LARRY v. POLK
Filing
83
MEMORANDUM OPINION AND ORDER, signed by JUDGE WILLIAM L. OSTEEN, JR on 05/29/2019. For the foregoing reasons, IT IS ORDERED that Petitioner's Motion for Relief from Judgment, (Doc. 75 ), is DENIED.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
THOMAS MICHAEL LARRY,
Petitioner,
v.
EDWARD THOMAS 1, Warden,
Central Prison, Raleigh,
North Carolina,
Respondent.
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1:05CV628
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Pursuant to Federal Rule of Civil Procedure 60(b)(6),
Petitioner Thomas Michael Larry, a prisoner of the State of
North Carolina, seeks relief from the judgment of this court,
(Doc. 51), which denied his petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, (Doc. 7), on October 11, 2006.
(See Doc. 75). Because Petitioner has failed to show that he is
entitled to relief, the court denies the instant motion.
I.
BACKGROUND
According to the facts as presented in Petitioner’s direct
appeal, Petitioner robbed a Food Lion grocery store on
1
Edward Thomas succeeded Mr. Carlton Joyner as Warden at
Central Prison. The case caption is hereby amended to accurately
reflect Mr. Thomas as the Respondent.
January 15, 1994. State v. Larry, 345 N.C. 497, 507-08, 481
S.E.2d 907, 913 (1997). Pointing a small gun at an employee,
Petitioner demanded that she open the store’s safe. Petitioner
took $1,700.00 from the safe, pointing the gun at other people
in the store and telling them not to move. Robert Buitrago, an
off-duty police officer, was waiting in line at the check-out
during the robbery, and Petitioner threatened him with the gun
before fleeing the store. Buitrago chased Petitioner, and the
two struggled outside the store. Witnesses heard one or more
gunshots; Buitrago was fatally shot in the chest. Petitioner ran
from the store, but police found him hiding in a residence in
Winston Salem. Id.
A jury convicted Petitioner on April 25, 1995, of firstdegree murder and robbery with a dangerous weapon. For the
first-degree murder conviction, based on premeditation and
deliberation and the felony murder rule, the jury recommended
that Petitioner be sentenced to death. The North Carolina
Supreme Court affirmed Petitioner’s conviction and sentence on
March 7, 1997. Id. at 497, 481 S.E.2d at 907. The United States
Supreme Court denied certiorari review on October 14, 1997.
Larry v. North Carolina, 522 U.S. 917 (1997). Petitioner filed a
motion for appropriate relief (“MAR”) and an amended MAR in the
Superior Court of Forsyth County, seeking post-conviction
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relief. While the MAR was pending, he filed another motion
pursuant to N.C. Gen. Stat. § 15A-2005, alleging that his mental
retardation prohibited the State from carrying out his
execution. The superior court denied the amended MAR on
April 24, 2001, and the North Carolina Supreme Court denied
review on June 27, 2002. State v. Larry, 355 N.C. 755, 566
S.E.2d 84 (2002). The superior court conducted an evidentiary
hearing regarding Petitioner’s second MAR and its mental
retardation claim on July 3, 2003. After hearing evidence from
experts on both sides, as well as witnesses who knew the
petitioner, the court denied the motion. The North Carolina
Supreme Court denied certiorari review on March 3, 2005. State
v. Larry, 359 N.C. 324, 611 S.E.2d 841 (2005).
