CEARLEY v. KELLER
Filing
36
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 06/11/2014. ORDERED that Petitioner's Request for Leave to Conduct Discovery (Docket Entry 12 ) is DENIED and Petitioner's Motion for Expedition on the Pleadings (Docket Entry 34 ) is DENIED AS MOOT. FURTHER that the Clerk shall refer Petitioner's Motion for Consolidation of Defenses (Docket Entry 29 ) to the assi gned United States District Judge, as an Objection to the Text Order dated August 1, 2012. RECOMMENDED that Respondent's Motion for Summary Judgment (Docket Entry 5 ) be granted, that Petitioner's Motion for Partial Summary Judgmen t (Docket Entry 15 ) and Motion for Judgment on the Pleadings (Docket Entry 31 ) be denied, that the Petition (Docket Entry 1 ) be denied, and that Judgment be entered dismissing this action without issuance of a certificate of appealability.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JACKIE RAY CEARLEY,
Petitioner,
v.
FRANK L. PERRY,
Respondent.1
)
)
)
)
)
)
)
)
)
1:09CV397
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner of the State of North Carolina, seeks
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Entry 1.)
(Docket
A jury in the Superior Court of Yadkin County found
Petitioner guilty of four counts of assault with a deadly weapon
inflicting serious injury, one count of involuntary manslaughter,
and one count of felony hit and run in cases 03CRS1543-1548,
whereupon the trial court entered judgment sentencing Petitioner to
consecutive prison terms of 23 to 37 months, 25 to 39 months, 23 to
37 months, 27 to 42 months, 19 to 23 months, and 8 to 10 months.
(Id., ¶¶ 1-6; see also Docket Entry 6-3 at 46-51 (jury verdict
forms), 53-64 (judgments).) He pursued but failed to secure relief
on direct appeal.
1
State v. Cearley, No. COA04-1172, 172 N.C. App.
Consistent with Rule 2(a) of the Rules Governing Section 2254 Cases, the
Petition in this case originally named Alvin W. Keller, then-Secretary of the
North Carolina Department of Correction (“NCDOC”), as Respondent. (Docket Entry
1 at 1.) Subsequently, NCDOC “became known as the Division of Adult Correction
. . . within the [North Carolina] Department of Public Safety [(“NCDPS”)]
. . . .” Turner v. Young, No. 1:08CV884, 2013 WL 2403274, at *1 n.1 (M.D.N.C.
May 31, 2013) (unpublished). Frank L. Perry currently serves as Secretary of the
NCDPS. See https://www.ncdps.gov (search for Secretary Frank L. Perry) (last
performed May 30, 2014). By operation of Federal Rule of Civil Procedure 25(d)
(applicable to this proceeding pursuant to Rule 12 of the Rules Governing Section
2254 Cases), Secretary Perry thus now appears as Respondent.
172 (table), 616 S.E.2d 32 (table), 2005 WL 1805026 (Aug. 2, 2005)
(unpublished), review denied, 360 N.C. 68, 622 S.E.2d 111 (2005).
The Superior Court thereafter denied Petitioner’s Motion for
Appropriate Relief (“MAR”) and the North Carolina Court of Appeals
declined review.
(Docket Entry 1, ¶¶ 10, 11; see also Docket
Entries 6-10, 6-11, and 6-12 (MAR and amendments filed by counsel
for Petitioner); Docket Entries 6-13 & 6-14 (order denying MAR (as
amended)); Docket Entry 6-15 (certiorari petition); Docket Entry 617 (order denying certiorari).)
(Docket Entry 1.)
He then instituted this action.
Respondent answered (Docket Entry 4) and moved
for summary judgment (Docket Entry 5).
Petitioner responded
(Docket Entries 10, 11) and later sought leave to conduct discovery
(Docket Entry 12).
He also moved for partial judgment in his favor
and prompt action by the Court.
(Docket Entries 15, 31, 34.)2
For
the reasons that follow, this Court should deny any habeas relief.
I.
FACTUAL BACKGROUND
The North Carolina Court of Appeals summarized the facts
underlying Petitioner’s convictions as follows:
The evidence tends to show that on 1 January 2003,
[Petitioner] struck a vehicle driven by Bobby Taylor
(“Taylor”) at the intersection of U.S. 21 and Rocky
Branch Road. Taylor’s vehicle contained five additional
occupants, Jimmy Yarborough (“Jimmy”), Mary Yarborough
2
Petitioner and/or his sister also filed a number of other motions (Docket
Entries 19, 21, 22, 24, 25), which the Court (per the undersigned United States
Magistrate Judge) struck (Text Order dated Aug. 1, 2012).
Petitioner
subsequently filed a Motion for Consolidation of Defenses (Docket Entry 29),
objecting to the Text Order striking those motions and seeking to revive them via
consolidation with his pending partial summary judgment motion (see id. at 1-2).
Because the Petition fails as a matter of law, no basis exists to reinstate the
stricken motions; however, the Clerk should refer Petitioner’s instant Motion for
Consolidation of Defenses to the assigned United States District Judge for
disposition of the objection(s) to the Text Order in question.
-2-
(“Mary”), Kimberly Yarborough (“Kimberly”), Luke Collins
(“Luke”), and Kathy Taylor (“Kathy”). Kimberly, Luke,
and Kathy were thrown from the vehicle and injured due to
the collision. Jimmy also sustained injuries. Mary was
fatally injured in the collision and died shortly
thereafter.
At trial, Bradley Oliver (“Bradley”) testified that he
and his wife, Angela Oliver (“Angela”), were traveling
approximately three to four car lengths behind Taylor’s
vehicle and witnessed the collision. Bradley testified
that [Petitioner] was traveling at “the speed limit
[i.e., fifty-five miles per hour] or pretty fast”, and
Angela testified [Petitioner] appeared to be traveling
approximately sixty miles per hour.
Both agreed
[Petitioner] did not slow in any way when approaching the
intersection. Following the collision, Angela testified
she observed [Petitioner] run past the bodies lying in
the road and away from the scene of the accident.
[Petitioner] went to a home a few miles from the
intersection, where he requested a ride from Frank
Fleming (“Fleming”), the owner of the home. [Petitioner]
explained to Fleming that he had been in an automobile
accident. Although Fleming did not know [Petitioner], he
agreed to take him to his mother’s home. [Petitioner]
told Fleming he was not the driver of the automobile.
When they approached the collision site, Fleming
testified that [Petitioner] became nervous. As a result,
Fleming pulled over past the collision site and refused
to take [Petitioner] further.
[Petitioner] was then
taken back to the accident scene by Fleming at
[Petitioner’s] request.
Upon returning to the scene, [Petitioner] told the
investigating trooper that he had been riding in the
vehicle which had struck Taylor’s car, but that the
driver was Edward Beamer (“Beamer”). Beamer was charged
with failure to stop at a stop sign, misdemeanor death by
motor vehicle, and felony hit and run. An investigation
revealed that Beamer was in another town at the time of
the collision.
Beamer was not indicted by the grand
jury.
On 5 June 2003, [Petitioner] admitted that he, rather
than Beamer, was the driver of the truck which hit
Taylor’s vehicle. [Petitioner] made a written statement
to police, stating that:
“When I approached the
intersection it was not clearly marked. It seemed as
though I was traveling on a straight highway. I never
seen [sic] the intersection when I approached it.
A
-3-
green Mustang came through the intersection and my truck
struck the Mustang.”
[Petitioner] was indicted on four counts of felonious
assault with a deadly weapon inflicting serious injury,
one count of involuntary manslaughter, and one count of
felony hit and run.
Evidence was offered at trial as to the intersection
where the collision occurred.
Trooper Roger Smock
(“Trooper
Smock”),
a
specialist
in
accident
reconstruction, testified that the site was a four-way
intersection, with U.S. 21, the dominant road, being the
north-south route, and Rocky Branch Road, the servient
road, being the east-west route. The configuration of
the road was changed in 2001, when U.S. 21 was widened
and became the dominant highway. Prior to 2001, Rocky
Branch Road had been a dominant highway with no stop
signs. Trooper Smock stated that the posted speed limit
on Rocky Branch Road was fifty-five miles per hour. A
“stop ahead” sign was located on the shoulder of Rocky
Branch Road, 962 feet prior to the intersection. Trooper
Smock testified that two series of multiple rumble
strips, defined as hard durable raised plastic strips
placed in the roadway to alert a driver “there may be
something ahead to be aware of,” were located on Rocky
Branch Road approaching the intersection. Trooper Smock
further stated that the first set of rumble strips were
located 674 feet before the intersection, and the second
set of fourteen rumble strips were located 457 feet
before the intersection. Finally, a standard sized stop
sign and a second stop sign, “substantially larger in
size and higher in elevation,” were alongside each other
and close to the actual intersection.
Trooper Smock
testified that all of these devices were in place prior
to 1 January 2003.
Cearley, 2005 WL 1805026, at *1-2 (internal brackets and ellipses
omitted).
II.
PETITIONER’S CLAIMS
The Petition identifies three separate grounds for relief.
(Docket
Entry
1,
¶
12.)
Ground
One,
entitled
“Ineffective
Assistance of Trial Counsel,” complains that Petitioner’s trial
counsel:
-4-
1)
“decided
on
a
trial
strategy
of
not
presenting
any
witnesses or evidence . . . , despite the existence of favorable
and exculpatory evidence made known to [him] in the accident
investigation
report
of
State
Trooper
Jerry
Mathis”
(id.,
¶ 12(Ground One)(a));3
2) “fail[ed] to prepare and present evidence, including expert
witness testimony, regarding the inherently dangerous nature of the
intersection where the accident occurred” (id. (Continuation Page
Six));
3) “fail[ed] to procure and call an expert [sic] accident
reconstruction expert to testify regarding the forensic evidence
indicating that the headlights of the vehicle in which the victims
were traveling were turned off at the time of the collision” (id.
(Continuation Page Seven));
4) “fail[ed] to request a jury instruction on the lesser
included offense of misdemeanor assault with a deadly weapon as to
two (2) of the victims” (id. (Continuation Page Eight));
5) “fail[ed] to object to the improper testimony of [Ms.]
Oliver regarding Petitioner’s thoughts or intent while driving his
vehicle at the time of the accident” (id. (Continuation Page Ten));
and
6) “fail[ed] to adequately prepare and present mitigating
evidence at sentencing” (id. (Continuation Page Eleven)).
3
Petitioner inconsistently uses capital and lower-case letters. (See,
e.g., Docket Entry 1, ¶ 12(Ground One)(a).) For ease of reading, this Memorandum
Opinion employs standard capitalization conventions when quoting his filings.
-5-
Ground Two of the Petition, which bears the title “Ineffective
Assistance of Appellate Counsel on Direct Appeal,” presents two
claims:
direct
1) appellate counsel “fail[ed] to raise and argue on
appeal
the
trial
court’s
error
of
sustaining
the
prosecutor’s objection to [Petitioner’s trial] counsel’s question
of Trooper Smock regarding the dangerous nature of the intersection
and whether he was aware of previous accidents” (id., ¶ 12(Ground
Two)(a)); and 2) appellate counsel “fail[ed] to raise and argue the
trial court’s error in overruling Petitioner’s trial counsel’s
objection
to
[Ms.]
Oliver’s
lay
opinion
as
to
the
Petitioner’s vehicle” (id. (Continuation Page Twelve)).
speed
of
Finally,
beneath the title “Conviction Obtained upon Insufficient Evidence,”
the Petition’s Ground Three states:
evidence
presented
to
prove
culpable
“there was insufficient
negligence
to
convict
Petitioner of involuntary manslaughter and the four counts of
assault with a deadly weapon inflicting serious injury.”
(Id.,
¶ 12(Ground Three)(a).)4
III.
HABEAS STANDARDS
The Court “shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of
a State court only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States.”
U.S.C. § 2254(a).
28
Further, “[b]efore [the] [C]ourt may grant
4
To the extent Petitioner’s Brief opposing Respondent’s summary judgment
motion discusses matters omitted from the Petition, he has not properly presented
such matters for adjudication. White v. Keller, No. 1:10CV841, 2013 WL 791008,
at *3 (M.D.N.C. Mar. 4, 2013) (unpublished) (Schroeder, J.) (citing cases).
-6-
habeas relief to a state prisoner, the prisoner must exhaust his
remedies in state court.
In other words, the state prisoner must
give the state courts an opportunity to act on his claims before he
presents those claims to [this] [C]ourt in a habeas petition.
exhaustion
doctrine
§ 2254(b)(1).”
.
.
.
is
now
codified
at
28
The
U.S.C.
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999);
see also 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to
have waived the exhaustion requirement . . . unless the State,
through counsel, expressly waives the requirement.”).
When a petitioner has exhausted state remedies, this Court
must apply a highly deferential standard of review in connection
with habeas claims “adjudicated on the merits in State court
proceedings,” 28 U.S.C. § 2254(d).
More specifically, the Court
may not grant relief unless a state court decision on the merits
“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.”
Id.
To qualify as “contrary to”
United States Supreme Court precedent, a state court decision
either must arrive at “a conclusion opposite to that reached by
[the
United
States
Supreme]
Court
on
a
question
of
law”
or
“confront[] facts that are materially indistinguishable from a
relevant [United States] Supreme Court precedent and arrive[] at a
result opposite” to the United States Supreme Court.
