (1984), to support the argument that when a prisoner is
denied counsel entirely, prejudice is presumed. In Cronic, the
Supreme Court ruled that there are some situations in which “the
surrounding circumstances ma[k]e it so unlikely that any lawyer
4
“Under § 2254(d), a habeas court must determine what
arguments or theories supported or, as here, could have
supported, the state court's decision; and then it must ask
whether it is possible fairminded jurists could disagree that
those arguments or theories are inconsistent with the holding in
a prior decision of this Court.” Harrington, 562 U.S. at 102.
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could provide effective assistance that ineffectiveness was
properly presumed without inquiry into actual performance at
trial.” Id. at 661. Cronic describes some of those
circumstances, including a complete denial of counsel at “a
critical stage of [the] trial,” a failure “to subject the
prosecution’s case to meaningful adversarial testing,” and a
denial of “the right of effective cross-examination.” Id. at
659. Specifically, the Court cited Powell v. Alabama, 287 U.S.
45 (1932), in which the trial court appointed, on the first day
of a highly publicized trial, counsel from out of state who had
not prepared the case or familiarized himself with local
procedure. Id. at 660. The Court then determined that petitioner
Cronic did not meet these demanding standards, even though his
counsel was a young real-estate lawyer who was trying his first
jury case and who only had twenty-five days to prepare a defense
in a check-kiting case that involved thousands of documents.
Id. at 649-50, 666. Cronic sets forth a very difficult standard
to achieve.
Petitioner points to the following facts to support his
Cronic claims: (1) his first appointed trial attorneys did
virtually “no investigation or trial preparation,” logging only
fifty-one hours of preparation, in the sixteen months before
they were replaced a month before trial; (2) his second set of
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attorneys, who represented him at trial, only had two months to
prepare to try the case; and (3) the court refused to grant a
continuance to his attorneys when they asserted a need for
further time to prepare the case. (Doc. 12 at 9-11.) 5
Respondent argues that Petitioner did not fairly present
his Cronic claims to the State courts and therefore has not
exhausted them. (Doc. 11 at 5.) For a federal habeas court to
have jurisdiction to consider a petitioner’s claim, the
petitioner must have “exhausted the remedies available in the
courts of the State.” 28 U.S.C. § 2254(b)(1)(A). The Supreme
Court has emphasized the importance of exhaustion to habeas
cases:
Because the exhaustion doctrine is designed to
give the state courts a full and fair opportunity to
resolve federal constitutional claims before those
claims are presented to the federal courts, we
conclude that state prisoners must give the state
courts one full opportunity to resolve any
constitutional issues by invoking one complete round
of the State's established appellate review process.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A petitioner
satisfies the exhaustion requirement by “‘fairly present[ing]’
his claim in each appropriate state court . . . thereby alerting
5
All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
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that court to the federal nature of the claim.” Baldwin v.
Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S.
364, 365-66 (1995)). To present the claim fairly, the petitioner
must allege “both the operative facts and the controlling legal
principles” before the state court. Jones v. Sussex I State
Prison, 591 F.3d 707, 713 (4th Cir. 2010). Failure to exhaust
claims by allowing the state court an opportunity to rule on the
claim requires a federal court to dismiss those claims as
procedurally defaulted. See O’Sullivan, 526 U.S. at 848 (citing
Coleman v. Thompson, 501 U.S. 727, 731-32 (1991)).
To the extent that any of Petitioner’s grounds for relief
rely on the Cronic standard of presumed ineffective assistance
of counsel, this court finds that Petitioner did not present
them as such to any state court. Petitioner relies on Cronic and
the effective denial of counsel in Grounds Twenty through
Twenty-Three. Petitioner presented the last three of those
claims as standard Strickland claims to the state MAR court,
which denied them on their merits. Ground Twenty is an overall
Cronic claim that Petitioner never presented to any state court.
Because Petitioner did not “give the state courts one full
opportunity to resolve any” of his Cronic claims, they are not
exhausted and have been procedurally defaulted by the
Petitioner.
- 23 -
B.
IAC Claims Decided by the Fourth Circuit
The Fourth Circuit reversed this court’s ruling on
Petitioner’s claims that his trial counsel provided
constitutionally ineffective assistance. Burr, 513 F. App’x at
329. Those claims encompassed Grounds One, Two, and Three.
Consequently, the court denies Grounds One, Two, and Three.
C.
Brady/Napue Claims
Petitioner makes a series of interconnected claims
regarding the prosecutor’s alleged withholding of evidence and
subsequent manipulation of evidence that implicate the
principles elucidated in Brady v. Maryland, 373 U.S. 83 (1963),
and Napue v. Illinois, 360 U.S. 264 (1959). In Brady, the
Supreme Court held “that the suppression by the prosecution of
evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to
punishment.” Brady, 373 U.S. at 87. Favorable evidence includes
evidence that could be used to impeach a witness’s credibility.
Giglio v. United States, 405 U.S. 150, 154 (1972). Evidence is
“material” under the Brady standard “when there is a reasonable
probability that, had the evidence been disclosed, the result of
the proceeding would have been different.” Cone v. Bell, 556
U.S. 449, 469-70 (2009). Evidence must be disclosed when it
“could reasonably be taken to put the whole case in such a
- 24 -
different light as to undermine confidence in the verdict.”
Kyles v. Whitley, 514 U.S. 419, 435 (1995).
Napue stands for the proposition that a conviction cannot
be obtained by false evidence, where the prosecutor knew a
witness testified falsely and did nothing to correct the
testimony. Napue, 360 U.S. at 269. The case involved a murder
conviction obtained in part through the testimony of one of the
defendant’s accomplices. Id. at 265. When asked if he had
received any promise of consideration in exchange for his
testimony, the witness responded that he had not. Id. The
prosecutor had indeed promised that he would recommend a
reduction in the accomplice’s sentence, but he did not correct
the witness’s testimony to the contrary. Id. at 265-66. The
Court ruled that “when the State, although not soliciting false
evidence, allows it to go uncorrected when it appears,” due
process requires the conviction to be reversed, if that
conviction was obtained using that false evidence. Id. at 269.
1.
Ground Four
In Ground Four, Petitioner claims that the prosecutors
withheld recordings of pretrial interviews the police and
prosecutors conducted with Scott Ingle and Lisa Bridges. (Doc. 2
at 14.) Petitioner argues these recordings reveal material
impeaching evidence not included at trial and demonstrate that
- 25 -
the prosecutors manipulated the testimony of Scott and Bridges
to fit their theory of the case, in violation of Napue. (Id. at
15.) Petitioner also alleges that Bridges was promised immunity
and then lied about that promise on the witness stand. The State
MAR court should have thus granted relief under Giglio, 405 U.S.
at 155 (reversing conviction because the prosecution failed to
disclose a promise of immunity to a witness, which was relevant
to that witness’s credibility).
According to Petitioner, prosecutors interviewed Bridges on
February 24, 1993. (Doc. 10 at 43.) During that interview, he
asserts that prosecutors attempted to manipulate Bridges’
testimony regarding Susie’s poor health before her death,
Petitioner’s good relationship with Susie, and Bridges’ attempts
to get her family members to lie about Susie’s condition. (Id.
at 44-45.) Petitioner also claims that the prosecutors offered
Bridges immunity in exchange for her testimony, a deal she
denied existed during cross-examination. (Id. at 44.) Petitioner
argues that the statements Bridges made to the prosecutors in
the 1993 interview contradicted statements she had given to the
police in 1991, shortly after Susie’s death. (Id. at 45.) Before
cross-examining Bridges, Petitioner claims that his counsel
moved, consistent with N.C. Gen. Stat. § 15A-903(f), for
- 26 -
Bridges’ prior statements, but did not receive the 1993
recording. (Id.)
Petitioner also argues that the State withheld recorded
statements by Scott Ingle to prosecutors, made on February 25
and 26, 1993. (Id. at 46.) Scott was eight years old when Susie
died and had turned ten by the time of this interview. (Id.)
Petitioner claims that the transcript of the interview reveals
that Scott did not remember what happened in 1991 and that his
account of his fall with Susie differed from the testimony he
gave at trial. (Id.) He argues that the prosecutors coached
Scott in his testimony and manipulated him to testify to facts
that best fit their theory of the case. (Id. at 46-47.)
Petitioner argues that the withheld statements were material to
the matters of both guilt and the credibility of Bridges and
Scott. (Id. at 48.)
Respondent asserts that the State MAR court did not
unreasonably apply Brady in this claim because:
(a) trial counsel never obtained a court order
directing disclosure of these items, (b) the
prosecutors did not believe that either the tapes or
the typed version of the comments therein contained
Brady material, and (c) the prosecutors believed that
the tapes and typed version of the comments therein
were “work-product” nor required to be disclosed to
trial counsel under state law.
(Doc. 7 at 11.) Respondent also argues that the statements from
Bridges and Scott do not qualify as material or as impeachment
- 27 -
evidence under the Brady standard. (Doc. 11 at 22-23.) The
prosecutors, they argue, were simply preparing each witness for
trial and encouraging them to tell the truth. (Id.) Respondent
asserts that any differences in these statements and the trial
testimony were de minimus and do not undermine the testimony the
jury heard. (Id. at 23.) Respondent also makes it clear that the
prosecutors never promised Bridges immunity in exchange for any
type of testimony. (Id. at 27.) Respondent concludes with an
argument that Petitioner cannot demonstrate that he was
prejudiced by not receiving transcripts of the statements,
especially given the overwhelming expert evidence regarding the
cause of Susie’s death and the fact that he also testified. (Id.
at 28.)
The state MAR court denied this claim on the merits. The
court acknowledged that the prosecution did not turn over the
recordings or the transcripts of these interviews before or
during trial. State v. Burr, Order and Memorandum Opinion, Nos.
91-CRS-21905, -06, -08, -09, 26 (Superior Court of Alamance
County June 15, 2000) [hereinafter Second MAR Order (Doc. 162-4)
at 118-85]. In response to the Napue claim, the court concluded
that the transcripts of the interviews showed that the
prosecutors were appropriately preparing their witnesses to
testify and encouraging them to tell the truth. (Id. at 158.)
- 28 -
Furthermore, any inconsistencies between the statements given to
the prosecutors and the trial testimony were not material: the
prosecutors did not encourage perjury, nor did they fail to
correct perjury, because no perjury was committed. (Id. at 159.)
