PETRICK v. THOMAS
Filing
38
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 11/21/2014, that Petitioner's Motion for Amendment to Petition and Substitution of Parties (Docket Entry 37 ) is GRANTED and that Cynthia O. Thornton is substituted as Respond ent. FURTHER that Respondent's Motion for Summary Judgment (Docket Entry 11 ) is GRANTED, that the Petition (Docket Entry 1 ) is DENIED, and that Judgment shall be entered dismissing this action without issuance of a certificate of appealability. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ROBERT JAMES PETRICK,
Petitioner,
v.
CYNTHIA O. THORNTON,
Respondent.1
)
)
)
)
)
)
)
)
)
1:09CV551
MEMORANDUM OPINION AND ORDER
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 Durham County found
Petitioner guilty of first degree murder in case number 03CRS49331,
whereupon the trial court entered judgment sentencing Petitioner to
life imprisonment.
(Id., ¶¶ 1-6.)
relief on direct appeal.
He pursued but failed to secure
State v. Petrick, 186 N.C. App. 597, 652
S.E.2d 688 (2007), appeal dismissed and review denied, 362 N.C.
242, 660 S.E.2d 540 (2008).
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 Entry
12-10 (MAR); Docket Entry 12-11 (order denying MAR); Docket Entry
12-12 (certiorari petition); Docket Entry 12-14 (order denying
certiorari).)
1
He then instituted this action (Docket Entry 1) and
Consistent with Rule 2(a) of the Rules Governing Section 2254 Cases, the
Petition in this case originally named Sandra Thomas, then-warden of the prison
at which Petitioner then resided, as Respondent.
(Docket Entry 1 at 1.)
Petitioner now resides at a different prison and has moved to substitute his
current warden as Respondent. (Docket Entry 37.) The Court grants that request.
sought leave to conduct discovery (Docket Entry 5).
Respondent
answered (Docket Entry 10) and moved for summary judgment (Docket
Entry 11).
After Petitioner filed his opposition to summary
judgment (Docket Entry 22), the Court granted in part Petitioner’s
request for
discovery
(Docket Entry
27).
Respondent
made
a
supplemental filing consistent with the Court’s discovery order
(Docket Entry 31) and Petitioner replied (Docket Entry 32).
For
the reasons that follow, the Court denies any habeas relief.2
I.
FACTUAL BACKGROUND
The North Carolina Court of Appeals summarized some of the
basic facts underlying Petitioner’s conviction as follows:
[Petitioner] reported his wife . . . missing after she
failed to return home from a practice with the North
Carolina Symphony. Officers found [her] car parked in a
parking deck located across the street from where the
North Carolina Symphony had practiced. No signs of a
struggle were apparent inside or around [her] car.
Four months later, . . . [her] body floated to the
surface of [a lake near Durham, North Carolina] wrapped
in a sleeping bag and a tarp and sealed with duct tape.
Chains were wrapped around [her] legs and her body was
identified from dental records.
[Petitioner] was arrested . . . [and an attorney] was
appointed to represent [him]. . . .
[Before trial,
Petitioner] moved to dismiss [his appointed attorney] and
for the appointment of new counsel.
The trial court
allowed [Petitioner] to proceed pro se and ordered [his
original appointed counsel] to remain available as
standby counsel.
[Petitioner subsequently] waived his right to all
assistance of counsel and stated he desired to represent
himself and appear on his own behalf for trial. . . .
2
The parties have consented to disposition of this case by a United States
Magistrate Judge. (Docket Entry 26.)
-2-
[At trial] a cadaver dog handler [] testif[ied]
concerning the significance of various behaviors
displayed by the dog [during a search of Petitioner’s
residence and vehicle] . . . [and] witnesses testif[ied]
to
the
victim’s
statements
concerning
her
and
[Petitioner’s] financial situation and [his] alleged acts
of domestic violence against [her]. . . .
[In addition], the State introduced evidence of
[Petitioner’s] financial dealings with other people,
depletion of the victim’s bank accounts, violent acts
toward the victim, and his adulterous relationships.
Petrick, 186 N.C. App. at 598-605, 652 S.E.2d at 690-93.
II.
PETITIONER’S CLAIMS
The Petition identifies eight grounds for relief:
1) “[t]he trial court erred in not informing [Petitioner]
that, if counsel and [Petitioner] were at an absolute impasse, it
would be [Petitioner’s] wishes that controlled” (Docket Entry 1,
¶ 12 (Ground One));3
2) “[t]he trial court committed plain error by admitting
opinion testimony from a cadaver dog handler” (id. (Ground Two));
3) “[t]he trial court committed plain error in allowing
heresay [sic] testimony from witnesses” (id. (Ground Three));
4) “[t]he trial court committed plain error in admitting
evidence of alleged prior bad acts and character opinion testimony”
(id. (Ground Four));
5) “[t]he trial court committed plain error by allowing a
complete breakdown of the adversarial process” (id. (Ground Five));
3
Petitioner generally has used only capital letters in his written
filings. (See, e.g., Docket Entry 1.) For ease of reading, this Memorandum
Opinion employs standard capitalization conventions when quoting such filings.
-3-
6) “[Petitioner’s] constitutional rights were violated when
perjured testimony was knowingly presented to the jury” (id.
(Ground Six));
7) “[Petitioner’s] constitutional rights were violated when
evidence
was
witheld
[sic]
by
the
prosecution”
(id.
(Ground
Seven)); and
8)
“[Petitioner’s]
constitutional
rights
under
the
Sixth
Amendment were violated by the ineffective assistance of appellate
counsel” (id. at 28).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
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).
When a petitioner has exhausted state remedies, this Court
must apply a highly deferential standard of review in connection
4
Unlike with Grounds One through Seven, which the Petition identifies on
pages of the standard Section 2254 form before elaborating on “continuation
pages” (cited herein by reference to the page number(s) appended by the CM/ECF
system upon filing), the Petition’s description of Ground Eight appears only on
a continuation page. (Compare Docket Entry 1, ¶ 12, with id. at 21-28.)
-4-
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 [or] . . . confront[] facts that
are materially indistinguishable from a relevant [United States]
Supreme Court precedent and arrive[] at a result opposite to that
reached by [the United States Supreme Court].” Williams v. Taylor,
529 U.S. 362, 405 (2000).
A state court decision “involves 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”).
IV.
DISCUSSION
A. Ground One – Inadequate Colloquy regarding
Petitioner’s Decision to Proceed without Counsel
According to Ground One of the Petition, when Petitioner moved
to have his appointed attorney relieved, the trial court violated
-5-
Petitioner’s Sixth Amendment right to counsel by “not informing
[Petitioner] that, if counsel and [Petitioner] were at an absolute
impasse as to trial decisions, it would be [Petitioner’s] decisions
that controlled.”
(Docket Entry 1 at 21.)
Petitioner raised this
same basic contention at both steps of his direct appeal (see
Docket Entry 12-4 at 19-27; Docket Entry 12-7 at 8-10), with the
North Carolina Court of Appeals rejecting it on the merits, see
Petrick, 186 N.C. App. at 599-601, 652 S.E.2d at 690-91,5 and the
North Carolina Supreme Court declining to hear the matter, Petrick,
362 N.C. at
242, 660
S.E.2d
at
540.
As a
result,
Section
2254(d)(1)’s deferential review standard applies to Ground One. To
secure relief under that standard, Petitioner must show that, in
denying this claim, the North Carolina Court of Appeals reached “a
conclusion opposite to that reached by [the United States Supreme]
Court
on
a
question
of
law,”
Williams,
529
U.S.
at
405,
“confront[ed] facts that are materially indistinguishable from a
relevant [United States] Supreme Court precedent and arrive[d] at
a result opposite to that reached by [the United States Supreme
Court],” id., or “identifie[d] the correct governing legal rule
from [the United States Supreme] Court’s cases but unreasonably
applie[d] it to the facts of [his] case,” id. at 407.
5
“When a federal claim has been presented to a state court and the state
court has denied relief, it may be presumed that the state court adjudicated the
claim on the merits in the absence of any indication or state-law procedural
principles to the contrary.” Harrington v. Richter, 562 U.S. 86, __, 131 S. Ct.
770, 784–85 (2011); see also Hill v. Ozmint, 339 F.3d 187, 196 (4th Cir. 2003)
(rejecting “conten[tion] that, because the state court referenced only state law
in resolving [a federal] claim, it failed to ‘adjudicate’ it ‘on the merits’”).
-6-
Petitioner,
however,
has
not
identified
a
United
States
Supreme Court decision on point that the North Carolina Court of
Appeals either contradicted or unreasonably applied.
Entry 1 at 21; Docket Entry 22 at 2-5.)
(See Docket
Instead, Petitioner
asserts that certain North Carolina state-court rulings gave him
the right to direct “‘tactical decisions’” and that the trial court
should
have
rulings.
advised
him
consistently
with
those
state-court
(Docket Entry 22 at 3 (quoting State v. Ali, 329 N.C.
394, 403, 407 S.E.2d 183, 189 (1991), and citing other North
Carolina cases).)
To the extent Petitioner contends the trial
court acted contrary to state law, any such contention provides no
basis for relief here, because “it is not the province of a federal
habeas court to reexamine state-court determinations on state-law
questions,” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991).
Nor has the Court independently located any United States
Supreme Court decision that would have required the North Carolina
Court of Appeals to hold that the trial court should have advised
Petitioner that he had the right to proceed with appointed counsel
while still maintaining the authority to make all decisions about
the conduct of the trial.
Supreme
Court’s
To the contrary, the United States
well-known
description
of
an
attorney’s
responsibilities does not endorse the view that an attorney must
capitulate to a client’s preferences about the handling of a
defense, but rather references only an attorney’s “duties to
consult with the defendant on important decisions and to keep the
defendant informed of important developments in the course of the
-7-
prosecution.”
Under
these
Strickland v. Washington, 466 U.S. 668, 688 (1984).
circumstances,
Petitioner
2254(d)(1) as to Ground One.
cannot
satisfy
Section
Put another way, “[t]he lack of a
controlling [United States] Supreme Court precedent is fatal to
[Petitioner’s instant] habeas claim . . . .”
Stroud v. Polk, 466
F.3d 291, 297 (4th Cir. 2006).6
B. Ground Two – Erroneous Admission of
Opinion Testimony by Cadaver Dog Handler
The Petition next contends that “[t]he trial court violated
[Petitioner’s] constitutional rights under the Sixth Amendment and
committed plain error by admitting into evidence opinion testimony
from a cadaver dog handler concerning the significance of various
behaviors displayed by the dog.”
(Docket Entry 1 at 22.)
On
direct appeal to the North Carolina Court of Appeals, Petitioner
also attempted to challenge the trial court’s admission of the
6
Petitioner’s brief opposing Respondent’s summary judgment motion baldly
asserts that “the state appellate court adjudication [of this issue] was in fact
based on an unreasonable determination of facts in light of the evidence
presented in the state court proceedings, thus meeting the standards of
§ 2254(d)(2).” (Docket Entry 22 at 3.) However, said brief does not identify
any specific factual finding(s) the state court unreasonably made. (See id. at
3-5.) 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”).
-8-
cadaver dog handler’s testimony (see Docket Entry 12-4 at 27-31);
however, that court declined to consider the matter as follows:
[Petitioner] objected to the introduction of evidence
from the cadaver dog [handler] by pretrial motion, but
failed to preserve the issue by renewing his objection
when the evidence was presented at trial. [Petitioner],
in his brief and at oral argument, failed to
“specifically and distinctly contend” the admission of
this evidence “amounted to plain error.” N.C. R. App. P.
10(c)(4). This assignment of error is dismissed due to
[Petitioner’s] failure to properly preserve and present
it or to request and argue for plain error review. State
v. Washington, 134 N.C. App. 479, 485, 518 S.E.2d 14, 17
(1999).
Petrick, 186 N.C. App. at 601-02, 652 S.E.2d at 691 (internal
brackets omitted) (emphasis added). Petitioner then sought further
review of the issue (see Docket Entry 12-7 at 10-19), but the North
Carolina Supreme Court refused to take up his case, Petrick, 362
N.C. at 242, 660 S.E.2d at 540.