Williams v.
Taylor, 529 U.S. 362, 406 (2000). A state court decision “involves
-7-
an unreasonable application” of United States Supreme Court case
law “if the state court identifies the correct governing legal rule
from [the United States Supreme] Court’s cases but unreasonably
applies it to the facts of the particular state prisoner’s case.”
Id. at 407; see also id. at 409–11 (explaining that “unreasonable”
does not mean merely “incorrect” or “erroneous”). Finally, this
Court must presume state court findings of fact correct unless
clear and convincing evidence rebuts them. 28 U.S.C. § 2254(e)(1).
IV.
A.
DISCUSSION
Ineffective Assistance of Trial Counsel
When assessing Petitioner’s first ground for relief, the Court
first should take note that:
In order to establish an ineffective assistance of
counsel claim . . ., [a petitioner must] establish that
his “counsel’s representation fell below an objective
standard of reasonableness,” measured by the “prevailing
professional norms,” [Strickland v. Washington, 466 U.S.
668, 688 (1984)], and “that there is a reasonable
probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different,” id. at 694. “Unless a [petitioner] makes both
showings, it cannot be said that the conviction or . . .
sentence resulted from a breakdown in the adversary
process that renders the result unreliable.” Id. at 687.
In determining whether counsel’s performance was
deficient, “[i]t is all too tempting for a [petitioner]
to second guess counsel’s assistance after conviction or
adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable.”
Id. at 689.
Hence, “court[s] must indulge a strong presumption that
counsel’s conduct falls within the wide range of
reasonable professional assistance . . . [and] that,
under the circumstances, the challenged action might be
considered sound trial strategy.”
Id. (internal
quotation marks omitted).
-8-
Similarly, in evaluating whether [a petitioner] has shown
actual prejudice from any such deficient performance, it
is insufficient for the [petitioner] “to show that the
errors had some conceivable effect on the outcome of the
proceeding,” because “[v]irtually every act or omission
of counsel would meet that test.” Id. at 693. Rather,
a “reasonable probability” that the result would have
been different requires “a probability sufficient to
undermine confidence in the outcome.” Id. at 694. When
challenging a conviction, “the question is whether there
is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting
guilt.” Id. at 695.
Fisher v. Lee, 215 F.3d 438, 446-47 (4th Cir. 2000) (internal
parallel citations omitted).
“Surmounting
task. . . .
Strickland’s
high
bar
is
never
an
easy
Even under de novo review, the standard for judging
counsel’s representation is a most deferential one.” Harrington v.
Richter, ___ U.S. ___, ___, 131 S. Ct. 770, 788 (2011) (internal
quotation marks omitted).
Moreover, “[w]here the issue is whether
the state court has unreasonably applied Strickland standards to a
claim of ineffective assistance of counsel, . . . double deference
is
required
.
.
.
.”
Lavandera–Hernandez
v.
Terrell,
No.
1:12–cv–553, 2013 WL 1314721, at *4 (M.D.N.C. Mar. 28, 2013)
(Schroeder, J.) (unpublished) (internal quotation marks omitted),
appeal dismissed, 539 F. App’x 159 (4th Cir. 2013); see also
Harrington, ___ U.S. at ___, 131 S. Ct. at 788 (“The standards
created by Strickland and § 2254(d) are both highly deferential and
when the two apply in tandem, review is doubly so.” (internal
citations and quotation marks omitted)).
Accordingly, when the
Court’s examination of an ineffective assistance claim proceeds
under Section 2254(d), “[t]he question is whether there is any
-9-
reasonable argument that counsel satisfied Strickland’s deferential
standard.”
Harrington, ___ U.S. at ___, 131 S. Ct. at 788; see
also Cullen v. Pinholster, ___ U.S. ___, ___, 131 S. Ct. 1388, 1398
(2011) (observing that Section 2254(d) imposes “a difficult to meet
and
highly
deferential
standard
.
.
.,
which
demands
that
state-court decisions be given the benefit of the doubt . . . [and
that a] petitioner carries the burden of proof” (internal citations
and quotation marks omitted)).
In other words, “under the dual,
overlapping lenses of [Section 2254(d)] and Strickland [the Court
must] ask[] the following question:
Was the MAR court’s holding
incorrect to a degree that its conclusion was so lacking in
justification that it was an error well understood and comprehended
in
existing
law
disagreement?”
beyond
any
possibility
for
fairminded
Moore v. Hardee, 723 F.3d 488, 496 (4th Cir. 2013)
(internal brackets, ellipses, and quotation marks omitted).
1.
Failure to Call Trooper Mathis
Ground One of the Petition first alleges that trial counsel
provided ineffective assistance by not calling Trooper Mathis “as
a witness in the trial to testify regarding his observations and
investigation of the accident and other testimony which would have
been helpful to the defense . . . .”
One)(a) (Continuation Page Five).)
(Docket Entry 1, ¶ 12(Ground
In that regard, the Petition
focuses on what it describes as Trooper Mathis’s “testimony at
Petitioner’s
hearing
on
his
[MAR]
that
this accident
was
no
different than any other accident where a motorist had overrun an
intersection, that there had been numerous accidents at this
-10-
intersection prior to Petitioner’s accident, that [Trooper Mathis]
and other troopers in the county had had discussions of the
dangerousness of this intersection and that they were of the belief
that it was only a matter of time before someone would get killed
at this intersection.” (Id.) Trooper Mathis “investigate[d] [the]
accident scene . . . involving [Petitioner] on January 1, 2003[.]”
(MAR Hrg. Tr. 176.)5
Craig
Caudill,
investigators,
In Spring 2003, Trooper Smock and Trooper
specially-trained
received
assignment
information from Trooper Mathis.
accident
to
the
case
reconstruction
and
obtained
(Trial Tr. I 31-32, 57-58, 60,
78-79, 82; Trial Tr. II 25-26, 28, 41-42; MAR Hrg. Tr. 182-83, 190,
192, 196-98, 202.)
Trooper Mathis retired on June 30, 2003 (MAR
Hrg. Tr. 179) and did not testify at Petitioner’s trial (MAR Hrg.
Tr. 183; see also Trial Tr. I 2; Trial Tr. II 2; Trial Tr. III 2).
At the MAR hearing, Trooper Mathis testified he interacted
with Petitioner at the accident scene for “a good 15, 20 minutes,
at least” and formed the opinion that Petitioner “had not in any
form or fashion touched alcohol, any kind of drugs that [he] could
tell.”
(MAR Hrg. Tr. 177.)
Trooper Mathis further averred “that
there was not a great amount of speed involved in this collision.
This was no different than numerous other accidents [he] had
investigated through the years of a -- what you would call sliding
5
Respondent “manually filed the three-volume transcript of Petitioner[’s]
state-court criminal proceeding and the three-volume transcript of [his]
state-court [MAR] evidentiary hearing.” (Docket Entry 7 at 1.) Although the
transcript of the MAR hearing appears in three volumes, its pagination continues
uninterrupted from the first volume through the third volume; however, each
volume of the trial transcript bears independent pagination.
Accordingly,
citations to the latter refer to a volume, but citations to the former do not.
-11-
through an intersection and T-boning someone when they went by.”
(MAR Hrg. Tr. 180.)
Finally, when asked if he knew “about other
accidents at this intersection,” Trooper Mathis responded: “I knew
we had had numerous accidents prior to this accident, and we had
even talked, as troopers in the county, that we knew it was just
going to be a matter of time, somebody was going to get killed in
this intersection.”
(Id.; see also MAR Hrg. Tr. 181 (“Q. How many
other accidents were you aware of?
A. At least three or four.”).)
Respondent argues that this claim fails due to procedural bar
because Petitioner did not raise it in his MAR (as amended) and
state law would preclude him from doing so at this juncture.
(Docket Entry 6 at 9-10.)
A careful review of the argument
portions of Petitioner’s MAR and amendments thereto confirms that
he did not fairly present to the state court an ineffective
assistance claim predicated on trial counsel’s failure to call
Trooper Mathis as a witness.
(See Docket Entry 6-10 at 21-46;
Docket Entry 6-11 at 2-5; Docket Entry 6-12 at 2-3.)
Nor do the
legal conclusions set forth in the order denying the MAR (as
amended) indicate that the MAR court deemed Petitioner to have
articulated such a claim.
(See Docket Entry 6-14 at 1-45.)6
Under these circumstances, a procedural bar applies to this
particular ineffective assistance of counsel claim.
See Rose v.
6
Petitioner’s Response to Respondent’s summary judgment motion asserts
that the MAR court “ruled upon this claim in its order denying Petitioner’s MAR,
at page 54-58.” (Docket Entry 10 at 2.) Examination of those pages of that
order reveals that the MAR court therein addressed Petitioner’s claim that trial
counsel provided ineffective assistance by failing to call an expert witness like
Don Moore, P.E., not any claim that trial counsel should have called Trooper
Mathis to solicit the cited testimony. (See Docket Entry 6-14 at 1-5.)
-12-
Lee, 252 F.3d 676, 683 (4th Cir. 2001) (discussing mandatory nature
of procedural bar under N.C. Gen. Stat. § 15A–1419, which applies
to collateral claims regarding matters the petitioner could have
raised previously); Breard v. Pruett, 134 F.3d 615, 619 (4th Cir.
1998) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991),
for proposition that “procedural default also occurs when a habeas
petitioner fails to exhaust available state remedies and ‘the court
to which the petitioner would be required to present his claims in
order to meet the exhaustion requirement would now find the claims
procedurally
barred’”).
In
light
of
that
procedural
bar,
Petitioner must demonstrate either that cause for and prejudice
from his procedural default exists or that the refusal to address
the defaulted claim will result in a miscarriage of justice.
Longworth
v.
Ozmint,
377
F.3d
437,
447–48
(4th
Cir.
2004).
Petitioner has made no argument on these points (see Docket Entry
10 at 1-3; Docket Entry 11 at 3-16) and no basis adequate to excuse
his default appears evident in the record.
Accordingly, the Court
should rule this claim procedurally barred.
2.
Failure to Present Evidence of Intersection’s Dangerousness
The second ineffective assistance claim included in Ground One
alleges that “trial counsel . . . fail[ed] to prepare and present
evidence,
including
expert
witness
testimony,
regarding
the
inherently dangerous nature of the intersection where the accident
occurred
.
.
.
.”
(Docket
Entry
-13-
1,
¶
12(Ground
One)(a)
(Continuation Page Six).)7
Notwithstanding the general reference
to “expert witness testimony” in the description of this claim, the
related “Supporting Facts” section makes no reference to any expert
witness testimony Petitioner’s trial counsel purportedly should
have presented about any dangers posed by the intersection.
id. (Continuation Pages Six and Seven).)
(See
Instead, in terms of
specifics, this claim identifies only the failure of trial counsel
to gather documentation “pertaining to the number of accidents that
had previously occurred at the intersection” and the fact that
trial counsel “spoke with local sheriff’s deputies and highway
patrolmen about the dangerousness of the intersection, but . . .
did not call any witnesses or put on any evidence at trial as to
the high number of accidents at that particular intersection
[because] he would lose his right to have the last argument to the
jury and he considered that important.”
(Id. (emphasis added).)
Given these considerations, any portion of the instant claim
that asserts trial counsel provided ineffective assistance by
failing
to
gather
and
to
present
evidence
(including
expert
testimony) about the subject intersection other than as to the
number of accidents there fails as entirely conclusory. See, e.g.,
Powell v. Shanahan, No. 3:13CV496FDW, 2014 WL 1464397, at *8
(W.D.N.C. Apr. 15, 2014) (unpublished) (“[T]o the extent [the]
7
Petitioner’s filings in opposition to Respondent’s summary judgment
motion do not defend the viability of this claim. (See Docket Entries 10, 11.)
However, “in considering a motion for summary judgment, the [Court] ‘must review
the motion, even if unopposed, and determine from what it has before it whether
the moving party is entitled to summary judgment as a matter of law.’” Robinson
v. Wix Filtration Corp. LLC, 599 F.3d 403, 409 n.8 (4th Cir. 2010) (quoting
Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993)).
-14-
[p]etitioner bases his ineffective assistance of counsel claim on
his attorney’s alleged failure to investigate, [he] has presented
.
.
.
unsupported
and
conclusory
allegations,
which
are
insufficient to warrant either an evidentiary hearing or habeas
relief.” (citing Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir.
1992))); Talbert v. Clarke, No. 2:13CV199, 2014 WL 644393, at *16
(E.D. Va. Feb. 18, 2014) (unpublished) (“The petition fails to
comply with the requirement of Rule 2(c) of the Rules Governing
Section 2254 Cases in District Courts that the [p]etitioner ‘state
the facts supporting each ground.’
Rule 2(c) is more demanding
than the notice pleading requirement of Fed. R. Civ. P. 8(a).
Mayle
v.
Felix,
545
U.S.
644,
655
(2005).
‘[I]n
order
to
substantially comply with the Section 2254 Rule 2(c), a petitioner
must state specific, particularized facts which entitle him or her
to habeas corpus relief for each ground specified.