With regard to the Brady claim, the state court concluded that
the information in the undisclosed statements was not material,
in that disclosure would not have resulted in a reasonably
probability that the outcome of the trial would have been
different. (Id.) The Petitioner, according to the court, did not
suffer a violation of his due process rights because of the
prosecution’s treatment of this evidence. (Id.)
The Antiterrorism and Effective Death Penalty Act (“AEDPA”)
demands a federal court sitting in habeas-corpus review of a
state conviction to presume that the factual findings made by
the state review are correct unless proven otherwise by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1). In regards to
this claim, the state MAR court reviewed the transcripts offered
as impeaching Brady material and made several factual findings,
including that: Bridges did not state in her pre-trial
statements or trial testimony that she ever saw Petitioner hurt
Susie, (Second MAR Order (Doc. 162-4) at 160); Susie’s preinjury health conditions were the subject of extensive trial
testimony, (id.); when preparing the witnesses for trial, the
- 29 -
prosecutors did a thorough job of challenging them, but
repeatedly emphasized the importance of telling the truth, (id.)
at 161-62; Bridges was not offered immunity in exchange for her
testimony, (id. at 163); the prosecutors did not encourage
Bridges to give false testimony, (id. at 164); Bridges was
thoroughly cross-examined on any inconsistencies in her
testimony, not requiring the prosecutors to correct any false
testimony, (id. at 164-65); inconsistencies in Scott’s testimony
and pre-trial statements were explained by Scott during
testimony and on cross-examination, (id. at 165-66); prosecutors
repeatedly encouraged Scott to tell the truth to the court, (id.
at 166-67); prosecutors did not lead Scott through his testimony
so that he would implicate Petitioner, (id. at 169-71); and a
medical expert testified that there was medical evidence of a
shaking injury beyond a shake impact, (id. at 174.)
Petitioner has not provided clear and convincing evidence
that the state court’s factual findings are incorrect. This
court has reviewed the trial testimony and cross-examination of
Lisa Bridges and Scott Ingle, as well as the transcripts of the
interviews of these witnesses conducted in both 1991 and 1993,
and can find no evidence to undermine the MAR court’s factual
conclusions. The prosecutors were insistent in their attempts to
determine the truth about Susie’s health and Bridges’
- 30 -
relationship with Petitioner; nonetheless, they repeatedly
encouraged Bridges to tell the truth on the witness stand, no
matter how bad that truth made her look as a parent. (See Doc.
159-1 at 5, 8, 20-21.) The unreleased interview of Ingle
likewise contains no evidence that belies the state court’s
determinations. The state court’s conclusions that the
undisclosed evidence was neither material under Brady nor
violative of Napue, therefore, are not unreasonable
determinations or fact or clearly established federal law.
Ground Four is denied.
2.
Ground Five
Petitioner asserts that the prosecution violated Brady by
withholding eleven research articles regarding child abuse,
accidental injury, and OI. (Doc. 2 at 15.) Petitioner claims
that these articles were material because they would have
provided his trial counsel with a more effective strategy to
combat the State’s case: namely, that the cause of Susie’s death
was the result of an accidental fall, not child abuse. (Id. at
15.) Petitioner further claims that the State violated Brady by
choosing not to call Nita Todd, a social worker who interviewed
Petitioner on August 24, 1991. (Id. at 16.) In the brief
supporting his petition, however, Petitioner claims that the
State violated Brady by withholding recordings of interviews
- 31 -
conducted by the prosecutors of Scott Ingle and Lisa Bridges.
(Doc. 10 at 41.) 6
Respondent replies simply that the State MAR court was not
unreasonable when it determined that the journal articles and
information provided by Todd were not Brady material. (Doc. 7 at
13.) Respondent also disputes Petitioner’s claim that he
specifically requested all of the prior statements of Bridges
prior to cross-examination, instead pointing out that
Petitioner’s trial counsel only requested the tape recording of
an August 26, 1991 interview conducted by the police. (Doc. 11
at 22.)
The State MAR court denied this claim on the merits. State
v. Burr, Order, Nos. 91-CRS-21905, -06, -08, -09, 114 (Superior
Court of Alamance County Oct. 3, 1997) (included as an exhibit
at Doc. 162-4) [hereinafter First MAR Order (Doc. 162-4) at
2-117]. The court ruled that the eleven articles from medical
journals “were not evidence, were materials within the public
domain available to anyone researching the field[,] and the
State was under no obligation to provide defendant’s counsel
6
Because Ground Four asserts the Brady claim regarding the
withheld interview recordings, this court will treat the
addition of the interview claim to this ground as a clerical
error and will not address it here. The court has considered any
additional argument Petitioner makes about this claim under the
Ground Five subheading as argument relating to Ground Four.
- 32 -
copies of the medical journal articles while preparing for
trial.” (Id. at 115.) The court concluded that the articles were
not Brady material because, as part of the public domain, they
could have been discovered with due diligence by trial counsel.
(Id.) Similarly, the court ruled that the information provided
by Todd was not Brady material because defense counsel had
access to Todd before the trial. (Id.) Finally, the court held
that the information contained in the articles and given by Todd
was not material to the outcome of the case. (Id. at 115-16.)
The state court did not apply Brady unreasonably in its
resolution of this claim. Petitioner has provided no evidence
that shows that he was not able to access research articles
available to everyone prior to trial, nor does he prove that he
was denied access to Todd before the trial. The prosecution had
no duty to disclose evidence that was not exclusively in its
possession. “‘[T]he Brady rule does not apply if the evidence in
question is available to the defendant from other sources.’”
United States v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990)
(quoting United States v. Davis, 787 F.2d 1501, 1505 (11th
Cir.), cert. denied, 479 U.S. 852 (1986)). For this reason,
Ground Five is denied.
- 33 -
3.
Ground Six
In Ground Six, Petitioner avers that by withholding the
articles and witness mentioned in Ground Five, the prosecution
presented its case in a materially false light. (Doc. 2 at 16;
Doc. 10 at 53.) The State MAR court denied this claim on its
merits. (First MAR Order (Doc. 162-4) at 115.) The court
concluded that, in light of the overwhelming evidence presented
by medical experts of the cause of Susie’s death, “the
prosecutors could not be rationally argued to have made a
misrepresentation as to the nature and cause of the injuries to
the infant victim.” (Id. at 116-17.)
In his brief supporting his Petition, Petitioner refers
the court to his arguments in Grounds Four and Five but offers
no explanation of how Ground Six is, itself, a separate ground
for relief. Because the court has denied Grounds Four and Five,
and Ground Six does not appear to be distinct from either of
those grounds, Ground Six is denied.
D.
Ground Seven: Newly Discovered Evidence
Ground Seven alleges that all of Petitioner’s evidence
concerning OI and accidental short-fall death that he collected
post-conviction amounts to newly discovered evidence that
justifies giving Petitioner a new trial. (Doc. 2 at 17.) He
claims that Townsend v. Sain, 372 U.S. 293 (1963), supports this
- 34 -
ground for relief because his claim of actual innocence based on
this newly discovered evidence is accompanied by an independent
constitutional violation in his trial. (Doc. 10 at 53 (citing
Townsend, 372 U.S. at 317).) The underlying constitutional
violation he claims is his constructive denial of counsel as
understood by Cronic, which prevented his trial counsel from
discovering this evidence. (Id.) Petitioner claims that the
state MAR court’s denial of this claim without an evidentiary
hearing was unreasonable. (Id.) Further, Petitioner argues that
because the state court did not recognize the underlying Sixth
Amendment claim, it did not adjudicate this claim on the merits,
and this court’s review should be de novo. (Id. at 54.)
Respondent asserts that the North Carolina Supreme Court
has established a seven-part test to determine whether evidence
qualifies as newly discovered evidence, and Petitioner’s
proffered evidence does not pass that test. (Doc. 11 at 38.)
Additionally, Respondent points out that federal habeas courts
generally do not rule on state courts’ determinations regarding
the admissibility of evidence. (Id.)
The State MAR court denied this claim on the merits. (First
MAR Order (Doc. 162-4) at 114.) After providing a thorough
review of North Carolina law regarding whether newly discovered
evidence should warrant a new trial and an even more thorough
- 35 -
review of the medical evidence presented at trial and the newly
proffered evidence (including a review of other state cases that
dealt with similar medical evidence), the court evaluated
Petitioner’s proffer of new evidence according to the standards
set forth by the North Carolina Supreme Court. (See id. at
15-52.) Ultimately, the court did not believe the evidence
proffered by the Petitioner that Susie had OI and that her cause
of death was an accidental fall compounded by the OI. (Id. at
62.) The court concluded that Petitioner had not proven that (1)
the State’s experts never considered OI in evaluating Susie’s
injuries and cause of death, (2) Susie had any of the symptoms
common among children with OI, (3) Susie had any family history
of OI, and (4) Susie’s brain injury could have been caused by
the fall with Scott as described to the jury. 7 (Id. at 55-62.)
The court used a four-part test to determine that
Petitioner was not entitled to a new trial: namely, (1) whether
the proffered evidence was “probably true,” (2) whether the
defendant, exercising due diligence, could have discovered the
evidence at the time of the trial, (3) whether the evidence
would not tend only to contradict or impeach the witnesses who
testified at trial, and (4) whether the evidence was of such a
7
The court determined that the injury would have caused her
to lose consciousness fairly soon after its cause.
- 36 -
nature to demonstrate that a different result would probably
have been reached at trial. (Id. at 62.) The court concluded
that Petitioner’s proffer failed all four parts of the test. It
thus rejected the new evidence claim. (Id.)
Petitioner appears to be arguing that this court should
look at this ground for relief with fresh eyes because the state
MAR court somehow did not recognize the underlying
constitutional error — embodied in a Cronic claim that he never
presented to that court — that would allow him to bring this
claim regarding his actual innocence in a federal habeas court.
To the extent that Petitioner’s claim regarding his new evidence
relies on the Cronic claim as a vehicle to earn federal habeas
review via Townsend, that ground for relief is unexhausted and,
as such, has been procedurally defaulted. Without the underlying
constitutional claim, Petitioner has asserted a claim that this
court cannot review. See Herrera v. Collins, 506 U.S 390, 400
(1993) (“Claims of actual innocence based on newly discovered
evidence have never been held to state a ground for federal
habeas relief absent an independent constitutional violation
occurring in the underlying state criminal proceeding.”).
Finally, if Petitioner is attempting to use his actual innocence
claim as the gateway to assert his Cronic claim, he would have
to “show that it is more likely than not that no reasonable
- 37 -
juror would have convicted him in light of the new evidence.”