Petitioner filed a petition for a writ of habeas corpus in
this court on July 18, 2005. (Doc. 7.) On the same date,
Petitioner filed an additional MAR in the superior court to
reassert his mental retardation claim, as well as a motion in
this court to hold his federal petition in abeyance until
pending state court litigation was complete. This court denied
the motion for abeyance on July 25, 2005. (Doc. 6.) On
September 12, 2005, Respondent answered, (Doc. 15), and
simultaneously filed a motion to dismiss certain claims that
were not exhausted, (Doc. 16). Petitioner responded with a
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motion to expand the record, (Doc. 22), and another motion for
abeyance, or, in the alternative, dismissal of all unexhausted
claims, to avoid having the entire petition dismissed as a mixed
petition. (Doc. 19.) This court denied the motion for abeyance
and dismissed all unexhausted claims. (Doc. 38.) On June 13,
2006, the Magistrate Judge issued a recommendation, (Doc. 39),
that the district court dismiss the petition. On October 11,
2006, this court adopted the Magistrate Judge’s recommendation
and ordered the petition dismissed. (Docs. 50, 51.) The court
denied a motion pursuant to Rules 59 and 60 to alter or amend
judgment on April 9, 2007. (Doc. 54.) The United States Court of
Appeals for the Fourth Circuit affirmed the dismissal of the
petition on January 5, 2009. (Docs. 69, 70.) Mandate was issued
on March 19, 2009. (Doc. 74.) Larry v. Branker, 552 F.3d 356
(4th Cir.), cert. denied, 558 U.S. 953 (2009).
The October 11, 2006 ruling addressed, among other claims,
the following non-dismissed grounds for relief: (II) the
execution of the mentally retarded Petitioner would violate the
Eighth Amendment to the United States Constitution, and (VI)
trial counsel were ineffective by insulting the jury during
closing argument in the penalty phase. 2
2
These claims are numbered as they were in the original
petition; Grounds III, IV, V, VII, IX, X, XV, and XVI were
dismissed as unexhausted.
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II.
STANDARD OF LAW
A.
Overview
Petitioner asks the court to grant him relief from its
original denial of his petition on two grounds. First, he claims
that Hall v. Florida, 572 U.S. 701 (2014), represents a
“significant change” in the law regarding intellectual
disability and the Supreme Court’s decision in Atkins v.
Virginia, 536 U.S. 304 (2002), which rules that the Eighth
Amendment prohibits the execution of the intellectually
disabled. (Doc. 75 at 12.) Second, he claims that this court
should review his claims of ineffective assistance of counsel
(“IAC”) because of the Court’s ruling in Martinez v. Ryan, 566
U.S. 1 (2012). (Doc. 75 at 14.) Respondent argues that
Petitioner’s motion should be considered a second or successive
petition and dismissed for his failure to obtain permission from
the Fourth Circuit to file such a petition.
B.
Rule 60(b)
A party may move for relief via a motion filed under Rule
60(b) within a reasonable time after a judgment has been
entered. Fed. R. Civ. P. 60(b). The district court has the
discretion to grant such a motion for “any other reason
justifying relief from the operation of the judgment.”
Eberhardt v. Integrated Design & Constr., Inc., 167 F.3d 861,
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872 (4th Cir. 1999). For Rule 60(b) to apply, however, “the
movant must make a showing of timeliness, a meritorious defense,
a lack of unfair prejudice to the opposing party, and
exceptional circumstances.” Werner v. Carbo, 731 F.2d 204,
206-07 (4th Cir. 1984) (citations/footnote omitted). In the
habeas context, when a prisoner claims that there has been a
change in law that amounts to “extraordinary circumstances,” the
court must consider whether the change in law overruled settled
precedent and whether the prisoner has been “diligen[t] in
pursuing review.” Gonzalez v. Crosby, 545 U.S. 524, 536-37
(2005).
Federal habeas corpus petitioners may not use a Rule 60(b)
motion to assert a claim attacking the merits of their state
convictions. Id. at 538. A proper Rule 60(b) motion is one that
attacks “some defect in the integrity of the federal habeas
proceedings.” Id. at 532 (footnote omitted); see United States
v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003) (explaining, “a
motion directly attacking the prisoner’s conviction or sentence
will usually amount to a successive application, while a motion
seeking a remedy for some defect in the collateral review
process will generally be deemed a proper motion to
reconsider”). The Supreme Court has defined a claim attacking
the merits of a state conviction as “an asserted federal basis
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for relief from a state court’s judgment of conviction.”
Gonzalez, 545 U.S. at 530. Additionally, a Rule 60(b) motion
will “bring a ‘claim’ if it attacks the federal court’s previous
resolution of a claim on the merits, since alleging that the
court erred in denying habeas relief on the merits is
effectively indistinguishable from alleging that the movant is,
under the substantive provisions of the statutes, entitled to
habeas relief.” Id. at 532 (footnote omitted).
