HURST v. BRANKER
Filing
118
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 9/10/2018; that Petitioner's Motion for Appointment of "Martinez Counsel" (Docket Entry 112 ) is DENIED. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JASON WAYNE HURST,
Petitioner,
)
)
)
)
)
)
)
)
)
)
v.
EDWARD THOMAS, Warden, Central
Prison, Raleigh, North Carolina,
Respondent.1
1:10CV725
MEMORANDUM OPINION AND ORDER
This case comes before the Court on Petitioner’s Motion for
Appointment of “Martinez Counsel” (Docket Entry 112).
Entry dated Oct. 6, 2017.)
(See Docket
Because the relief sought would
contravene the mandate rule or, in the alternative, would involve
an exercise in futility, the Court will deny the instant Motion.2
BACKGROUND
Upon
his
conviction
for
first
degree
murder,
Petitioner
received a death sentence in the North Carolina Superior Court in
Randolph County (“the Superior Court”), both of which the North
Carolina Supreme Court affirmed. See State v. Hurst, 360 N.C. 181,
624 S.E.2d 309 (2006).
The United States Supreme Court denied
certiorari on October 2, 2006.
Hurst v. North Carolina, 549 U.S.
1
“Edward Thomas is now the present Warden of North Carolina’s Central
Prison and has been substituted as Respondent.” Barnes v. Thomas, No. 1:08CV271,
2018 WL 3659016, at *1 n.1 (M.D.N.C. Aug. 2, 2018) (unpublished) (citing Fed. R.
Civ. P. 25(d)).
2
“A motion for the appointment of counsel is a nondispositive matter that
may be decided by a magistrate judge.” Cardona v. Davis, No. 7:16CV125, 2016 WL
8736469, at *1 (N.D. Tex. Nov. 1, 2016) (unpublished); accord, e.g., Handy v.
City of Sheridan, 636 F. App’x 728, 733-34 (10th Cir. 2016); Boothe v. Ballard,
No. 2:14CV25165, 2016 WL 1275054, at *60 (S.D.W. Va. Mar. 31, 2016)
(unpublished), aff’d, 670 F. App’x 193 (4th Cir. 2016); Daniels v. Ruan, No.
05CV922, 2007 WL 1125683, at *1 (S.D. Cal. Apr. 16, 2007) (unpublished).
875 (2006).
On June 25, 2007, Petitioner (through new counsel,
Robert H. Hale and Daniel J. Dolan (see Docket Entry 8 at 1)) filed
a Motion for Appropriate Relief (“MAR”) in the Superior Court,
raising eight claims, i.e., that (1) a juror’s contact with her
father during the sentencing phase violated Petitioner’s Sixth
Amendment rights, (2) trial counsel provided ineffective assistance
by failing to investigate and to present mitigating evidence at
sentencing regarding Petitioner’s age and mental state, (3) the
Superior Court’s acceptance of the verdict despite ambiguity as to
unanimity violated Petitioner’s federal constitutional rights, (4)
the Superior Court’s acceptance of the verdict without properly
polling the
jury
rights,
trial
(5)
violated Petitioner’s
counsel
provided
federal
ineffective
constitutional
assistance
by
failing to challenge the acceptance of the verdict in the face of
the ambiguity as to unanimity and the improper polling of the jury,
(6) the Superior Court lacked jurisdiction, (7) trial counsel
provided ineffective assistance by failing to contest the Superior
Court’s jurisdiction, and (8) inadequate advice by trial counsel
denied Petitioner the right to testify.
(See Docket Entries 2-1,
3-1; see also Docket Entry 5-1 (amending claim for denial of right
to testify due to inadequate advice by trial counsel).)
After the Superior Court denied seven of the claims in the MAR
(as amended) (see Docket Entry 6-1), Petitioner (again through Hale
and Dolan) further amended his MAR, adding a (ninth) claim that
trial counsel acted ineffectively by failing to investigate and to
present mitigating evidence at sentencing about Petitioner’s fetal
-2-
alcohol exposure (see Docket Entry 6-2).
The Superior Court
subsequently denied that claim and the remaining claim from the
MAR. (See Docket Entry 6-3.) Petitioner then sought review in the
North Carolina Supreme Court, which that court denied on June 16,
2010.
State v. Hurst, 364 N.C. 244, 698 S.E.2d 664 (2010).
On September 20, 2010, Petitioner (through Hale and Dolan)
commenced this case by filing a Petition under 28 U.S.C. § 2254
attacking his conviction and sentence on 13 grounds, i.e., (1) the
MAR’s improper juror contact claim, (2) a combination of the MAR’s
and the second amendment to the MAR’s ineffective assistance claims
for failure to investigate and to present mitigating evidence at
sentencing, (3) the MAR’s ambiguous verdict claim, (4) the MAR’s
improper jury polling claim, (5) the MAR’s ineffective assistance
claim for failure to challenge the unanimity of the verdict and the
polling of the jury, (6) the MAR’s lack of jurisdiction claim, (7)
the MAR’s ineffective assistance claim for failure to contest the
Superior Court’s jurisdiction, (8) the MAR’s denial of right to
testify claim, (9) a claim for juror exposure to a newspaper in the
jury room, (10) a claim for improper jury instructions during the
sentencing phase, (11) a claim for improper closing argument by the
prosecution, (12) a claim for defective indictment as to first
degree murder, and (13) a claim for defective indictment as to
death-eligibility.