Schlup v. Delo, 513 U.S. 298, 327 (1995). The Fourth Circuit’s
rejection of the prejudice prong of Petitioner’s Strickland
claim that his trial counsel were ineffective for failing to
discover and present the evidence at issue in this ground for
relief to the jury precludes a Schlup determination in
Petitioner’s favor. Burr, 513 F. App’x at 345. Ground Seven,
therefore, is denied.
E.
Jury Selection Claims
1.
Ground Eight
In Ground Eight, Petitioner claims that the trial court
prevented him from having a fair and impartial jury and from
receiving the effective assistance of counsel by prohibiting
defense counsel from rehabilitating those potential jurors who
were excused for cause because they expressed an inability to
vote for the death penalty. (Doc. 2 at 17.) Petitioner argues
that this failure to question these venire members adequately
about their ability to follow the law violated Witherspoon v.
Illinois, 391 U.S. 510 (1968), and Adams v. Texas, 448 U.S. 38
(1980). (Doc. 10 at 55.)
The State MAR court rejected this claim on the merits and
as procedurally defaulted. (First MAR Order (Doc. 162-4) at
102.) The court reviewed the voir dire transcript of each
- 38 -
potential juror Petitioner cites as improperly excused and
concluded that the trial court itself conducted an appropriate
questioning of each juror’s ability to follow the law versus his
or her opposition to the death penalty. (Id. at 103-04.) The
court similarly reviewed the extensive voir dire of those
jurypersons accepted and determined that the trial court’s
review of potential jurors did not violate Witherspoon or Adams.
(Id. at 103-06.)
In Witherspoon, the Supreme Court held that a trial court
violated a defendant’s due process rights when it excused for
cause potential jurors who “voiced general objections to the
death penalty or expressed conscientious or religious scruples
against its infliction.” Witherspoon, 391 U.S. at 522. Instead
of “exclud[ing] only those prospective jurors who stated in
advance of trial that they would not even consider returning a
verdict of death,” the court put together “a jury uncommonly
willing to condemn a man to die” by not allowing further
questioning of those venire members who showed some hesitancy
toward the death penalty. Id. at 520-21. Witherspoon thus stands
for the principle that a court must make the effort to discover
whether a potential juror who expresses opposition to the death
penalty can nonetheless follow the law and the juror’s oath.
Id. at 519. Adams made Witherspoon applicable to bifurcated
- 39 -
capital proceedings and re-emphasized that a “State may bar from
jury service [only] those whose beliefs about capital punishment
would lead them to ignore the law or violate their oaths.”
Adams, 448 U.S. at 45, 50.
Based on a review of the transcript of voir dire, this
court cannot conclude that the state MAR court unreasonably
applied Witherspoon or Adams. Petitioner first complains that
the trial court acted in contravention of Witherspoon by denying
his motion for individual voir dire of those potential jurors
who were excused for cause because of their views on the death
penalty. Although the court denied that motion, it granted
Petitioner’s motion for more general individual voir dire. (Jury
Selection Tr., 102 (Mar. 1, 1993).) The court denied the more
specific motion in light of North Carolina law that prohibited
rehabilitation of jurors who “state[] unequivocally . . . that
[their] ability to serve on the case would substantially be
impaired by [their] views on the death penalty.” (Id. at 88.)
Standing by itself, the decision of the trial court to abide by
state law does not contradict either Witherspoon or Adams’
instructions that a court may only exclude for cause those
potential jurors whose opinions about the death penalty would
prevent them from following the law or obeying their oaths as
jurors. An unequivocal statement from a venireperson that he or
- 40 -
she could do neither is an appropriate ground to be excused for
cause. Read in context of the entire jury selection voir dire,
the denial of the motion did not hinder the court’s ability to
determine who would make appropriate jurors in light of
Witherspoon and Adams.
Furthermore, this court’s review of the lengthy jury
selection process reveals that the trial court exercised
considerable care to abide by both Witherspoon and Adams and to
ensure that a fair jury was seated. Jury selection in
Petitioner’s case took around four weeks. (See Jury Selection
Tr. at 1-3251.) 8 The parties and the court reviewed just under
one hundred potential jurors, as reflected in the 3,251-page
voir dire transcript. (Id.) From the juror pool, the court
excused fifty-three potential jurors for cause, twenty-five of
whom expressed an inability to follow the law regarding the
death penalty and do their duty as jurors. (Id.) A total of
thirty-eight potential jurors expressed either ambivalence about
or opposition to the death penalty. (Id.) Of those concerned
about the death penalty, fifteen expressed unequivocal
opposition to capital punishment and stated that their beliefs
8
Transcript citations refer to the Jury Selection
Transcript filed manually with the Respondent’s motion to
dismiss. (See Doc. 8; Docket Entry 05/11/2011.)
- 41 -
would substantially impair their ability to follow the law and
their duty as jurors. 9
A review of the individual voir dire of the potential
jurors who expressed ambivalence about the death penalty shows
that either the prosecutor or the court, both with and without
the prompting of defense counsel, took care to explain the death
penalty process to those potential jurors and to probe their
thoughts and feelings about the death penalty more closely than
they did to those jurors who expressed a fixed opinion about
capital punishment. (See, e.g., Jury Selection Tr. at 2731-40.)
Three of the ambivalent venire members were seated on the
jury after further questioning. Adam Fuller was the first
potential juror to express some ambivalence about his ability to
impose a death sentence. (Id. at 286.) Mr. Fuller initially
stated that he would follow the law as explained by the judge
and expressed a belief in and willingness to impose the death
penalty. (Id. at 285, 317.) As questioning advanced, however, he
asked to return to a discussion of punishments: “About the death
9
The State prosecutors, in conducting voir dire, were
following state law guidelines, inspired by Wainwright v. Witt,
469 U.S. 412 (1985), that allowed removal of jurors for cause if
they expressed that their opinions regarding capital punishment
“would prevent or substantially impair the performance of
[their] duties as [jurors] in accordance with [their]
instructions of [their] oath.” Wainwright, 469 U.S. at 424
(quoting Adams, 448 U.S. at 45).
- 42 -
penalty, could I go back to that a minute?” (Id. at 323.)
Mr. Fuller then explained his position as a deacon in his church
and his belief in the fifth commandment, expressing significant
hesitation about his ability to impose the death penalty:
Now I believe in — that we shouldn’t kill, but—and
then I think about the — the law of the land, that
when we do wrong we shall be punished for it, so it’s
kind of, you know, got me tied up there in between
two, so I — what I’m saying if I believe — I believe
that if you do wrong you shall be punished, but as far
as the death penalty, I really restrict that, I—I
don’t believe — I don’t think we should kill. I don’t
think that I have a right to kill, you know, anybody.
(Id. at 323-24.) After this admission, the prosecutor continued
to question Mr. Fuller about his ability to vote for a death
sentence and elicited a couple of conflicting responses. (Id. at
324-26.) The prosecutor then moved to have Mr. Fuller excused
for cause. (Id. at 327.) The court took over questioning, and
Mr. Fuller made it clear that he would be able to vote for a
death or a life sentence and to follow the law, so the court
denied the motion. (Id. at 327-29.) Ultimately, he was seated on
the jury. (Id. at 345.)
Similarly, Janet Bunch expressed discomfort with the death
penalty and did not believe that it was a necessary law. (Id. at
1404.) Ms. Bunch’s first responses to questioning about the
death penalty were confusing: she first stated that she was not
opposed to the punishment but did not believe it to be “a
- 43 -
necessary law” and did not favor it. (Id. at 1465.) She stated,
however, that her beliefs regarding the death penalty would not
substantially impair her performance as a juror. (Id.) After
several personal questions, the prosecutor established that
Ms. Bunch was having difficulty with the fact that the case
involved the murder of a child. (Id. at 1411-14.) Then he
returned to the death penalty and carefully explained the
sentencing process. (Id. at 1440-47.) Ms. Bunch mentioned that
she did not “want to really be responsible” for the decision to
sentence someone to death, but she agreed that she could follow
the law. (Id. at 1447-48.) Although she explained that she was
“not particularly fond of a life for a life,” Ms. Bunch stated
that she would not automatically vote against the death penalty.
(Id. at 1449-50.) She also confirmed that her views on the death
penalty would not substantially impair her performance as a
juror. (Id. at 1452.) The prosecutor asked her again if she
could do her duty and follow the law, and she agreed repeatedly
that she could. (Id. at 1455-56.) She was seated on the jury.
(Id. at 1476.)
Throughout voir dire, attorneys for both sides and the
court questioned the jurors about their views on the death
penalty and their ability to follow the law. By confirming that
jurors could apply the law and that their individual beliefs
- 44 -
regarding the death penalty would not substantially impair their
ability to serve as jurors, the court complied with the
requirements of both Witherspoon and Adams. The MAR court did
not unreasonably apply these federal laws when it denied this
juror-selection claim. Ground Eight is denied.
2.
Ground Nine
Petitioner argues that the trial court erred by excusing a
prospective juror for cause when she asserted that she could
follow the law and consider a death sentence during the deathqualifying portion of voir dire. (Doc. 2 at 18.) According to
Petitioner, excluding this juror violated the principles
articulated in Witherspoon and Adams. (Doc. 10 at 55.)
Petitioner does not name this juror in his initial Petition or
supporting brief, but in his additional, post-Fourth Circuit
brief outlining as-yet unbriefed issues, he identifies her as
Mary Ervin. (Doc. 163 at 6.) After a searching review of the
voluminous jury-selection transcript, the court has identified
additional potential jurors to whom Petitioner could have been
referring. The exclusion of all of these jurors, however, was
consistent with both Witherspoon and Adams.
Ms. Ervin stated that she was opposed to the death penalty,
but immediately followed with the assurance, “I’d abide by the
law.” (Jury Selection Tr., 1963-64.) She explained that she had
- 45 -
changed her position on the death penalty, but that she would
not be substantially impaired as a juror, and in some cases, she
could vote for a death sentence. (Id. at 1965-66.) After some
questioning on other subjects, the prosecutor resumed asking
Ms. Ervin how her views on the death penalty might affect her as
a juror. (Id. at 1978, et seq.) She indicated throughout his
explanation of the sentencing process that she could follow the
law. (Id. at 1980-81.) Ultimately, however, she stated that she
could not vote for a death sentence. (Id. at 1982.) Then, after
further questioning, she changed her mind and said she could
vote for the death penalty and would not automatically vote
against it. (Id. at 1983.) She averred that she could follow the
law. (Id. at 1986.) The prosecutor continued to question her;
again she changed her mind to confirm that she would
automatically vote for a life sentence. (Id. at 1987.)