These facts
must consist of sufficient detail to enable the court to determine,
from the face of the petition alone, whether the petition merits
further habeas corpus review.’
Bullard v. Chavis, 153 F.3d 719,
1998 WL 480727, *2 (4th Cir. Aug. 6, 1998) (unpublished table
decision) (quoting Adams v. Armontrout, 897 F.2d 332, 333 (8th Cir.
1990)).”); Rice v. Cooper, No. 3:12CV7RJC, 2012 WL 4321320, at *10
(W.D.N.C. Sept. 20, 2012) (unpublished) (“In Ground 6, [the]
[p]etitioner contends that his trial attorney did not want to spend
limited
state
resources
to
hire
an
expert
to
testify
scientific evidence that would clear [him] . . . .
entitled to relief on Ground 6.
-15-
about
[He] is not
First, Ground 6 is wholly
conclusory and unsupported.
That is, [the] [p]etitioner does not
explain what evidence an expert would have testified about that
would have exculpated [him] . . . .” (internal brackets and
quotation marks omitted) (citing Nickerson, 971 F.2d at 1136)).8
To the extent the instant claim asserts that trial counsel
provided ineffective assistance by failing to secure records and/or
to offer witness testimony about the number of accidents at the
subject intersection, it does not suffer from the same degree of
vagueness that defeated the remainder of the claim, but still falls
short as a matter of law.
First, the Petition does not allege what
any admissible records might show (or what any witness competently
might say) about the number of accidents at the intersection. (See
Docket Entry 1, ¶ 12(Ground One)(a) (Continuation Pages Six and
Seven).)
Second, the Petition does not allege what competent
testimony a witness (presumably an expert) could have offered as to
what
any
particular
number
intersection’s dangerousness.
of
accidents
(See id.)
proved
about
the
Third, Petitioner’s
filings in response to Respondent’s summary judgment motion do not
address these issues.
(See Docket Entries 10, 11.)9
8
Because (other than referring to accident numbers) this claim does not
specify what evidence trial counsel should have obtained and introduced regarding
the intersection, the Court reasonably could not determine whether Petitioner
properly exhausted any other aspect of this claim. In other words, if the Court
cannot tell exactly what claim Petitioner now purports to assert, the Court
cannot determine if he fairly presented it to the state courts. Fortunately, the
Court need not try, as “[a]n application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2).
9
As noted in the prior subsection, in connection with a different
allegation of ineffective assistance, the Petition does refer to the testimony
by Trooper Mathis at Petitioner’s MAR hearing that he had some form of knowledge
(continued...)
-16-
Those defects preclude habeas relief in this context, as nowretired United States Magistrate Judge P. Trevor Sharp wellexplained when faced with a like situation:
[The] [p]etitioner claims also that trial counsel failed
to have the decedent’s pockets and hands checked for
powder residue . . . and failed to employ a crime-scene
expert. . . .
[The] [p]etitioner has failed to show
. . . how he was prejudiced by the alleged failure of
counsel; that is, he has failed to show what materially
helpful evidence or testimony would have been uncovered
had trial counsel taken the actions [the] [p]etitioner
now says they should have. Accordingly, all of [his]
claims of ineffective assistance of trial counsel are
conclusory and speculative and do not support a claim for
relief . . . .
Broadnax v. Bullock, No. 1:06CV696, 2008 WL 762255, at *9 (M.D.N.C.
Mar. 19, 2008) (unpublished) (citing Nickerson, 971 F.2d at 1136);
see also Davis v. Clarke, No. 3:13CV119, 2014 WL 693536, at *4
(E.D. Va. Feb. 21, 2014) (unpublished) (“Where a petitioner faults
counsel for not calling a witness, the petitioner must provide
‘concrete evidence of what the witness would have testified to in
exculpation,’ so that the reviewing court can adequately assess the
significance of the decision not to call the witness.” (internal
brackets omitted) (quoting United States v. Terry, 366 F.3d 312,
9
(...continued)
of “three or four” accidents at the subject intersection, but that testimony
neither identifies any basis for such knowledge nor a foundation for any
characterization of that number as “high.” (See MAR Hrg. Tr. 180-81.) Moreover,
at the MAR hearing, Petitioner’s expert acknowledged he had no accurate
accounting of accidents at the intersection. (MAR Hrg. Tr. 330-31.) Further,
when asked if he “form[ed] an opinion as to whether or not this intersection was
dangerous,” said expert stated: “[A]ll intersections are dangerous. . . . [T]here
may be some that are -- are more hazardous than others. This one, I think, has
the potential, but -- to be more hazardous. But to do an actual analysis, I
would need some information that was discussed yesterday.” (MAR Hrg. Tr. 293.)
Accordingly, even going beyond Petitioner’s filings in this Court and looking at
the entire post-conviction record, he has failed to make any showing as to the
number of accidents that occurred at the intersection or what, if any, particular
number would permit a reasonable inference of dangerousness.
-17-
316 (4th Cir. 2004))).
The Court similarly should grant summary
judgment for Respondent on Petitioner’s instant claim.10
3.
For
Failure to Offer Expert Testimony on Headlights
its
third
ineffectiveness
claim,
Ground
One
of
the
Petition relies on the allegation that trial counsel “fail[ed] to
procure and call an expert [sic] accident reconstruction expert to
testify
regarding
the
forensic
evidence
indicating
that
the
headlights of the vehicle in which the victims were traveling were
turned off at the time of the collision.”
(Docket Entry 1,
¶ 12(Ground One)(a) (Continuation Page Seven).)
As support for
said claim, the Petition declares:
Prior to trial Petitioner told [trial] counsel that he
did not believe that at the time of collision that the
[victims’ vehicle] had its headlights on.
The state
highway patrol’s lamp examination of the right rear taillight bulb of [the victims’ vehicle] revealed cold shock.
Cold shock is indicative of a bulb filament that was not
incandescent at the time of impact. In lay terms, cold
shock indicates that at the time of the accident the
tail-light was not burning, which would also indicate
that the headlights were not burning at the time of
impact. Counsel failed to procure and call an accident
reconstruction expert to testify regarding these facts.
(Id. (Continuation Pages Seven-Eight) (emphasis added).)
The accident reconstruction report prepared by Troopers Smock
and Caudill (attached by Petitioner to his Response to Respondent’s
summary judgment motion) states that “[t]he right tail lamp lenses
[of the victims’ vehicle] were missing.
10
A lamp examination of the
A close reading of the argument portions of Petitioner’s MAR (as
amended) indicates he did not fairly present a claim that trial counsel gave
ineffective assistance by failing to gather or to offer evidence regarding the
number of accidents at the intersection. (See Docket Entry 6-10 at 21-46; Docket
Entry 6-11 at 2-5; Docket Entry 6-12 at 2-3.) The Court, however, may deny this
claim on the merits despite that lack of exhaustion. See 28 U.S.C. § 2254(b)(2).
-18-
right rear taillight bulb displayed ‘cold shock,’ indicative of a
filament that was not incandescent. The right brake light bulb was
missing.”
(Docket
Entry
10-1
at
22
(emphasis
added).)
At
Petitioner’s trial, Trooper Smock testified on direct that said
report reflected the following as to the victims’ vehicle:
The right tail lamp lenses were missing, and I did a lamp
examination of the bulb within that tail lamp assembly,
and during my examination, I concluded that the bulb
filament had experienced ‘cold shock.’ That indicates
there was no heat to that element at the time that it
experienced a shock or a force strong enough to displace
the element within the bulb from its mount.
(Trial Tr. I 51 (emphasis added).)
Later, during Trooper Smock’s
redirect examination, this colloquy occurred:
Q.
Now, with regards to your brake lights on page 22
[of] the accident reconstruction report], you talk a
little about the cold shock indicative of a filament that
was not incandescent. What are you trying to say there,
Trooper Smock, with regards to the brake lights at the
time of the accident?
A.
It indicates that the –- it was not hot –- cold
shock, and a filament inside a light bulb or a standard
incandescent light bulb or a bulb in a vehicle has
tungsten which is coiled and then comes to the electrode
and if it is hot and experiences a movement lateral or
vertical it will be stretched because it is hot and
pliable. When it is cold, there is no heat to it, and it
is more of a breaking-type action so it will remain
coiled evenly and break off the electrodes.
Q.
So in other words, is that a way of saying at the
time of the accident, the driver of the [victims’
vehicle] did not have his brakes on?
A.
Yes, sir.
Q.
But it doesn’t say anything about the headlights?
A.
No, sir.
(Trial Tr. I 85-86 (emphasis added).)
-19-
In his MAR, Petitioner asserted that “[t]here [wa]s new
evidence . . . that would have had a direct and material bearing on
the issue of whether [Petitioner] was guilty of culpable negligence
. . . , which [Petitioner’s] trial counsel negligently failed to
procure and present at the trial [as shown] in the attached
affidavit of Don Moore, P.E., an expert in accident reconstruction
and analysis. . . .”
(“The
primary
issue
(Docket Entry 6-10 at 23; see also id. at 21
in
the
trial
of
this
case
was
whether
[Petitioner’s] conduct in driving his vehicle on the night in
question rose to the level of ‘culpable negligence,’ such that he
could
be
properly
convicted
of
the
charges
of
involuntary
manslaughter and assault with a deadly weapon inflicting serious
injury.”).)
According to the MAR, “Mr. Moore’s affidavit[] proves
that [Petitioner] could have been keeping a proper lookout for
approaching vehicles and still would not have been able to see the
[victims’ vehicle] because . . . the credible scientific evidence
indicates that the headlights of [the victims’ vehicle] were ‘off’
as it approached the intersection and at the time of impact with
[Petitioner’s] truck[.]”
(Id. at 26.)
More specifically, the MAR states:
As Mr. Moore indicates in his affidavit, “the trial
testimony of Trooper Smock which indicated that the
analysis of the bulb and the finding of ‘cold shock’
merely indicated that the brakes were not being applied
at the time of the collision is, in my opinion,
incorrect.” Mr. Moore goes on to state in his affidavit
that, based on his review of [the] Highway Patrol
reconstruction report [by Troopers Smock and Caudill],
the headlights of the [victims’ vehicle] were not on at
the time of the collision[.]
-20-
(Id. at 27 (internal brackets and citation omitted) (emphasis
added).) Finally, the MAR asserts that such “evidence, as shown in
Mr. Moore’s affidavit, could have been procured by [Petitioner’s]
trial counsel through the exercise of reasonable diligence. . . .
[T]rial counsel was ineffective in failing to investigate, procure
and present the foregoing pivotal evidence.”
(Id. at 28-29.)
At the MAR hearing, the following exchange occurred between
Petitioner’s MAR counsel and Trooper Smock:
Q.
And did you examine the back lights, the lights that
were on the back of the [victims’ vehicle]?
A.
Yes, sir.
Q.
At least one of them?
A.
I did.
. . . .
Q.
You did an examination of the bulb in the back of
the car; right?
A.
I did.
. . . .
Q.
An examination to see if it had cold shock or hot
shock; correct, of some bulb in the back of the car?
A.
Exactly.
. . . .
Q.
What are you trying to find out, sir, when you do an
examination -- which is by the words you used -examination of the bulb? What are you examining it for
and what is it supposed to tell you? What are you trying
to find out?
A.
If the light was on or off.
Q.
And why is that relevant to your investigation here?
-21-
A.
Whether or not the lights were working on the
vehicle.
. . . .
Q.
Why is the hot shock or cold shock relevant to your
investigation?
A.
It really wasn’t at this point.
I had already
spoken with Ms. Oliver [an eye-witness to the collision
and] Mr. Taylor [the driver of the victims’ vehicle], and
knew that the lights were on. That’s -Q.
Well, then why did you need to do a physical
examination if you are just going to take their word for
it?
A.
Examining a vehicle just as I would the scene or
talk to a potential witness. I mean, it’s just a part of
the investigative process.
Q.
To find out if the physical evidence supports what
the witnesses have said? Isn’t that part of what you do?
A.
Yes, sir.
. . . .
Q.
Well, Mr. Taylor said that he had -- he was riding
with his headlights on -A.
Yes, sir.
Q.
–- at the time of impact, and he cut them off
afterwards; correct?
A.
He did.
Q.
Okay. But your physical findings -- your physical
examination of the vehicle that he was driving . . .
indicated that his headlights were actually off at the
time of the collision, didn’t it?
A.
It did not.
No, sir.
Q.
Well, it indicated cold shock, didn’t it?
A.
It indicated that the two bulbs that I examined that
remained -- that survived the crash indicated cold shock.
Those two bulbs weren’t tied in or related to -- and the
headlight operation.
-22-
. . . .
Q.
Okay. So you would agree . . . that the taillights
and the headlights are connected? When the switch goes
on, they both come on? You cut the headlights on, the
taillights are going to come on?
A.
Yes, sir.
Q.
And if the taillights are off, then the headlights
are going to be off; correct?
A.
Yes, sir.
Q.
And cold shock, isn’t it true, indicates that a
light -- a bulb is not on, to use laymen’s terms;
correct?
A.
Yes. Very, very laymen terms . . . .
Laymen’s terms, yes.
That’s good.
Q.
I mean, if you would rather use other terms, go
ahead. I’m just trying to make -A.
