BURCH v. BRANDON
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION, signed by MAG/JUDGE L. PATRICK AULD on 4/14/2015. RECOMMENDED that Respondent's Motion for Summary Judgment (Docket Entry 4 ) be granted, that the Petition (Docket Entry 1 ) be denied, and that this action be dismissed without issuance of a certificate of appealability. (Butler, Carol) (Main Document 14 replaced on 4/15/2015) (Butler, Carol).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TONY ANTWAIN BURCH,
Petitioner,
v.
JUDY BRANDON,
Respondent.
)
)
)
)
)
)
)
)
)
1:13CV10
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner of the State of North Carolina, seeks
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Entry 1.)
(Docket
On April 15, 2010, in the Superior Court of Guilford
County, a jury found Petitioner guilty of three counts of statutory
rape/sexual offense, two counts of indecent liberties with a child,
and two counts of sexual offense by a substitute parent in cases 08
CRS 111914 and 111916 through 111921.
6;
see
also
consolidated
Docket
the
Entry
offenses
5-3
into
at
(Docket Entry 1, ¶¶ 1, 2, 443-49.)1
three
Class
The
B1
trial
court
felonies
and
sentenced Petitioner in the presumptive range to three consecutive
terms of 288 to 355 months’ imprisonment.
(Docket Entry 1, ¶ 3;
see also Docket Entry 5-3 at 52-57.)
With the aid of appellate counsel, Petitioner appealed his
convictions (Docket Entry 1, ¶¶ 8, 9(a)-(f); see also Docket
Entries 5-2, 5-3, 5-4), and the North Carolina Court of Appeals
affirmed, State v. Burch, 215 N.C. App. 391 (table), 716 S.E.2d 88
1
For attachments to Respondent’s memorandum in support of her instant
Motion for Summary Judgment, pin citations refer to the page number in the footer
appended to said document by the CM/ECF system.
(table),
No.
COA-10-1199,
(unpublished).
Petitioner
2011
WL
3891031
thereafter
(Sept.
submitted
a
6,
2011)
certiorari
petition to the North Carolina Supreme Court (see Docket Entry 1,
¶ 9(g)), which that court denied, State v. Burch, 366 N.C. 393, 732
S.E.2d 483 (2012).
Petitioner did not then petition the United
States Supreme Court for a writ of certiorari.
(Docket Entry 1,
¶ 9(h).)
While his certiorari petition remained pending before the
North
Carolina
Supreme
Court,
Petitioner
filed
a
motion
for
appropriate relief (“MAR”) with the state trial court (Docket Entry
1-2; see also Docket Entry 1, ¶ 11(a)),2 which that court denied
(Docket Entry 5-6 at 2; see also Docket Entry 1, ¶ 11(a)(7), (8)).
Petitioner sought review of his MAR’s denial by filing a certiorari
petition in the North Carolina Court of Appeals (Docket Entry 5-7;
see also Docket Entry 1, ¶ 11(b)), which that court denied (Docket
Entry 5-9; see also Docket Entry 1, ¶ 11(b)(7)(8)).
Petitioner subsequently submitted his instant Petition to this
Court. (Docket Entry 1.) Respondent moved for summary judgment on
the
merits
(Docket
Entry
4)
and
Petitioner
filed
responsive
documents in opposition (Docket Entries 9, 12), along with a
“Request and Motion to Add An Exhibit in Support of Motion in
Opposition to Respondent’s Motion for Summary Judgment” (Docket
Entry 13), which the undersigned granted (see Text Order dated
March 31, 2015).
2
For attachments to the Petition or other portions lacking paragraph
numbers, pin citations refer to the page number in the footer appended to said
document by the CM/ECF system.
-2-
Facts
The facts of the case, as set out in the North Carolina Court
of Appeals’ opinion affirming Petitioner’s convictions, are as
follows:
The State’s evidence tended to show that in early 2008,
Kit,1 a fourteen-year-old girl, lived with defendant and
his wife (“the Burches”). Defendant performed oral sex
on Kit and had sex with her on multiple occasions. In
November of 2008, Mary, a fifteen-year-old foster child,
began living with the Burches. Defendant performed oral
sex on Mary, and in December of 2008, defendant went
into Mary’s bedroom and performed oral sex on her, had
her perform oral sex on him, and had vaginal intercourse
with her; afterwards, defendant used a washcloth to wipe
them both. The next day Mary reported the incident to
her school guidance counselor. Mary was examined by a
sexual assault nurse examiner. The nurse found a tear
around Mary’s vagina, and the nurse determined that “the
physical findings from [the] examination . . . [were]
supportive of [Mary’s] allegations of sexual assault” and
Mary “demonstrated symptoms of rape that’s [sic]
consistent with other similarly situated rape or sexual
assault victim[s.]” The washcloth defendant had used to
wipe both Mary and himself contained DNA from both
defendant’s semen and Mary.