Where a state-court criminal defendant (like Petitioner) fails
to make a proper, contemporaneous objection at trial and thus can
secure at most plain error review on direct appeal, this Court is
“procedurally barred from considering th[at] claim, unless [that
defendant] can show cause and prejudice for his failure to preserve
the issue by a timely objection.”
487
(4th
Cir.
2003).
Daniels v. Lee, 316 F.3d 477,
Respondent
specifically
invoked
that
procedural bar in connection with its summary judgment motion.
(Docket Entry 12 at 11.)7
“In asking this Court to review this
7
Because the procedural bar in question arises from Petitioner’s failure
to make a contemporaneous objection at trial, any alleged, subsequent ineffective
assistance by his appellate counsel in neglecting to request plain error review
in the manner required by North Carolina law cannot serve as cause sufficient to
overcome the relevant procedural bar.
-9-
ground and override [Respondent’s] claim of procedural default,
[Petitioner] rel[ies] upon this Court’s interpretation of the cause
and prejudice standard outlined in Coleman v. Thompson, 501 U.S.
[722,] 750 (1991).”
(Docket Entry 22 at 7.)
Specifically, Petitioner asserts that “cause has already been
outlined in the record and argument; [the trial court’s] actions,
outlined in Ground 1 [of the Petition], which caused [Petitioner]
to
unwillingly,
and
against
[his]
best
interest,
represent
[him]self pro se, which led in turn to [his] inadvertent failure to
object before the jury . . . .”
(Id.)
As discussed in Subsection
IV.A., however, Petitioner has not shown that the North Carolina
Court of Appeals unreasonably concluded that the trial court
properly handled its colloquy with Petitioner about his decision to
proceed pro se.
Accordingly, Petitioner’s proffered “cause” does
not excuse his failure to contemporaneously object to the admission
of the cadaver dog handler’s testimony and thus a procedural bar
prohibits this Court’s consideration of Ground Two.
See, e.g.,
Siluk v. Beard, 395 F. App’x 817, 820 (3d Cir. 2010) (“[T]he right
of self-representation does not exempt a party from compliance with
relevant rules of procedural law.
We must therefore conclude that
[the petitioner’s] pro se status, without more, cannot constitute
cause sufficient to excuse the procedural default of his federal
claims in state court.” (internal citations omitted)); Jones v.
Armstrong,
367
F.
App’x
256,
258
(2d
Cir.
2010)
(“[The
petitioner’s] own ineffectiveness while proceeding pro se does not
constitute cause for his procedural default because it is not
-10-
‘something external to the petitioner, something that cannot be
fairly attributed to him.’ It is, in fact, precisely the opposite,
a conclusion that many courts have reached.
Moreover, . . . [t]he
Supreme Court has held that ‘a defendant who elects to represent
himself cannot thereafter complain that the quality of his own
defense amounted to denial of effective assistance of counsel.’”
(internal citations and emphasis omitted) (quoting Coleman, 501
U.S. at 753, and Faretta v. California, 422 U.S. 806, 834 n.46
(1975), respectively)); Holloway v. Smith, No. 95-7737, 81 F.3d 149
(table),
1996
WL
160777,
at
*1
(4th
Cir.
Apr.
8,
1996)
(unpublished) (“[The petitioner] does not meet the cause and
prejudice standard because unfamiliarity with the law and his pro
se status do not constitute adequate justification to excuse his
failure to present the claim earlier . . . .”).8
8
As noted above, Petitioner invoked the “cause and prejudice” exception
to procedural default (recognized in Coleman). That decision also permits review
of a procedurally defaulted claim where “the failure to consider the claim will
result in a fundamental miscarriage of justice.” Fowler v. Joyner, 753 F.3d 446,
460 (4th Cir. 2014) (citing Coleman, 501 U.S. at 750). In opposing Respondent’s
summary judgment motion, Petitioner did not rely on that alternative exception.
(See Docket Entry 22 at 6-28.) The Court thus need go no further. See Coleman,
501 U.S. at 757 (“As [the petitioner] does not argue in this Court that federal
review of his claims is necessary to prevent a fundamental miscarriage of
justice, he is barred from bringing these claims in federal habeas.”); Thompkins
v. Pfister, 698 F.3d 976, 987 n.5 (7th Cir. 2012) (“[The petitioner] does not
argue that without federal habeas review, he will suffer a fundamental
miscarriage of justice, so we do not address this ground for relief from the
procedural default.”).
Nor would the evident circumstances have allowed
Petitioner to secure review under the “fundamental miscarriage of justice”
exception, “a severely confined category,” McQuiggin v. Perkins, ___ U.S. ___,
___, 133 S.Ct. 1924, 1933 (2013), which “requires the habeas petitioner to show
that ‘a constitutional violation has probably resulted in the conviction of one
who is actually innocent,’” Schlup v. Delo, 513 U.S. 298, 327 (1995) (quoting
Murray v. Carrier, 477 U.S. 478, 496 (1986)). “[E]xperience has taught us that
a substantial claim that constitutional error has caused the conviction of an
innocent person is extremely rare. To be credible, such a claim requires [a]
petitioner to support his allegations of constitutional error with new reliable
evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness
(continued...)
-11-
C.
Ground Three – Erroneous Admission of Hearsay Testimony
As its Ground Three, the Petition asserts that “[t]he trial
court violated [Petitioner’s] constitutional rights under the Sixth
Amendment and committed plain error in allowing witnesses to
testify to statements allegedly made to them by the decedent.”
(Docket Entry 1 at 23; see also id. (“The trial court did not find
any statutory exception to the rule against heresay [sic], making
the unsupported pronouncement that statements by victims are per se
admissible.”).)
The only even general example of such testimony
identified in the Petition concerns statements attributed by a
witness (or witnesses) to Petitioner’s wife “that [he] supposedly
attacked [her] . . . .”
name
of
any
witness
(Id.)
who
The Petition neither references the
allegedly
8
gave
purportedly
improper
(...continued)
accounts, or critical physical evidence — that was not presented at trial.” Id.
at 324. Moreover, “[t]o establish the requisite probability, the petitioner must
show that it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence. The petitioner thus is required
to make a stronger showing than that needed to establish prejudice.” Id. at 327.
Petitioner neither has attempted to make nor has made anything approaching that
level of showing. (See Docket Entry 1 at 22-28; Docket Entry 22 at 6-28; Docket
Entry 32 at 1-4.) At various points (for the apparent purpose of refuting a lack
of prejudice argument), Petitioner has asserted (in largely conclusory fashion)
that, apart from the cadaver dog handler’s testimony, Respondent presented only
circumstantial evidence to establish Petitioner’s guilt. (See Docket Entry 1 at
22; Docket Entry 22 at 6, 8-9; Docket Entry 32 at 3.)
Even if true, that
assertion would not suggest any weakness in the case against Petitioner (much
less his actual innocence). To the contrary, “[i]t is, of course, fundamental
that a criminal offense may be proven beyond a reasonable doubt by circumstantial
evidence and that direct evidence of the essential elements of a crime is not
necessary.” United States v. Gober, 331 F. Supp. 252, 253 (W.D. Okla. 1971); see
also Gulf, Colo. & Santa Fe R.R. Co. v. Washington, 49 F. 347, 350 (8th Cir.
1892) (“One who kills another in secret, when no eye sees the deadly potion
administered or the fatal blow struck, may be convicted of murder, and hanged on
circumstantial evidence[.]”). Moreover, no less an authority than the United
States Supreme Court has recognized that “[c]ircumstantial evidence is not only
sufficient, but may also be more certain, satisfying and persuasive than direct
evidence.” Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330 (1960).
-12-
testimony on this vague subject nor points to anything that would
identify any such witness(es) or testimony.
(See id.)
A petition under Section 2254 “must: (1) specify all the
grounds for relief available to the petitioner; [and] (2) state the
facts supporting each ground[.]”
Rule 2(c), Rules Governing
Section 2254 Cases (emphasis added). “‘[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, No. 96-7614, 153 F.3d
719 (table), 1998 WL 480727, at *2 (4th Cir. Aug. 6, 1998)
(unpublished) (quoting with approval Adams v. Armontrout, 897 F.2d
332, 334 (8th Cir. 1990)) (emphasis added); see also Mayle v.
Felix, 545 U.S. 644, 655 (2005) (explaining that, compared to
Federal Rule of Civil Procedure 8(a), “Habeas Corpus Rule 2(c) is
more demanding”); McFarland v. Scott, 512 U.S. 849, 856 (1994)
(“Habeas
corpus
petitions
must
meet
heightened
pleading
requirements . . . .”); Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.
1970) (“We
do
not
accept ‘notice’
pleading in
habeas corpus
proceedings.”); Henderson v. Cate, No. 06CV1545JAH(WMc), 2009 WL
3126295, at *7 (S.D. Cal. Sept. 24, 2009) (unpublished) (“In order
to validly state a claim for habeas relief, [a] [p]etitioner must
set forth sufficient facts to support each and every claim. . . .
Such a requirement reflects a concern for the respect of state
-13-
trial court adjudication by imposing on the habeas petitioner the
burden of alleging and proving primary facts which justify federal
intervention in a state-resolved case.”).
Ground Three falls short under the foregoing standard in light
of the conclusory nature of its allegations, which, inter alia,
fail
to
identify
the
erroneously admitted.
specific
witness
testimony
allegedly
See Martin v. Warden, Forcht Wade Corr.
Ctr., 289 F. App’x 682, 683 (5th Cir. 2008) (“Although [the
petitioner]
argues
that
the
testimony
of
‘various
officers’
violated his right to confrontation, [he mentions] only [two]
specific officers . . . and he fails to identify any specific trial
testimony.
Conclusional allegations on a critical issue do not
raise a constitutional issue and are not sufficient to warrant
habeas relief.”); Black v. Miller, No. CV12-10875PSG(E), 2013 WL
6002896, at *19 (C.D. Cal. Nov. 6, 2013) (unpublished) (“[The]
[p]etitioner’s
claim
that
the
court
erred
in
admitting
the
unidentified hearsay testimony of [a witness] does not merit habeas
relief.”); Tebelman v. Brunsman, No. 3:10CV2271, 2012 WL 1004759,
at *10 n.145 (N.D. Ohio Jan. 30, 2012) (unpublished) (observing
that the petitioner did not comply with Section 2254 Rule 2(c)
where he “never articulated with specificity in his habeas petition
the particular statements he contends were improperly admitted as
hearsay”), recommendation adopted, 2012 WL 1004758 (N.D. Ohio Mar.
23,
2012)
(unpublished);
Arredondo
v.
Sandor,
No.
CV10-
1115CAS(MRW), 2011 WL 5357683, at *9 (C.D. Cal. Oct. 11, 2011)
(unpublished) (“As to [the] [p]etitioner’s] contention regarding
-14-
the admission of hearsay testimony about his wife’s statements, the
conclusory
argument
is
insufficient
on
habeas
review.”),
recommendation adopted, 2011 WL 5294861 (C.D. Cal. Nov. 3, 2011)
(unpublished), aff’d, ___ F. App’x ___, 2014 WL 4290810 (9th Cir.
2014); Lavoll v. Neven, No. 2:08CV11PMP(GWF), 2010 WL 4974541, at
*9 (D. Nev. Nov. 30, 2010) (unpublished) (“Ground 9 was a claim
that hearsay was erroneously admitted.
[The] [p]etitioner’s claim
was vague and conclusory, because he did not allege the specific
instances of hearsay.”); see also Adams, 897 F.2d at 333 (“We do
not believe that 28 U.S.C. § 2254 or the Section 2254 Rules require
the federal courts to review the entire state court record of
habeas corpus petitioners to ascertain whether facts exist which
support relief.