No, because . . . I noticed earlier when we were
talking about this that I had . . . [u]sed some laymen’s
terms that were -Q.
Well, I’ll get to that, your report.
just asking questions right now.
I mean, I’m
THE COURT: You may finish your answer if you
feel like you need to.
A.
Yeah, I had noticed earlier that I had used laymen’s
terms that misrepresented the type of light I was -- had
found the cold shock in. The cold shock actually came in
the back-up lamp and the turn lamp because this is a turn
lamp turning -- of taillight assembly with a number of
bulbs in it that do a number of different functions. The
two that survived, as I noted and have in my notes from
the examination that day -Q.
So now you are saying --
A.
The two bulbs that survived --
Q.
Sorry.
Go ahead.
A.
-- experienced cold shock, and I noted that in my
notes but mislabeled it here in an effort to keep from
-23-
going down a road that I knew wouldn’t be -- would get
very technical. If lighting was an issue, we would do a
special topic.
Q.
Well, let’s get technical for a minute. Okay? Can
we do that? Technical about the taillight assembly?
A.
Yes, sir.
Q.
Okay.
So there is - - there is a dual filament
bulb, correct, that contains the brake light and a
running lamp; correct?
A.
Correct, and --
Q.
That’s contained in one bulb --
A.
Yes.
Q.
. . . .
A.
Correct.
Q.
And that’s one bulb, single filament; correct?
A.
Single filament.
Then there is a side-marker lamp; correct?
Q.
And then there is a reverse, back-up light, which is
one single filament bulb?
A.
Yes, sir.
Q.
Okay.
correct?
A.
And
then
there
is
a
turn
signal
bulb;
It’s an amber bulb with a single filament, yes, sir.
. . . .
Q.
. . . . [Y]ou are saying now that you didn’t -even though you said in your report that it was a
taillight, you’re now saying it was a back-up light?
A.
It was the back-up light and the turn light -- turn
signal lamp.
Q.
What does your report say that you analyzed that
found cold shock?
A.
On Page 22 of my report, . . . [a] lamp examination
of the right rear taillight bulb displayed cold shock,
-24-
indicative of a filament that was not incandescent.
right brake light bulb was missing.
The
. . . .
Q.
Well, let me ask you this.
The brake light was
missing, wasn’t it? The brake lamp was missing?
A.
It was destroyed.
destroyed.
Yeah, the socket for it was
Q.
So you did not analyze that in any way, shape, or
form, did you, for cold shock?
A.
No, I did not.
Q.
Okay
A.
I couldn’t.
It wasn’t there.
Q.
It wasn’t there? It was missing; right? So why is
it that at the trial you told the jury that you did
analyze the brake light and that the only reason that it
indicated cold shock is because the brakes weren’t being
applied?
Why did you tell the jury that at
[Petitioner’s] trial if you, in fact, analyzed the
reverse light now, as you say?
A.
Well, I did analyze the reverse light.
Q.
Okay.
A.
I did make a statement at trial that I analyzed the
bulbs in that tail lamp assembly referring to the bulbs
that survived the impact.
Q.
Isn’t it true that you led this jury to believe, in
answer to [the prosecutor’s] questions to you, that you
had analyzed a brake light and that the only reason that
it was cold shock had nothing to do with the headlights
but only because the brakes weren’t being applied?
Didn’t you testify under oath in front of the jury to
that effect?
A.
[The prosecutor] characterized in redirect to me
that - - and called it a brake light. And just before
that he was asking about cold shock. And rather than - I really felt at that time that his focus was on, what
does cold shock mean? We had just spoken about it. A
few minutes later - - 10, 20 minutes later we come back
to it as an explanation. That was my focus. I erred in
-25-
not correcting him to say the brake light wasn’t able to
be examined, with my focus being he wanted a more clear
explanation of what cold shock really is, and I gave a
three- or four-sentence description of what cold shock is
and erred without correcting him that there wasn’t a
brake light, as I just said earlier on Page 22, that the
brake lamp was missing because it was destroyed, and
there are pictures to support that.
. . . .
Q.
So your examination of the tail lamp had nothing to
do with the brakes; is that correct?
A.
Had nothing to do with the brakes?
Q.
The brakes.
A.
Yes, sir.
Correct. . . .
Q.
But . . . [y]ou’re saying now that you analyzed -examined the back-up lamp, which is only on when you’re
in reverse; correct?
A.
Should be, correct.
Q.
And the turn signal, which is only on when you have
got the turn indicator on; correct?
A.
Correct.
(MAR Hrg. Tr. 210-23 (emphasis added).)
Subsequently,
on
cross-examination,
Trooper
Smock
demonstrated, using a photograph from his accident reconstruction
report, that (consistent with his above-quoted MAR hearing, direct
examination testimony) the bulbs that survived and that he examined
from the right rear of the victims’ vehicle belonged to the reverse
light and the turn-signal (which he considered taillights, but
which did not have a connection to the headlights).
233-40.)
(MAR Hrg. Tr.
After witnessing Trooper Smock’s MAR hearing testimony,
Mr. Moore (Petitioner’s expert) acknowledged that the opinion he
-26-
had offered previously (on which Petitioner’s MAR relied (see
Docket Entry 6-10 at 26)), i.e., that Trooper Smock’s “cold shock”
findings indicated the victims’ vehicle had its headlights off at
the time of the collision, arose from an incorrect assumption about
which bulb(s) Trooper Smock actually scrutinized.
Tr. 344-50.)
(See MAR Hrg.
Moreover, Mr. Moore agreed that “the bulbs [Trooper
Smock] [wa]s looking at is [sic] not bulbs that are going to tell
you whether the headlights are on or off.
relationship to the headlights.”
The
MAR
court
thereafter
They have no -- no
(MAR Hrg. Tr. 348.)
denied,
pursuant
to
both
the
performance and prejudice prongs of Strickland, Petitioner’s abovereferenced
claim
that
his
trial
counsel
provided
ineffective
assistance by failing to call an expert to testify about whether
evidence gathered by Trooper Smock indicated the headlights of the
victims’ vehicle lacked illumination at the time of the collision
with Petitioner’s truck.
(See Docket Entry 6-14 at 4-5, 9-10.)
Because the MAR court adjudicated that claim on the merits, Section
2254(d)’s “highly deferential standard” governs this Court’s review
of Petitioner’s instant parallel claim.
131 S. Ct. at 1398.
Cullen, ___ U.S. at ___,
Accordingly, in this context, “[t]he pivotal
question is whether the state court’s application of the Strickland
standard was unreasonable.”
Ct. at 786.
Harrington, ___ U.S. at ___, 131 S.
Petitioner has not made that showing.
As an initial matter, in scrutinizing the MAR court’s ruling
regarding trial counsel’s decision not to present expert testimony
on this subject, the Court “must indulge a strong presumption that,
-27-
under the circumstances, the challenged action might be considered
sound trial strategy.
The difficulty of overcoming that general
presumption is even greater in this case, given that the decision
whether to call a defense witness is a strategic decision demanding
the
assessment
and
balancing
of
perceived
benefits
against
perceived risks, and one to which [the Court] must afford enormous
deference.”
Terry, 366 F.3d at 317 (internal citation, ellipses,
and quotation marks omitted) (emphasis added); see also Cox v.
United States, Nos. 3:05CR74, 3:08CV201, 2011 WL 3322590, at *6
(W.D.N.C. Aug. 2, 2011) (unpublished) (“The decision whether to
call any witnesses on behalf of the defendant . . . is a tactical
decision of the sort engaged in by defense attorneys in almost
every trial. Such decisions also are entitled to great deference.”
(internal citation and quotation marks omitted)). Pertinent to the
weighing of the pros and cons of offering evidence, North Carolina
law “confers upon the defendant in a criminal trial the right to
both open and close the final arguments to the jury, provided that
no evidence is introduced by the defendant.
deemed to be critically important . . . .”
This right has been
State v. English, 194
N.C. App. 314, 317, 669 S.E.2d 869, 871 (2008) (internal brackets,
citation, and quotation marks omitted) (emphasis added).
Here, based on the testimony of Petitioner’s trial counsel,
the MAR court found as a fact that said trial counsel “believed it
was important to have the last argument to the jury . . . and did
not put on any evidence because he thought his best chance in
winning the case was to have the last argument to the jury and
-28-
argue that [Petitioner’s] actions on January 1, 2003 did not amount
to a finding of culpable negligence.”
(Docket Entry 6-13 at 32.)
“Absent clear and convincing evidence to the contrary, a claim that
counsel’s
decision
disturbed.”
was
premised
on
trial
strategy
cannot
be
Hill v. Hershberger, Civil Action No. PJM-12-2386,
2013 WL 3364374, at *6 (D. Md. July 2, 2013) (unpublished); see
also 28 U.S.C. § 2254(e)(1) (requiring federal habeas courts to
presume state court factual findings correct absent clear and
convincing contrary evidence).
Petitioner has identified no, much
less clear and convincing, evidence to rebut trial counsel’s
testimony and the MAR court’s factual finding on this point.
(See
Docket Entry 1, ¶ 12(Ground One)(a) (Continuation Pages Seven and
Eight); Docket Entry 10 at 3-4; Docket Entry 11 at 17-25.)
The record also reflects (without contradiction and as found
by the MAR court) that Petitioner’s trial counsel made the decision
in question:
1) after “he thought carefully about whether or not
he needed to hire an expert witness to testify concerning the
accident” (Docket Entry 6-13 at 31; see also Docket Entry 6-14 at
4 (“conclud[ing] [trial counsel] made a thorough investigation of
the need to call an expert witness” and citing record support));
and 2) based on more than 40 years of trial experience in North
Carolina, during which he earned “an ‘A’ rating with MartindaleHubbell,” while trying “approximately two murder cases a year since
practicing law and approximately one to two jury trials a month
involving
other
criminal
cases”
(Docket
Entry
6-13
at
33).
Finally, the MAR court concluded Petitioner “agreed with [his trial
-29-
counsel’s] decision not to put forth any evidence . . . [given
Petitioner’s] sworn declarations to the trial court that he did not
wish to testify and also did not wish to call any witnesses at his
trial.”
(Docket Entry 6-14 at 4; see also Trial Tr. II 69-75.)
Under these circumstances, at a minimum, the MAR court neither
ruled contrary to Strickland nor unreasonably applied Strickland,
see 28 U.S.C. § 2254(d)(1), by:
1) holding “that it was sound
trial strategy for [Petitioner’s trial counsel] not to call any
witnesses so that he could argue to the jury last” (Docket Entry 614 at 4); 2) declining “to second-guess [trial counsel’s] decision
not to retain the services of an expert and present the expert’s
testimony” (id.); and 3) ruling that trial counsel’s “decision to
not
hire
an
expert
and
ultimately
use
expert
testimony
at
[Petitioner’s] trial was reasonable under the professional norms at
the time of [the] trial” (id. at 5).11
11
Petitioner’s instant claim
Petitioner’s Brief opposing Respondent’s summary judgment motion baldly
asserts that “[t]he state court adjudication [of this issue] resulted in a
decision that was based on an unreasonable determination of the facts . . . .”
(Docket Entry 11 at 17.) However, it does not identify any specific factual
finding(s) the MAR court purportedly unreasonably made. (See id. at 17-25.) As
a result, Petitioner cannot secure relief under Section 2254(d)(2). See Oliver
v. Wengler, No. 1:12CV96EJL, 2013 WL 5707342, at *3 (D. Idaho Oct. 21, 2013)
(unpublished) (“Although [the] [p]etitioner states . . . that ‘a segment of the
state courts [sic] decisions are predicated upon an unreasonable determination
of the facts,’ he does not identify any specific factual finding that he contends
is unreasonable. This is insufficient to show that the decisions of the [state
court] were based on an unreasonable determination of the facts.” (internal
citation omitted)); Marcus v. Conway, No. 04CIV64JSR, 2007 WL 1974305, at *6
(S.D.N.Y. July 5, 2007) (unpublished) (“[T]he petitioner’s conclusory statement,
that the state court’s decision is based on an unreasonable determination of the
facts in light of the evidence presented at the state court proceedings, does
nothing more than quote the applicable statutory language. Without more, that
is not sufficient to satisfy the burden placed on [him] by 28 U.S.C.
§ 2254(d).”); see also Davis v. Jones, 506 F.3d 1325, 1330 n.8 (11th Cir. 2007)
(declining to consider “argument that the state court made an unreasonable
determination of the facts under 28 U.S.C. § 2254(d)(2),” where the petitioner
did “not challeng[e] any specific factual finding”).
-30-
therefore fails as a matter of law.
See Strickland, 466 U.S. at
697 (“[T]here is no reason . . . to address both components of the
[performance and prejudice] inquiry if the defendant makes an
insufficient showing on one.”).
To the extent the Court wishes to consider the prejudice prong
of the Strickland test, Petitioner has failed to clear the hurdles
imposed by Section 2254(d) as to that element of the instant claim
as well.
First, as the MAR court noted, “evidence of three
eyewitnesses (two of which [we]re disinterested parties) . . .
[indicated] that the headlights of the [victims’ vehicle] were on
at the time of the accident in question [such] that [Petitioner]
has failed to show prejudice by [his trial counsel] failing to
retain Mr. [] Moore or another expert witness to testify that the
scientific evidence would show that the headlights were off.”