Ms. Ervin became very confused during the prosecutor’s
questioning. She agreed that she would automatically vote
against the death penalty, but then stated that her beliefs
would not impair her ability to follow the law. (Id.) When the
prosecutor asked for clarification, she stated, “I would vote
for the death penalty, yes.” (Id. at 1988.) After a recess, the
prosecutor attempted to get a definitive answer on Ms. Ervin’s
ability to serve impartially by asking, “Are your views on the
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death penalty such that they will impair substantially, make it
very difficult for you to serve on this case?” (Id. at 1989.)
Ms. Ervin responded in the affirmative. (Id.) She next agreed
that her beliefs “would make it very difficult for [her] to
follow the law if it required that [she] come to the point where
[she would] vote to impose the death penalty.” (Id.) Finally,
she admitted that she would automatically vote for a life
sentence. (Id. at 1990.)
After the prosecution moved to excuse Ms. Ervin for cause,
the trial court heard the defense’s argument supporting the
objection. (Id.) The defense correctly pointed out that, despite
Ms. Ervin’s reluctance to participate in the capital sentencing
process, she repeatedly stated that she could follow both the
law and the judge’s instructions. (Id. at 1991.) The court,
noting its observation of Ms. Ervin’s demeanor and her answers
to the many questions posed, ruled in its discretion to remove
her for cause, consistent with Wainwright and Adams. (Id. at
1994.)
This court sees no abuse of discretion by the trial court
in this situation. The judge was in a better position to judge
Ms. Ervin’s demeanor and to evaluate her true feelings in light
of her inconsistent answers to the prosecutor’s many questions.
See Skilling v. United States, 561 U.S. 358, 386 (2010)
- 47 -
(“Reviewing courts are properly resistant to second-guessing the
trial judge's estimation of a juror's impartiality, for that
judge's appraisal is ordinarily influenced by a host of factors
impossible to capture fully in the record—among them, the
prospective juror's inflection, sincerity, demeanor, candor,
body language, and apprehension of duty.”). The MAR court did
not apply federal law unreasonably when it deemed this decision
to be valid.
Venire member Lynda Harden initially expressed opposition
to the death penalty, but she insisted that she could follow the
law and perform her duty as a juror to impose a death sentence
if the law required it. (Jury Selection Tr. at 695, 699, 707.)
She then expressed ambivalence toward the punishment, saying
that she had recently changed her position regarding it. (Id. at
699-700.) The court excused Ms. Harden for cause, but the reason
was not her views on the death penalty; she had expressed a
concern that her performance as a juror might be affected
because she would have to cancel a long-planned vacation to see
her family if she were selected. (Id. at 718.)
Petitioner’s counsel objected to her removal and argued
that she had stated earlier in voir dire that having to cancel
her trip would not affect her performance as a juror. (Id. at
718-19.) The defense asserted that her answers suggested that
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she might be prone to vote for a life sentence and that the
prosecutors were giving her an “easy out” with the vacation
excuse. (Id. at 720.) Although the court initially gave credit
to the defense’s argument, it upheld the challenge because of
the juror’s demeanor and obvious anxiety about her vacation
plans: “it’s obvious to the Court that [her vacation] is
paramount in her mind, and in observing her demeanor, and in the
exercise of my discretion, I’m going to excuse her for cause
over the objection of the defendant.” (Id. at 722.) The defense
moved for a mistrial. (Id.)
With each potential juror, the prosecution asked his or her
beliefs regarding the death penalty and then meticulously
explained the sentencing procedure. Having set out the process
in detail, the prosecutor then asked whether the potential juror
could follow the law. The prosecutor even encountered a
prospective juror, Dawyer Gross, who had a strong opposition to
the death penalty but repeatedly insisted that he would follow
the law. (See id. at 2127-57.) Recognizing that the juror fit
within the federal and state law juror standards, the
prosecution used a peremptory strike to remove him instead of
moving for cause. (Id.) When a juror seemed unclear on the
process, the court clarified and made sure questioning proceeded
under Witherspoon and Adams standards. (See, e.g., id. at 1732-
- 49 -
58 (in which court denies motion for cause after asking
clarifying questions of a venire member who was unsure of his
ability to vote for a death sentence).)
The Petitioner has not proven that the state court applied
federal law unreasonably when it denied his juror-selection
claims. A court may exclude any potential juror for cause when
it determines that the venire member cannot serve fairly and
impartially for any reason. See Turner v. Louisiana, 379 U.S.
466, 471 (1965) (“In essence, the right to jury trial guarantees
to the criminally accused a fair trial by a panel of impartial,
‘indifferent’ jurors.” (citations omitted)). Petitioner has
presented insufficient evidence that the trial court violated
either Witherspoon or Adams in excusing any juror for cause and
has certainly not shown that the state court applied either of
these cases unreasonably. Ground Nine, therefore, is denied.
3.
Ground Twenty-Two
Petitioner argues in Ground Twenty-Two that his trial
counsel were constitutionally ineffective for failing to
question jurors regarding their opinions on the death penalty in
violation of Morgan v. Illinois, 504 U.S. 719 (1992), and
failing to assert appropriate challenges to strikes under Batson
v. Kentucky, 476 U.S. 79 (1986). (Doc. 2 at 24.) He again
alleges that the trial court constructively denied him counsel,
- 50 -
which prevented his counsel from presenting all of the arguments
they should have as effective counsel. (Doc. 10 at 63.)
In Morgan, the Supreme Court reversed an Illinois Supreme
Court decision that held that a trial court may refuse to ask
prospective jurors whether they would automatically vote for a
death sentence. Morgan, 504 U.S. at 729. The Court ruled that,
to sustain a defendant’s right to an impartial jury, a court
must ensure “an adequate voir dire to identify unqualified
jurors.” Id. Following the rulings of Witherspoon, Wainwright,
and Adams, a court must take care to see that a jury is “lifequalified,” as well as “death-qualified”: “Were voir dire not
available to lay bare the foundation of petitioner’s challenge
for cause against those prospective jurors who would always
impose death after conviction, his right not to be tried by such
jurors would be rendered as nugatory and meaningless as the
State’s right, in the absence of questioning, to strike those
who would never do so.” Id. at 732-34. It follows that the trial
court has the responsibility either to question the venire
itself or to allow defense questioning to prevent the empaneling
of a biased or partial jury.
Batson seeks to prevent racial discrimination in jury
selection. If an attorney uses peremptory strikes in what seems
to be a racially-discriminatory manner, opposing counsel may
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object on the basis of Batson. Batson, 476 U.S. at 96. The
defendant must make a prima facie showing that the circumstances
surrounding the strike raise an inference that the prosecution
struck the prospective juror because of his or her race. Id. The
burden then shifts to the prosecutor to present a
non-discriminatory reason for the strike. Id. The defendant may
present evidence that the reason is merely pretext for racial
discrimination. Id. at 98. Ultimately, the burden rests on the
defendant to prove by a preponderance of the evidence that the
prosecution struck the venire member with discriminatory intent.
Id.
As discussed in the analysis of Grounds Eight and Nine, the
State MAR court extensively reviewed the transcripts of jury
selection to address each of the juror-selection claims. In
addressing the juror Petitioner identified as “the best example
of a missed Batson claim,” the state court quoted the portions
of the transcript where potential juror Gross stated that he had
always been a strong opponent of the death penalty and that he
would be “very reluctant” to vote for a death sentence. (First
MAR Order (Doc. 162-4) at 107.) The court determined that
Petitioner did not meet the prejudice requirement of Strickland
in challenging his counsel’s effectiveness for not making a
Batson challenge to the strike. (Id. at 111.) The court found
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any notion that a Batson challenge could be sustained to be
“completely groundless,” given the number of race-neutral
reasons the prosecution could have used for striking Gross.
(Id.) The court pointed to his age (81), the fact that he held a
Ph.D. in religion, and his position as a Baptist minister who
had always held strong beliefs in opposition to the death
penalty. (Id.)
Petitioner cannot show that the State court unreasonably
applied Strickland because he cannot demonstrate prejudice, or a
reasonable likelihood that had counsel properly questioned
jurors or objected to challenges made by the prosecution, the
result of his trial would have been different. The State court
found no Morgan or Batson violations. The jury selection
transcripts reveal that defense counsel questioned prospective
jurors on their death-penalty opinions to the extent the trial
court allowed them following extensive questioning on the same
by both the prosecutor and the court. When the trial court did
not allow questions from defense counsel, it questioned the
jurors to ensure that any potential juror who would
automatically vote for the death penalty was excused for cause.
Although the defense made no Batson objections, Petitioner
suffered no prejudice because he cannot prove that the
prosecution violated Batson with any of its peremptory strikes.
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The prosecution used thirteen peremptory strikes to remove
prospective jurors. Of these strikes, seven were venire members
who either opposed or were ambivalent toward the death penalty.
Of the remaining six, the prosecution had legitimate,
non-discriminatory reasons to excuse them all. A race-neutral
reason need not be “persuasive, or even plausible,” Purkett v.
Elem, 514 U.S. 765, 768 (1995), as long as it is “clear,
sufficiently specific and related to the particular case to be
tried.” Kandies v. Polk, 385 F.3d 457, 473 (2004), vacated on
other grounds by Kandies v. Polk, 545 U.S. 1137 (2005). Facing
no Batson objections, the prosecution was not required to
articulate race-neutral reasons for its strikes. This court,
however, can easily find such reasons. 10 In addition to the
potential juror struck presumably because of their tepid support
for the death penalty, Juror Cooke had previously employed
defense counsel to represent her son, (Jury Selection Tr. at
416); Juror King was connected to Lisa Bridges through his
father’s dating of her son’s father’s girlfriend, and multiple
family members had been convicted of drug charges in Alamance
and surrounding counties, (id. at 617, 626-28); Juror Giffis
10
Neither the Petitioner nor the Respondent has provided
the court with a racial breakdown of the venire, so the court
will proceed as if every strike by the State required an
explanation under Batson.