The Fourth Circuit has warned that “district courts must
treat Rule 60(b) motions as successive collateral review
applications when failing to do so would allow the applicant to
evade the bar against relitigation of claims presented in a
prior application or the bar against litigation of claims not
presented in a prior application.” Winestock, 340 F.3d at 206
(citations omitted). If the motion is “tantamount to [a]
successive application[],” the district court “must either
dismiss the motion for lack of jurisdiction or transfer it to
this court so that we may perform our gatekeeping function under
§ 2244(b)(3).” Id. at 207.
Under the rules of the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), a federal district court may not
consider a second or successive habeas corpus petition unless
the court of appeals has approved the petitioner’s filing of
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such a petition. Winestock, 340 F.3d at 205 (“In the absence of
pre-filing authorization, the district court lacks jurisdiction
to consider an application containing abusive or repetitive
claims.”); see 28 U.S.C. § 2244(b)(3)(A) (stating that “[b]efore
a second or successive application permitted by this section is
filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application”). Even if the court
of appeals has granted permission for a prisoner to file a
second or successive petition, AEDPA demands that “[a] claim
presented in a second or successive habeas corpus application
under section 2254 that was presented in a prior application
shall be dismissed.” 28 U.S.C. § 2244(b)(1).
C.
Hall v. Florida
The Supreme Court has ruled that the Eighth Amendment
prohibits the execution of prisoners who are intellectually
disabled. Atkins, 536 U.S. at 321. Although Atkins left it to
the individual states to define intellectual disability, the
Court noted that “clinical definitions of mental retardation 3
require not only subaverage intellectual functioning, but also
3
At the time of the Court’s ruling in Atkins, “mental
retardation” was the preferred terminology used when referring
to intellectual disability. The medical community has since
updated its nomenclature.
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significant limitations in adaptive skills such as
communication, self-care, and self-direction that became
manifest before age 18.” Id. at 318. In passing statutes to
define intellectual disability, many states, including Florida,
used the above clinical definition, allowing proof of subaverage
intellectual functioning through the use of IQ tests.
In Hall, the Court invalidated Florida’s practice of not
allowing defendants to submit evidence of limitations in
adaptive functioning if they could not show an IQ score of 70 or
below. Hall, 572 U.S. at 704. On its face, Florida’s definition
of intellectual disability is valid under Atkins: a defendant
must show “significantly subaverage general intellectual
functioning existing concurrently with deficits in adaptive
behaviors and manifested during the period from conception to
age 18.” Fla. Stat. § 921.137(1) (2013). In practice, however,
the Florida Supreme Court’s interpretation of that law violates
the Eighth Amendment in two ways. First, the court “disregards
established medical practice” by insisting on a strict cut-off
score of 70 on IQ tests, without including the standard error of
measurement (“SEM”), which “reflects the reality that an
individual’s intellectual functioning cannot be reduced to a
single numerical score.” Hall, 572 U.S. at 712-13. Second, the
court “has held that a person whose test score is above 70,
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including a score within the margin for measurement error, does
not have an intellectual disability and is barred from
presenting other evidence that would show his faculties are
limited.” Id. at 711-12.
By adhering to that rigid cutoff, Florida’s treatment of
those defendants who claim intellectual disability as a defense
to execution is not consistent with what the Eighth Amendment
requires. If a defendant does not have a raw score of 70 or
below, SEM notwithstanding, Florida’s “sentencing courts cannot
consider even substantial and weighty evidence of intellectual
disability as measured and made manifest by the defendant’s
failure or inability to adapt to his social and cultural
environment, including medical histories, behavioral records,
school tests and reports, and testimony regarding past behavior
and family circumstances.” Id. at 712. Florida adhered to this
rule “even though the medical community accepts that all of this
evidence can be probative of intellectual disability, including
for individuals who have an IQ score above 70.” Id. In Hall, the
Supreme Court held that Florida thus created “an unacceptable
risk that persons with intellectual disability will be
executed.” Id. at 704.
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D.
Martinez v. Ryan
Prisoners do not have a constitutional right to assistance
of post-conviction counsel and therefore have no right to the
effective assistance of post-conviction counsel. Coleman v.