(Docket Entry 6-14 at 10.) Second, as documented above, the record
does not support a finding that a bulb linked to the headlights of
the victims’ vehicle exhibited “cold shock,” such that Mr. Moore or
another expert could have opined that those headlights lacked
electrical power upon impact with Petitioner’s truck.
In other words, Trooper Smock’s failure at trial to specify
that the two bulbs he observed as displaying “cold shock” operated
the right-side reverse light and right-rear turn-signal, as well as
his failure to correct the prosecutor’s reference (in a redirect
question)
to the
lights,”
created
bulb(s) that
confusion
showed
about
“cold
whether
shock”
forensic
as
“brake
evidence
favorable to Petitioner existed, but the MAR hearing testimony from
-31-
Trooper Smock and Mr. Moore confirmed that the bulbs actually
examined by Trooper Smock revealed nothing about the condition of
the headlights at the time of the crash.
Accordingly, the key
testimony Trooper Smock offered at trial about his “cold shock”
finding, i.e., that “it doesn’t say anything about the headlights”
(Trial Tr. I 86) proved accurate and no prejudice thus resulted
from the decision of Petitioner’s trial counsel to opt against
presenting expert testimony on that subject.
also
defeat
this
claim,
particularly
Those considerations
given
Section
2254(d)’s
stringent requirements, see generally Cullen, ___ U.S. at ___, 131
S. Ct. at 1398; Harrington, ___ U.S. at ___, 131 S. Ct. at 786.
4.
Failure to Seek Lesser-Included Offense Instruction
The fourth claim within Ground One of the Petition asserts
that Petitioner’s trial counsel should have “request[ed] a jury
instruction on the lesser included offense of misdemeanor assault
with a deadly weapon as to two (2) of the victims” (Docket Entry 1,
¶ 12(Ground One)(a) (Continuation Page Eight)) because, “although
injured, [they] were not seriously injured” (id. (Continuation Page
Nine)).12
Said claim concerns the federal right to effective
representation, but turns on the availability of a lesser-included
offense instruction under North Carolina law in this context.
Petitioner raised the same basic claim in his MAR (see Docket Entry
12
Petitioner’s filings in opposition to Respondent’s summary judgment
motion do not defend the viability of this claim. (See Docket Entries 10, 11.)
However, “in considering a motion for summary judgment, the [Court] ‘must review
the motion, even if unopposed, and determine from what it has before it whether
the moving party is entitled to summary judgment as a matter of law.’” Robinson
v. Wix Filtration Corp. LLC, 599 F.3d 403, 409 n.8 (4th Cir. 2010) (quoting
Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993)).
-32-
6-10 at 32-38) and the MAR court denied it on the merits, relying
largely upon State v. Musselwhite, 59 N.C. App. 477, 297 S.E.2d 181
(1982), to resolve the underlying state-law issue (see Docket Entry
6-14 at 23-28).
In light of that merits-based denial, Section
2254(d) severely limits this Court’s review of Petitioner’s instant
matching claim.
See generally Cullen, ___ U.S. at ___, 131 S. Ct.
at 1398; Harrington, ___ U.S. at ___, 131 S. Ct. at 786.
The Musselwhite Court defined “serious injury” under North
Carolina law as “‘physical or bodily injury resulting from an
assault with a deadly weapon.’”
Musselwhite, 59 N.C. App. at 480,
297 S.E.2d at 184 (quoting State v. Rotenberry, 54 N.C. App. 504,
511,
284
S.E.2d
197,
201
(1981)).
It
further
described
hospitalization as unnecessary, see id., and concluded that “heavy
bleeding and [a] cut requiring 8 or 9 stitches were sufficient to
send the case to the jury.”
Id. at 481, 297 S.E.2d at 184.
Finally, the Musselwhite Court ruled a lesser-included offense
instruction unnecessary where the State’s evidence qualified as
“positive and uncontradicted.”
Id.
After reviewing Musselwhite, the MAR court discussed in detail
the record regarding the injuries suffered by the two victims in
question.
(See Docket Entry 6-14 at 24-28.)
It found that
uncontested evidence established that the collision ejected the
first of said victims, eight-year-old Luke Collins, from his
vehicle, knocking him unconscious, and causing substantial visible
bruising of his forehead and eye sockets, soft-tissue swelling of
his head (as revealed by a CT scan), a laceration of his head that
-33-
required suturing, a recurring headache, a puncture wound to his
back, and
other
cuts
and
scrapes,
all of
which necessitated
hospital care both on the night of the incident and more than a
week later.
(Id. at 25-27.)
Given those findings, the MAR court
“conclude[d] that there was no issue as to the seriousness of Luke
Collins’[s] injuries.
Therefore, [Petitioner’s trial counsel] was
not deficient for failing to ask for an instruction on misdemeanor
assault with a deadly weapon.”
(Id. at 27.)
Similarly, as to Jimmy Yarborough, the second cited victim:
Based upon [his] medical records the [MAR] [c]ourt
conclude[d] that [he] had a severe laceration to his head
that was described in [his] medical records as a “jagged
complicated wound.”
Further, [his] medical records
indicate that [he] also suffered a “C 11 fracture” and a
“Thoracic # 11 Fracture.” . . . [B]ased upon all of the
evidence presented by the State of North Carolina at
[Petitioner’s] trial, [the MAR court] conclude[d] that
Mr. Yarborough suffered serious injuries as a result of
the accident caused by [Petitioner], that this evidence
of serious injuries was uncontradicted and that
[Petitioner’s trial counsel] was not deficient in failing
to ask for an instruction on misdemeanor assault with a
deadly weapon.
(Id. at 28.)
The MAR court’s foregoing conclusions (i.e., that Petitioner
lacked a viable basis under North Carolina law for obtaining a
lesser-included offense instruction on these two felony assault
charges) foreclose any relief on his instant parallel claim in this
Court, because “it is not the province of a federal habeas court to
reexamine
state-court
determinations
on
state-law
Estelle v. McGuire, 502 U.S. 62, 67–68 (1991).
by another court in an analogous context:
-34-
questions,”
In the words used
[Petitioner’s] argument that the state court unreasonably
applied Strickland obviously depends upon [the Court]
determining [his trial counsel’s] performance was
deficient, but first [the Court] would have to conclude
the state court misinterpreted state law . . . . It is
a fundamental principle that state courts are the final
arbiters of state law, and federal habeas courts should
not second-guess them on such matters. . . . [A state
court] has already answered the question of what would
have happened had [Petitioner’s counsel] objected [to the
absence of a lesser-included offense instruction pursuant
to state law] . . . — the objection would have been
overruled.
Therefore, [Petitioner’s counsel] was not
ineffective for failing to make that objection [and
Petitioner] . . . cannot be prejudiced by his [trial]
counsel’s failure to make a losing objection.
Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005) (internal
citations and quotation marks omitted); see also Sharpe v. Bell,
593 F.3d 372, 382–83 (4th Cir. 2010) (“[The petitioner] argues that
his attorney’s failure to argue for the admission of [certain]
testimony . . . under North Carolina evidentiary law . . . denied
him the right to effective assistance . . . .
[T]he [state] court
found that [the petitioner] failed both prongs of Strickland
because [the] testimony would not have been admissible. . . .
[federal habeas] court cast aside this conclusion . . . .
The
It is
beyond the mandate of federal habeas courts, however, to correct
the interpretation by state courts of a state’s own laws.”). Under
Section 2254(d), this claim thus falls short as a matter of law.
5.
Failure to Object to Testimony by Ms. Oliver
In the fifth claim of ineffective assistance set forth in
Ground One, the Petition complains that trial counsel “fail[ed] to
object
to
the
improper
testimony
of
[Ms.]
Oliver
regarding
Petitioner’s thoughts or intent while driving his vehicle at the
-35-
time of the accident.”
(Docket Entry 1, ¶ 12(Ground One)(a)
(Continuation Page Ten).)
In that regard, Petitioner focuses on
Ms. Oliver’s statement at trial that “‘It almost seemed like to me
that [Petitioner’s] truck hesitated and then gunned it like it
wanted to meet the car.’”
in Petition).)13
(Id. (quoting Trial Tr. I 130) (bracket
Petitioner raised an identical claim in his MAR
(see Docket Entry 6-10 at 29-31) and the MAR court denied it on the
merits (see Docket Entry 6-14 at 12-16).
Accordingly, in pursuing
the instant matching claim, Petitioner must satisfy the hard-tomeet test prescribed by Section 2254(d). See generally Cullen, ___
U.S. at ___, 131 S. Ct. at 1398; Harrington, ___ U.S. at ___, 131
S. Ct. at 786.
He has not done so, i.e., he has failed to show
that
court
the
MAR
ruled
contrary
to/unreasonably
applied
Strickland and/or relied on unreasonable factual determinations.
The MAR court began its detailed analysis of this issue by
noting that Petitioner’s trial counsel testified at the MAR hearing
that he “was observing the jury at the time Ms. Oliver was
testifying concerning the movement of [Petitioner’s] vehicle and
decided as a strategic decision not to object to her testimony
because she was emotional and [trial counsel] had been overruled by
the trial court on an earlier objection.”
12.)
(Docket Entry 6-14 at
Crediting that testimony, the MAR court “conclude[d] that
[trial counsel] made a strategic decision not to object to the
testimony of Ms. Oliver . . . .”
(Id.)
13
Given Petitioner’s failure
Ms. Oliver and her husband “were traveling approximately three to four
car lengths behind [the victims’] vehicle and witnessed the collision.” Cearley,
2005 WL 1805026, at *2.
-36-
to point to any (much less clear and convincing) contrary evidence
(see Docket Entry 1, ¶ 12(Ground One)(a) (Continuation Pages Ten
and Eleven); Docket Entry 10 at 3-4; Docket Entry 11 at 31-33),
that finding “cannot be disturbed,” Hill, 2013 WL 3364374, at *6;
see also 28 U.S.C. 2254(e)(1). In addition, after reiterating that
case law applying Strickland has recognized “attorneys are given
wide latitude when it comes to matters of trial strategy” (Docket
Entry 6-14 at 12), the MAR court ruled trial counsel’s “decision
was sound legal strategy . . . [that it was] not going to secondguess . . . because as the trial transcript indicates Ms. Oliver
was in fact emotional at the time she made the statement concerning
the truck being ‘gunned’ and also [trial counsel] had previously
been overruled by the trial court on an earlier objection” (id.).
Courts have recognized the validity of the sorts of tactical
considerations approved by the MAR court.
See, e.g., Phyle v.
Leapley, 66 F.3d 154, 159 (8th Cir. 1995) (ruling that, in making
split-second decisions about whether or not to object, attorneys
must have freedom to consider factors such as witness’s demeanor
and jury’s reaction); United States v. Loukas, No. 89-2033, 909
F.2d 1485 (table), 1990 WL 99496, at *4 (6th Cir. July 18, 1990)
(unpublished) (“There are a host of reasons why trial counsel might
decide to forego an arguably sound evidentiary objection.
A
strategic decision not to object where an objection might not be
sustained
.
.
.
may
well
be
wise,
rather
than
ineffective
counseling.”); Hill v. Shearin, Civil Action No. RWT-10-1689, 2011
WL 2413348, at *7 (D. Md. June 8, 2011) (unpublished) (finding no
-37-
basis for relief under Section 2254(d) where state collateral court
credited
defense
counsel’s
testimony
that
he
refrained
from
objecting to adverse trial testimony because, in his experience,
“objections tend to alienate jurors”); Hall v. Cain, Civil Action
No. 99-0541-BAJ-DLD, 2011 WL 2883132, at *24 (M.D. La. May 20,
2011) (unpublished) (agreeing that trial attorney reasonably may
refrain from objecting because of concern that “interrupting [a]
witness’[s] emotional testimony . . . may have prejudiced the jury
against [the attorney]”), recommendation adopted, 2011 WL 2883588
(M.D. La. July 13, 2011) (unpublished); Parker v. Hendricks, No.
03-CV914DMC, 2010 WL 2652407, at *12 n.6 (D.N.J. June 24, 2010)
(unpublished) (acknowledging that attorney properly may consider
possible negative effect of jury seeing judge overrule objection);
Hudgins v. New York, No. 07CV01862JFB, 2009 WL 1703266, at *13
(E.D.N.Y. June 18, 2009) (unpublished) (“[T]here are strategic
reasons
an
attorney
might
forego
objections
[including]
the
conclusion that additional objections might have annoyed the judge
or jury . . . .” (internal quotation marks omitted)).
The MAR court further concluded that any objection to Ms.
Oliver’s testimony would have failed because, in North Carolina,
“there
is
case
law
that
shows
that
Ms.
Oliver’s
statement
concerning the movement of [Petitioner’s] truck could be considered
a shorthand statement of fact that is admissible in evidence.”
(Docket Entry 6-14 at 12-13.)
In support of that determination,
the MAR court cited and quoted at length from several North
Carolina
appellate
decisions
on
-38-
point.
(See
id.
at
13-15
(discussing State v. Eason, 336 N.C. 730, 445 S.E.2d 917 (1994),
Horne v. Trivette, 58 N.C. App. 77, 295 S.E.2d 290 (1982), and
Peterson v. Johnson, 28 N.C. App. 527, 221 S.E.2d 920 (1976)).)