Requiring such an exhaustive factual review of
entire state court records would pose an insuperable burden on
already strained judicial resources.”); Amaro v. Cameron, Civil
Action No. 09-343, 2009 WL 6567090, at *9 (E.D. Pa. July 31, 2009)
(unpublished) (“While we must give a liberal reading to a pro se
litigant’s pleadings, it is not the job of a habeas court to comb
the record and sift for facts that may exist to support a bare
allegation and then engage in an effort to construct a potential
claim on his behalf.” (internal citation omitted)), recommendation
adopted, 2010 WL 2330280 (E.D. Pa. June 3, 2010) (unpublished).9
9
Nor did Petitioner clarify such matters in his summary judgment response,
which (in discussing Ground Three) merely refers generically to “hearsay
testimony” (Docket Entry 22 at 14), “contradictory testimony of several witnesses
regarding conversations with [his] wife” (id. at 15), “hearsay testimonials”
(id.), and “statements allegedly made by [his wife] out of court, without a
third-party witness” (id.). At one point, the discussion of Ground Three in
(continued...)
-15-
Alternatively, in moving for summary judgment, Respondent
correctly has observed that a procedural bar applies to Ground
Three because, to the extent Petitioner raised the instant Sixth
Amendment claim on direct appeal, he did so only before the North
Carolina Court of Appeals,10 thereafter “fail[ing] to raise the
substance of [G]round (3) in his notice of appeal/petition for
discretionary review filed in the North Carolina Supreme Court”
(Docket Entry 12 at 23).
(Compare Docket Entry 12-4 at 32-34, with
Docket Entry 12-7 at 8-19.)
To satisfy Section 2254(b)(1)’s
exhaustion requirement, Petitioner must have allowed the State of
North Carolina “‘the opportunity to pass upon and correct alleged
violations of its prisoners’ federal rights.’
To provide [the
State of North Carolina] with this opportunity, ‘[Petitioner] must
“fairly present” his claim in each appropriate state court, thereby
alerting that court to the federal nature of the claim.’” Jones v.
9
(...continued)
Petitioner’s summary judgment response does mention a witness (“Ms. Mandeville”)
by name, but without describing the specific, improper hearsay that she allegedly
offered. (Id. (complaining that unidentified testimony by Mandeville “fail[ed]
to meet accepted standards regarding indicia of reliability” because of her
“admission that she misremembered the date originally given” while citing only
to transcript page of that alleged admission (not to transcript page(s) of
allegedly erroneously admitted hearsay testimony).) Further, a summary judgment
response (or traverse) “is not the proper place to raise new facts. Under Rule
2(c) of the Rules Governing Section 2254 Cases, a petitioner must set forth in
his petition ‘the facts supporting each ground’ for relief.”
Velasquez v.
Gipson, No. SA CV 12-1078(JSL), 2013 WL 3381371, at *9 n.4 (C.D. Cal. July 8,
2013) (unpublished) (emphasis added); see also Quackenbush v. Tilton, No.
07CV413W(WMC), 2008 WL 183710, at *6 (S.D. Cal. Jan. 18, 2008) (unpublished)
(“Facts must be stated, in the petition, with sufficient detail to enable the
Court to determine, from the face of the petition, whether further habeas corpus
review is warranted. Moreover, the allegations should be sufficiently specific
to permit the respondent to assert appropriate objections and defenses.”
(internal citations omitted) (emphasis in original)).
10
The North Carolina Court of Appeals rejected Petitioner’s hearsayrelated attack(s) on his conviction. Petrick, 186 N.C. App. at 602-04, 652
S.E.2d at 692-93.
-16-
Sussex I State Prison, 591 F.3d 707, 712 (4th Cir. 2010) (quoting
Baldwin v. Reese, 541 U.S. 27, 29 (2004)) (internal ellipses
omitted) (emphasis added). Accordingly, a procedural bar arises as
to Ground Three because Petitioner failed to “raise his claim
before every available state court, including those courts – like
the
[North
Carolina
Supreme
Court]
–
whose
review
is
discretionary,” id. at 713 (citing O’Sullivan, 526 U.S. at 847)
(emphasis added), and Petitioner’s time to seek review in the North
Carolina Supreme Court passed long ago (indeed, even before he
filed his instant Petition), see Reid v. Vaughan, No. 1:10CV452,
2011 WL 1135143, at *3 (M.D.N.C. Mar. 24, 2011) (unpublished)
(discussing timing rules for discretionary petitions to the North
Carolina Supreme Court and citing O’Sullivan, 526 U.S. at 848),
recommendation adopted, slip op. (M.D.N.C. May 2, 2011).11
To avoid the foregoing procedural bar, Petitioner’s summary
judgment response asserts as follows:
To any extent where I may be in technical violation of
procedure, and thus subject to procedural bar, I claim
exception and ask this Court to exercise its discretion
and excuse such technical violations under both my claim
of ineffective assistance of appellate counsel and the
cause and prejudice standard.
11
Petitioner’s MAR also did not raise any claim of erroneous admission of
hearsay testimony or any related claim of ineffective assistance of appellate
counsel (for failing to pursue any hearsay-based issue before the North Carolina
Supreme Court). (See Docket Entry 12-10.) If Petitioner now attempted to remedy
such failure(s), he would face mandatory imposition of the procedural bar in N.C.
Gen. Stat. § 15A–1419, see Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001), and
thus a further procedural bar arises in this Court as to Ground Three, see Breard
v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). Respondent’s summary judgment
brief references these additional aspects of Petitioner’s default (Docket Entry
12 at 22-25) and Petitioner’s response does not offer any rationale that could
overcome them (see Docket Entry 22 at 14-16).
-17-
The cause is asserted under that ineffective assistance
claim.
(Docket Entry 22 at 14 (emphasis added).)
Petitioner’s assertion
in this regard lacks merit because his ineffective assistance of
counsel claim (Ground Eight of the Petition) does not allege (much
less provide factual support showing) that his appellate attorney
rendered constitutionally inadequate representation by failing to
pursue before the North Carolina Supreme Court a Sixth Amendment
claim for admission of improper hearsay reports of statements made
by Petitioner’s wife; to the contrary, Ground Eight (like the
parallel ineffective assistance of counsel claim in Petitioner’s
MAR
(see
appellate
Docket
Entry
12-10
at
attorney’s allegedly
12-14))
focuses
only
deficient litigation
related to the cadaver dog handler’s testimony.
1 at 28; see also Docket Entry 22 at 27.)
of
on
his
issues
(See Docket Entry
Petitioner thus has
failed to show “cause” sufficient to satisfy Coleman’s “cause and
prejudice” exception to his procedural default of Ground Three,
particularly given that an appellate attorney need not pursue every
non-frivolous issue and instead may winnow the assignments of
error, see Jones v. Barnes, 463 U.S. 745, 750–54 (1983).12
In sum, Petitioner cannot secure habeas relief via Ground
Three.
12
Again (as discussed in Footnote Eight above), in seeking to overcome any
procedural bar, Petitioner has not invoked the “fundamental miscarriage of
justice” exception noted in Coleman (see Docket Entry 22 at 6-28) and, therefore,
the Court need not address that issue, see Coleman, 501 U.S. at 757; Thompkins,
698 F.3d at 987 n.5. Nor has Petitioner anywhere established circumstances that
would meet the demanding “miscarriage of justice” test (as described in Schlup).
(See Docket Entry 1 at 22-28; Docket Entry 22 at 6-28; Docket Entry 32 at 1-4.)
-18-
D. Ground Four – Erroneous Admission of Prior
Bad Act Evidence and Character Opinion Testimony
Fourthly,
the
Petition
violated [Petitioner’s]
declares
that
constitutional
“[t]he
rights
trial
under
the
court
Sixth
Amendment and committed plain error in admitting evidence of
alleged
prior
testimony.”
acts
of
dishonesty
(Docket Entry 1 at 24.)
and
bad
character
opinion
The Petition, however, does
not identify a single witness who allegedly testified improperly
about Petitioner’s past conduct or character.
(See id.)
Nor does
the Petition offer any other details about any such testimony.
(See id.)
Accordingly, for the same reasons (and based on the same
authority) outlined in Subsection IV.C., Ground Four fails as a
matter of law under Section 2254 Rule 2(c).13
In the alternative, (in light of the authority discussed in
Subsection IV.C.) Respondent validly has interposed a defense that
“[G]round
(4)
is
procedurally
defaulted
under
O’Sullivan
for
Petitioner’s failure to raise [G]round (4) in his notice of appeal/
petition for discretionary review filed in the North Carolina
Supreme Court” (Docket Entry 12 at 29).
(See Docket Entry 12-7 at
13
Petitioner’s inclusion in his summary judgment brief of some details as
to this claim (see Docket Entry 22 at 16-18) does not alter the above conclusion
because a summary judgment response (like a traverse) “is not the proper place
to raise new facts. Under Rule 2(c) of the Rules Governing Section 2254 Cases,
a petitioner must set forth in his petition ‘the facts supporting each ground’
for relief.” Velasquez v. Gipson, No. SA CV 12-1078(JSL), 2013 WL 3381371, at
*9 n.4 (C.D. Cal. July 8, 2013) (unpublished) (emphasis added); see also
Quackenbush v. Tilton, No. 07CV413W(WMC), 2008 WL 183710, at *6 (S.D. Cal. Jan.
18, 2008) (unpublished) (“Facts must be stated, in the petition, with sufficient
detail to enable the Court to determine, from the face of the petition, whether
further habeas corpus review is warranted. Moreover, the allegations should be
sufficiently specific to permit the respondent to assert appropriate objections
and defenses.” (internal citation omitted) (emphasis in original)).
-19-
8-19.)14
By way of response, Petitioner’s summary judgment brief
states only, “[r]egarding the issue of default, I proffer and rely
upon the same argument given in Ground 3.”
16.)
(Docket Entry 22 at
As detailed in Subsection IV.C., Petitioner sought to avoid
summary judgment due to his procedural default on Ground Three by
asserting that his ineffective assistance of appellate counsel
claim in Ground Eight provided “cause” adequate to meet Coleman’s
“cause and prejudice” exception.
That assertion failed because
Ground Eight (like the parallel claim for ineffective assistance of
counsel set forth in Petitioner’s MAR) addressed only purported
professional negligence by his appellate attorney related to the
cadaver dog handler’s testimony. That same fact dooms Petitioner’s
instant effort to overcome the procedural bar applicable to Ground
Four (i.e., Ground Eight does not purport to show (much less show)
that
Petitioner’s
appellate
attorney
provided
ineffective
assistance by failing to present the substance of Ground Four to
the North Carolina Supreme Court).
This Court, therefore, denies
Ground Four due to procedural default as well.
14
At the first step of his direct appeal, Petitioner “argue[d] that the
trial court abused its discretion when it overruled his objections to testimony
of his prior acts of dishonesty and bad character. [Petitioner] also argue[d]
the trial court committed plain error in failing to strike such testimony ex mero
motu.” Petrick, 186 N.C. App. at 604, 652 S.E.2d at 693. The North Carolina
Court of Appeals, however, “disagree[d] . . . [because] evidence of
[Petitioner’s] financial dealings with other people, depletion of the victim’s
bank accounts, violent acts toward the victim, and his adulterous relationships
. . . tended to show [his] motive, intent, preparation, plan, absence of mistake,
and knowledge. The relevancy of this evidence outweighs its danger of unfair
prejudice.” Id. (internal citations omitted).
-20-
E.
Ground Five – Total Breakdown of Adversarial Process
The Petition further alleges that “[t]he trial court violated
[Petitioner’s] constitutional rights under the Sixth Amendment and
committed plain error by allowing a complete breakdown of the
adversarial process.” (Docket Entry 1 at 25.) The factual support
cited in the Petition for this claim appears as follows:
[T]he prosecution introduced, not only just prior to
trial but after the parties had rested their case in
chief, circumstantial and highly prejudicial evidence of
highly questionable provenance allegedly found in
[Petitioner’s] computers. [Petitioner] was given almost
no time to verify and prepare to meet that evidence, and
no access at all to the actual hard drives or even
certified copies, the prosecution actually misstating
their location in open court in order to deny access.
The [trial] court also ordered [Petitioner] to give the
State advance notice of the searches [his] expert was
conducting on the incomplete copies provided, having
repeatedly turned a deaf ear to [Petitioner’s] complaints
that the State was providing last-minute discovery of
material which should have been provided almost three
years earlier.