(See Docket Entries 1, 1-1.)3
On December 8,
2010, Respondent answered and moved for summary judgment.
(Docket
3
At Petitioner’s specific request (see Docket Entry 8 at 2), the
undersigned Magistrate Judge appointed Hale and Dolan to continue representing
Petitioner in this Court, pursuant to 18 U.S.C. § 3599, effective June 17, 2010
(see Docket Entry 10 at 4).
-3-
Entries 16, 17.)
Petitioner opposed that motion (Docket Entries
22-24) and Respondent replied (Docket Entry 36).
The undersigned Magistrate Judge then recommended entry of
summary judgment for Respondent on all of Petitioner’s claims and
denial of the Petition.
(See Docket Entry 53.)
Petitioner
objected as to eight (of his original 13) claims, including the
improper juror contact claim and one of the three ineffective
assistance claims (i.e., for failing to challenge the unanimity of
the verdict and the polling of the jury).
(See Docket Entry 55.)
The Court (per now-Chief United States District Judge Thomas D.
Schroeder) overruled those objections, entered summary judgment for
Respondent, and denied the Petition.
(See Docket Entries 67, 68.)4
Petitioner appealed the denial of his Petition (see Docket
Entry 71), but only pursued his claim “that his Sixth Amendment
rights to an impartial jury and to be confronted with the witnesses
against him were violated by an extraneous communication between a
juror and her father during the penalty phase of his capital murder
trial,” Hurst v. Joyner, 757 F.3d 389, 391 (4th Cir. 2014).
The
United States Court of Appeals for the Fourth Circuit resolved the
appeal by “revers[ing] th[is C]ourt’s judgment and remand[ing] for
an
evidentiary
hearing
to
determine
whether
the
extraneous
communication had a substantial and injurious effect or influence
on the jury’s verdict.”
Id.; see also id. at 397 (“Recently,
. . . [the Fourth Circuit] held that . . . [‘an] entitlement to an
4
After Petitioner filed his objections, but before the Court entered the
order and the judgment denying the Petition, the undersigned Magistrate Judge
granted Dolan’s request to withdraw as counsel for Petitioner and declined to
appoint a new, second counsel at that time. (See Text Order dated Nov. 2, 2012.)
-4-
evidentiary hearing [arises] when the defendant presents a credible
allegation of communications or contact between a third party and
a juror concerning the matter pending before the jury.’” (quoting
Barnes v. Joyner, 751 F.3d 229, 242 (4th Cir. 2014))), 398 (“[The]
holding in Barnes dictates the same result in this case.”), 400
(“On remand, [Petitioner] will be given the opportunity to develop
the record as it pertains to [the juror’s] extraneous conversation
with her father . . . .
[T]he judgment of the district court is
reversed and the matter remanded for an evidentiary hearing on the
issue of whether the communication between [the juror] and her
father about the Bible verse had a substantial and injurious effect
or influence in determining the jury’s verdict.”).
After the United States Supreme Court denied certiorari,
Joyner v. Barnes, ___ U.S. ___, 135 S. Ct. 2643 (2015), the case
was referred back to the undersigned Magistrate Judge to carry out
the Fourth Circuit’s mandate (see Docket Entry dated Nov. 4, 2015)
and an evidentiary hearing was set (see Text Order dated Nov. 4,
2015; see also Text Order dated Nov. 17, 2015 (continuing hearing
date)).
On December 10, 2015, Elizabeth Hambourger was appointed
as a second counsel for Petitioner.
(See Docket Entry 95.)
The
evidentiary hearing took place on January 22, 2016 (see Docket
Entry 104) and post-hearing briefing followed (see Text Order dated
Jan. 25, 2016; Docket Entries 105, 107, 108).
On October 2, 2017,
prior to the entry of a recommendation on the lone claim as to
which the Fourth Circuit ordered an evidentiary hearing, Petitioner
(through Hale and Hambourger) filed the instant Motion.
-5-
(See
Docket Entry 112.)
Respondent responded in opposition (Docket
Entry 113) and Petitioner replied (Docket Entry 114).
DISCUSSION
Via
the
request[ed]
instant
that
Motion,
qualified
Petitioner,
independent
“by
counsel,
counsel
be
[has]
allowed
to
investigate, pursuant to Martinez v. Ryan, [566 U.S. 1] (2012),
potential claims not raised in prior post-conviction proceedings
and raise any new claims in an Amended Petition for Writ of Habeas
Corpus to be filed in this Court.”
(Docket Entry 112 at 1; see
also id. at 3 (“Petitioner asks this Court to:
1. Provide
Petitioner with qualified, independent counsel to review his case
for claims that could be raised under Martinez; [and] 2. Allow
appointed counsel to file an Amended Petition for Writ of Habeas
Corpus
containing
any
additional
claims
within
120
days
of
appointment.” (full case name and citation for Martinez omitted)).)
In the case cited by Petitioner, the United States Supreme Court
held
that
“[i]nadequate
counsel
at
initial-review
collateral
proceedings may establish cause for a prisoner’s procedural default
of a claim of ineffective assistance at trial.” Martinez, 566 U.S.
at 9 (emphasis added).