- 54 -
expressed confusion about the concepts of circumstantial
evidence and the burden of proof and stated that he could not
convict anyone on circumstantial evidence alone, (id. at 725);
Juror Riley was very nervous about what a lengthy trial might do
to his job status, (id. at 1549); Juror Belton was very
combative with the prosecution, knew some members of Bridges’
family, and had already formed an opinion about the case, (id.
at 2698); and Juror Nachborn had recently served on a criminal
jury and admitted to a fellow venire member that he had read
about the case in the newspaper, (id. at 2825). Although each of
these prospective jurors stated that they did not believe that
their individual experiences and opinions would impact their
performance as jurors, their voir dire answers would have
provided multiple legitimate non-discriminatory reasons for the
prosecution to excuse them. With no prejudice resulting from any
alleged error by trial counsel, Petitioner has not proven IAC or
that the state court unreasonably applied any clearly
established federal law.
Because Petitioner did not present the Cronic claim
embedded in Ground Twenty-Two to the state court, it is not
exhausted. The court therefore denies this Cronic claim as
procedurally defaulted. With no merit as a Batson or a Cronic
claim, Ground Twenty-Two is denied.
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F.
Ground Ten: Excluded Social Services Records
In Ground Ten, Petitioner asserts that the trial court
erroneously and prejudicially excluded evidence regarding
supervision of Bridges and her family by Social Services
following Susie’s death. Petitioner claims that the exclusion of
the evidence violated his constitutional rights to confrontation
and to present a defense. (Doc. 2 at 18.) He insists that, had
his counsel not been ineffective, he could have used these
records to build a defense surrounding Bridges’ inability to
parent her children and assert an alternative cause for Susie’s
death. (Doc. 10 at 56.) He claims that Pennsylvania v. Ritchie,
480 U.S. 39 (1987), supports this argument. (Doc. 10 at 56.)
Respondent distinguishes Ritchie by pointing out that in that
case, the records at issue had not been examined by the trial
court. (Doc. 11 at 43.) In Petitioner’s case, both trial counsel
and the court reviewed the Social Services file before the court
excluded it as evidence. (Id.)
The state supreme court rejected this claim. Burr, 341 N.C.
at 293, 461 S.E.2d at 618. The court considered that the records
at issue were not relevant because they contained no evidence of
abuse by Bridges and thus did not point directly to her guilt.
Id. Furthermore, the Department of Social Services closed the
file on Bridges after a year of supervision, and, during trial,
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Petitioner had access to similar records with which he could
impeach Bridges and impugn her parenting ability. Id. at 293-94,
461 S.E.2d at 618. The state MAR court concluded, in the context
of Petitioner’s IAC claim, that Petitioner’s counsel had sought
and received similar evidence prior to trial and thus did not
perform ineffectively. (First MAR Order (Doc. 162-4) at 81-82.)
A federal habeas court will not review a state court’s
ruling on the admissibility of evidence unless that evidence
violates specific constitutional provisions or renders the trial
a denial of due process. Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). Petitioner has not proven that his lack of access to
these materials prejudiced him to the extent that it violated
his right to confrontation or to present a defense. The state
supreme court was not unreasonable when it concluded that the
records would have merely been cumulative of the evidence
Petitioner had presented to impeach Bridges and point suspicion
at her at trial. The excluded records included information that
Bridges had some trouble managing her schedule, keeping
appointments, and maintaining a clean home. Burr, 341 N.C. at
293, 461 S.E.2d at 618. None of these facts would have assisted
Petitioner in pointing the finger at Bridges, and their
impeachment value was low given the similar evidence presented
- 57 -
at trial. Petitioner has pointed to no additional evidence in
the records to assist his argument.
Ritchie does not help Petitioner. That case holds that due
process requires a trial court to review in camera social
services files to determine whether they might be material to
the determination of guilt. Ritchie, 480 U.S. at 41. The court,
not the defendant, holds the responsibility with regard to this
type of material: “A defendant’s right to discover exculpatory
evidence does not include the unsupervised authority to search
the State’s files and make the determination as to the
materiality of the information.” Id. Petitioner’s trial court
made such an in camera review and determined the records to be
immaterial. Petitioner has given this court no reason to secondguess that determination. Ground Ten is denied.
G.
Prosecutorial Misconduct
Petitioner makes several claims that the prosecutor in his
case made improper arguments to the jury that so infected his
trial with unfairness as to deprive him of due process. Grounds
Eleven, Thirteen, Fourteen, and Sixteen are all subject to the
standards set forth in Darden v. Wainwright, 477 U.S. 168
(1986), and Donnelly v. DeChristoforo, 416 U.S. 637 (1974),
regarding argument and the guarantee of due process under the
Fifth and Fourteenth Amendments.
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Although “prosecutors enjoy considerable latitude in
presenting arguments to a jury,” prosecutorial misconduct may
implicate a defendant’s due-process right to a reliable
sentence. Bates v. Lee, 308 F.3d 411, 422 (4th Cir. 2002).
Donnelly sets forth the basic principle for evaluating the
impropriety of a prosecutor’s actions: the conduct must have “so
infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Donnelly, 416 U.S. at 643.
Darden created a two-pronged method for a reviewing court to use
to determine whether (1) the prosecutor’s conduct was improper,
and (2) it “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Darden, 477 U.S.
at 181 (quoting Donnelly, 416 U.S. at 643). Darden concluded
that a court may consider, for example, whether the prosecutor’s
argument manipulates or misstates the evidence or whether it
implicates other specific rights of the accused. Id. at 182.
The Fourth Circuit recommends a comprehensive look at the trial
to determine whether a prosecutor’s argument has rendered the
trial constitutionally infirm: “In making this determination, we
must look at ‘the nature of the comments, the nature and quantum
of the evidence before the jury, the arguments of opposing
counsel, the judge's charge, and whether the errors were
isolated or repeated.’” Bennett v. Angelone, 92 F.3d 1336, 1345-
- 59 -
46 (4th Cir. 1996) (quoting Lawson v. Dixon, 3 F.3d 743, 755
(4th Cir. 1993)).
1.
Ground Eleven
Petitioner argues in Ground Eleven that the trial court
erred by overruling Petitioner’s objection to the prosecutor’s
improper suggestion that defense counsel were inferior lawyers
because they failed to secure a specific witness to testify.
(Doc. 2 at 19.) He asserts that the prosecutor’s comments
infected the trial with unfairness as prohibited by Darden and
Donnelly.
In its rejection of this claim on direct appeal, the North
Carolina Supreme Court quoted the portion of the prosecution’s
argument to which Petitioner vaguely refers in his Petition and
supporting briefs. Nita Todd, a social worker at the hospital
that initially received Susie, was unable to testify on the day
the defense intended for her to take the stand. Burr, 341 N.C.
at 297-98, 461 S.E.2d at 620-21. Instead, defense counsel read
her report into evidence. Id.
In his closing argument, the
prosecutor referred pointedly to her absence:
By gum, ladies and gentlemen, I hope that I don’t try
a case, particularly one as serious as murder, that I
don’t talk to my witnesses and you, if any of you ever
become victims to crime, which I hope you don’t, but
if any of you ever do, I think that you would hope
that I or some other prosecuting attorney would talk
to you and to your witnesses before taking your case
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into the courtroom, because to do anything less would
be working an injustice to the victims. You’ve got to
make arrangements to have your witnesses in the court
room sometimes. Now, I’ll contrast that, if you will,
please, to the testimony of Nita Todd, excuse me, not
testimony, to the record of Nita Todd which was read
to you.
(Trial Tr. (Vol. 27) at 2217.) The trial court overruled the
defense’s objection to this oblique attack on their efforts in
court. (Id. at 2218.) The state supreme court, after reviewing
the entire closing argument, determined that the prosecutor was
not taking a shot at defense counsel, but was instead attempting
“to minimize the effect of the evidence contained in the social
worker’s report, which evidence may have contradicted the
testimony by the State’s witnesses.” Burr, 341 N.C. at 298, 461
S.E.2d at 621. Acknowledging the latitude generally allowed in
argument and considering the statement in the context of the
entire closing statement, the court concluded that, error or
not, the prosecutor’s words did not “infect[] the trial with
unfairness” and therefore deny Petitioner due process. Id. at
299, 461 S.E.2d at 621.
Despite its generosity toward the prosecution’s seeming
attack on defense counsel, the state court’s determination was
not an unreasonable application of Darden or Donnelly. When read
in the context of the entire argument, the statement regarding
uncalled witnesses may have thrown shade at defense counsel, but
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fair-minded jurists could disagree as to whether the undermining
of Petitioner’s attorneys was improper and so egregious as to
infect the trial with unfairness or whether, as the state court
found, it was intended simply to undermine the testimony read
into the record. See Parker v. Matthews, 567 U.S. 37, 46-47
(2012) (reversing grant of habeas corpus after considering in
the entire context of the argument prosecutor’s suggestion that
defendant colluded with counsel to manufacture affirmative
defense to murder charge); Harrington, 562 U.S. at 102.
Considering the evidence of Petitioner’s guilt, the fact that
opposing counsel called several witnesses and had Todd’s
testimony available to the jury, and the relative mildness of
the remarks, this court cannot conclude that this portion of the
prosecution’s argument rendered Petitioner’s entire trial
unfair.
Petitioner has not proven that the prosecutor’s statement
concerning the defense’s failure to secure Nita Todd’s
appearance in court denied him due process, and he certainly has
not proven that the North Carolina Supreme Court’s rejection of
this claim was an unreasonable application of clearly
established federal law. Ground Eleven, therefore, is denied.
- 62 -
2.
Ground Thirteen
In Ground Thirteen, Petitioner claims that the trial court
erred by allowing the prosecutor to argue outside of the record
during the sentencing phase. Petitioner claims that the
prosecutor committed misconduct when he used the facts of prior
cases to guide the jury in determining whether Petitioner’s
crime was heinous, atrocious, or cruel, as required by the
aggravating circumstance presented to the jury. (Doc. 2 at 20);
see N.C. Gen Stat. § 15A-2000(e)(9) (making a defendant deatheligible if “[t]he capital felony was especially heinous,
atrocious, or cruel”). To flesh out the (e)(9) aggravator, the
prosecutor described to the jury some of the facts of previous
cases in which jurors had found the aggravating factor. See
Burr, 341 N.C. at 305, 461 S.E.2d at 625 (describing the alleged
prosecutorial misconduct). The prosecutor referred to another
case in which the defendant had killed an infant, State v. Huff,
325 N.C. 1, 381 S.E.2d 635 (1989), and one in which the
defendant bludgeoned a woman with a cast-iron skillet, State v.
Huffstetler, 312 N.C. 92, 322 S.E.2d 110 (1984). Id. In his
closing argument, defense counsel also used the Huff case to
distinguish that defendant’s actions from Petitioner’s. Id. at
308-09, 561 S.E.2d at 627.