(Id.)
Respondent has moved for summary judgment “on [G]round (5)
because it is procedurally defaulted.
This is because Petitioner
failed to raise the issue in his notice of appeal/petition for
discretionary review filed in the North Carolina Supreme Court.”
(Docket Entry 12 at 31-32.)
The record confirms that Petitioner
did not pursue the substance of Ground Five before the North
Carolina Supreme Court on direct appeal. (See Docket Entry 12-7 at
-21-
8-19.)15
Accordingly, for the reasons discussed in Subsection
IV.C., a procedural bar also applies to Ground Five.
Petitioner’s summary judgment brief does not contest the
existence of the foregoing procedural bar and seeks to overcome it
only by “again respectfully refer[ring] the Court to [his] argument
in Ground 3.”
(Docket Entry 22 at 19.)
As set out in Subsection
IV.C., in connection with Ground Three, Petitioner contends that
his ineffective assistance of appellate counsel claim in Ground
Eight provides the requisite “cause” for purposes of Coleman’s
“cause
and
prejudice”
exception
to
procedural
default.
The
discussion in Subsection IV.C. explains that said contention fails
because Ground Eight (and the parallel ineffective assistance claim
in
Petitioner’s
MAR)
reference
only
purported
inadequate
representation by his appellate attorney in regards to the cadaver
dog handler’s testimony.
That circumstance similarly defeats
Petitioner’s instant effort to show “cause” excusing his procedural
default as to Ground Five.
Accordingly, the Court will enter
summary judgment for Respondent on Ground Five.
F.
Ground Six – Knowing Presentation of Perjured Testimony
In
Ground
Six,
the
Petition
states
that
“[Petitioner’s]
constitutional rights under the Sixth and Fourteenth Amendments
15
In initially pursuing his direct appeal before the North Carolina Court
of Appeals, Petitioner “argue[d] that several rulings by the trial court
‘sabotaged the adversarial process to the extent that the result of the trial
[wa]s presumptively unreliable.’” Petrick, 186 N.C. App. at 605, 652 S.E.2d at
693. The rulings challenged by Petitioner in that regard included “denying his
motions for sanctions against the State for failing to timely provide discovery
. . . [and] requiring him to provide the State with information on the searches
he intended to perform on certain computers[.]” Id. at 605, 652 S.E.2d at 69394. “This assignment of error [wa]s overruled.” Id. at 606, 652 S.E.2d at 694.
-22-
were violated when perjured testimony was knowingly presented to
the jury.”
(Docket Entry 1 at 26.)
The entirety of the Petition’s
factual support for Ground Six consists of the following:
The cadaver dog handler Roy McNeill gave testimony during
trial which directly contradicted that given in a
previous voir dire hearing.
When asked about his
previous answers during cross-examination, he denied
having made them, a perjured statement which went
uncorrected by the prosecution.
Since my trial, Mr. McNeill has given testimony in
another trial where he made statements regarding both his
work on my case and his record keeping which provide
further proof of his perjury during my trial.
(Id.)
the
The Petition thus does not describe in any meaningful way
alleged
contradictory
perjurious
voir
dire
trial
testimony,
testimony,
or
the
the
alleged
subsequent
prior,
trial
testimony in another case that allegedly proved McNeill committed
perjury before Petitioner’s jury, all contrary to the requirements
of Section 2254 Rule 2(c) (discussed in Subsection IV.C.).
Ground Six therefore fails as a matter of law, for reasons
well-expressed by another court more than two decades ago:
In the abstract, this allegation raises an issue of
utmost concern: a prosecutor’s knowing use of perjured
testimony is one of the classic grounds for the issuance
of a writ of habeas corpus. Yet [the instant claim] is
nothing more than an abstract allegation. Petitioner has
offered no elaboration of any kind. In particular, he
has failed to identify what portions of the [cited
witness’s] testimony are allegedly perjurious, and has
provided no factual support for his supposition that the
government countenanced any such perjury.
Given its
wholly conclusory nature, this charge [i]s properly
subject to summary dismissal.
Andiarena v. United States, 967 F.2d 715, 719 (1st Cir. 1992)
(internal citation and quotation marks omitted).
-23-
Numerous courts across the country, including in the Fourth
Circuit, have reached the same conclusion in analogous contexts.
See, e.g., Schlang v. Heard, 691 F.2d 796, 799 (5th Cir. 1982)
(“[The petitioner] alleges that the State’s principal witness
perjured himself . . . .
Mere conclusory statements do not raise
a constitutional issue in a habeas case.”); Daly v. Chavez, No.
CV11-1818DSF(DTB), 2013 WL 5951932, at *19 (C.D. Cal. Nov. 5, 2013)
(unpublished) (“[The] [p]etitioner has failed to establish that any
perjured
testimony
conviction. . . .
warrant
habeas
was
used
to
obtain
his
[V]ague and conclusory allegations do not
relief
as
they
do
not
meet
the
specificity
requirement.”); Philbert v. Brown, No. 1:11CV1805(NCG), 2012 WL
4849011, at *9 (E.D.N.Y. Oct. 11, 2012) (unpublished) (“[The
petitioner] alleges that the prosecutor knowingly allowed perjured
testimony; however, this allegation is vague, conclusory, and
unsupported. . . . [The petitioner] offers neither any description
of the testimony he alleges was false, nor any support for his
claim that the [prosecutor] had knowledge of the alleged perjury.
Such vague allegations which fail to offer even the most cursory
description of the alleged errors do not amount to a viable habeas
claim, nor do they establish knowing introduction of perjury by the
prosecution.
[The petitioner’s] claim for habeas relief based on
alleged allowance of perjured testimony therefore fails.” (internal
brackets, citations, and quotation marks omitted)); Boan v. Warden
of Lee Corr. Inst., Civil Action No. 2:11-2078-RBH-BHH, 2012 WL
4069685,
at
*19
(D.S.C.
July
31,
-24-
2012)
(unpublished)
(“[A]
defendant
seeking
to
vacate
a
conviction
based
on
perjured
testimony must show that the testimony was, indeed perjured. . . .
[The] [p]etitioner’s conclusory allegations of perjury do not meet
this
standard[.]”
(internal
quotation
marks
omitted)),
recommendation adopted in relevant part, 2012 WL 4069682 (D.S.C.
Sept. 17, 2012) (unpublished); Gill v. Harrington, No. CV099508DOC(JCG), 2011 WL 6210326, at *6 (C.D. Cal. Nov. 15, 2011)
(unpublished) (“[The] [p]etitioner fails to specify which testimony
was false or perjured, and . . . conclusory allegations that are
not supported by specific facts do not warrant habeas relief.”),
recommendation adopted, 2011 WL 6210372 (C.D. Cal. Dec. 14, 2011)
(unpublished); Smith v. Dretke, Civil Action No. H-04-4122, 2006 WL
1852117, at
*6
(S.D.
Tex.
June
30,
2006)
(unpublished) (“[A
petitioner] must indicate specifically what statements were false
and why, and show that the State was aware of the false statements.
Here, [the petitioner] does not specifically assert what statements
were false, and does not provide any evidence in support of his
allegations. Therefore, his claims are without merit.); Beasley v.
Holland, 649 F. Supp. 561, 566 (S.D.W. Va. 1986) (“Mere conclusory
charges of perjury and the knowing use of the alleged perjury is
[sic] insufficient to warrant a hearing or habeas relief.”), appeal
dismissed, No. 86-7411, 841 F.2d 1122 (table), 1988 WL 16914 (4th
Cir. Feb. 29, 1988) (unpublished).16
16
This view coheres with the Fourth Circuit’s more general directive that
“[u]nsupported, conclusory allegations do not entitle a habeas petitioner to an
evidentiary hearing,” Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992),
abrogated on other grounds, Gray v. Netherland, 518 U .S. 152, 165–66 (1996).
-25-
Once Respondent moved for summary judgment based on the
conclusory nature of Ground Six (see Docket Entry 12 at 34),
Petitioner identified with some greater specificity the testimony
on which he purported to rely (see Docket Entry 22 at 23-25).
That
belated effort cannot save Ground Six because a summary judgment
response (like a traverse) “is not the proper place to raise new
facts.
Under Rule 2(c) of the Rules Governing Section 2254 Cases,
a petitioner must set forth in his petition ‘the facts supporting
each ground’ for relief.”
Velasquez v. Gipson, No. SA CV 12-
1078(JSL), 2013 WL 3381371, at *9 n.4 (C.D. Cal. July 8, 2013)
(unpublished) (emphasis added); see also Quackenbush v. Tilton, No.
07CV413W(WMC), 2008 WL 183710, at *6 (S.D. Cal. Jan. 18, 2008)
(unpublished)
(“Facts
must
be
stated,
in
the
petition,
with
sufficient detail to enable the Court to determine, from the face
of
the
petition,
whether
further
warranted.” (emphasis in original)).
habeas
corpus
review
is
Ground Six thus fails.
The requirement in Section 2254 Rule 2(c) that a petition
include the factual predicate for a claim exists not only to
preserve judicial resources, see Adams, 897 F.2d at 333, but also
“to permit the respondent to assert appropriate objections and
defenses,” Quackenbush, 2008 WL 183710, at *6.
In this case, by
waiting until after Respondent answered the Petition and sought
summary judgment to identify the specific testimony at issue in
Ground Six, Petitioner deprived Respondent of an opportunity to
assert a procedural bar to part of Ground Six (as refined in
-26-
Petitioner’s summary judgment brief). In that regard, Petitioner’s
summary judgment brief cites three instances of supposed perjury:
1) “During voir dire McNeill corroborated other testimony
given
by
a
crime
scene
investigator
that
[Petitioner’s]
two
frightened kittens were hiding beneath the bed when the [cadaver
dog] search took place (Tp 804). At trial, however, [McNeill] both
changed his testimony and categorically denied having made the
initial statement (Tp 1309).”
(Docket Entry 22 at 23.);
2) “At voir dire, [McNeill] made a clear statement . . . that,
in the absence of any actual organic material, the scent left by a
cadaver would be gone within hours or days of the body being
removed (Tpp 806-807).
Once his testimony was ruled admissible,
McNeill substantially changed his testimony at trial in order to
conform to the State’s theory of the case.
He now claimed that,
even without the presence of organic matter, the scent would remain
for ‘many, many years’ (Tp 1315).”
(Docket Entry 22 at 23-24; see
also id. at 24 (“When [McNeill] changed his testimony [on cadaver
odor], then denied having done so, it became perjury.”).); and
3) “At [Petitioner’s] trial McNeill stated that he kept
accurate records and that these records did exist . . . [and] could
be produced . . . for the prosecution (Tpp 797, 1305).
In the
Anderson trial, however, [McNeill] stated that his records were no
longer
available;
they
had
been
destroyed,
in
two
separate
locations, by storm damage during Hurricane Ivan. . . .
‘discrepancy’
indicates
flat-out
-27-
perjury
on
McNeill’s
[T]his
part.
Hurricane Ivan occurred in September of 2004; [Petitioner’s] trial
was in October of 2006 [sic].”
Petitioner’s
MAR
also
(Docket Entry 22 at 24-25.)17
asserted
that
handler, Roy McNeill, committed perjury.”
7.)
“[t]he
cadaver
dog
(Docket Entry 12-10 at
However, unlike Petitioner’s above-quoted summary judgment
response, his MAR did not list item number two above (i.e.,
McNeill’s testimony about how long a cadaver’s smell would remain
somewhere) as an example of any such perjury.
(See id. at 7-10.)
Because Petitioner failed to include that allegation of perjury in
his MAR, he has not exhausted any federal constitutional claim
based on that allegation of perjury.
Moreover, if Petitioner
sought to present any such allegation of perjury in state court at
this point, a mandatory procedural bar would arise under N.C. Gen.
Stat. § 15A–1419, see Rose v. Lee, 252 F.3d 676, 683 (4th Cir.
2001), resulting in application of a procedural bar in this Court,
see Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998).