Thompson, 501 U.S. 722, 752 (1991); Pennsylvania v. Finley, 481
U.S. 551, 555-56 (1987). Generally, then, a petitioner may not
use the ineffectiveness of post-conviction counsel as cause to
excuse a procedural default. See Coleman, 501 U.S. at 752
(holding that because “[t]here is no constitutional right to an
attorney in state post-conviction proceedings,” a federal habeas
“petitioner cannot claim constitutional ineffective assistance
of counsel in such proceedings”). Martinez announced a narrow
exception to the Coleman rule, holding that “a procedural
default will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if, in the
initial-review collateral proceeding, there was no counsel or
counsel in that proceeding was ineffective.” Martinez, 566 U.S.
at 17. Martinez will only allow a petitioner to excuse a
procedural default if: (1) the trial-counsel IAC claim is
“substantial”; (2) the “cause” consists of no counsel or
ineffective post-conviction counsel; (3) the state postconviction proceeding was the “initial” review proceeding for
the IAC claim; and (4) state law requires that a trial-level IAC
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claim be raised in initial post-conviction review. Id. at 14,
17. For a claim to be “substantial,” the petitioner “must
demonstrate that the claim has some merit.” Id. at 14.
In 2013, the Court extended the Martinez exception to
Texas, where, although a defendant may raise IAC on direct
appeal, the court process effectively “denies a meaningful
opportunity to do so.” Trevino v. Thaler, 569 U.S. 413, 429
(2013). The Fourth Circuit has recognized that North Carolina
does not fall neatly within Martinez or Trevino. Fowler v.
Joyner, 753 F.3d 446, 461 (4th Cir. 2014), cert. denied, ____
U.S. ____, 135 S. Ct. 1530 (2015). Under North Carolina law, IAC
claims that are apparent from the cold record must be brought by
the prisoner on direct appeal. See N.C. Gen. Stat. § 15A–
1419(a)(3), (b) (requiring denial of an MAR if “[u]pon a
previous appeal the defendant was in a position to adequately
raise the ground or issue underlying the . . . motion but did
not do so”); State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500,
524 (N.C. 2001) (“IAC claims brought on direct review will be
decided on the merits when the cold record reveals that no
further investigation is required, i.e., claims that may be
developed and argued without such ancillary procedures as the
appointment of investigators or an evidentiary hearing.”). As to
those claims, “the state collateral review proceeding [is not]
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the initial review proceeding in respect to the . . . claim,”
and the Martinez exception to Coleman will not apply.
Fowler,
753 F.3d. at 463 (citation and quotation marks omitted).
Some IAC claims, however, “will fall within the Martinez
exception.” Fowler, 753 F.3d at 463. Those claims are those that
are not apparent from the trial record, which “should be
considered through motions for appropriate relief and not on
direct appeal.” Id. (quoting State v. Stroud, 147 N.C. App. 549,
553, 557 S.E.2d 544, 547 (2001)) (quotation marks omitted); see
also State v. Long, 354 N.C. 534, 540, 557 S.E.2d 89, 93 (2001)
(“Thus, while in some situations a defendant may be required to
raise an IAC claim on direct appeal, a defendant will not be
required to do so in all situations.”). Thus, if a North
Carolina prisoner presents a substantial claim of IAC that
requires evidence beyond the record at trial and was
procedurally defaulted because state post-conviction counsel
failed to raise it in the first MAR proceeding, that prisoner
may show cause and prejudice under the Martinez exception.
III. ANALYSIS
A. Intellectual Disability Claim
Petitioner’s claim that he is intellectually disabled and
that Hall would prohibit his execution is a successive claim,
and this court does not have the jurisdiction to consider it.