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Petitioner argued to the state supreme court that the
prosecutor’s use of these cases violated a state law prohibiting
counsel from “read[ing] the facts contained in a published
opinion together with the result to imply that the jury in his
case should return a favorable verdict for his client.” State v.
Gardner, 316 N.C. 605, 611, 342 S.E.2d 872, 876 (1986). The
supreme court rejected this claim, suggesting that the
prosecution did not violate this rule and concluding
nevertheless that such a violation would not have resulted in
prejudice, given the “overwhelming evidence” that Petitioner’s
murder of Susie rose to the level of the (e)(9) aggravator.
Burr, 341 N.C. at 307-08, 461 S.E.2d at 626-27.
In rejecting the claim that the prosecution’s behavior was
“grossly improper,” the state court did not apply any clearly
established federal law unreasonably. 11 It is not this court’s
place to rule on questions of state law. Estelle v. McGuire, 502
U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal
habeas court to reexamine state-court determinations on statelaw questions.”). To the extent that Ground Thirteen implicates
federal due-process protection, the state court’s conclusion
that the prosecution presented overwhelming evidence to satisfy
11
Because defense counsel did not object to this argument
during sentencing, the state court reviewed under its “grossly
improper” standard. Burr, 341 N.C. at 305, 461 S.E.2d at 625.
- 64 -
the (e)(9) aggravator is informative. Susie suffered two broken
arms and two broken legs, she had bruising on her jaw in the
shape of a hand, and she died because of swelling in her brain
caused by a depressed skull fracture. Burr, 341 N.C. at 308, 461
S.E.2d at 626-27. A hard strike with a blunt object caused the
skull fracture, meaning Petitioner either hit Susie in the head
with great force or smashed her head against something. Id.
Susie was a months-old baby toward whom Petitioner had at least
some parental duties. Id. The evidence in the case was
sufficient for the jury to conclude that the murder was
“especially heinous, atrocious, or cruel.” N.C. Gen. Stat.
§ 15A-2000(e)(9). The prosecution’s reference to the facts of
other (e)(9) cases in an effort to clarify the definition of the
aggravator did not rise to a level that “so infected the trial
with unfairness as to make the resulting conviction a denial of
due process.” Donnelly, 416 U.S. at 643. The state court made no
error in rejecting this claim. Ground Thirteen is denied.
3.
Ground Fourteen
Petitioner argues in Ground Fourteen that the trial court
violated his constitutional rights to a fair and reliable
sentencing hearing when it overruled Petitioner’s objection to
the prosecutor’s argument regarding the injuries inflicted on
Susie. (Doc. 2 at 20.) Petitioner claims that the prosecutor
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misstated the order in which Susie received the injuries leading
to her death. The prosecutor said in argument, “I don’t know
when that was done, [the injuries to [Susie]’s ears], but I
would submit to you [the injuries were] probably done prior to
the time before the final blow that struck to [sic] her head.”
Burr, 341 N.C. at 309, 461 S.E.2d at 627. Petitioner insists
that this error amplified the evidence for the (e)(9) aggravator
and thus “so infected the trial with unfairness as to make the
resulting decision a denial of due process,” in violation of
Darden and Donnelly. (Doc. 10 at 59.) The state supreme rejected
this claim as harmless error because of the overwhelming
evidence that Susie’s murder was especially heinous, atrocious,
or cruel. Burr, 341 N.C. at 309, 461 S.E.2d at 627.
The state court’s ruling was not contrary to or an
unreasonable application of Donnelly and Darden. The extent of
Susie’s injuries justified the jury’s conclusion that her murder
was especially heinous, atrocious, or cruel. Whether her ears
were bruised before or after her skull fracture matters little
in the face of evidence of her multiple bruises, broken bones,
and the loss of the majority of her blood volume. Furthermore,
Susie lived for nearly a full twenty-four hours after the
doctors discovered the bruises on her ears. If the prosecutor
misstated the facts about the order in which Susie suffered her
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myriad injuries, the trial court’s failure to sustain the
defendant’s objection was indeed harmless. Removing that
statement from the jury’s consideration would have had little
effect on their decision about the (e)(9) aggravator. Ground
Fourteen, therefore, is denied.
4.
Ground Sixteen
In Ground Sixteen, Petitioner alleges that the trial court
erred by failing to prevent the prosecutor from misstating the
law regarding the aggravating factor that the crime was
“especially heinous, atrocious, or cruel” in his closing
argument. (Doc. 2 at 21.) In his post-Fourth-Circuit brief,
Petitioner attempts to clarify this argument, stating that the
court failed to account for the possibility that, under North
Carolina law, non-unanimity on aggravating factors and whether
they outweigh mitigating circumstances can result in a life
sentence as the verdict. (Doc. 163 at 14-15.) Petitioner may or
may not have presented this interpretation of Ground Sixteen to
the state court. Nonetheless, Petitioner claims that the
prosecutor’s argument so infected his trial as to deny him due
process. (Doc. 10 at 60.) The state supreme court concluded that
Petitioner could not have shown prejudice even if the prosecutor
had misstated the law based on its reasoning in rejecting the
- 67 -
claim Petitioner made in Ground Thirteen. Burr, 341 N.C. at 310,
461 S.E.2d at 628.
No matter the precise thrust of Ground Sixteen, Petitioner
has not proven that the state court applied federal law
unreasonably or even erred when it ruled that Petitioner’s claim
that the prosecution misstated the law regarding the (e)(9)
aggravator failed for a lack of prejudice. The court ruled that
the prosecution had proven the aggravating factor with copious
evidence, and this court finds no fault with that ruling, as
explained in the Ground Fourteen subsection. Furthermore,
Petitioner concedes that the Supreme Court of the United States
has rejected his argument about the weighing of aggravators and
mitigators and unanimity of the verdict. (Doc. 163 at 15, citing
Kansas v. Marsh, 548 U.S. 163, 173 (2006).) 12 Ground Sixteen is
denied.
H.
Ground Twelve: Bridges Medical Records
Ground Twelve asserts that the trial court erred by failing
to order that medical and psychiatric records concerning Bridges
be admitted into evidence. (Doc. 2 at 19.) Petitioner’s trial
counsel did not subpoena these medical records, so the North
Carolina Supreme Court was unable to review them on appeal and
12
It is debatable whether Petitioner has exhausted this
claim, but the Supreme Court’s rejection of it nonetheless
guarantees its failure.
- 68 -
rule on the claim. Burr, 341 N.C. at 302, 461 S.E.2d at 623;
(Doc. 10 at 57). Petitioner does not argue what these records
would have proven had they been obtained and admitted. (Doc. 10
at 57-58.) Respondent claims that this ground is procedurally
defaulted pursuant to the state procedural rule that required
Petitioner to submit the records to the North Carolina State
Court for appellate review. (Doc. 11 at 45.)
“A federal habeas court may not review a claim when a state
court has declined to consider its merits on the basis of an
independent and adequate state procedural rule.” Bacon v. Lee,
225 F.3d 470, 476 (4th Cir. 2000); see Coleman, 501 U.S. at 750
(defining the federal habeas court’s rule vis-à-vis claims that
have been procedurally barred in state courts). An independent
and adequate state procedural rule must not “depend[ ] on a
federal constitutional ruling,” Ake v. Oklahoma, 470 U.S. 68, 75
(1985), and must be “firmly established and regularly followed.”
James v. Kentucky, 466 U.S. 341, 348 (1984). A federal habeas
court may only determine whether the state law is independent
and adequate, not “whether the state court correctly applied its
own law.” Williams v. French, 146 F.3d 203, 209 (4th Cir. 1998).
A federal habeas court may only review a procedurally barred
claim if the petitioner shows legitimate cause for the default
and actual prejudice resulting from it. Maples v. Thomas, 565
- 69 -
U.S 266, 280-81 (2012); McCarver v. Lee, 221 F.3d 583, 591-92
(4th Cir. 2000).
Petitioner has procedurally defaulted Ground Twelve. North
Carolina’s rule regarding the competition of a record for appeal
is a fundamental rule that allows the reviewing state court to
have an adequate basis on which to rule. N.C. Rule App. P. 9,
10(a). As state rules governing appellate procedure, Rules 9 and
10 do not rely on any federal law or constitutional ruling,
making them independent under Coleman. A review of North
Carolina cases reveals that the North Carolina Supreme and
Appellate Courts rely on this rule regularly, dismissing claims
and cases in both civil and criminal court where appellants have
not included the necessary documents in their record of appeal.
See State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 644–45
(1983) (“It is the appellant’s duty and responsibility to see
that the record is in proper form and complete.
. . . Since the
motion is not before this Court, the defendant's assignment of
error amounts to a request that this Court assume or speculate
that the trial judge committed prejudicial error in his
ruling.”); State v. Williams, 274 N.C. 328, 333, 163 S.E.2d 353,
357 (1968) (“An appellate court is not required to, and should
not, assume error by the trial judge when none appears on the
record before the appellate court.”); State v. Dobbs, 234 N.C.
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560, 67 S.E.2d 751 (1951) (holding that when a necessary part of
the record has been omitted, the appeal will be dismissed);
State v. Martin, ____ N.C. App. ____, 836 S.E.2d 789, 2020 WL
70711, at *2 (2020) (“Nothing in the record shows the trial
court ever docketed Defendant’s monetary obligations or court
costs as a civil judgment, and without that necessary part of
the record we must dismiss Defendant’s appeal as it relates to
this issue.”); State v. Moss, ____ N.C. App. ____, 824 S.E.2d
925, 2019 WL 1283815, at *12
(2019) (“This Court is precluded
from addressing alleged error in the prosecutor’s argument
unless a defendant provides a transcript of the argument in
question.”); State v. Harvell, 45 N.C. App. 243, 246, 262 S.E.2d
850, 852 (1980) (“When a necessary part of the record has been
omitted, the appeal will be dismissed.”). In particular, a court
will not review a claim regarding excluded evidence if the
appellant does not include the evidence in the appellate record:
[I]t is well established that
[t]he exclusion of evidence will not be
reviewed on appeal unless the record
sufficiently shows what the evidence would
have been. In order for a party to preserve
for appellate review the exclusion of
evidence, the significance of the excluded
evidence must be made to appear in the
record and a specific offer of proof is
required unless the significance of the
evidence is obvious from the record.
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Discover Bank v. Rogers, No. COA19-217, 2019 WL 6876711, at *3
(N.C. Ct. App. Dec. 17, 2019) (citations omitted).