Subsequently, “[i]n Juniper v. Davis, 737
F.3d 288, 289 (2013), [the Fourth Circuit] held that a habeas
petitioner, who has been sentenced to death and appointed counsel
pursuant to 18 U.S.C. § 3599(a)(2) to pursue federal postconviction
relief, is entitled to the appointment of qualified, independent
legal counsel for the purpose of investigating whether he has any
Martinez-based [ineffective assistance of trial counsel] claims if
-6-
his § 3599 counsel also represented him in the state postconviction
proceedings.”
Fowler v. Joyner, 753 F.3d 446, 461 (4th Cir. 2014)
(emphasis in original); see also id. at 461-62 n.6 (“Pursuant to 18
U.S.C. § 3599, ‘in any post conviction proceeding under section
2254 or 2255 of title 28, United States Code, seeking to vacate or
set aside a death sentence, any defendant who is or becomes
financially unable to obtain adequate legal representation shall be
entitled to the appointment of one or more attorneys’ meeting the
practice qualifications set forth in subsections (b) through (d).”
(internal brackets and ellipsis omitted)), 463 (“Because some
claims [of ineffective assistance by trial counsel] may fall within
the Martinez exception to [procedural default], North Carolina
[death-sentenced] petitioners are therefore entitled upon request
to the appointment of qualified, independent counsel for the
purposes of investigating whether any such claims exist.”).
The instant Motion contends that, together, Fowler, Juniper,
and Martinez entitle Petitioner to appointment of Hambourger and/or
another attorney (other than Hale) “to conduct a Martinez review”
(Docket Entry 112 at 2, 3), because:
1) “Petitioner has never received review of his case by
independent
‘Martinez
counsel’
who
were
in
a
position
to
investigate and present claims of ineffectiveness of state postconviction counsel” (id. at 2);
2) “Hale is not ethically permitted to investigate and raise
claims of his own ineffectiveness” (id.);
-7-
3) “Hambourger was appointed to represent Petitioner on the
claim
pending
in
this
Court,
which
is
one
claim
of
juror
misconduct” (id.); and
4) “Hambourger has not, to this point, been provided with the
budget and resources to conduct a Martinez review” (id.).
This line of argument ignores several, material circumstances
that foreclose the relief requested in the instant Motion.
As an
initial matter, neither the Supreme Court (in Martinez) nor the
Fourth Circuit (in Juniper and/or Fowler) recognized a right for
federal habeas petitioners to “present claims of ineffectiveness of
state post-conviction counsel” (id. at 2 (emphasis added)) – much
less any and all types of “potential claims not raised in prior
post-conviction proceedings” (id. at 1); to the contrary, the
Supreme Court held only that “[i]nadequate counsel at initialreview collateral proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at trial,”
Martinez, 566 U.S. at 9 (emphasis added), and the Fourth Circuit
held only that “federal habeas counsel can investigate and pursue
the ineffectiveness
of
state
habeas
counsel
in an
effort
to
overcome the default of procedurally barred ineffective-assistanceof-trial-counsel
claims,”
Juniper,
737
F.3d
at
289
(emphasis
added); accord Fowler, 753 F.3d at 463.
Further, Martinez did not address appointment of counsel, see
Martinez, 566 U.S. at 9 (“The precise question here is whether
ineffective assistance in an initial-review collateral proceeding
on a claim of ineffective assistance at trial may provide cause for
-8-
a procedural default in a federal habeas proceeding.”), and neither
Juniper nor Fowler addressed the authority of a district court to
appoint independent federal habeas counsel to pursue ineffective
assistance of trial counsel claims which state habeas counsel did
not pursue, when the request for such independent counsel comes not
before the district court enters final judgment on the federal
habeas petition and/or the Fourth Circuit enters final judgment on
a subsequent appeal, but rather only after the entry of a final
judgment in the district court denying the federal habeas petition
and the entry of a final judgment on direct appeal remanding one
claim for an evidentiary hearing, see Fowler, 753 F.3d at 460
(explaining that, while appealing the denial of his federal habeas
petition,
the
petitioner
filed
“a
Motion
for
Appointment
of
Qualified and Independent Counsel,” which “ask[ed] that [the Fourth
Circuit] defer resolution of his habeas appeal, designate his
current counsel to be ‘Martinez counsel,’ and remand th[e] case to
the district court to allow counsel to investigate whether there
are any substantial ineffective-assistance-of-trial-counsel claims
that were not timely presented to the North Carolina state court”);
Juniper, 737 F.3d at 289 (observing that district court “issued a
certificate of appealability . . . [as to] whether [the petitioner]
was entitled to the appointment of new counsel under Martinez”).
The difference in the procedural posture at which the Martinez
issue arose in the latter two cases and in this case carries
dispositive significance, in light of the mandate rule, as this
Court (per Chief Judge Schroeder) recently held in an analogous
-9-
situation.
See Barnes v. Thomas, No. 1:08CV271, 2018 WL 3659016,
at *9 (M.D.N.C. Aug. 2, 2018) (unpublished) (“The Fourth Circuit
remanded this matter to this [C]ourt for an evidentiary hearing to
determine whether . . . juror misconduct . . . had a substantial
and injurious effect or influence on the jury’s verdict.
resolution
of
that
issue
by
this
[C]ourt
does
procedural default or otherwise implicate Martinez.