Under
these circumstances, the Court finds that the interests of comity
and judicial efficiency warrant sua sponte enforcement of the
applicable procedural bar without hearing further from the parties,
given the obvious nature of the default, the absence of any cause
17
As the Petition acknowledges (Docket Entry 1, ¶ 2), Petitoner’s trial
occurred in 2005, not (as Petitioner indicated in the above-quoted passage) in
2006. Petitioner’s above-quoted “Tp” and “Tpp” citations refer to the transcript
of his trial proceedings (consisting of 16 volumes, encompassing 16 days between
October 31 and November 29, 2005, with continuous pagination throughout), which
Respondent filed (and served on Petitioner) in hard-copy form pursuant to Rule
5(c) of the Rules Governing Section 2254 Cases (see Docket Entry 13). Because
the record also includes some additional transcripts from some other proceedings
that took place before October 31, 2005, the Court will use the term “Trial Tr.”
for citations to the 16-volume transcript of the trial proceedings.
-28-
that plausibly might excuse the default,18 and Petitioner’s failure
to comply with Section 2254 Rule 2(c) in originally presenting
Ground Six.
See Yeatts v. Angelone, 166 F.3d 255, 261-62 (4th Cir.
1999) (recognizing that “interests of comity may counsel a federal
habeas court to ignore the failure of a state to assert a defense
founded upon procedural default,” particularly where (1) “judicial
efficiency is advanced,” such as when “a petitioner obviously has
defaulted,” and (2) the record does not reflect that “a state
intentionally has declined to pursue the defense”).19
In any event, the three instances of purported perjury cited
in Petitioner’s summary judgment response (including item number
two above, which the Court has deemed procedurally defaulted) fall
short
of
establishing
a
federal
constitutional
violation.20
Pursuant to Napue v. Illinois, 360 U.S. 264 (1959), “a State denies
a defendant due process by knowingly offering or failing to correct
false testimony.
A Napue claim requires a showing of the falsity
and materiality of testimony and the prosecutor’s knowledge of its
falsity.”
Basden v. Lee, 290 F.3d 602, 614 (4th Cir. 2002).
18
As documented in Subsections IV.C., IV.D., and IV.E., despite Respondent
invoking procedural bar as to numerous claims, Petitioner has opted against
offering any “cause” for his defaults beyond his inapposite citations to Ground
Eight of his Petition. Further, Petitioner’s filings establish that he neither
has attempted to meet nor could meet the “miscarriage of justice” exception.
(See Docket Entry 1 at 22-28; Docket Entry 22 at 6-28; Docket Entry 32 at 1-4.)
19
Petitioner also arguably defaulted any claim as to at least the first
two of the above-referenced instances of perjury by failing to present it on
direct appeal; however, given the other evident deficiencies of the instant
claim(s), the Court declines to address such matters further.
20
Because Petitioner did not exhaust a claim related to the second alleged
instance of perjury, the Court generally cannot grant relief on any such claim,
28 U.S.C. § 2254(b)(1), but can deny it on the merits, 28 U.S.C. § 2254(b)(2).
-29-
Petitioner has shown neither that McNeill gave false testimony nor
that the prosecutor knew of any falsity.
As
to
the
first
alleged
occurrence
of
perjury
cited in
Petitioner’s summary judgment brief, the record reflects that,
during voir dire, Petitioner and McNeill had this exchange:
Q.
Are you aware that there were two cats under the
bed at the time of the search?
A.
Yes, sir.
attention.
(Trial Tr. 804.)
[My
dog,
Kaiser,]
paid
them
no
Before the jury, McNeill first testified that
“[t]he cats were not under the bed” and then, when Petitioner
suggested that prior testimony (from McNeill or someone else)
indicated otherwise, McNeill asked if he previously had testified
to the contrary.
(Trial Tr. 1309.)
When the trial court posed
clarifying questions, McNeill stated that he “ha[d] no knowledge”
of whether “the cats were under the bed when [he] conducted the
search.” (Trial Tr. 1311.) Finally, during further examination by
Petitioner, McNeill explained:
“As far as I know, there were no
cats in the bedroom, because I never saw them in the bedroom.
they were, the dog never alerted on them.”
From
this
sequence
of
events,
If
(Trial Tr. 1312.)
Petitioner
concludes
that
McNeill “both changed his testimony and categorically denied having
made the initial statement” (Docket Entry 22 at 23); in fact, the
record reflects that, before the jury, rather than “categorically
den[ying]”
expressed
anything
confusion
presence of cats.
about
his
about
what
voir
he
dire
testimony,
previously
said
McNeill
about
the
Further, to the extent McNeill “changed” his
-30-
testimony, he did so in a manner fully consistent with good-faith
clarification.
Specifically, during voir dire, McNeill (perhaps
too casually) answered affirmatively to a vague question about his
current “aware[ness]” of a past historical fact, while at the same
time unambiguously testifying that his dog did not react to any
cats.
Subsequently, before the jury, McNeill made clear that he
lacked personal knowledge about the location of any cats at the
time of the search, but reiterated the main point he made in voir
dire, i.e., that his dog did not alert to any cats.
These
circumstances do not establish that McNeill committed perjury, much
less that the prosecutor knew that McNeill had done so.
See Tapia
v. Tansy, 926 F.2d 1554, 1563 (10th Cir. 1991) (“Contradictions and
changes in a witness’s testimony alone do not constitute perjury
and
do
not
create
an
inference,
let
alone
prove,
that
the
prosecution knowingly presented perjured testimony.”).21
Petitioner’s second example of purported perjury similarly
lacks
merit.
First,
contrary
to
the
characterization
in
Petitioner’s summary judgment response, during voir dire, McNeill
repeatedly refused to give a definitive answer as to how long the
scent of a cadaver would remain in a location after removal of the
body because of the numerous, relevant, variable factors.
Trial Tr. 805-08.)
(See
Second, McNeill’s testimony before the jury
21
In his MAR, Petitioner raised a Napue claim based on this same alleged
instance of perjury (see Docket Entry 12-10 at 7) and the Superior Court
summarily denied that claim on the merits (see Docket Entry 12-11 at 1). As a
result, Section 2254(d)’s deferential review standard governs this aspect of
Ground Six; however, for reasons stated above, a Napue claim predicated on this
portion of McNeill’s testimony falls short under even a de novo review standard.
-31-
made the same point.
(See, e.g., Trial Tr. 1315-16 (“If a body has
laid in an area for just a short time, it will evaporate real
quick.
But if a body has laid and decomposed in one area for a
great number of days, . . . it will be there for a long long period
of time. . . .
temperature,
and
In a confined space it would depend on the
how
tight
the
rooms
are.”).)
Accordingly,
Petitioner has not shown any false testimony by McNeill on this
subject, let alone any knowledge of any falsity by the prosecutor.
The third instance of perjury listed in Petitioner’s summary
judgment brief (regarding record-keeping) fares no better.
Before
the jury, this colloquy occurred between Petitioner and McNeill:
Q.
Do you actually have your training records here
with you, by the way?
A.
No, sir, I don’t.
It wasn’t requested.
[Kaiser’s] records are here as far as --
Q.
Training records are available if we request them.
You do keep training records on Kaiser?
A.
If it’s requested.
(Trial Tr. 1305.)
All of
Petitioner’s summary judgment response asserts
that, during the later “Anderson trial, however, [McNeill] stated
that his records were no longer available; they had been destroyed,
in two separate locations, by storm damage . . . in September of
2004 [i.e., before Petitioner’s trial].”
25.)
(Docket Entry 22 at 24-
The record contains no support for this characterization of
McNeill’s testimony at the “Anderson trial.”22
22
In an affidavit submitted by Petitioner, his appellate attorney averred
to having obtained “a transcript of the voir dire and jury testimony of Mr.
McNeill in that case, State v. Anderson[,] . . . [and having] mailed that
(continued...)
-32-
Petitioner thus has failed to provide evidence sufficient to
support a finding that, during his trial, McNeill testified falsely
about the availability of any records.
Further, even if McNeill
gave different testimony about the state of his records during the
Anderson case than he previously gave during Petitioner’s trial,
Petitioner has offered no evidence to show that, at the time of his
trial, the prosecutor knew McNeill had testified falsely on this
subject; instead, Petitioner has asked the Court to find such
knowledge by way of rank speculation.
(See id. at 25.)
The Court
declines that request. See Skains v. California, 386 F. App’x 620,
621-22 (9th Cir. 2010) (“A Napue claim will succeed only if the
prosecution knows or should have known that the testimony was
false, whereas [the petitioner] offers only speculation that the
prosecutor
knew
or
should
have
known
that
[the
witness’s]
impeachment testimony was inaccurate at the time it was given.”).23
For all these myriad reasons, Ground Six warrants no relief.
22
(...continued)
transcript to [Petitioner] after his appeal was concluded.” (Docket Entry 3 at
2.) Petitioner, however, did not include a copy of that transcript with his
Petition. (See Docket Entry 1.) The Court thereafter noted the apparent absence
from the record of this case of any transcript from the Anderson case and advised
Petitioner that he “may wish to submit a copy [of said transcript] or point to
its location in the record if he wishe[d] the Court to consider such evidence at
summary judgment.”
(Docket Entry 27 at 2 n.1.)
Despite those events,
Petitioner’s summary judgment brief did not attach any such transcript (see
Docket Entry 22) or even quote from/cite to it (see id. at 24-25).
23
Petitioner’s MAR contained a Napue claim premised on the alleged
conflict between McNeill’s testimony about his records at Petitioner’s trial and
the Anderson trial (see Docket Entry 12-10 at 4-5, 10), which claim the Superior
Court summarily denied on the merits (see Docket Entry 12-11 at 1). Although
this Court therefore need conduct only the limited review prescribed by Section
2254(d) as to this part of Ground Six, the discussion above establishes the
deficiency of said sub-claim even if considered de novo.
-33-
G.
For
its
Ground Seven – Withholding of Evidence
seventh
ground,
the
Petition
complains
that
“[Petitioner’s] constitutional rights under the Fifth, Sixth and
Fourteenth Amendments were violated when evidence both favorable
and critically important to the defense was witheld [sic] by the
prosecution.”
(Docket Entry 1 at 27.) As factual support for this
claim, the Petition states:
After [Petitioner’s] trial and conviction, the cadaver
dog handler Mr. McNeill gave testimony in another trial
which revealed for the first time a second, separate
cadaver dog search of [Petitioner’s] home and automobile
by another dog and handler. This evidence [of a second
cadaver dog search] was deliberately witheld [sic] by the
prosecution and, if known and available to the defense,
would have impeached and/or refuted Mr. McNeill’s
testimony. The State has not denied having witheld [sic]
the evidence.
(Docket Entry 1 at 27; see also Docket Entry 12-10 at 10-12
(raising same claim in MAR and stating that “second dog handler was
referred to by the name Blankenship”); Docket Entry 12-11 at 1
(summarily denying MAR); (Docket Entry 22 at 26 (“During his
testimony in Anderson, McNeill made reference to a second cadaver
dog search of [Petitioner’s] home and automobile by a party named
Blankenship[.]”).)
By separate discovery motion, Petitioner requested production
by Respondent of “[a]ny and all materials related to, referencing
or directly resulting from any cadaver dog search of [his] home
and/or automobile by any party other than Mr. Roy McNeill . . . .”
(Docket Entry 5 at 2.)
Respondent did not file a response to that
discovery motion (see Docket Entry 27 at 4) and, in moving for
-34-
summary judgment, “did not state whether or not a second [cadaver
dog] search occurred, what was found if it did occur, or what
records, if any, existed, although she faulted Petitioner for not
providing proof of the [alleged second cadaver dog] search” (id. at
3 (citing Docket Entry 12 at 37)).
Respondent also argued that
“[a]ny evidence Petitioner may now submit, not submitted to the
state MAR court in support of [a claim matching Ground Seven]
cannot be considered on federal habeas review.”
(Docket Entry 12
at 37 (citing Wilson v. Moore, 178 F.3d 266, 272-73 (4th Cir.
1999)).)
However, “Respondent did not explain how Petitioner was
supposed to provide proof of the second [cadaver dog] search,
particularly when he sought, but did not receive, an evidentiary
hearing in the state courts while pursuing [his MAR] on his claim
of withheld evidence.”