“[I]t is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions,” Estelle, 502
U.S. at 67–68, and, accepting that North Carolina law would have
rendered any objection in this context futile, this Court must
conclude that the MAR court reasonably ruled that Petitioner’s
trial counsel
objection
.
“was
.
.
not
[and
ineffective
that
for
Petitioner]
failing to
cannot
make
[have]
that
be[en]
prejudiced by his [trial] counsel’s failure to make a losing
objection,” Callahan, 427 F.3d at 932; see also Sharpe, 593 F.3d at
382–83
(4th
attorney’s
Cir.
failure
2010)
to
(“[The
argue
for
petitioner]
the
argues
admission
of
that
his
[certain]
testimony . . . under North Carolina evidentiary law . . . denied
him the right to effective assistance . . . .
[T]he [state] court
found that [the petitioner] failed both prongs of Strickland
because [the] testimony would not have been admissible . . . .
[federal habeas] court cast aside this conclusion . . . .
The
It is
beyond the mandate of federal habeas courts, however, to correct
the interpretation by state courts of a state’s own laws.”).
In
sum, the Court should deny this claim pursuant to Section 2254(d).
6.
Failure to Offer Mitigating Evidence at Sentencing
The final claim of ineffective assistance encompassed within
Ground One of the Petition focuses on the alleged failure of
Petitioner’s trial counsel “to adequately prepare and present
-39-
mitigating evidence at sentencing.”
(Docket Entry 1, ¶ 12(Ground
One)(a) (Continuation Page Eleven).) In terms of specific evidence
trial
counsel
allegedly
should
have
introduced,
the
Petition
mentions only matters related to the “dangerous nature of the
intersection” (id.), i.e., that:
1) the intersection “was created
by the reconfiguration of Highway 21 and Old 421” (id.); 2) the
intersection “had been the situs of numerous traffic accidents
where other drivers who were not deemed to be culpably negligent,
ran through the stop sign at the intersection without slowing down
and
struck
other
vehicles”
(id.);
and
3)
“Petitioner’s
unfamiliarity with the new configuration on Old U.S. 421 caused
Petitioner to run through the intersection without slowing down”
(id. (Continuation Pages Eleven-Twelve).)
Petitioner’s MAR raised
items one and three from the foregoing list, but not item two.
(See Docket Entry 6-10 at 42-46.)14
Petitioner thus has not exhausted any claim premised on his
trial counsel’s failure “to prepare and present” evidence at
sentencing about “numerous traffic accidents where other drivers
who were not deemed to be culpably negligent, ran through the stop
sign at the intersection without slowing down and struck other
vehicles” (Docket Entry 1, ¶ 12(Ground One)(a) (Continuation Page
Eleven) and, therefore, that aspect of the instant claim currently
cannot provide a basis for federal habeas relief, see 28 U.S.C.
14
Petitioner’s amendments to the MAR also do not assert an ineffective
assistance claim based on trial counsel’s failure to offer evidence at sentencing
of other accidents at the intersection. (See Docket Entries 6-11, 6-12.)
-40-
§ 2254(b)(1)(A);15
however, it “may be denied on the merits,
notwithstanding the failure of [Petitioner] to exhaust the remedies
available in the courts of the State,” 28 U.S.C. § 2254(b)(2).
The
Court should effect such a denial because, as discussed in Section
IV.A.2., Petitioner has identified neither competent evidence that
any particular number of accidents, in fact, occurred at the
intersection nor competent evidence that the number of accidents
that actually
did
occur
would
support
intersection posed special danger.
an
inference
that the
Further, Petitioner has cited
no evidence establishing that drivers in any comparable collisions
at the intersection “were not deemed to be culpably negligent”
(Docket Entry 1, ¶ 12(Ground One)(a) (Continuation Page Eleven)).
(See id. (Continuation Pages Eleven and Twelve); Docket Entry 10 at
3-4; Docket Entry 11 at 26-30.) Absent even a colorable proffer of
“what materially helpful evidence or testimony would have been
[presented] had trial counsel taken the actions Petitioner now says
[trial counsel] should have . . ., [this part of the instant]
claim[] of ineffective assistance of trial counsel [is] conclusory
and speculative and do[es] not support a claim for relief . . . .”
Broadnax, 2008 WL 762255, at *9.
The two related, remaining elements of this claim (i.e, that
Petitioner’s
trial
counsel
should
have
offered
evidence
at
15
Petitioner has not alleged, in connection with this claim, that “there
is an absence of available State corrective process; or . . . [that]
circumstances exist that render such process ineffective to protect [his]
rights,” 28 U.S.C. § 2254(b)(1)(B).
(See Docket Entry 1, ¶ 12(Ground One);
Docket Entry 10 at 3-4; Docket Entry 11 at 26-30.) Nor does it appear that “the
State, through counsel, expressly waive[d] the [exhaustion] requirement,” 28
U.S.C. § 2254(b)(3) (emphasis added). (See Docket Entries 4, 5, 6.)
-41-
sentencing that the reconfiguration of the subject intersection and
Petitioner’s lack of familiarity therewith made the intersection
dangerous so as to mitigate his culpability) similarly do not
warrant habeas relief.
The MAR court denied such claim(s) on the
merits, finding against Petitioner on Strickland’s prejudice prong:
[Petitioner] has failed to prove prejudice by [his trial
counsel’s] failure to provide evidence to the trial court
during the sentencing phase concerning . . . the alleged
dangerousness of the intersection. . . . [T]he [MAR]
[c]ourt is not convinced that evidence of the alleged
dangerousness of the intersection in question would have
made a difference in [the] sentencing hearing due to the
fact that the trial court was already aware of this issue
due to [Mr.] Fleming’s testimony on voir dire [about the
reconfiguration of the intersection and the effect that
reconfiguration potentially had on persons accustomed to
the prior configuration] and further [Petitioner’s]
actions before and after the accident demonstrate a clear
showing of culpable negligence. . . .
[F]urthermore,
[Petitioner] upon returning to the accident scene gave
false information that led to an innocent man’s arrest
for a crime he did not commit. . . . [While] talking
with the troopers [five months after the crash,
Petitioner] still contended that he was not the driver
. . . . [Petitioner’s] actions led to the death of Mary
Yarborough and caused serious injuries to four of the
occupants of the [victims’ vehicle]. [Petitioner] ran
through the accident scene where a woman and children
were lying on the roadway bleeding and in need of medical
treatment. . . . There was absolutely no evidence that
[Petitioner] showed any concern for the victims of the
accident in that he ran away from the scene [and] did not
call for medical assistance for the victims, but rather
went to the home of [Mr.] Fleming and asked Mr. Fleming
for a ride to Boonville . . . .
Based upon the
overwhelming evidence against [Petitioner] and [his]
actions after the accident . . ., [he] has failed to
prove that [he] was prejudiced by his attorney’s alleged
ineffectiveness at his sentencing hearing . . . .
(Docket Entry 6-14 at 36-37.)
In addition, elsewhere in its decision, the MAR court observed
that Petitioner could not contend that the reconfiguration of the
-42-
subject intersection played any part in his collision with the
victims’ vehicle because, during an interview with Trooper Caudill,
Petitioner
admitted
configuration.
he
had
no
familiarity
with
the
prior
(See id. at 8 (quoting from Petitioner’s statement
to Trooper Caudill).) That fact led the MAR court to conclude that
evidence
“concerning
the
habits
of
other
motorists
intersection” would not have assisted Petitioner.
at
the
(Id.)
In the face of the foregoing, scrupulous analysis by the MAR
court, Petitioner submitted no meaningful argument as to how the
ruling against him under Strickland’s prejudice prong qualifies as
unreasonable (legally or factually), much less contrary to Supreme
Court
precedent.
(See
Docket
Entry
1,
¶
12(Ground
One)(a)
(Continuation Pages Eleven and Twelve); Docket Entry 10 at 3-4;
Docket Entry 11 at 26-30.)
Court.
That failure precludes relief in this
See, e.g., Saxon v. Lempke, No. 09CIV1057(PGG)(KNF), 2014
WL 1168989, at *17 (S.D.N.Y. Mar. 21, 2014) (unpublished) (“[The
magistrate judge] found that [the petitioner] had not demonstrated
that
the
state
court’s
determination
denying
this
claim
‘contrary to or an unreasonable application of Strickland.’
is
[The
magistrate judge] further found that [the petitioner’s] conclusory
statements are insufficient to satisfy his burden under Section
2254(d).
This [c]ourt finds no error in [those] determinations.”
(internal citations omitted)); Sturgis v. Toole, No. CV111-040,
2012 WL 2862031, at *5 (S.D. Ga. May 14, 2012) (unpublished) (“In
his § 2254 petition and brief, [the] [p]etitioner provides nothing
beyond conclusory assertions that [the state court’s] rejection of
-43-
these claims was ‘erroneous’ and ‘objectively unreasonable.’
In
light of the deference to the state court decision required by §
2254(d), these conclusory assertions are plainly inadequate for
[the]
[p]etitioner
to
prevail
.
.
.
.”
(internal
citations
omitted)), recommendation adopted, 2012 WL 2862047 (S.D. Ga. July
11, 2012) (unpublished), appeal dismissed, slip op., No. 12-14130
(11th Cir. Oct. 24, 2012).
The Court therefore should enter
judgment against Petitioner (under Section 2254(d)) on his claim
that his trial counsel rendered ineffective assistance by failing
to present evidence at sentencing that the reconfiguration of the
intersection
and/or
Petitioner’s
unfamiliarity
with
that
reconfiguration made the intersection dangerous.16
16
Although Petitioner clearly identified this claim as addressing trial
counsel’s “fail[ure] to adequately prepare and present mitigating evidence at
sentencing” (Docket Entry 1, ¶ 12(Ground One)(a) (Continuation Page Eleven)), at
the end of the recitation of “Supporting Facts,” Petitioner refers to a matter
unrelated to sentencing evidence, i.e, that “[trial] counsel was ineffective in
failing to even argue for a consolidated sentence, or that the sentences should
run concurrently with each other [and] due to [that] failure Petitioner received
five (5) consecutive sentences” (id. (Continuation Page Twelve)). Petitioner
included such a claim in his MAR. (See Docket Entry 6-10 at 45-46.) The MAR
court’s decision does not make specific reference to the lack of a request by
trial counsel for a consolidated sentence or concurrent sentences, but does
explicitly: 1) take note that Petitioner’s MAR alleged ineffective assistance
based on trial counsel’s “fail[ure] to properly advocate for [Petitioner] at
sentencing” (Docket Entry 6-14 at 33); 2) discuss case law regarding an
attorney’s duty at sentencing to make “‘the most effective statement possible in
light of the available dispositional opportunities’” (id. (quoting State v.
Davidson, 77 N.C. App. 540, 546, 335 S.E.2d 518, 522 (1985) (internal ellipses
omitted)); 3) review portions of the record documenting trial counsel’s
successful opposition to the State’s request for sentences in the aggravated
range, as well as trial counsel’s presentation of mitigating evidence via
testimony from Petitioner’s mother (id. at 34); and 4) describe trial counsel’s
sentencing argument and his subsequent MAR hearing testimony regarding his
successful use of that form of “equitable” argument over the course of his career
(id.).
The MAR court thereafter expressly found that trial counsel “was
exercising a strategic decision in making his equitable argument and [ruled that
it was] not going to second-guess the decision in hindsight mindful of the
decisions [condemning such an approach].”
(Id.)
Finally, the MAR court
“conclude[d] that [trial counsel’s sentencing] argument . . . w[as] not deficient
and that trial counsel exercised sound legal strategy . . . .” (Id. at 35.) To
(continued...)
-44-
B.
Ineffective Assistance of Appellate Counsel
Petitioner titled Ground Two of the Petition “Ineffective
Assistance of Appellate Counsel on Direct Appeal.”
1, ¶ 12(Ground Two).)17
(Docket Entry
The performance and prejudice test from
Strickland applies to such claims.
Evans v. Thompson, 881 F.2d
117, 124 (4th Cir. 1989). Consistent with the “deferential” nature
of the Strickland standard, Harrington, ___ U.S. at ___, 131 S. Ct.
at 788, appellate counsel need not raise every non-frivolous issue;
to the contrary, forsaking reasonably perceived weaker appeal
issues to focus on a small number of arguably stronger ones
constitutes a mark of effective advocacy.
Jones v. Barnes, 463
U.S. 745, 750-54 (1983); Bell v. Jarvis, 236 F.3d 149, 164 (4th
Cir. 2000) (en banc).
Moreover, “reviewing courts must accord
appellate counsel the presumption that he [or she] decided which
issues were most likely to afford relief on appeal.”
Bell, 236
F.3d at 164 (internal quotation marks omitted); see also Evans, 881
F.2d at 124 (declaring that counsel pursued sound strategy when “he
16
(...continued)
the extent the Court deems Petitioner to have asserted an ineffective assistance
claim based on trial counsel’s failure to expressly request consolidation of
sentences or imposition of concurrent sentences, neither the Petition’s single
line about that subject (see Docket Entry 1, ¶ 12(Ground One)(a) (Continuation
Page Twelve)), nor anything in the portions of Petitioner’s filings opposing
Respondent’s summary judgment motion that address ineffective assistance at
sentencing (see Docket Entry 10 at 3-4; Docket Entry 11 at 26-30), provides a
valid basis under Section 2254(d) to reject the MAR court’s denial of that claim.