[the
petitioner]
is
attempting
to
assert
a
not
The
involve
To the extent
new
claim
[of
ineffective assistance of trial counsel], the request exceeds the
scope of the remand and would violate the mandate of the Fourth
Circuit.” (internal citation and quotation marks omitted)).5
5
In arguing that the Court should appoint a second attorney to serve with
Hambourger, the instant Motion states that “[o]ther petitioners, including
petitioners in this Court, have been provided with two qualified, independent
counsel for Martinez purposes.” (Docket Entry 112 at 3.) Petitioner appended
“[s]everal such orders . . . to th[e instant] Motion.” (Id.; see also Docket
Entry 112-1 at 1 (appointing Hambourger as Martinez “co-counsel” for the
petitioner who prevailed in Juniper), 7 (appointing Hambourger as Martinez “cocounsel” for the petitioner in Gray v. Pearson, No. 1:11CV630 (E.D. Va.)), 12
(appointing Hambourger and another attorney as Martinez counsel for the
petitioner in Tucker v. Thomas, No. 1:07CV868 (M.D.N.C.)), 14 (appointing
Hambourger as Martinez “co-counsel” for the petitioner in Parker v. Thomas, No.
5:03HC966 (E.D.N.C.)).) To the extent that Petitioner intended the foregoing
statement and attachment of orders to support not just (A) his position regarding
the subsidiary question of whether the Court should appoint a second Martinez
counsel (if the Court concludes that it should designate Hambourger or should
appoint a different attorney as a first Martinez counsel), but also (B) his
position regarding the preliminary question of whether the Court should designate
Hambourger (or, alternatively, should appoint a different attorney) as a first
Martinez counsel, the Court observes that the orders in those cases do not impact
the mandate rule analysis in this case, because: (1) as detailed above, the
Fourth Circuit’s remand in Juniper expressly ordered appointment of Martinez
counsel in response to the petitioner’s appeal of the district court’s denial of
his request for such relief during his initial proceedings in the district court;
(2) the circumstances of Hambourger’s appointment in the Gray case mirrored
exactly the circumstances of her appointment in the Juniper case, see Gray v.
Pearson, 526 F. App’x 331, 332 (4th Cir. 2013); (3) Hambourger’s appointment in
the Tucker case did not follow a Fourth Circuit remand, see Docket, Tucker v.
Thomas, No. 1:07CV868 (M.D.N.C.); and (4) the order appointing Hambourger in the
Parker case (which evidently did follow a Fourth Circuit remand, see Parker v.
Branker, slip op., No. 08-05 (4th Cir. Apr. 8, 2009)) did not consider the
implications of the mandate rule (see Docket Entry 112-1 at 14).
-10-
“This ‘mandate rule’ is a more powerful version of the law of
the case doctrine and is based on the principle that an inferior
tribunal is bound to honor the mandate of a superior court within
a single judicial system.”
Invention Submission Corp. v. Dudas,
413 F.3d 411, 414 (4th Cir. 2005) (some internal quotation marks
omitted).
That principle and its implications for a federal
district court charged with carrying out a remand from a federal
appellate court date back nearly two centuries, to a case in which
the United States Supreme Court declared as follows:
[An] inferior court is bound by the decree [of a higher
court] as the law of the case; and must carry it into
execution, according to the mandate. They cannot vary
it, or examine it for any other purpose than execution;
or give any other or further relief; or review it upon
any matter decided on appeal for error apparent; or
intermeddle with it, further than to settle so much as
has been remanded.
Sibbald v. United States, 37 U.S. 488, 492 (1838) (emphasis added);
see also Doe v. Chao, 511 F.3d 461, 465 (4th Cir. 2007) (“Indeed,
‘in its earliest days, the Supreme Court consistently held that an
inferior court has no power or authority to deviate from the
mandate issued by an appellate court.
been
uniformly
followed
in
later
The rule of these cases has
days.’”
(quoting
Briggs
v.
Pennsylvania R.R. Co., 334 U.S. 304, 306 (1948)) (internal brackets
and ellipsis omitted)).
Consistent with that venerable Supreme Court precedent, the
Fourth Circuit held (40 years ago) that, on remand, the “[f]urther
jurisdiction of the district court [i]s dependent upon the terms of
the appellate mandate, and the [district] court ha[s] no authority
.
.
.
to
conduct
any
proceedings
-11-
except
those
specifically
authorized by the appellate judgment.”
Gonzales v. Fairfax-
Brewster Sch., Inc., 569 F.2d 1294, 1297 (4th Cir. 1978) (emphasis
added).6
Moreover, the Fourth Circuit recently reiterated that,
when it remands a case to a district court, “the mandate rule
forecloses litigation of issues foregone on appeal or otherwise
waived, for example because they were not raised in the district
court.”
United States v. Pileggi, 703 F.3d 675, 679 (4th Cir.
2013) (internal ellipsis and quotation marks omitted). Put another
way, “under the mandate rule a remand proceeding is not the
occasion for raising new arguments or legal theories.”
Volvo
Trademark Holding Aktiebolaget v. Clark Mach. Co., 510 F.3d 474,
481 (4th Cir. 2007); see also Pileggi, 703 F.3d at 680 (“[A
litigant] is not permitted to use the accident of a remand to raise
an issue that it could just as well have raised in the first
appeal.”