(Docket Entry 27 at 3 (citing Docket Entry
12-10 at 15 and Docket Entry 12-11 at 1).)
Given the circumstances
presented, the Court concluded that Petitioner had shown good cause
under Rule 6 of the Rules Governing Section 2254 Proceedings to
require Respondent to “either produce any non-privileged materials
related to any second cadaver dog search to Petitioner and the
Court or certify that no such materials exist and/or that no second
cadaver dog search of Petitioner’s property occurred.” (Id. at 6.)
Respondent timely complied with that directive.
Entries 31, 31-1 - 31-17.)24
(See Docket
Her response demonstrates that:
24
In the interim between the Court’s order requiring Respondent to provide
the specified discovery and her compliance therewith, the United States Supreme
Court issued Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388 (2011). In that
decision, the Supreme Court made clear that, “[a]lthough state prisoners may
(continued...)
-35-
1) Petitioner’s then-counsel requested discovery, including
regarding any cadaver dog searches (see Docket Entry 31-2);
2)
the
prosecutor
responded
by
disclosing
a
number
of
documents regarding McNeill (a few of which referenced his dog
Kaiser) (Docket Entries 31-3 - 31-5);
3) the prosecutor then “filed another supplemental response to
Petitioner’s discovery requests indicating that certain items were
available in the Durham District Attorney’s office for inspection,
including
photocopies
of
Books
1,
2,
and
3
of
the
police’s
24
(...continued)
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.” Id. 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). As noted above, the MAR court
denied on the merits the same claim Petitioner now has presented in Ground Seven.
Under Cullen, that fact thus generally would preclude Petitioner from relying on
any evidence produced for the first time in this Court (and not previously
presented to the MAR court). However, prior to Cullen, the Fourth Circuit had
held that, if “the petitioner offers, for the first time in federal habeas
proceedings, new, material evidence that the state court could have considered
had it permitted further development of the facts, an assessment under § 2254(d)
may be inappropriate. . . . [W]hen a state court forecloses further development
of the factual record, it passes up the opportunity that exhaustion ensures. If
the record ultimately proves to be incomplete, deference to the state court’s
judgment would be inappropriate . . . .” Winston v. Kelly, 592 F.3d 535, 555
(4th Cir. 2010). After Cullen, the Fourth Circuit reaffirmed that position. See
Winston v. Pearson, 683 F.3d 489, 498-503 (4th Cir. 2012). The Court confesses
to having some difficulty reconciling the Supreme Court’s directives in Cullen
with the Fourth Circuit’s instructions in Winston I and Winston II, particularly
where, as here, the petitioner sought and the MAR court declined to permit an
evidentiary hearing.
Fortunately, the Court need not undertake such
reconciliation in this case for two reasons. First, neither in the argument
submitted with the discovery ordered by the Court (see Docket Entry 31 at 4-6),
nor in any subsequent filing (see Docket Entries dated June 15, 2011, to
present), has Respondent contended that Cullen precludes consideration of the new
evidence produced. Second, as set forth in the remainder of Subsection IV.G.,
Ground Seven fails as a matter of law even in light of the additional evidence
and without application of the limits on review provided by Section 2254(d).
-36-
investigative report” (Docket Entry 31 at 2 (citing Docket Entry
31-7 at 2-3));25
4) “[w]ithin the files of the [Durham] District Attorney,
[Respondent’s counsel] located the notebooks of the investigative
reports, including Book 1 . . . [and confirmed that,] [w]ithin that
book, there was a section entitled ‘K-9 Info’ . . . [which
included] emails regarding the canines and handlers, handwritten
notes, and other documents” (id. at 2-3 (citing Docket Entries 31-8
- 31-10 and quoting Docket Entry 31-8 at 2));
5) one of the emails in the “K-9 Info” section of Book 1 came
from “Charles A. Blankenship” to the prosecutor with the subject
heading of “cadaver dog info” and included this language in its
body:
“Her [sic] is the info on the seminar that Both [sic] Roy
and I attended.
I had my K9 Shawnee with me but Roy did not have
Kaiser yet.” (Docket Entry 31-10 at 11);
6) one of the handwritten pages of notes in the “K-9 Info”
section of Book 1 specifically referred to “McNeil - Kyser [sic]”
and “Blankenship - Shawnee” and concluded with the statement “2
dogs hit car separate times” (id. at 13);
7)
“[i]n
another
supplemental
response
to
Petitioner’s
discovery request, . . . [the prosecutor] indicated that several
documents were available for inspection in the District Attorney’s
25
The prosecutor served that supplemental response on Petitioner’s thenattorney. (See Docket Entry 31-7 at 3.)
-37-
files, including the Crime Scene Log” (Docket Entry 31 at 3 (citing
Docket Entry 31-11));26
8)
“[w]ithin
the
District
Attorney’s
files
concerning
Petitioner’s case, [Respondent’s counsel] located a copy of the
crime scene log for January 27, 2003” (id.); and
9) that “Crime Scene Log” (which identifies Petitioner’s thenresidence as the “LOCATION”) lists (A) “C.A. Blankenship (Dog:
Shawnee)”
entering
and
exiting
at
“5:12
pm”
and
“5:19
pm,”
respectively (Docket Entry 31-12 at 2), (B) “Roy McNeal [sic] with
dog” entering and exiting at “6:42” and “7:13,” respectively (id.
at 3), and (C) “Charles Blankenship w/Dog” entering and exiting at
“7:13” and “7:25,” respectively (id.).
In the face of this record, Petitioner states (in unsworn
fashion) that he “has in [his] possession all of the discovery
documents presented to the defense prior to and during [his] trial.
A thorough review of all of these documents in the last 72 hours
produced no trace of the [above-referenced handwritten note and
crime scene log].”
(Docket Entry 32 at 1-2.)27
Petitioner then
asserts that he “can only conclude that these documents were not
given to the defense. . . .
was
that
the
defense
had
Whether intentional or not, the result
no
knowledge
of
Mr.
Blankenship’s
26
The prosecutor served that supplemental response on Petitioner’s thenattorney. (See Docket Entry 31-11 at 3.)
27
Petitioner’s unsworn statement does not explain what his phrase
“presented to the defense” means (i.e., whether it purports to encompass only
documents as to which the prosecutor provided copies to Petitioner’s then-counsel
and/or Petitioner or all documents which the prosecutor made available to
Petitioner’s then-counsel and/or Petitioner for review). Nor does said statement
identify any basis by which Petitioner acquired personal knowledge about what
documents the prosecutor made available to Petitioner’s then-counsel for review.
-38-
participation and accordingly was denied access to testimony . . .
which could have served to impeach the prosecution’s most important
witness at trial.”
(Id. at 2-3.)
According to Petitioner, “[t]he
failure of the State to disclose critical impeachment evidence to
the defense . . . constitutes a clear Brady violation.”
3.)
(Id. at
The Court rejects Petitioner’s foregoing position.
Under Brady v. Maryland, 373 U.S. 83 (1963), “a State violates
a defendant’s due process rights when it fails to disclose to the
defendant prior to trial ‘evidence favorable to an accused where
the evidence is material.’”
Basden, 290 F.3d at 608 (quoting
Brady, 373 U.S. at 87). “There are three fundamental components to
a Brady claim:
(1) ‘The evidence at issue must be favorable to the
accused, either
because
it
is
exculpatory,
or
because
it
is
impeaching’; (2) the ‘evidence must have been suppressed by the
State’; and (3) the evidence must be material to the defense, that
is, ‘prejudice must ensue.’”
Walker v. Kelly, 589 F.3d 127, 137
(4th Cir. 2009) (quoting Strickler v. Greene, 527 U.S. 263, 281–82
(1999)) (internal brackets and ellipses omitted) (emphasis added);
see also Kyles v. Whitley, 514 U.S. 419, 434 (1995) (“[The]
touchstone of materiality [in the Brady context] is a reasonable
probability of a different result, and the adjective is important.
The question is not whether the defendant would more likely than
not
have
received
a
different
verdict
with
the
[suppressed]
evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confidence.”
(internal quotation marks omitted)).
-39-
“It is the petitioner’s
burden to establish the three elements of a Brady violation[.]”
Fullwood v. Lee, 290 F.3d 663, 685 (4th Cir. 2003) (internal
citation omitted).
Here, Petitioner has not met his burden as to
any of the three elements of his instant Brady claim.
Taking the second Brady claim element first, Petitioner has
not identified any proof that the prosecutor suppressed evidence
that Blankenship and his cadaver dog Shawnee conducted a search
related to Petitioner’s case.
Instead, the evidence adduced by
Respondent (detailed above) reflects that, prior to Petitioner’s
trial, the prosecutor made available to Petitioner’s then-attorney
documents
that
clearly
showed
Blankenship’s
(and
Shawnee’s)
participation in the investigation. Petitioner’s unsworn assertion
that he presently lacks copies of the relevant documentation does
not prove otherwise.
See United States v. Bujilici, Crim. Action
No. 12-231-1, 2014 WL 2112858, at *6 (W.D. La. May 19, 2014)
(unpublished) (“[The petitioner’s] failure to provide any evidence
whatsoever on the [suppression] prong of the Brady inquiry is
fatal.”);
Hume v. Stephens, No. 2:11CV24, 2014 WL 988538, at *6
(N.D. Tex. Mar. 13, 2014) (unpublished) (“Bare accusations that the
prosecution failed to turn over some piece of evidence does not
entitle a petitioner to prevail on a habeas claim under Brady.”);
Harris v. United States, 9 F. Supp. 2d 246, 275 (S.D.N.Y. 1998)
(“Conclusory
allegations
that
the
government
‘suppressed’
or
‘concealed’ evidence do not entitle [the petitioner] to relief; nor
do they suffice to entitle [him] to an evidentiary hearing on
whether documents were withheld.”), aff’d, No. 98-2594, 216 F.3d
-40-
1072 (table), 2000 WL 730375 (2d Cir. June 2, 2000) (unpublished);
United States v. Upton, 856 F. Supp. 727, 746 (E.D.N.Y. 1994)
(“[M]ere speculation by a defendant that the government has not
fulfilled its obligations under Brady is not enough to establish
that the government has, in fact, failed to honor its discovery
obligations.” (internal citation omitted)); see also Crowe v.
Terry, 426 F. Supp. 2d 1310, 1341 (N.D. Ga. 2005) (“The State’s
failure to make and provide copies of these reports is not a
violation
of
Brady.
Brady
only
prohibits
‘suppression’
of
evidence.
Counsel had access to the disputed files and thus there
was no Brady violation . . . .” (internal citation omitted)), aff’d
sub nom., Crowe v. Hall, 490 F.3d 840 (11th Cir. 2007).
Nor has Petitioner satisfied the “favorable” or “material”
elements of his Brady claim.
To the contrary, the new evidence
further inculpates Petitioner while lacking any clear off-setting
or alternative exculpatory or impeaching quality. Specifically, as
detailed above, a handwritten note from the investigative file
documents that Blankenship’s cadaver dog Shawnee, like McNeill’s
cadaver dog Kaiser, alerted to the trunk of Petitioner’s car.
“Since the evidence [in question] tended to inculpate [P]etitioner
and was neither facially exculpatory nor impeaching, [any] failure
to disclose this [evidence] during pretrial discovery does not
violate Brady.” Matthews v. Sheets, No. 1:08CV742, 2010 WL 537002,
at *20 (S.D. Ohio Feb. 11, 2010) (unpublished)), aff’d sub nom.,
Matthews v. Warden, Ross Corr. Inst., 502 F. App’x 561 (6th Cir.
2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1736 (2013); see also
-41-
United States v. Johnson, 872 F.2d 612, 619 (5th Cir. 1989)
(“Neutral or inculpating evidence is not within the purview of
Brady.”); United States ex rel. Knights v. Wolff, 713 F.2d 240, 246
(7th Cir. 1983) (“[T]he statements were not favorable to the
accused, but rather inculpatory . . . .
Accordingly there was no
violation of the Brady rule.” (internal citation omitted)).