Petitioner offers no argument that the state courts do not
regularly apply this rule or that it depends on federal law. He
has not also shown cause for his failure to present the Bridges’
records to the court on direct appeal. Ground Twelve, therefore,
is denied.
I.
Jury Instruction Claims
1.
Ground Fifteen
Petitioner asserts that the trial court’s jury instruction
on the aggravating circumstance that the murder was “especially
heinous, atrocious, or cruel,” N.C. Gen. Stat. § 15A-2000(e)(9),
failed to limit the application of the aggravating circumstance,
which Petitioner claims is unconstitutionally vague on its face.
(Doc. 2 at 21.) The instruction, he claims, violated the
limitations on death sentencing set by Godfrey v. Georgia, 446
U.S. 420 (1980). (Doc. 10 at 59.) According to Petitioner, it
“fails to sufficiently define and narrow this circumstance,”
creating a “vague and arbitrary standard.” (Doc. 163 at 11.)
The North Carolina Supreme Court reviewed this claim for
plain error because Petitioner did not object to the instruction
at trial. Burr, 341 N.C. at 310, 461 S.E.2d at 627. Regardless
of the standard of review, the court saw no reason to reexamine
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its holding in State v. Syriani, 333 N.C. 350, 391-92, 428
S.E.2d 118, 140-41, which upheld as constitutional an identical
instruction given defining the (e)(9) aggravator. Id.
A state must ensure that its capital-sentencing scheme
prevents the imposition of the death penalty in an arbitrary and
capricious manner. Furman v. Georgia, 408 U.S. 238, 309-10
(1972) (Stewart, J., concurring); Fisher v. Lee, 215 F.3d 438,
457 (4th Cir. 2000). Aggravating circumstances must narrow the
category of defendants made eligible for a death sentence to
“channel the sentencer’s discretion by clear and objective
standards that provide specific and detailed guidance, and that
make rationally reviewable the process for imposing a sentence
of death.” Godfrey, 446 U.S. at 428 (footnotes, citations and
quotation marks omitted). “A statutory circumstance that is
alone too vague to provide meaningful guidance to the sentencer
may be accompanied by a limiting instruction which does provide
sufficient guidance.” White v. Lee, No. 00-3, 2000 WL 1803290,
at *5 (4th Cir. Dec. 8, 2000). The North Carolina Supreme Court
has ruled that the (e)(9) aggravator plus the pattern jury
instruction given in Petitioner’s case provide to the jury
constitutionally sufficient guidance to narrow the category of
defendants subjected to the penalty. Syriani, 333 N.C. at 39192, 428 S.E.2d at 141.
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Petitioner’s argument does not convince this court that the
state court’s reliance on its rulings in Syriani and subsequent
cases unreasonably applies clearly established federal law.
Petitioner insists that the only way to make the (e)(9)
aggravating circumstance constitutionally tailored would be a
jury instruction that “incorporate[s] all of the narrowing
factors necessary to cure the inherent vagueness” of the
circumstance and cites several cases that have used different
narrowing instructions. (Doc. 163 at 12-13.) The Constitution,
however, does not require that an instruction present every type
of narrowing option; it must simply provide “clear and objective
standards” and “specific and detailed guidance” to the jury.
Godfrey, 446 U.S. at 428. The narrowing portion of North
Carolina’s pattern jury instruction states: “For this murder to
have been especially heinous, atrocious or cruel, any brutality
which was involved in it must have exceeded that which is
normally present in any killing, or this murder must have been a
conscienceless or pitiless crime which was unnecessarily
torturous to the victim.” N.C.P.I. Crim. 150.10 at 18-19 (1992).
Combined with the definition the instructions provides —
“heinous means extremely wicked or shockingly evil; atrocious
means outrageously wicked and vile; and cruel means designed to
inflict a high degree a pain with utter indifference to, or even
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enjoyment of, the suffering of others,” id. — the instruction
certainly narrows the class of murder-committing defendants
eligible for the death penalty. In addition, the instruction is
further limited by a requirement of “unnecessarily torturous to
the victim.” Petitioner has not convinced this court that the
state court’s approval of the instruction has unreasonably
applied any federal law considering the constitutionality of
aggravating circumstances and their accompanying jury
instructions. Ground Fifteen is denied.
2.
Ground Seventeen
Ground Seventeen alleges that the trial court erred by
failing to instruct the jury properly on the inherent mitigating
value of the mitigating factor regarding Petitioner’s ability to
adjust to life in prison, in violation of the Eighth and
Fourteenth Amendments. (Doc. 10 at 60.) Petitioner claims that
the court improperly stated that the jury could reject this
mitigating circumstance and that the state supreme court’s
rejection of the claim was an unreasonable application of
Skipper v. South Carolina, 476 U.S. 1, 7 (1986). (Id.)
The state supreme court ruled that it had recently decided
against an identical claim in State v. Basden, 339 N.C. 288, 451
S.E.2d 238 (1994). Burr, 341 N.C. at 311, 461 S.E.2d at 628.
The state court interpreted Skipper to mean that a court may not
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prevent a defendant from presenting to the jury evidence of his
or her good behavior in jail as a mitigating circumstance. Id.
The court concluded that the trial court fulfilled its duty
under Skipper by allowing Petitioner to present the evidence;
the question of whether the jury deemed that evidence to have
mitigating value did not implicate the right protected by
Skipper. Id.
In Skipper, the Supreme Court relied on its decisions in
Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings v. Oklahoma,
455 U.S. 104 (1982), that a defendant facing a death sentence
must be allowed to place “relevant mitigating evidence” before
the sentence. Skipper, 476 U.S. at 4. Eddings state that “‘the
sentencer [should] not be precluded from considering, as a
mitigating factor, any aspect of a defendant’s character or
record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death.’”
Eddings, 455 U.S. at 110 (quoting Lockett, 438 U.S. at 604).
Based on this principle, the Court concluded that “evidence that
the defendant would not pose a danger if spared (but
incarcerated) must be considered potentially mitigating.”
Skipper, 476 U.S. at 5. A trial court, therefore, may not
exclude good jail-behavior evidence from a jury. Id.
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The North Carolina Supreme Court’s ruling was not an
unreasonable application of Skipper. Skipper requires a trial
court to allow a defendant to present relevant potentially
mitigating evidence to the jury. Skipper says nothing about
requiring the jury to award such evidence mitigating value. The
North Carolina legislature has chosen to empower some mitigating
circumstances with mitigating value if the defendant has
evidence to support them. N.C. Gen Stat. § 15A-2000(f)(1)-(8).
These “statutory mitigating circumstances” are different from
the non-statutory catch-all circumstances (grouped under
subsection (f)(9)), for which the jury must decide whether they
have value or not. This legislative scheme does not run afoul of
Skipper. Ground Seventeen is denied.
3.
Ground Eighteen
In Ground Eighteen, Petitioner claims that the “trial court
improperly instructed the jury that each juror could reject nonstatutory mitigating circumstances on the basis that they did
not find the circumstances mitigating.” (Doc. 2 at 22.) He
argues that this instruction violated his Eighth and Fourteenth
Amendment rights and that the state supreme court’s rejection of
the claim was an unreasonable application of Eddings v.
Oklahoma, 455 U.S. 104 (1982). (Doc. 10 at 61.) The North
Carolina Supreme Court relied on its previous rulings in
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summarily rejecting this claim. Burr, 341 N.C. at 311-12, 461
S.E.2d at 628-29.
As stated in the above discussion of Ground Eighteen,
Eddings requires that a defendant must be allowed to present any
relevant mitigating evidence to the sentence. Eddings, 455 U.S.
at 110. Eddings does not require the sentence to give value to
any mitigating circumstance; it guarantees that evidence
supporting the circumstance not be withheld from the sentencer.
Id. The state court’s rejection of this claim was not
unreasonable. The court denies Ground Eighteen.
4.
Ground Nineteen
In Ground Nineteen, Petitioner asserts that the trial court
improperly instructed jurors regarding the method for weighing
mitigating circumstances for each crime for which he was
charged. (Doc. 2 at 23.) Petitioner claims that the use of the
word may in jury instructions allowed jurors to use their own
discretion in determining whether to give proven mitigating
circumstances mitigating value, in violation of Boyde v.
California, 494 U.S. 370 (1990). (Doc. 10 at 61-62.) Petitioner
argues that this instruction may have “prevented consideration
of constitutionally relevant evidence.” (Id. at 62.) The state
supreme court’s rejection of this claim, according to
Petitioner, violated the Fifth, Six, and Fourteenth Amendments
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and was an unreasonable application of Boyde and McKoy v. North
Carolina, 494 U.S. 433 (1990). (Id.) The North Carolina Supreme
Court summarily rejected this claim as identical to others
decided in its previous rulings. Burr, 341 N.C. at 311, 461
S.E.2d at 628.
Neither Boyde nor McKoy help the Petitioner. Boyde reminds
courts that “[t]he Eighth Amendment requires that the jury be
able to consider and give effect to all relevant mitigating
evidence offered by petitioner,” which means that a court may
not “restrict impermissibly a jury’s consideration of relevant
evidence.” Boyde, 494 U.S. at 377-78. To evaluate whether an
instruction has done so, the Court has determined that “the
proper inquiry in such a case is whether there is a reasonable
likelihood that the jury has applied the challenged instruction
in a way that prevents the consideration of constitutionally
relevant evidence.” Id. at 380. A court must not “engage in a
technical parsing” of an instruction, but rather must evaluate
it “with a commonsense understanding of the instructions in the
light of all that has taken place at the trial.” Johnson v.
Texas, 509 U.S. 350, 368 (1993) (quotation marks omitted). The
court had instructed the jurors that they were required to weigh
any mitigating circumstance they found to exist against the
aggravating circumstances. A commonsense interpretation of the
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entire instruction makes it highly unlikely that the use of the
word may in a subsequent sentence undermined the jury’s
understanding that they were required to give the mitigating
circumstances they found proper consideration. The Fourth
Circuit, in an unpublished opinion, has found that the North
Carolina Supreme Court’s acceptance of these instructions was
not an unreasonable interpretation of clearly established
federal law. Carter v. Lee, No. 99-10, 1999 WL 1267353, *8 (4th
Cir. Dec. 29, 1999) (“That the trial court used the word ‘may’
instead of the word ‘must’ — as Carter would have preferred —
does not create a reasonable likelihood that the jury
misunderstood its task.”). This court agrees. Ground Nineteen is
denied.
J.