(internal
brackets,
ellipsis,
and
quotation
marks
omitted)); Doe, 511 F.3d at 467 (“The district court was not free
to use th[e Fourth Circuit’s] remand on a totally separate issue as
an opportunity to breathe life into [a] long abandoned claim.”).7
In this case, Petitioner “did not raise the [Martinez-related
issue] in the earlier proceedings, either in th[is C]ourt or in
th[e Fourth Circuit]. . . .
Consequently, [this Court] properly
[must] conclude[] that [Petitioner] ha[s] waived [hi]s contention
6
Given the jurisdictional nature of this limitation, the Court must
enforce it, even if the parties do not raise it. See, e.g., Davis v. Pak, 856
F.2d 648, 650 (4th Cir. 1988) (“[I]t is always incumbent upon a federal court to
evaluate its jurisdiction sua sponte, to ensure that it does not decide
controversies beyond its authority.”).
7
"The mandate rule [thereby] serves the interest of finality
litigation." Doe, 511 F.3d at 465 (internal quotation marks omitted).
-12-
in
on the [Martinez-related issue] and, as a result, [i]s not entitled
to raise it on remand.”
Volvo Trademark, 510 F.3d at 481.8
Simply
put, “the scope of the remand . . . did not permit th[is C]ourt to
broach the entirely new issue of whether [Petitioner] was entitled
to [pursue new claims] . . . .
Given that [Petitioner] never
requested [such relief in prior proceedings], he clearly waived any
such claim[s].”
Doe, 511 F.3d at 466-67.
In sum, “[t]he language
of [the Fourth Circuit’s] mandate . . . does not authorize th[is
C]ourt to open the case for further adjudication [of new claims].
. . .
[To the contrary, the Fourth Circuit’s] instruction to th[is
C]ourt was clear, direct, and limiting, and . . . [it must] follow
the mandate as directed.”
Invention Submission, 413 F.3d at 415.9
Notably, Petitioner tacitly has acknowledged that the Fourth
Circuit’s remand limited this Court to holding an evidentiary
hearing to resolve his improper juror contact claim, in that the
instant Motion states:
“Hambourger was appointed to represent
8
The Supreme Court decided Martinez on March 20, 2012. See Martinez, 566
U.S. at 1. The undersigned Magistrate Judge did not recommend denial of the
Petition until September 7, 2012 (see Docket Entry 53 at 105), and the Court (per
now-Chief Judge Schroeder) did not deny the Petition until March 31, 2013 (see
Docket Entry 67 at 38; Docket Entry 68 at 1). Accordingly, Petitioner could have
raised any Martinez issue during the prior proceedings in this Court (just as the
petitioner in Juniper raised the issue in his initial district court proceedings,
see Juniper, 737 F.3d at 289). Moreover, the Fourth Circuit decided Juniper on
December 10, 2013, see id. at 288, and Fowler on June 2, 2014, see Fowler, 753
F.3d at 446, but – even with that elucidation of Martinez (and in contrast to the
petitioner in Fowler, see id. at 460) – Petitioner chose not to raise any
argument premised on Martinez before the Fourth Circuit, as he could have done
before it resolved his appeal on July 2, 2014, see Hurst, 757 F.3d at 389.
9
“Deviation from the mandate rule is permitted only in a few exceptional
circumstances, which include (1) when controlling legal authority has changed
dramatically; (2) when significant new evidence, not earlier obtainable in the
exercise of due diligence, has come to light; and (3) when a blatant error in the
prior decision will, if uncorrected, result in a serious injustice. But it is
clear that none of these exceptions applies here.” Invention Submission, 413
F.3d at 415 (internal citation and quotation marks omitted).
-13-
Petitioner on the claim pending in this Court, which is one claim
of juror misconduct.”
(Docket Entry 112 at 2 (emphasis added)
(citing Docket Entry 85 (Motion to Appoint Second Attorney) and
Docket
Entry
95
(Order
appointing
Hambourger)).)
Any
such
limitation on the scope of Hambourger’s appointment to that “one
claim” necessarily stemmed from the terms of the Fourth Circuit’s
remand and the strictures of the mandate rule, because neither the
motion seeking Hambourger’s appointment nor the order appointing
her expressly cabined her representation.
(See Docket Entry 85 at
7 (“[U]ndersigned counsel [Hale] moves respectfully for this Court
to appoint [] Hambourger as second counsel for [Petitioner] in this
matter.”); Docket Entry 95 at 1-2 (“THIS MATTER came on to be heard
on motion by Petitioner . . . to have second counsel appointed to
assist in his representation in this case . . . .
[His] motion for
the appointment of second counsel is GRANTED. . . .
Hambourger, a
member of the bar of this Court and who is otherwise qualified to
serve as second counsel for [Petitioner] pursuant to Title 18
U.S.C. § 3599, is hereby appointed to do so pursuant to the
dictates of that Section.
[She] is hereby directed to notice her
appearance in this case at her earliest opportunity.”).)10
Alternatively, if the Fourth Circuit’s remand and the mandate
rule did not limit the scope of this Court’s post-remand authority
to
the
re-examination
(following
an
evidentiary
hearing)
of
Petitioner’s improper juror contact claim, then nothing about
10
Hambourger’s notice of appearance likewise contains no language limiting
the scope of her representation. (See Docket Entry 96 at 1 (“Hambourger hereby
enters notice of appearance in the above-captioned matter.”).)