See, e.g., Saxon, 2014 WL 1168989, at *17; Sturgis, 2012 WL 2862031, at *5.
17
Petitioner’s filings in opposition to Respondent’s summary judgment
motion do not defend the viability of any claim(s) in Ground Two. (See Docket
Entries 10, 11.) However, “in considering a motion for summary judgment, the
[Court] ‘must review the motion, even if unopposed, and determine from what it
has before it whether the moving party is entitled to summary judgment as a
matter of law.’” Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 409 n.8
(4th Cir. 2010) (quoting Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th
Cir. 1993)).
-45-
determined what he believed to be [the] petitioner’s most viable
arguments and raised them on appeal”).
Finally, where Section
2254(d) applies, “the question is not whether counsel’s actions
were reasonable.
The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.”
Harrington, ___ U.S. at ___, 131 S. Ct. at 788.
1.
Failure to Appeal Sustaining of Objection about Intersection
Ground Two of the Petition first contends that appellate
counsel provided ineffective assistance by “failing to raise and
argue on direct appeal the trial court’s error of sustaining the
prosecutor’s objection to [Petitioner’s trial] counsel’s question
of Trooper Smock regarding the dangerous nature of the intersection
and whether he was aware of previous accidents . . . .”
Entry 1, ¶ 12(Ground Two)(a).)
(Docket
The Petition offers nothing beyond
that bald assertion (see id. (Continuation Page Twelve)) and
Petitioner’s filings opposing Respondent’s summary judgment motion
lack any reference to the matter (see Docket Entries 10, 11).
a result, this claim fails.
As
See, e.g., Jones v. Gomez, 66 F.3d
199, 205 (9th Cir. 1995) (“We also agree with the district court
that [the petitioner’s] conclusory suggestions that his . . .
appellate counsel provided ineffective assistance fall far short of
stating a valid claim of constitutional violation.”); Lamonda v.
United States, Nos. 6:11CV1488ORL28GJK, 6:05CR131ORL28GJK, 2013 WL
6145427, at *13 (M.D. Fla. Nov. 21, 2013) (unpublished) (“[The
petitioner] fails to establish how appellate counsel’s performance
was deficient [in not raising on appeal the exclusion of allegedly
-46-
exculpatory evidence] or how [that deficiency] affected the outcome
of the appeal.
conclusory
to
[The petitioner’s] allegations are too vague and
support
a
claim
of
ineffective
assistance
of
appellate counsel.”); Sutherland v. Booker, No. 1:10CV629, 2013 WL
5304081, at *8 (W.D. Mich. Sept. 19, 2013) (unpublished) (“While
[the] petitioner has pointed out additional issues that [his]
appellate counsel could have conceivably brought, he has not
demonstrated that these issues were stronger than the issues
presented on appeal, that there is a reasonable probability that he
would have prevailed on appeal with the inclusion of these issues,
and that these issues were so compelling that [his] appellate
counsel’s failure to raise them amounted to ineffective assistance
of appellate counsel.
An unsupported allegation of ineffective
assistance of counsel fails to overcome the strong presumption that
counsel’s
conduct
falls
professional assistance.
within
the
wide
range
of
reasonable
Accordingly, [the] petitioner has failed
to demonstrate IAAC [ineffective assistance of appellate counsel]
. . . .” (internal citations and quotation marks omitted)).
Further,
Section
2254(d)
applies
to
this
claim,
because
Petitioner raised it in his MAR (see Docket Entry 6-10 at 31-32)
and the MAR court denied it on the merits (indeed, in a thorough,
well-supported, and well-reasoned fashion) (see Docket Entry 6-14
at 21-23).
Given Petitioner’s perfunctory presentation of this
claim in his Petition and his failure to address it when he
responded
to Respondent’s
summary
judgment
motion, Petitioner
clearly has not established a basis for relief under Section
-47-
2254(d).
See, e.g., Icenhour v. Medlin, No. CV612-116, 2013 WL
3270421, at *1 (S.D. Ga. June 26, 2013) (unpublished) (“[The
petitioner’s] conclusory assertions that the state habeas corpus
court erred under § 2254 in applying Strickland to the ineffective
assistance of appellate counsel claims before it do not warrant
federal relief . . . .”), aff’d, No. 13-13385, 2014 WL 2178978
(11th Cir. May 27, 2014) (unpublished); see also Cullen, ___ U.S.
at ___, 131 S. Ct. at 1398 (noting that Section 2254(d) imposes “a
difficult to meet and highly deferential standard . . ., which
demands that state-court decisions be given the benefit of the
doubt . . . [and that a] petitioner carries the burden of proof”
(internal citations and quotation marks omitted)). In light of all
these considerations, this claim cannot survive summary judgment.
2. Failure to Appeal Overruling of Objection to Speed Opinion
Within Ground Two of the Petition, Petitioner also alleges as
follows:
“[Appellate] counsel was ineffective on direct appeal in
failing to raise and argue the trial court’s error in overruling
Petitioner’s
trial
counsel’s
objection
to
[Ms.]
Oliver’s
lay
opinion as to the speed of Petitioner’s vehicle.” (Docket Entry 1,
¶ 12(Ground Two)(a) (Continuation Page Twelve).)
The foregoing
sentence represents the entirety of Petitioner’s presentation on
this issue, both in the Petition (see id.) and his filings opposing
Respondent’s summary judgment motion (see Docket Entries 10, 11).
The record also reflects that Petitioner raised this same claim in
an amendment to his MAR (see Docket Entry 6-11 at 2-5) and that the
MAR court denied it on the merits (again via a comprehensive,
-48-
factually-, legally-, and analytically-sound decision) (see Docket
Entry 6-14 at 39-44).
As a result, for the same reasons and based
on the same authority identified in Section IV.B.1., the Court
should refuse relief on this claim as well.
C.
Under
the
Insufficiency of the Evidence
title
“Conviction
Obtained
upon
Insufficient
Evidence,” the Petition’s Ground Three states in its entirety:
“[T]here was insufficient evidence presented to prove culpable
negligence to convict Petitioner of involuntary manslaughter and
the four counts of assault with a deadly weapon inflicting serious
injury.”
(Docket Entry 1, ¶ 12(Ground Three)(a).)
opposing
Respondent’s
summary
judgment
motion,
In his Brief
Petitioner
acknowledged that, on direct appeal, “[t]he North Carolina Court of
Appeals adjudicat[ed] [] this claim . . . .”
34.)
(Docket Entry 11 at
Specifically, that court held:
[Petitioner] contends in related assignments of error
that the trial court erred in failing to dismiss both the
charge of involuntary manslaughter and the four charges
of assault with a deadly weapon inflicting serious
injury, as there was no evidence of culpable negligence.
We disagree. . . .
[Petitioner] conceded at trial that he violated N.C. Gen.
Stat. § 20-158 (2003), the safety statute governing
control signals and signs. . . .
When a safety statute is unintentionally violated,
culpable negligence exists where the violation is
accompanied by recklessness of probable consequences of
a dangerous nature, when tested by the rule of reasonable
foreseeability, amounting altogether to a thoughtless
disregard of consequences or of a heedless indifference
to the safety of others.
A violation of § 20-158 is not negligence per se in any
action at law for injury to person or property. However,
-49-
the failure to stop at a stop sign before entering an
intersection with a dominant highway may be considered
with other facts in the case in determining whether or
not under all the facts and circumstances involved, such
driver was guilty of culpable negligence.
Our courts
have considered factors in combination such as speed,
reckless driving, and failure to heed a safety statute in
determining whether evidence of culpable negligence
existed.
We, therefore, review the record to determine whether
there was sufficient evidence of recklessness or
carelessness as imports a thoughtless disregard of
consequences or a heedless indifference to the safety and
rights of others, under all the facts and circumstances
involved . . . .
Here, the evidence, when taken in the light most
favorable to the State, shows that [Petitioner] conceded
in his statement to police that he violated a safety
statute in failing to heed the stop sign at the Rocky
Branch Road/U.S. 21 intersection. [Petitioner], in his
statement to police, further indicated that the
intersection was not clearly marked, that he thought he
was traveling on a straight highway, and that he did not
see the intersection when he approached it as an
explanation for his failure to heed the stop sign.
Extensive evidence was presented at trial, however, to
show that multiple signs and devices had been erected to
alert motorists to the approaching intersection along
Rocky Branch Road. Prior to reaching the intersection,
three visual cues had been erected to warn drivers of the
approaching intersection. A stop ahead sign was erected
900 feet from the intersection.
Two stop signs were
erected immediately prior to the intersection, one
standard regulation size, and the second significantly
larger. In addition to the visual markers, two sets of
hard, raised plastic rumble strips had been placed in the
roadway to alert motorists to the impending intersection
by creating noise and vibration. The first set of rumble
strips was located 674 feet prior to the intersection.
A second set of fourteen raised strips was located 457
feet before the intersection.
In addition to the numerous warning devices indicating an
intersection was imminent, the State also offered
evidence as to the clear visibility of the intersection.
Trooper Smock testified there were no obstructions which
would prevent a motorist from seeing approaching vehicles
on the intersecting road, and both of the Olivers
-50-
testified [Petitioner’s] truck was clearly visible as it
approached the intersection. Evidence was also offered
that [Petitioner] was traveling at sixty miles per hour,
five miles above the posted speed limit, at the time of
the collision.
Finally, the State presented evidence
that [Petitioner] fled the scene immediately following
the collision, and that his oral and written statements
were contradicted both by testimony of witnesses at the
collision site and by his own later statement.
[Petitioner] in his original statement to police, stated
that the “driver got out and ran.
I ran to see if
everyone was ok and get someone to call 911. I looked
everywhere, then I came back to the scene.” However,
testimony at trial by [Ms. Oliver] and [Mr.] Fleming
indicated [Petitioner] exited the truck, and after
running more than a mile, attempted to persuade [Mr.]
Fleming
to
help
him
flee
the
scene
entirely.
[Petitioner] only returned to the scene of the accident
after [Mr.] Fleming refused to take him further, and then
provided false information as to the identity of the
driver at the site of the collision. [Petitioner] again
provided false information when he was interviewed by
police several months later on 4 June 2003. [Petitioner]
did not confess to being the driver of the vehicle until
5 June 2003, after being presented with evidence of
inconsistencies in his statement.
When all the facts and circumstances are viewed in the
light most favorable to the State, [Petitioner’s] actions
demonstrate evidence of recklessness, which when tested
by the rule of reasonable prevision, amounts altogether
to a thoughtless disregard of consequences sufficient to
support a finding of culpable negligence. In addition to
[Petitioner’s] acknowledged violation of the stop sign,
[his] failure to heed any of the multiple warning
mechanisms preceding the intersection, including the
multiple sets of rumble strips, failure to keep a proper
lookout for other vehicles, and violation of the posted
speed limit, when taken together, provide evidence of
culpable negligence.
Further, [Petitioner’s] postaccident behavior in deliberately providing false
information to the investigating officer at the scene,
thereby delaying investigation into his own culpability
for several months, provides additional evidence of
recklessness that imports a heedless indifference to the
safety and rights of others.
. . . [T]he trial court did not err in denying
[Petitioner’s] motion to dismiss the charges of
involuntary manslaughter and assault with a deadly weapon
inflicting serious injury for insufficient evidence.
-51-
Cearley, 2005 WL 1805026, at *2-5 (internal brackets, citations,
ellipses, and some quotation marks omitted) (emphasis added).
“[T]he Due Process Clause of the Fourteenth Amendment protects
a defendant in a criminal case against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.”
Jackson v. Virginia, 443 U.S.
307, 315 (1979) (internal quotation marks omitted).
As a general
matter, “in a challenge to a state criminal conviction brought
under 28 U.S.C. § 2254 . . . the applicant is entitled to habeas
corpus relief if it is found that upon the record evidence adduced
at the trial no rational trier of fact could have found proof of
guilt beyond a reasonable doubt.”
Id. at 324.18
However, when
Section 2254(d) applies (i.e., when a state court has adjudicated
the
sufficiency
claim
on
the
merits),
federal
habeas
courts
“inquire whether [the] state court determination that the evidence
was
sufficient
to
support
a
conviction
was
an
objectively
unreasonable application of the standard enunciated in Jackson.”
Williams v. Ozmint, 494 F.3d 478, 489 (4th Cir. 2007) (internal
brackets and quotation marks omitted); see also Cullen, ___ U.S. at
___, 131 S. Ct. at 1398 (observing that Section 2254(d) imposes “a
difficult to meet and highly deferential standard . . ., which
demands that state-court decisions be given the benefit of the
doubt . . . [and that a] petitioner carries the burden of proof”
(internal citations and quotation marks omitted)).