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In his habeas petition, Petitioner argued in Ground II that the
state court’s denial of his intellectual disability claim was
contrary to or an unreasonable application of Atkins. (Doc. 8 at
17.) 4 This court denied that claim on the merits. (Doc. 39 at
19-20; Doc. 50 at 3.) Petitioner does not claim that this court
made an error that undermines “the integrity of the federal
habeas proceedings.” Gonzalez, 545 U.S. at 532 (footnote
omitted). Nor has Petitioner made a convincing argument that
this attack on the validity of his sentence somehow gives the
court jurisdiction to consider the claim without permission from
the Fourth Circuit. Id. at 538. Gonzalez makes clear that a
change in law is not “a reason justifying relief” under Rule
60(b):
Virtually every Court of Appeals to consider the
question has held that such a pleading, although
labeled a Rule 60(b) motion, is in substance a
successive habeas petition and should be treated
accordingly.
We think those holdings are correct. A habeas
petitioner’s filing that seeks vindication of such a
claim is, if not in substance a “habeas corpus
application,” at least similar enough that failing to
subject it to the same requirements would be
“inconsistent with” the statute.
4
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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Id. at 531 (citations omitted).
Even were the court willing to use its equitable powers to
set aside Petitioner’s sentence, Petitioner has not shown that
extraordinary circumstances exist to justify that decision. The
Supreme Court did not overrule the settled precedent of Atkins
when it decided Hall; it simply provided further guidance for
state courts to follow when making determinations of
intellectual disability. Furthermore, Hall would not even apply
to Petitioner’s case. 5 Although North Carolina’s intellectual
disability statute is nearly identical to Florida’s, the MAR
court in Petitioner’s case considered extensive evidence of
Petitioner’s claimed intellectual disability. 6 (See Doc. 39 at
17-20; Doc. 75-1.) The state court was willing to conclude that
Petitioner was not intellectually disabled based upon his IQ
scores ranging from 69 to the high 80s, but continued to make
findings regarding Petitioner’s adaptive functioning in each of
the ten areas North Carolina uses as a measure of intellectual
5
Because the court denies this claim as a successive
petition, it will not decide whether Hall retroactively applies
to collateral attacks on a prisoner’s sentence.
6
North Carolina requires a defendant to prove by a
preponderance of the evidence (1) significantly subaverage
general intellectual functioning (defined as an IQ of 70 or
below), (2) significant limitations in adaptive functioning in
two of the ten defined adaptive-functioning areas, and (3) onset
before age 18. N.C. Gen. Stat. § 15A-2005(b).
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and social deficits, finding a significant limitation in only
one. (Doc. 75-1 at 17-20.) In stark contrast to the strict
score-based rule found to be unconstitutional in Hall, this
North Carolina court allowed Petitioner a full attempt to prove
his case, using the medically accepted standards of the time.
Hall does not help the Petitioner.
Because Petitioner presented this claim in his original
habeas corpus petition, it is denied as a second or successive
application for relief. See 28 U.S.C. § 2244(b)(3)(A);
Winestock, 340 F.3d at 205 (“In the absence of pre-filing
authorization, the district court lacks jurisdiction to consider
an application containing abusive or repetitive claims.”).
B.
Ineffective Assistance of Counsel Claims
Similarly, Petitioner’s second claim fails because it is a
second or successive application for relief for which he did not
seek or receive permission from the Fourth Circuit to present to
this court. Petitioner originally submitted IAC claims in his
habeas petitioner under Grounds III, IV, V, VI, VII, and XVI.
(Doc. 8 at 19-55, 73-77.) Petitioner then conceded to the
dismissal of Grounds III, IV, V, VII, and XVI because he had not
exhausted them in state court, and this court rejected Ground VI
on the merits. (See Doc. 78 at 13.) Martinez cannot help
Petitioner because its narrow ruling only addresses cause and
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prejudice to excuse ineffective assistance of trial counsel
claims that were procedurally defaulted through the
unconstitutionally deficient performance of post-conviction
counsel. Petitioner has presented no procedurally defaulted IAC
claims. He therefore has presented no extraordinary
circumstances justifying relief under Rule 60(b), even if the
court were to consider this claim not second or successive.
As second or successive applications for habeas relief,
Petitioner’s IAC claims do not come within the jurisdiction of
the district court. They are thus denied.
IV.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that Petitioner’s
Motion for Relief from Judgment, (Doc. 75), is DENIED.
This the 29th day of May, 2019.
_______________________________________
United States District Judge
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