-14-
Hambourger’s appointment limited her ability to pursue new claims
of ineffective assistance of trial counsel during the nearly 22
months between her appointment in this case and the filing of the
instant Motion.
that
period,
Under that view (and as argued by Respondent), in
“Hambourger
[wa]s
already
functioning
independent counsel contemplated by Martinez.
as
the
The Fourth Circuit
has made it clear that no ‘special designation’ of ‘Martinez
Counsel’ is required.” (Docket Entry 113 at 6 (quoting Fowler, 753
F.3d
at
465-66);
see
also
Docket
Entry
112
(setting
forth
Petitioner’s statement that “Hambourger has no Martinez-conflict,
as she did not represent Petitioner in state court”).)
The Court thus would not now need to designate Hambourger (or
to appoint any other attorney) as independent habeas counsel to
pursue ineffective assistance of trial counsel claims Petitioner
did not present in state court.
See generally Fowler, 753 F.3d at
463 (“[The petitioner] is not entitled to the relief he seeks
[including designation of his present lawyer as Martinez counsel
and the opportunity to investigate new ineffective assistance of
trial counsel claims]. . . .
[The petitioner] had the benefit of
qualified, independent counsel during the pendency of his federal
habeas petition below who had ample opportunity to pursue any
Martinez-based arguments on his behalf.”).
Indeed, Petitioner’s
(and Hambourger’s) decision to wait almost two years to bring up
the possibility of new ineffective assistance of trial counsel
claims (not raised in state court) would defeat resort to the
equitable exception to procedural default recognized in Martinez.
-15-
See Rhines v. Young, No. 5:00CV5020, 2015 WL 4651090, at *8 (D.S.D.
Aug. 5, 2015) (unpublished) (“[The petitioner] did not seek leave
to conduct the investigation [of unexhausted claims of ineffective
assistance of trial counsel] sought by his pending motion for
another 15 months [after litigation in the district court resumed].
[The petitioner] has offered no explanation for this delay. As the
Supreme Court explained, the [procedural default] exception it
created [in Martinez] was not only narrow, but also equitable. The
untimeliness of [the petitioner’s] motion is but another reason
that
justifies
investigate
such
denying
new
his
request
claims].”
for
(internal
another
citations
[chance
to
omitted)),
reconsideration denied, 2016 WL 614665 (D.S.D. Feb. 16, 2016)
(unpublished), aff’d, 899 F.3d 482 (8th Cir. 2018).11
Moreover, if the Court (1) could entertain new ineffective
assistance of trial counsel claims (notwithstanding the mandate
rule) and (2) would excuse (as part of the procedural default
analysis) Petitioner’s failure to pursue such claims for the
11
Petitioner’s (misleading) objection that “Hambourger has not, to this
point, been provided with the budget and resources to conduct a Martinez review”
(Docket Entry 112 at 2) does not alter the above conclusion. The Court never
imposed any budgeting requirement on Petitioner and, prior to filing the instant
Motion (nearly 22 months after Hambourger’s appointment), Petitioner never asked
for funds to pursue any Martinez-related matters. Further, although Petitioner’s
reply states that, “[b]efore filing the Motion at issue here, [] Hambourger
called the CJA Budgeting Attorney for the Fourth Circuit and inquired whether,
given the circumstances of her appointment and the current posture of the case,
she could expect payment for any time spent reviewing or investigating
Petitioner’s case for Martinez issues, absent some prior approval from the Court”
and received a negative response (Docket Entry 114 at 2-3), the reply
conspicuously neglects to reveal exactly when that call happened (see id.).
Perhaps Hambourger called shortly after her appointment; if so, an unreasonable
delay then followed before the filing of the instant Motion. In the alternative,
if Hambourger called shortly before the filing of the instant Motion, an
unreasonable delay already had occurred. In any event, Petitioner has not shown
that he acted with reasonable diligence in pursuing any Martinez-related issues.
-16-
approximately 22 months between Hambourger’s appointment and the
filing of the instant Motion, the Court still would not designate
Hambourger (or appoint another attorney) as Martinez counsel,
because the statute of limitations would foreclose any effort by
Petitioner to amend the Petition to add new ineffective assistance
of trial counsel claims. In that regard, a habeas petition “may be
amended . . . as provided in the rules of procedure applicable to
civil actions.”
28 U.S.C. § 2242.
Under said rules, “[a] party
may amend its pleading once as a matter of course within:
(A) 21
days after serving it, or (B) . . . 21 days after service of a
responsive pleading . . . .”
Fed. R. Civ. P. 15(a)(1).
Because
(as shown in the Background section) those deadlines have long
passed, Petitioner can amend his Petition “only with [Respondent’s]
written consent or the [C]ourt’s leave,” Fed. R. Civ. P. 15(a)(2).
Respondent has indicated his opposition to addition of new
ineffective assistance of trial counsel claims.
113.)
(See Docket Entry
As for judicial leave, permission “to amend shall be given
freely, absent bad faith, undue prejudice to the opposing party, or
futility of amendment.”
317 (4th Cir. 2000).
United States v. Pittman, 209 F.3d 314,
“Where [as here] the statute of limitations
bars a cause of action, amendment may be futile and therefore can
be denied.”