18
“[This] standard must be applied with explicit reference to the
substantive elements of the criminal offense as defined by state law.” Jackson,
443 U.S. at 324 n.16 (emphasis added).
-52-
As the Supreme Court recently explained:
Jackson claims face a high bar in federal habeas
proceedings because they are subject to two layers of
judicial deference. First, on direct appeal, it is the
responsibility of the jury — not the court — to decide
what conclusions should be drawn from evidence admitted
at trial. A reviewing court may set aside the jury’s
verdict on the ground of insufficient evidence only if no
rational trier of fact could have agreed with the jury.
And second, on habeas review, a federal court may not
overturn a state court decision rejecting a sufficiency
of the evidence challenge simply because the federal
court disagrees with the state court. The federal court
instead may do so only if the state court decision was
objectively unreasonable.
Coleman v. Johnson, ___ U.S. ___, ___, 132 S. Ct. 2060, 2062 (2012)
(internal citation and quotation marks omitted).
not made the required showing here.
Petitioner has
To the contrary, the above-
quoted analysis by the North Carolina Court of Appeals documents
the existence of more than sufficient evidence at trial to support
the jury’s finding against Petitioner on the offense element of
culpable negligence (for the involuntary murder and assault with a
deadly weapon inflicting serious injury charges).
Accordingly,
Petitioner’s instant claim would fail even if analyzed only under
Jackson and certainly falls short when viewed through the lens of
Section 2254(d). See generally Harrington, ___ U.S. at ___, 131 S.
Ct. at 786 (“Section 2254(d) reflects the view that habeas corpus
is a guard against extreme malfunctions in the state criminal
justice systems, not a substitute for ordinary error correction
through appeal.” (internal quotation marks omitted)).
First, the Petition sets out no facts to support the view that
the North Carolina Court of Appeals unreasonably deemed sufficient
-53-
the trial evidence of culpable negligence.
12(Ground Three)(a).)
(See Docket Entry 1, ¶
Second, none of Petitioner’s contentions
about the state of the evidence as to culpable negligence in his
Response and Brief opposing Respondent’s summary judgment motion
(see Docket Entry 10 at 4-5; Docket Entry 11 at 34-38) come close
to establishing (as mandated for relief under Section 2254(d))
“that the state court’s ruling on [that issue] was so lacking in
justification
that
there
was
an
error
well
understood
and
comprehended in existing law beyond any possibility for fairminded
disagreement,” Harrington, ___ U.S. at ___, 131 S. Ct. at 786-87.
For example, Petitioner asserts that “investigations conducted
by the North Carolina Highway Patrol concluded that [he] done [sic]
no more than run a stop sign.”
(Docket Entry 11 at 34.)
In fact,
as the above-quoted language from the North Carolina Court of
Appeals details, the evidence at trial demonstrated that Petitioner
did not simply run a stop sign, but that he did so 1) at full-speed
(indeed, above the speed-limit, according to one witness), 2) after
ignoring not only a regulation-sized stop sign, but also a second,
much larger stop sign and an additional stop ahead sign, 3) as well
as without heeding two sets of hard, raised plastic rumble strips
that caused noise and vibration inside vehicles driven over them,
and 4) while failing to take notice of an unobstructed intersection
and the victims’ oncoming vehicle. Additionally, the record (again
as detailed by the North Carolina Court of Appeals in the portion
of its ruling excerpted both in this Section and in Section I)
indicates that, following the collision (not only immediately, but
-54-
also later that same evening and for months thereafter), Petitioner
exhibited numerous signs of consciousness of guilt, including
fleeing the scene and repeatedly lying about his involvement (even
to the point of willfully attempting to frame an innocent man).19
Similarly,
although
Petitioner asserts that
“[t]here
was
evidence in the record that this intersection where the accident
occurred had recently been reconfigured, [and] was a dangerous
intersection, [at which] numerous other accidents had occurred”
(id. at 36), as discussed in Sections IV.A.2. and IV.A.6., the
record (even looking beyond the trial transcript and considering
material adduced during the state post-conviction proceedings)
actually lacks competent evidence of the number of accidents at the
intersection, as well as the number of accidents necessary to mark
the
intersection
as
particularly
dangerous;
moreover,
the
discussion set out in Section IV.A.6. confirms that Petitioner
could
not
plausibly
intersection
to
attribute
confusion
his
stemming
failure
from
its
to
stop
at
the
reconfiguration
because, when interviewed, he professed unfamiliarity with the
prior configuration.
Nor does the record bear out Petitioner’s
19
Petitioner objects, without citation of authority, to the North Carolina
Court of Appeals considering his “conduct after the accident . . . to establish
culpable negligence.”
(Docket Entry 11 at 36-37.)
Case law defeats that
objection. See State v. Clayton, 272 N.C. 377, 381, 158 S.E.2d 557, 560 (1968)
(identifying the defendant’s “flight from the scene of the accident” as an
example of the evidence “establish[ing] [his] culpable negligence” in affirming
manslaughter conviction); see also United States v. Phibbs, 999 F.3d 1053, 1067
(6th Cir. 1993) (“The fact that a defendant sought to escape prosecution is
usually relevant in establishing culpability . . . .”); United States v.
Martindale, 790 F.3d 1129, 1132-33 (4th Cir. 1986) (“[E]xculpatory statements of
the defendant, if shown to be false and fabricated, are clearly admissible to
prove [his] guilty state of mind, and as evidence of guilt, of illicit intent and
of consciousness of guilt.” (internal brackets and quotation marks omitted)).
-55-
contention that the “[North Carolina] Court of Appeals was misled
to believe that the road on which [he] was traveling contained
multiple sets of hard raised plastic rumble strips .
. . .
[A]ccident reconstruction expert [Mr.] Moore determined that these
lines referred to as rumble strips were actually lines that were
spray painted on the road surface . . . .”
(Id. at 37.)
Rather,
at the MAR hearing, Mr. Moore confirmed that “these rumble strips
are
not
paint
.
.
.
.
The
thermoplastic markers. . . .
thinner.”
technical
term
is
Paint is different.
it’s
raised
It’s much
(MAR Hrg. Tr. 365; see also MAR Hrg. Tr. 361 (“If North
Carolina calls them rumble strips, I’m not going to disagree with
North Carolina.”), 370 (“They are not painted lines; correct.”),
376 (“Q. Because this isn’t paint; this is thermoplastic?
A. This
is thermoplastic, correct.”).)
Simply put, Ground Three of the Petition provides no basis for
habeas relief, particularly given Section 2254(d)’s applicability.
D.
Motion for Discovery
More than six months after he responded to Respondent’s
summary judgment motion, Petitioner filed a request for leave to
conduct discovery.
(Docket
Entry
12.)
“Unlike
other
civil
litigants, a § 2254 habeas petitioner ‘is not entitled to discovery
as a matter of ordinary course.’”
Stephens v. Branker, 570 F.3d
198, 213 (4th Cir. 2009) (quoting Bracy v. Gramley, 520 U.S. 899,
904 (1997)).
Instead, to secure discovery, a habeas petitioner
“must provide reasons for the request,” Rule 6(b), Rules Governing
Sect. 2254 Cases, that establish “good cause,” Rule 6(a), Rules
-56-
Governing Sect. 2254 Cases.
“A showing of good cause must include
specific allegations suggesting that the petitioner will be able to
demonstrate
that
he
is
entitled
to
habeas
corpus
relief.”
Stephens, 570 F.3d at 204 (emphasis added).
Moreover, the United States Supreme Court recently made clear
that, “[a]lthough state prisoners may sometimes submit new evidence
in federal court, [the Antiterrorism and Effective Death Penalty
Act of 1996’s] statutory scheme [as codified in part in Section
2254] is designed to strongly discourage them from doing so.”
Cullen, ___ U.S. at ___, 131 S. Ct. at 1401.
In light of that
principle, “[i]f a claim has been adjudicated on the merits by a
state
court,
a
federal
habeas
petitioner
must
overcome
the
limitation of § 2254(d)(1) on the record that was before that state
court.”
Id. at ___, 131 S. Ct. at 1400 (emphasis added).
In other
words, to the extent Section 2254(d) applies, “good cause” does not
exist for discovery (at least before the analysis required under
Section 2254(d)), because this Court may look only to the state
court record in applying Section 2254(d). See, e.g., Wood v. Ryan,
693 F.3d 1104, 1122 (9th Cir. 2012) (“[The petitioner] is not
entitled to . . . additional discovery in federal court because
this ineffective assistance of counsel claim is governed by 28
U.S.C. § 2254(d)(1), as it was adjudicated on the merits in the
[state court] proceedings.” (citing Cullen, ___ U.S. at ___, 131 S.
Ct. at 1398)), cert. denied, ___ U.S. ___, 134 S. Ct. 239 (2013).20
20
Even when Section 2254(d) does not apply, “[Section] 2254(e)(2) still
restricts the discretion of federal habeas courts to consider new evidence
(continued...)
-57-
In this instance, Petitioner has asked for permission to
demand from Respondent:
1) “documentation of finding of culpable
negligence from Troopers Smock, Caudill, and Mathis” (Docket Entry
12 at 1); 2) “information to [sic] why Trooper Mathis . . . ‘did
not’ testify and was never asked to attend the trial” (id.); 3)
“actual facts to support the cause of death to Mary [] Yarborough”
and an answer as to whether “an autopsy [was] performed to prove
the allegation that the car accident [wa]s the actual cause of
death” (id. at 2); 4) an explanation for “why the [state] court did
not declare a mistrial nor did they prosecute or charge Trooper
Smock for admitting that he gave false testimony in [Petitioner’s]
trial” (id.); 5) “evidence to show how [Ms.] Oliver or anyone could
form any kind of thoughts or intentions of [Petitioner’s] actions
without being in [his] vehicle to observe him first hand” (id.);
and 6)
“evidence
that Engineer
from
D.O.T.
Mr.
Trent
Beaver
physically visited the accident scene to observe the ‘so-called’
rumble strips first hand” (id.). Petitioner offered no argument to
support these requests.
brief.
(See id. at 1-3.)
Nor did he file a
(See Docket Entries dated Feb. 24, 2010, to present.)
Given those failings, the instant Motion is denied pursuant to
the Court’s Local Rules.
See M.D.N.C. LR7.3(a) (“All motions,
20
(...continued)
. . . .” Cullen, ___ U.S. at ___, 131 S. Ct. at 1401. Most notably, that
provision severely limits the consideration of new evidence where a petitioner
“failed to develop the factual basis of a claim in State court proceedings,” 28
U.S.C. § 2254(e)(2), i.e., where a petitioner exhibited a “lack of diligence, or
some greater fault,” Williams v. Taylor, 529 U.S. 420, 432 (2000). This standard
“ensure[s] that federal courts sitting in habeas are not an alternative forum for
trying facts and issues which a prisoner made insufficient effort to pursue in
state proceedings.”
Cullen, ___ U.S. at ___, 131 S.Ct. at 1401 (internal
brackets and quotation marks omitted).
-58-
unless made during a hearing or at trial shall be in writing and
shall be accompanied by a brief except as provided in section (j)
of this rule.”), (j) (omitting motions seeking leave to conduct
discovery from list of motions that do not require briefs and
mandating that even motions exempted from brief requirement “must
state good cause” for any requested relief), and (k) (“A motion
unaccompanied by a required brief may, in the discretion of the
Court,
be
summarily
denied.”);
see
also
(requiring briefs to contain “argument”).
M.D.N.C.
LR7.2(a)(4)
Alternatively, the
instant Motion is denied for failure to show good cause as required
by Habeas Rule 6 (particularly as viewed in light of Cullen). See,
e.g., Sears v. White, No. 5:12HC2066F, 2013 WL 1209624, at *5
(E.D.N.C. Mar. 25, 2013) (unpublished) (“[T]he court may not
consider phone records which were not before the state courts in
determining
whether
the
state
courts’
decisions
denying
petitioner’s claims were contrary to or an unreasonable application
of Supreme Court precedent.
at 1401.
Cullen, [___ U.S. at ___,] 131 S.Ct.
As such, petitioner cannot show good cause for the
discovery of such records at this time.”).21
V.
CONCLUSION
Petitioner’s habeas claims all fail as a matter of law.
IT IS THEREFORE ORDERED that Petitioner’s Request for Leave to
Conduct Discovery (Docket Entry 12) is DENIED and Petitioner’s
21
A magistrate judge may enter an order on discovery matters in habeas
cases (as in other civil cases). See, e.g., Osband v. Woodford, 290 F.3d 1036,
1041 (9th Cir. 2002); Partee v. Stegall, 8 F. App’x 466, 468 (6th Cir. 2001).
-59-
Motion for Expedition on the Pleadings (Docket Entry 34) is DENIED
AS MOOT.
IT IS FURTHER ORDERED that the Clerk shall refer Petitioner’s
Motion for Consolidation of Defenses (Docket Entry 29) to the
assigned United States District Judge, as an Objection to the Text
Order dated August 1, 2012.
IT
IS
RECOMMENDED
that
Respondent’s
Motion
for
Summary
Judgment (Docket Entry 5) be granted, that Petitioner’s Motion for
Partial Summary Judgment (Docket Entry 15) and Motion for Judgment
on the Pleadings (Docket Entry 31) be denied, that the Petition
(Docket Entry 1) be denied, and that Judgment be entered dismissing
this action without issuance of a certificate of appealability.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
June 11, 2014
-60-
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