Petitioner’s
reply
contends
that,
with
knowledge
of
Blankenship’s (and Shawnee’s) involvement in the investigation,
Petitioner could have secured from Blankenship “testimony which,
given the apparent negative results of his search of [Petitioner’s]
home and his possibly inconclusive result involving [Petitioner’s]
car, could have served to impeach the prosecutor’s most important
witness at trial [i.e., McNeill].”
(Docket Entry 32 at 3; see also
id. (“[The prosecution’s other] evidence, consisting largely of
hearsay testimony completely unrelated to a charge of murder, would
not have been sufficient for conviction in the absence of Mr.
McNeill’s testimony.”).)
Petitioner, however, has not identified
any evidence of “negative results of [any] search of [Petitioner’s]
home” by Blankenship and Shawnee. (Id.) Similarly, Petitioner has
not cited any record material that suggests Shawnee’s alert on the
trunk of Petitioner’s car constituted an “inconclusive result.”
(See id.)
In other words, “[a]lthough [P]etitioner offers various
theories to support his position [on the favorable and material
elements of his Brady claim], his conclusory allegations and
speculation . . . fail to meet the Brady standard.”
Godlock v.
Fatkin, 84 F. App’x 24, 29 (10th Cir. 2003); see also United States
-42-
v. Aleman, 548 F.3d 1158, 1164 (8th Cir. 2008) (“[The defendant]
only speculates that interviews of [the undisclosed] individuals
would have provided evidence favorable to his defense, however, and
mere speculation is not sufficient to sustain a Brady claim.”
(internal ellipses and quotation marks omitted)); Bujilici, 2014 WL
2112858, at *6 (“[The] [p]etitioner’s bald assertion that he would
not have been found guilty is insufficient to establish materiality
under the third prong of Brady.”).
Alternatively, even if the prosecutor suppressed evidence of
Blankenship’s (and Shawnee’s) search and if evidence regarding that
search would have impeached McNeill’s testimony in some fashion
(neither of which circumstances Petitioner has shown), Ground Seven
would still founder on the materiality element.
For Brady claims,
“[the] touchstone of materiality is a reasonable probability of a
different result . . . .”
quotation marks omitted).
Kyles, 514 U.S. at 434 (internal
“As Kyles explains, whether evidence
withheld is material is not a sufficiency of evidence test.
But by
the same token, post-Kyles [courts] do not ignore other evidence
presented
outcome.”
at
trial
in
determining
Petitioner’s
McNeill’s
confidence
in
the
United States v. Ellis, 121 F.3d 908, 918 (4th Cir.
1997) (internal citation omitted).
out
[their]
Here, the record does not bear
characterization
testimony
as
weak,
but
of
the
instead
evidence
confirms
apart
that
from
the
prosecution presented a strong case against Petitioner independent
of any cadaver dog-related evidence.
before the jury showed as follows:
-43-
In that regard, the evidence
In the summer of 2001, Petitioner (who lived in Durham) began
a romantic relationship with Ann Johnston, a woman living in
Atlanta, Georgia, whom he previously had known during their high
school years.
(Trial Tr. 1591-94.)28
Petitioner did not disclose
to Johnston the fact of his marriage to the victim, Janine Sutphen
(Trial Tr. 1594),29 even after proposing marriage to Johnston in
February 2002, visiting her parents, setting a wedding date, and
completing paperwork necessary to marry in the Episcopal Church
(Trial Tr. 1596-97, 1604-05).
Instead, Petitioner told Johnston
that “he had a very brief marriage out in California, and that his
wife had
been
killed
by
a
drunk
driver.
He
had
also
told
[Johnston] that he had a marriage to somebody that [they] had both
known . . . in high school . . . [which ended in] divorce . . . .”
(Trial Tr. 1598.)
and
the
victim]
Further, Petitioner “told [Johnston] that [he
had
been
friends,
and
relationship, but it had not worked out.”
see also Trial Tr. 1600 (“Q.
they
had
been
a
(Trial Tr. 1599-1600;
. . . [D]id he tell you that he was
living with [the victim] at the time he proposed to you?
No.”).)
in
A.
Petitioner and Johnston originally planned to marry in
September 2002, but postponed the wedding due to health problems
she experienced and agreed that, in January 2003, they would come
up with a new date.
(Trial Tr. 1601-02, 1606; see also Trial Tr.
28
Johnston initially expressed confusion about whether her relationship
with Petitioner began in the summer of 2001 or 2002 (see Trial Tr. 1592-93);
however, later in her testimony, it became clear that they first resumed contact
in the summer of 2001 (see Trial Tr. 1604-05).
29
Petitioner married the victim in early 2001.
-44-
(Trial Tr. 968.)
1610 (testifying that, in January 2003, Petitioner had indicated
that he had begun making preparations “to move to Atlanta”).)
Meanwhile, Eleanor Hennessey, a friend of the victim, who
lived about eight townhouses down from Petitioner and the victim,
testified that, although she generally saw and spoke to the victim
regularly, she neither saw nor spoke to the victim from on or about
January 5, 2003, to January 22, 2003, despite telephoning the
victim’s residence eight to ten times. (See Trial Tr. 1078-85; see
also Trial Tr. 1090 (testifying that, prior to January 2003, she
“talked to [the victim] or saw her about every other day”).)
On
each of those eight to ten occasions, Petitioner answered the
telephone and made some excuse as to why the victim could not speak
to Hennessey.
(Trial Tr. 1080-82.)
Hennessey “asked each time if
[Petitioner] would have [the victim] call [Hennessey], [but she]
never heard back from [the victim].”
(Trial Tr. 1082.)
Richard Evans, a business associate of the victim, similarly
testified that, in December 2002, he spoke by telephone with the
victim almost daily, but that, beginning January 6, 2003, he could
not reach her by telephone to discuss an important presentation she
had to make on January 22, 2003.
(See Trial Tr. 1037-48.)
From
January 6 to 22, 2003, Evans telephoned the victim approximately
“half a dozen” times.”
(“There
were
a
half
(Trial Tr. 1041; see also Trial Tr. 1042
dozen
calls
spaced
out
every
couple
of
days.”).) Each time, Petitioner answered, stating on the first few
occasions that the victim could not talk because she “had the flu”
and thereafter that she felt “[t]oo depressed to come to the
-45-
phone.”
(Trial Tr. 1041-43.)
When asked if he had “ever seen any
indication of [the victim experiencing] any level of depression,”
Evans responded “[n]one whatsoever.”
(Trial Tr. 1043.)
Christopher Sutphen, an adult son of the victim (Trial Tr.
1096), testified that he last spoke to her by telephone on December
28, 2002, from his home in Texas (Trial Tr. 1098).
Beginning on or
around January 9, 2003, after not having subsequent contact from
the victim via the computer-based, instant messaging system they
normally utilized and learning that his brother also had not heard
from
the
residence.
victim,
Christopher
Sutphen
(Trial Tr. 1099-1100.)
began
telephoning
her
“At times [Petitioner] would
answer . . . [and] said [the victim] was either too sick to come to
the phone or she was asleep, or later stages he said she was too
depressed to get out of bed.”
(Trial Tr. 1100.)
“At th[at] point,
[Christopher Sutphen] was very concerned, [his] mother wasn’t a
depressed person, there’s no way she would have laid in bed by
herself and dealt with the situation of depression. There’s no way
she wouldn’t have been in contact with her sons . . . .”
(Id.)
In
light of that concern, Christopher Sutphen “called more, left more
messages, and subsequently talked to [Petitioner] on the phone a
couple of times and was led to believe that she was still sick and
would not come to the phone.”
(Trial Tr. 1100-01.)
Another of the victim’s adult sons, Robin Sutphen, who lived
in
Florida
during
the
relevant
period
(Trial
Tr.
1118-19),
testified that, up to December 2002, he “talked to [his] mom by
phone . . . [e]very other day, every third day” (Trial Tr. 1123).
-46-
At that time, “she wasn’t depressed.
She wasn’t sick.”
(Trial Tr.
1124.) Beginning on or about January 8, 2003, Robin Sutphen “tried
to call [the victim] a couple of times [and] didn’t really get an
answer, it just kept going through to voice mail.”
1126.)
(Trial Tr.
Despite leaving numerous messages, Robin Sutphen did not
receive a return call, which concerned him because it was “[j]ust
not like [his] mom not to call her son back.”
(Id.)
Robin Sutphen kept calling and, after approximately a week,
Petitioner “finally picked up the phone . . . [and said] that [he
and the victim] had been sick, they hadn’t been able to get out of
bed.”
(Trial Tr. 1127.)30
Robin Sutphen did not get to speak to
the victim on that occasion and therefore “continued to call [but]
continued to not hear back from [her].”
(Trial Tr. 1128.)
“There
were a couple of times when . . . [Petitioner answered and said]
she’s depressed now, she’s in the shower, you know, anything that
would inhibit her from coming to the phone.”
(Id.)
“[G]oing two
weeks without hearing [his] mom’s voice [wa]s not acceptable [to
Robin Sutphen].”
(Trial Tr. 1129.)
As a result, on January 21,
2003, he left a voice-mail message on Petitioner’s and the victim’s
telephone, stating “‘If I don’t hear from my mother, if I don’t
hear her voice on my phone, if I don’t receive some sort of contact
30
On January 13, 2003, during the period when, according to his abovequoted report to Robin Sutphen, Petitioner suffered from an illness so severe
that he could not get out of bed, he enjoyed an evening out at the James Joyce
Irish Pub, during which “he struck up a conversation with [a woman], which
continued . . . for at least three or four hours . . . .” (Trial Tr. 1589.)
During that discussion, Petitioner “indicated that his wife had died. . . . [The
woman] asked what she died of and he said cancer.” (Trial Tr. 1590.) When the
woman departed the pub, Petitioner “gave [her] his email address and he asked
[her] to contact him at that address.” (Trial Tr. 1590.)
-47-
from her, I will be up there, and you don’t want to open the door
to see me there.’”
That
same
day
(Trial Tr. 1129-30.)
(January
21,
2003),
at
about
6:40
p.m.,
Hennessey called the victim’s home and Petitioner answered, this
time reporting that the victim “had gone to symphony practice at
that point and that he was concerned about her.”
(Trial Tr. 1079-
81.) He elaborated that the victim had “‘been depressed, she won’t
return calls.’”
(Trial Tr. 1084.)31
Hennessey “said that [she]
would come by the next night after work. . . .
And [Petitioner]
said not to. And [Hennessey] asked why, and [Petitioner] said [the
victim] wouldn’t want to see anybody, that [Hennessey] should call
first before [she] came, and that he would ask [the victim] and
then he would tell [Hennessey] whether [the victim] would come out
for a walk with [Hennessey] or not.
Which was upsetting to
[Hennessey] because [she] was in the habit of just swinging by
[and] knocking on the door . . . .”
(Trial Tr. 1084-85.)
That night, Hennessey “needed to be somewhere at seven, and
when [she] pulled out of the parking lot [of her townhouse] it was
6:55 and [Petitioner’s wife’s] car was still in the driveway, in
the parking space [of her townhouse]. . . .
[T]hat caught
[Hennessey’s] attention . . . because [she] had just gotten off the
phone with [Petitioner] and he had told [Hennessey] [his wife] was
at symphony practice.”
(Trial Tr. 1081.)
When Hennessey returned
home two-and-a-half to three hours later, Petitioner’s wife’s car
31
Hennessey had never known the victim to exhibit any signs of depression
and described her as “a very resilient woman.” (Trial Tr. 1085.)
-48-
was gone.
(Trial Tr. 1082.)
Hennessey then “was determined to see
[Petitioner’s wife] because [Hennessey] was pretty concerned about
her.
So [Hennessey] kept going out looking for [Petitioner’s
wife’s] car, and [Hennessey] did that up until about 12:30 at
night, and didn’t see [Petitioner’s wife’s] car.”
(Id.)
“[I]n the early morning hours of January 22nd of 2003 . . .
[, a Durham police officer] received a radio call from 911 . . .
[and] [r]esponded to [Petitioner’s home] and met with [him] . . .