Id.
Specifically, a one-year limitations period
applies to federal habeas claims, see 28 U.S.C. § 2244(d)(1), and
run[s] from the latest of –(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of the
time for seeking such review;
-17-
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme Court,
if the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
Id.
Pursuant to Subparagraph (A),12 Petitioner’s conviction became
final on or about October 2, 2006, i.e., when (as documented in the
Background section) the United States Supreme Court denied review.
See Clay v. United States, 537 U.S. 522, 527 (2003) (holding that
“[f]inality attaches when th[e United States Supreme] Court affirms
a conviction on the merits on direct review or denies a petition
for a writ of certiorari, or when the time for filing a certiorari
petition expires” (internal citations omitted)).
The federal
habeas limitations period then ran until June 25, 2007, when (as
documented in the Background section) Petitioner (through counsel)
12
The record cannot support a finding that Subparagraphs (B) or (C) would
entitle Petitioner to delayed commencement of the federal limitations period for
any new ineffective assistance of trial counsel claims. First, as documented in
the Background section, Petitioner made numerous filings in state and federal
court between the completion of his direct appeal and the filing of the instant
Motion, such that Subparagraph (B) could not apply. Subparagraph (C) likewise
could provide no relief, because claims of ineffective assistance of trial
counsel rest on Sixth Amendment principles of long standing, not any federal
constitutional right newly recognized by the United States Supreme Court. As a
final matter, because the factual predicate for any new claim of ineffective
assistance of trial counsel that state habeas counsel should have pursued
necessarily must have arisen and/or must have become evident no later than the
conclusion of state habeas proceedings (a date, as documented in the Background
section, more than seven years before Petitioner filed the instant Motion),
Subparagraph (D) could not save any such claim(s) he someday might file.
-18-
filed his MAR, at which time approximately 99 days of that one-year
period remained.
The filing of that MAR tolled the deadline for
federal
claims
habeas
post-conviction
for
“the
entire
period
of
state
proceedings,
from
initial
filing
to
final
disposition by the highest court (whether decision on the merits,
denial of certiorari, or expiration of the period of time to seek
further appellate review),” Taylor v. Lee, 186 F.3d 557, 561 (4th
Cir. 1999) (construing 28 U.S.C. § 2244(d)(2)).
Petitioner’s
federal limitations period thus began to run again on June 16,
2010, when (as documented in the Background section) the North
Carolina Supreme Court denied review of the Superior Court’s
rejection of his (twice-amended) MAR.13
The remaining 99 days of
that period passed as of September 23, 2010.
Any ineffective assistance of trial counsel claim proposed
thereafter still could qualify as timely if it “related back” to
claims
in
the
(timely-filed)
Petition;
however,
under
the
circumstances presented, the relation-back doctrine only could save
a claim “that arose out of the conduct, transaction, or occurrence
set out — or attempted to be set out — in the original pleading,”
Fed. R. Civ. P. 15(c)(1)(B); see also Fed. R. Civ. P. 15(c)(1)(A)
& (C) (allowing relation-back where statutory authority so dictates
and amendment involves non-prejudicial party change, respectively).
Furthermore, in the habeas context, “conduct, transaction, or
13
Unlike in the direct appeal context, Petitioner could not seek to
exclude from the limitations calculations the 90 days after the conclusion of the
state collateral proceedings, during which he theoretically could have sought
certiorari review by the United States Supreme Court. See Crawley v. Catoe, 257
F.3d 395, 397–401 (4th Cir. 2001). Regardless, the addition of those 90 days
would not impact the untimeliness analysis in this case.
-19-
occurrence”
does
not
mean
a
petitioner’s
entire
sentencing.
Mayle v. Felix, 545 U.S. 644, 664 (2005).
trial
or
Instead,
only claims linked as to “time and type” with timely-filed claims
“relate back.”
omitted).
Pittman, 209 F.3d at 318 (internal quotation marks
Lastly, “it is not sufficient that the new claim simply
has the same form as the original claims . . . .
Thus, ‘a
petitioner does not satisfy the Rule 15 ‘relation back’ standard
merely by raising some type of ineffective assistance in the
original petition, and then amending the petition to assert another
ineffective assistance claim based upon an entirely distinct type
of attorney misfeasance.’”
3:09CV831,
2011
WL
Ingram v. Buckingham Corr. Ctr., No.
836826,
at
*7
(E.D.
Va.
Mar.
4,
2011)
(unpublished) (quoting United States v. Ciampi, 419 F.3d 20, 24
(1st Cir. 2005)), appeal dismissed, 468 F. App’x 236 (4th Cir.
2012); accord, e.g., Watkins v. Deangelo-Kipp, 854 F.3d 846, 850
(6th Cir.), cert. denied, ___ U.S. ___, 138 S. Ct. 101 (2017);
United States v. Gonzalez, 592 F.3d 675, 679-80 (5th Cir. 2009).
Because any new claim of ineffective assistance of trial
counsel could not meet the “relation-back” standard,14 any such
14
To begin, in light of the authority above, any new claim of ineffective
assistance of trial counsel would not relate back to the Petition’s three
ineffective assistance claims.