Ineffective Assistance of Counsel Claims
To prove IAC, a petitioner must establish both that trial
counsel’s performance fell below a reasonable standard for
defense attorneys and that performance prejudiced the
petitioner. Strickland v. Washington, 466 U.S. 668 (1984)
(adopted in North Carolina by State v. Braswell, 312 N.C. 553,
324 S.E.2d 241 (1985)). The petitioner bears the burden of
affirmatively showing deficient performance. Spencer v. Murray,
18 F.3d 229, 233 (4th Cir. 1994). An analysis of counsel’s
performance begins with the assumption that counsel “rendered
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adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Strickland, 466
U.S. at 690. To overcome that presumption and establish
deficient performance, a petitioner must show “that counsel
failed to act ‘reasonabl[y] considering all the circumstances.’”
Cullen, 563 U.S. at 189 (quoting Strickland, 466 U.S. at 688).
To establish prejudice, the petitioner must show that there is
“a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
A court is not required to
“address both components of the inquiry if the defendant makes
an insufficient showing on one.” Id. at 697.
1.
Ground Twenty
Petitioner states in his petition that North Carolina’s
death penalty procedure is cruel and unusual and that the death
penalty statute is both vague and overbroad. (Doc. 2 at 23.) He
further asserts that the jury imposed the death sentence in his
case in an arbitrary and capricious manner based on sex, race,
and poverty. (Id.) In the brief supporting his petition,
however, Petitioner claims that his constructive denial of
counsel made his conviction and sentence unreliable. (Doc. 10 at
62.) He relies on Cronic to support this claim.
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The state supreme court rejected this claim when Petitioner
presented it on direct appeal as simply an attack on the
constitutionality of North Carolina’s death penalty statute.
Standing on its previous rulings on the same claim in other
cases, the state court upheld its prior rulings and denied the
claim. Burr, 341 N.C. at 312, 461 S.E.2d at 629. In these prior
cases, the state court evaluated the statute under the standards
set forth by Gregg v. Georgia, 428 U.S 153 (1976). For a deathpenalty statute to accord with the standards of the Eighth
Amendment, it must not be excessive and not be grossly out of
proportion to the severity of the crime. Gregg, 428 U.S. at 173;
Coker v. Georgia, 433 U.S. 584, 592 (1977). Furthermore, a death
penalty statute must “narrow the class of murderers subject to
capital punishment,” Gregg, 428 U.S. at 196, by providing
“specific and detailed guidance to the sentencer,” Proffitt v.
Florida, 428 U.S. 242, 253 (1976) (joint opinion of Stewart,
Powell, and Stevens, JJ.). The North Carolina Supreme Court has
held its statute up to these standards multiple times and has
found it to be constitutional.
To the extent that this claim relies on a Cronic claim of
constructive denial of counsel, Petitioner has not presented
this ground to the state courts. It is therefore not exhausted
and procedurally defaulted. Without the underlying Cronic claim,
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the state court’s decision was not an unreasonable application
of clearly established federal law. If a person has been
convicted of first-degree, premeditated and deliberate murder in
North Carolina, that person may only be eligible for the death
penalty if a jury finds beyond a reasonable doubt that the
murder was committed in the context of one of eleven specified
aggravating circumstances. N.C. Gen. Stat. § 15A-2000. A jury
must then consider multiple statutory and non-statutory
mitigating circumstances, which may be found by a preponderance
of the evidence, and weigh them against the aggravating
circumstances. Id. Only if the jury finds beyond a reasonable
doubt that the mitigating circumstances do not outweigh the
aggravating circumstances, may the jury then recommend a death
sentence. Id. The Supreme Court has not held this scheme to be
unconstitutional. The trial court in Petitioner’s case followed
the statutory requirements to arrive at his sentence. The state
court, therefore, was not unreasonable when it ruled that the
capital sentencing scheme in North Carolina did not violate the
United States Constitution. The court denies Ground Twenty.
2.
Ground Twenty-One
In Ground Twenty-One, Petitioner claims that his trial
counsel were ineffective for failing to submit various pre-trial
motions to allow them access to experts who might interpret the
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medical evidence in Petitioner’s case. (Doc. 2 at 24.) He
insists that he was constructively denied the assistance of
counsel by the trial court’s decisions and relies again on
Cronic. (Doc. 10 at 63.)
The State MAR court denied this claim on its merits. The
court first pointed out that counsel is not automatically
considered deficient under Strickland for failing to acquire the
assistance of a medical expert. (First MAR Order (Doc. 162-4) at
77-78.) The court then detailed its conclusions that trial
counsel prepared adequately for the trial and had considerable
experience in defending against serious charges and in matters
relating to child abuse. (Id. at 79.) The court determined that
Petitioner did not show either deficient performance or
prejudice, given its rejection of Petitioner’s proffered
evidence from his post-conviction medical experts. (Id.) The
court similarly rejected all of Petitioner’s other claims based
on counsel’s alleged pretrial failures. (Id. at 79-84.)
To the extent that Petitioner relies on the constructive
denial of counsel as the basis of this claim, Ground Twenty-One
has not been exhausted and is procedurally defaulted. Likewise,
his claim of ineffective assistance of counsel under Strickland
fails because the Fourth Circuit has already decided that his
counsel did not perform deficiently in their preparation for
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trial, and Petitioner did not suffer prejudice as a result of
their performance. Burr, 513 F. App’x at 342, 344, 345.
Petitioner’s Strickland claim in this ground for relief is that
his counsel were not prepared for trial and failed to do the
things in preparation that reasonable counsel would have done.
This argument is essentially the same argument Petitioner
originally pursued in Grounds One, Two, and Three — his counsel
were not prepared for trial and failed to develop exculpatory
evidence with the help of a medical expert, and the trial court
failed to allow them to prepare for trial — which the Fourth
Circuit ruled against, finding that the state MAR court’s
rejection of them was not an unreasonable application of clearly
established federal law. For these reasons, Ground Twenty-One is
denied.
3.
Ground Twenty-Three
In Ground Twenty-Three, Petitioner argues that defense
counsel’s failure to hire a medical expert was constitutionally
ineffective because counsel was thus prevented from developing
an alternative explanation for Susie’s death, which would have
been strong mitigating evidence. (Doc. 2 at 25.) The
constructive denial of counsel by the trial court prevented
Petitioner’s counsel from presenting the mitigation case it
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should have. (Doc. 10 at 64.) The State MAR court denied this
claim on the merits. (First MAR Order (Doc. 162-4) at 113.)
Ground Twenty-Three, to the extent that it relies on the
Cronic claim of constructive denial of counsel, has not been
exhausted and is procedurally defaulted. Presented as a
Strickland ineffective assistance of counsel claim, this ground
did not survive the Fourth Circuit’s scrutiny. Burr, 513
F. App’x at 342-45. Petitioner argued in Ground One that “trial
counsel were constitutionally ineffective [for] failing to
develop exculpatory evidence of accidental death.” (Doc. 10 at
21). Developing this evidence, according to Petitioner, would
have required hiring a medical expert. Ground Twenty-Three,
therefore, asserts a portion of the claim that Ground One
asserts and is denied as res judicata.
K.
Ground Twenty-Four: Short-Form Indictment
Ground Twenty-Four asserts that the indictment the State
used failed to allege all of the elements of the crime of firstdegree murder, as well as the aggravating circumstance upon
which the State planned to seek the death penalty. (Doc. 2 at
25.) Failure to include all of the elements of first-degree
murder in the indictment violates a rule emphasized in Jones v.
United States, 526 U.S. 227 (1999). (Doc. 10 at 66.) According
to Petitioner, failure to include in the indictment all of the
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essential elements of the crime plus anything that may increase
the penalty to a death sentence, such as an aggravating
circumstance, violates the due process clause of the United
States Constitution. Apprendi v. New Jersey, 530 U.S. 466
(2000); (Doc. 10 at 67.)
The state MAR court denied this claim on the merits.
(Second MAR Order (Doc. 162-4) at 175.) It noted a recent ruling
by the North Carolina Supreme Court that rejected the same claim
Petitioner made regarding the short-form indictment. (Id.) In
State v. Wallace, 351 N.C. 481, 528 S.E.2d 326 (2000), the court
pointed out that the Supreme Court of the United States had
never ruled that the Fourteenth Amendment required states to
charge every element of the crime in the indictment. Wallace,
351 N.C. at 508, 538 S.E.2d at 343. It further held that the
Court had “specifically declined to apply the Fifth Amendment
requirement of indictment by grand jury to the states via the
Fourteenth Amendment.” Id. The state court concluded in Wallace
that Jones therefore did not apply to state courts. Bound by
Wallace, the state MAR court rejected this claim. (Second MAR
Order (Doc. 162-4) at 176.)
Prisoners in North Carolina have been challenging the
short-form indictment since the Court ruled in Apprendi.
Unfortunately, their reliance on Apprendi does not aid their
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efforts. Jones, which ruled that “any fact (other than prior
conviction) that increases the maximum penalty for a crime must
be charged in an indictment, submitted to a jury, and proven
beyond a reasonable doubt,” was a federal criminal case. Jones,
526 U.S. at 243 n.6. In Apprendi, the Court did not extend the
indictment rule to the states. Instead, Apprendi held that “any
fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.
The Court conspicuously left out the Jones rule regarding
indictments, and Petitioner may not rely on Apprendi to support
his argument that North Carolina’s short-form indictment is
constitutionally flawed. The North Carolina Supreme Court has
repeatedly found the short-form indictment to be
constitutionally sufficient. See, e.g., State v. Braxton, 352
N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130
(2001); State v. Davis, 353 N.C.1, 539 S.E.2d. 243 (2000), cert.
denied, 534 U.S. 839 (2001). Furthermore, Apprendi does not
apply retroactively to habeas-corpus cases. United States v.
Sanders, 247 F.3d 139 (4th Cir. 2001). The state court’s
rejection of this claim was therefore not contrary to or an
unreasonable application of clearly established federal law.
Ground Twenty-Four is denied.
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III. CONCLUSION
For the foregoing reasons, IT IS ORDERED that the
Petitioner’s Petition under 28 U.S.C. § 2254 for Writ of Habeas
Corpus by a Person in State Custody, (Doc. 2), is DENIED and
that this action is dismissed with prejudice. A judgment
dismissing this action will be entered contemporaneously with
this Memorandum Opinion and Order. Finding no substantial issue
for appeal concerning the denial of a constitutional right
affecting the conviction, nor a debatable procedural ruling, a
certificate of appealability is not issued.
This the 26th day of March, 2020.
_______________________________________
United States District Judge
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