[because he had] report[ed] that his wife was missing.” (Trial Tr.
938.)
Petitioner “informed [the officer] that she was a cellist
with the Durham Symphony, and that she had rehearsal practice that
evening down at the Durham Arts Center . . . .”
(Trial Tr. 939.)
According to Petitioner, “she [wa]s normally home about eleven.
When she hadn’t got home by three, it caused concern.”
(Id.)
Petitioner described “the vehicle she was driving [and the officer]
broadcast it over the police radio . . . .”
(Trial Tr. 941.)
Other officers “went around the Durham Arts Center . . . [and]
[r]ight across the street the vehicle was located in the parking
deck.”
(Id.)
Petitioner then told another officer “that he and
his wife had been sick for two weeks prior . . . and had not been
out of the house much.”
(Trial Tr. 968-69.)
“[H]e continued on to
tell [that officer] that [the victim] had been depressed about
being out of work . . . .”
(Trial Tr. 969.)
Petitioner “stated
that they had not argued lately” (Trial Tr. 973), but then made an
unsolicited comment “that he just want[ed] to know his wife [wa]s
okay, even if she doesn’t want to see him” (Trial Tr. 974).
-49-
Also on January 22, 2003, “at 5:00 in the morning . . .
[Petitioner] called and woke [Robin Sutphen] up and let [him] know
that [his mother] had never returned home the night before, and
that the cops had just found her car.”
(Trial Tr. 1130.)
Later
that day, “[Petitioner] came over to [Hennessey’s] house . . . .”
(Trial Tr. 1082-83.) He “asked [her], didn’t [she] know, and [she]
. . . said, ‘Know what?’
He said, ‘[My wife] is missing.’
[Hennessey] asked him what he meant by that.
He said [his wife]
didn’t return from symphony practice that night . . . .”
Tr. 1084.)
And
(Trial
Petitioner also spoke to Johnston on January 22, 2003,
reporting in a telephone conversation “that his friend Janine had
not shown up to symphony rehearsal and was missing.”
1610.)
(Trial Tr.
In the days that followed, Johnston continued to talk by
telephone with Petitioner and, although they discussed the victim’s
disappearance, he still did not disclose to Johnston the fact of
his marriage to the victim.
(Trial Tr. 1611.)32
On January 27, 2003, police officers began executing a search
warrant at the home shared by Petitioner and the victim.
Tr.
1178.)
computer
Officers
systems
.
.
encountered
.
that
a
[they]
“large
(Trial
conglomeration
wanted
to
recover
of
the
information on . . ., so [they] contacted [an agent] with the State
Bureau of Investigation . . . [and] asked him to respond and help
. . . .”
(Trial Tr. 1157.)
He subsequently came to the scene and
32
Johnston only learned the truth about Petitioner’s marriage to the
victim upon locating a story on the internet about his arrest. (Trial Tr. 1611.)
-50-
directed
the
seizure
process
examination could occur.
to
ensure
that
proper
forensic
(Trial Tr. 1233-37.)
On May 27, 2003, two fishermen found something wrapped in a
tarp with a chain attached to it floating in Falls Lake (which
straddles Durham and Wake Counties).
(Trial Tr. 1676-78.)
Upon
cutting into the tarp with a pocket-knife, they smelled a strong
odor, called 911, and took responding law enforcement officers to
the site.
(Trial Tr. 1677-78.)
The officers recovered the tarp
(which, in addition to the chain, had duct tape wrapped around it)
and discovered therein a sleeping bag containing a woman’s body,
which they sent to the medical examiner’s office. (Trial Tr. 167274.)
The medical examiner’s office identified the body as that of
Janine Sutphen from dental records (Trial Tr. 1726) and assessed
the cause of death as asphyxiation, i.e., “covering the mouth and
nose with the hand and cutting off air supply or cutting off air
supply by strangulation” (Trial Tr. 1732).
The victim’s sons both
recognized the tarp and the sleeping bag used to conceal her body
as similar to ones she had owned.
(Trial Tr. 1101-02, 1134-35.)
The forensic examination of computers seized from the home of
Petitioner and the victim revealed a Google search, on October 25,
2002, for “Neck, Snap, Break and Hold.”
(Trial Tr. 1411-12; see
also Trial Tr. 1401-11 (describing process leading to discovery).)
That same day, a user of that computer also accessed and bookmarked the website “22 Ways to Kill a Man with Your Bare Hands.”
(Trial Tr. 1407, 1410-12; see also Trial Tr. 1430-31 (describing
website’s content, including reference to “Choke Hold”).)
-51-
Similar forensic examination demonstrated that, over several
hours on January 8, 2003, a user of a computer seized from the
residence of Petitioner and the victim conducted a Google search
for “body decomposition” and then accessed various materials,
including an article entitled “What Happens After Death,” a page
labeled “Decomposed Body” on a pathologist’s website, a website
called “What is Forensic Entomology” and one of its articles about
“using bugs to sort of determine when a body ceased functioning,”
a website discussing the “Tennessee Body Farm” (i.e., a location
where
scientists
decomposition”),
“study
an
article
forensic
entitled
entomology
“Time
Since
and
body
Death
and
Decomposition of the Human Body: Variables and Observations. Case
and
Experimental
Field
Studies,”
and
“an
article
about
anthropologist testifying on decomposition in [a] trial.”
an
(Trial
Tr. 2024-33; see also Trial Tr. 2020-24 (detailing foundation for
testimony).)
Also that day, the user searched the term “Rigor
Mortis” and visited related sites.
(Trial Tr. 2026, 2034-36.)
Additional forensic examination of computers seized from the
home Petitioner shared with the victim showed a Google search on
January 13, 2003, for the term “Falls Lake, NC depth.”
(Trial Tr.
1347; see also Trial Tr. 1328-31, 1336-47 (providing background
information
about
forensic
examination).)
Those
examination
results also documented Google searches on January 18, 2003, for
the phrase “Falls Lake, NC, Depth” and “Falls Lake, North Carolina,
Depth.”
(Trial
Tr.
1349.)
Further,
the
computer contained
evidence a user visited websites identified in those searches,
-52-
including at least one with an underwater topographical map of
Falls Lake, as well as another with fishing maps and advertising
about boat ramps at Falls Lake.
(Trial Tr. 1352-54, 1414-27.)
None of the seized computers held information reflecting a more
generalized interest in fishing or boating.
(Trial Tr. 1450.)
The foregoing evidence thus would have allowed the jury to
find the following circumstances:
1) shortly after marrying the victim, Petitioner began a
romantic relationship with another woman, whom he made plans to
marry, but whom he did not tell about his marriage to the victim;
2)
within
three
months
of
the
victim’s
disappearance,
Petitioner researched methods of killing someone by hand, such as
by application of a choke hold;
3) no one but Petitioner saw or spoke to the victim after
January 8, 2003;
4)
on
January
8,
2003,
Petitioner
researched
“body
decomposition” and “rigor mortis”;
5) on January 13 and 18, 2003, Petitioner researched water
depths, topography, and maps of Falls Lake, although he lacked any
history of interest in fishing or boating;
6) from January 8 to 21, 2003, Petitioner (A) made totally
implausible excuses about the victim’s unavailability, even to
speak with her sons by telephone, and (B) falsely reported that he
(like the victim) had been too sick to get out of bed when, in
fact, he spent at least one night during that time out at a bar
where he told a woman that his wife had died of cancer;
-53-
7) on January 21, 2003, Petitioner received an ultimatum from
one of the victim’s sons to produce proof of her well-being or face
an ugly confrontation;
8) on the evening of January 21, 2003, Petitioner falsely
reported to a neighbor that the victim had gone to symphony
practice, when (A) he had maintained up to that very moment that
she suffered from depression so great that she could not get out of
bed or take a telephone call from her sons, (B) her vehicle
remained parked at home, and (C) Petitioner still insisted that,
although the victim had broken free from depression sufficiently to
go to symphony practice that night, she would not want to see
anyone the next day due to her severe depression;
9) within hours of that false report, the victim’s vehicle
disappeared from her house and Petitioner reported her missing;
10) when law enforcement officers responded to the missing
person report, Petitioner denied any recent conflict with the
victim, but then acknowledged she might not want to see him; and
11) the victim died from asphyxiation, with her body dumped
into Falls Lake wrapped in a tarp and sleeping bag like she owned.
The
foregoing
circumstances
verdict returned by the jury.
strongly
support
the
guilty
Moreover, the record confirms that,
in his closing argument, the prosecutor emphasized the abovedescribed evidence, not McNeill’s testimony (which the prosecutor
mentioned
but briefly).
(See
Trial
Tr.
2074-97.)
Further,
Petitioner, in his own closing argument, stated that the computer
evidence, not McNeill’s testimony, represented “the only evidence
-54-
that was brought to court damaging to [Petitioner] . . . .”
Tr. 2072.)
(Trial
These considerations provide a more than adequate
alternative basis to conclude that Petitioner has not carried his
burden of establishing the materiality element of his Brady claim.
Pursuant
to
the
foregoing
analysis,
the
Court
rejects
Petitioner’s request for relief on Ground Seven.
H.
Ground Eight – Ineffective Assistance of Appellate Counsel
Finally,
the
Petition
offers
a
claim
for
ineffective
assistance of counsel predicated on the fact that “[Petitioner’s]
appellate attorney . . . argued in [the] brief [before the North
Carolina Court of Appeals] that the proper standard of review on
the issue of the admissibility of the cadaver dog evidence was de
novo . . . [and] also failed to see the significance of . . . the
evidence [concerning the cadaver dog searches] witheld [sic] by the
State and thus failed to raise th[at] issue on direct appeal.”
(Docket Entry 1 at 28.)
The performance and prejudice test from
Strickland applies to such claims.
117, 124 (4th Cir. 1989).
Evans v. Thompson, 881 F.2d
Further, 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
v. Richter, 562 U.S. 86, ___, 131 S. Ct. 770, 788 (2011).
Section 2254(d) governs the first part of Ground Eight because
Petitioner raised the same claim in his MAR (see Docket Entry 12-10
at 12-14) and the MAR court denied relief on the merits (see Docket
Entry 12-11 at 1).
Given Petitioner’s perfunctory presentation of
-55-
his instant ineffective assistance of counsel claim (see Docket
Entry 1 at 28; Docket Entry 22 at 27), he clearly has not overcome
the deference accorded to the state court adjudication under
Section 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, 567 F. App’x 733 (11th Cir. 2014);
see also Cullen v. Pinholster, ___ U.S. ___, ___, 131 S. Ct. 1388,
1398 (2011) (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 particular, given the strength
of the evidence unrelated to McNeill’s testimony (detailed in
Subsection
IV.G.),
Petitioner
could
not
have
shown
prejudice
associated with his lost opportunity for plain error review of his
challenge to McNeill’s testimony and thus cannot demonstrate that
the MAR court acted unreasonably by denying his related ineffective
assistance of appellate counsel claim.
The second part of Ground Eight, which contends Petitioner’s
appellate counsel should have raised on direct appeal the Brady
claim now presented in Ground Seven, falls short as a matter of law
because (as shown in Subsection IV.G.) the underlying Brady claim
lacks merit.
Accordingly, although Petitioner failed to exhaust
-56-
that
particular
ineffective
assistance
of
counsel
claim
by
presenting it in his MAR (see Docket Entry 12-10 at 12-14), the
Court will deny said claim (along with the first part of Ground
Eight) on the merits, as permitted by 28 U.S.C. § 2254(b)(2).
V.
CONCLUSION
Petitioner’s habeas claims do not provide a basis for relief.
IT IS THEREFORE ORDERED that Petitioner’s Motion for Amendment
to Petition and Substitution of Parties (Docket Entry 37) is
GRANTED and that Cynthia O. Thornton is substituted as Respondent.
IT IS FURTHER ORDERED that Respondent’s Motion for Summary
Judgment (Docket Entry 11) is GRANTED, that the Petition (Docket
Entry 1) is DENIED, and that Judgment shall be entered dismissing
this action without issuance of a certificate of appealability.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
November 21, 2014
-57-
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