Further (as documented in the Background
section), three other claims in the Petition (i.e., challenges to the verdict as
ambiguous, for improper polling, and for lack of jurisdiction) mirror two of the
Petition’s ineffective assistance of trial counsel claims and thus Petitioner
could not present new ineffective assistance of trial counsel claims related to
those claims.
Nor could Petitioner propose ineffective assistance of trial
counsel claims related to the (six) claims in the Petition for denial of the
right to testify, a newspaper’s presence in the jury room, sentencing-phase jury
instructions, sentencing-phase closing argument, improper indictment as to first
degree murder, and improper indictment as to death-eligibility, because (as shown
in the Background section) all those claims (which Petitioner abandoned by not
pursuing them in his direct appeal of the denial of the Petition) conclusively
(continued...)
-20-
claim would fail as untimely, absent equitable tolling, see Holland
v. Florida, 560 U.S. 631, 634 (2010) (recognizing that equitable
tolling applies to federal habeas limitations period).
To secure
equitable tolling, Petitioner must demonstrate that he “pursu[ed]
his rights diligently,” but “some extraordinary circumstance . . .
prevented a timely filing.”
Id. at 649 (internal quotation marks
omitted). As shown above, Petitioner’s delay in filing the instant
Motion for nearly two years after Hambourger’s appointment (and
more than five years after Martinez’s issuance) forecloses any
finding of diligent pursuit of his right to raise new ineffective
assistance of trial counsel claim(s).
Nor can Petitioner rely on
Martinez to satisfy the extraordinary circumstance element, as
courts
uniformly
Martinez
“have
provides
deadline.”
a
rejected
basis
for
the
notion
equitably
that
tolling
anything
the
in
filing
Lambrix v. Secretary, Fla. Dep’t of Corr., 756 F.3d
1246, 1262 (11th Cir. 2014); accord, e.g., Lombardo v. United
States, 860 F.3d 547, 557-61 (7th Cir. 2017); Arnold v. Clarke, No.
7:17CV453,
2017
WL
6065325,
at
*2
(W.D.
Va.
Dec.
7,
2017)
(unpublished); Farmer v. Hunt, No. 5:16CV152, 2017 WL 3301365, at
*5 (W.D.N.C. Aug. 2, 2017) (unpublished); McLaurin v. Perry, No.
5:14HC2160,
2015
WL
4139215,
at
*5
(E.D.N.C.
July
9,
2015)
(unpublished), appeal dismissed, 623 F. App’x 120 (4th Cir. 2015).
14
(...continued)
have failed on the merits, such that the underlying facts could not support a
related ineffective assistance claim.
Finally, none of the circumstances
surrounding the Petition’s sole, surviving claim for improper juror contact
(which, as shown in the Background section, Petitioner already has exhaustively
investigated, including via an evidentiary hearing in which Hambourger
participated) implicates his trial counsel in any related ineffective assistance.
-21-
In sum, as the Court (per Chief Judge Schroeder) recently
concluded
in
an
analogous
case,
“[e]ven
if
[new
ineffective
assistance of trial counsel] claim[s] were considered to fall
within
this
[C]ourt’s
remand
jurisdiction,”
Barnes,
2018
WL
3659016, at *9 n.10, the Court would deny the instant Motion,
because,
if
Petitioner
attempted
“to
raise
a
new
claim
of
ineffective assistance of trial counsel under Martinez, it would be
time-barred under 28 U.S.C. § 2254(d),” id.; see also Lambrix, 756
F.3d at 1262 (“[T]o the extent that [the petitioner] seeks to raise
new ineffective-trial-counsel claims, there is no scenario under
which those claims could be timely filed.
Therefore, . . . [his]
request for the appointment of counsel to file his ineffectivetrial-counsel claims would be futile because Martinez did not
relieve or alter [his] burden to file his claims within the
statutory limitations period.”).
CONCLUSION
Appointing counsel to investigate and to litigate new claims
of ineffective assistance by trial counsel would exceed the Fourth
Circuit’s mandate, which remanded this case to this Court for the
limited purpose of holding an evidentiary hearing to resolve one
claim (from
among
the
13
claims
presented
in
the
Petition).
Alternatively, if the mandate rule allowed consideration in this
Court of new ineffective assistance of trial counsel claims not
raised in state court, nothing prevented Petitioner – through
Hambourger (who did not participate in Petitioner’s state court
proceedings) – from attempting to present such claims during the
-22-
near-22 months between her appointment as his counsel and the
filing of the instant Motion.
From that perspective, Petitioner’s
request for appointment of Martinez counsel would fail as moot and
his plan to force new ineffective assistance of trial counsel
claims
through
Martinez’s
narrow
equitable
exception
to
the
procedural default doctrine would fail for lack of diligence.
Finally, if (despite the mandate rule and Petitioner’s decision to
wait almost two years after Hambourger’s appointment to raise the
prospect of new ineffective assistance of trial counsel claims) the
Court would possess authority to adjudicate such claims on remand
and the Martinez exception would save such claims from procedural
default,
the
statute
of
limitations
would
render
futile
any
amendment of the Petition to add such claims (and, by logical
extension, any designation of Hambourger or appointment of any
other attorney(s) as Martinez counsel to pursue such an amendment).
IT
IS
THEREFORE
ORDERED
that
Petitioner’s
Motion
for
Appointment of “Martinez Counsel” (Docket Entry 112) is DENIED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 10, 2018
-23-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?