FOOTNOTES
1
Pseudonyms will be used to protect the identities of
the minors in this case.
Burch, 2011 WL 3891031, at *1-2.
Claims
Petitioner raises four grounds for relief in his Petition: (1)
he received ineffective assistance of trial counsel in that counsel
“made errors . . . which fell below an objective standard of
reasonableness and prejudiced the Petitioner, thus denying him a
fundamentally fair trial in light of the cumulative[] effect of
such errors” (Docket Entry 1 at 5-10); (2) Petitioner’s trial
-3-
“counsel failed to conduct an adequate pre-trial investigation and
to properly prepare for trial” in violation of the Sixth and
Fourteenth Amendments (id. at 11, 13); (3) the trial court violated
the Sixth and Fourteenth Amendments by denying Petitioner “his
rights to confront and cross-examine witnesses against him” (id. at
14, 16-17); and (4) Petitioner received ineffective assistance of
appellate counsel in that counsel “fail[ed] to raise a claim of
trial counsel’s ineffectiveness . . . [which] denied Petitioner the
right to have the cumula[tive] effect of such errors reviewed on
direct appeal” (id. at 18).
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);
see also 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to
have waived the exhaustion requirement . . . unless the State,
through counsel, expressly waives the requirement.”).
-4-
Discussion
I.
Grounds One and Two3
Petitioner
maintains
that
his
trial
counsel
provided
constitutionally deficient performance in a multitude of ways.
(Docket Entry 1 at 5-13; see also Docket Entry 12 at 3-22.)
More
specifically, he alleges that his trial counsel (1) failed to
object
to
the
“variance”
between
the
indictments
and
jury
instructions for the crime of “sexual offense - parental role,”
which alleged “vaginal intercourse,” and the corresponding verdict
forms, which reflected “sex offense” (Docket Entry 1 at 6); (2)
failed to object to the “variance” between the indictments for
“statutory
rape”
and
the
corresponding
verdict
forms,
which
included both “statutory rape” and “sex offense” (id.); (3) failed
to object to “prejudicially damaging hearsay testimony” by a social
worker that one of the victims had informed the social worker that
Petitioner’s
son
had
told
the
victim
that
he
had
overheard
Petitioner having sex one night with another victim (id.); (4)
failed to object to “damaging” testimony by the social worker that
Petitioner’s
son
had
informed
the
social
worker
that
he
had
overheard Petitioner having sex with a juvenile (id. at 6-7); (5)
failed to object to the social worker’s hearsay testimony that
Petitioner’s son had informed her that one of the victims had
informed his aunt that Petitioner had raped her (id. at 7); (6)
3
Petitioner’s second ground essentially reiterates (and expands upon) one
of the claims of ineffective assistance alleged in his first ground. (Compare
Docket Entry 1 at 10, with id. at 11, 13.) Accordingly, the Court should analyze
Grounds One and Two together.
-5-
failed to object to the social worker’s “prejudicial” testimony
that Petitioner’s son knew that one of the victims had told his
aunt that Petitioner had raped her “because that was why the
[victim] was being punished” (id.); (7) failed to object to a
Greensboro Police Department investigator’s “prejudicial” testimony
that Petitioner’s son had informed him that he overheard Petitioner
having sex with one of the victims (id. at 7-8); (8) failed to
object to the investigator’s “rank hearsay” testimony that one of
the victims told him that a “lot of people” had told her about
Petitioner (id. at 8); (9) failed to object to the investigator’s
impermissible opinion testimony that a victim told him she would
believe another victim before she would believe Petitioner (id.);
(10) failed to object to the “opinion” testimony of the sexual
assault nurse examiner (“SANE nurse”) that a patient presents
herself to the SANE nurse for a certain procedure after the patient
has “been raped or sexually assaulted” (id.); (11) failed to object
to the opinion testimony of the SANE nurse that she asked one of
the victims about the clothing she wore when “penetration” occurred
(id. at 8-9); (12) failed to object to opinion testimony of the
SANE nurse regarding the importance of asking a victim whether she
has had anything to eat or drink because such consumption can
affect the biological evidence obtained from a victim of sexual
assault (id. at 9); (13) failed to object to the opinion testimony
of
the
SANE
nurse
as
to
whether
the
physical
findings
on
examination supported the victim’s allegations of sexual assault
(id.); (14) failed to object to the testimony of a third victim
-6-
regarding an alleged sexual contact and attempted sexual contact
involving Petitioner when the state did not bring charges against
Petitioner concerning that victim (id.); (15) failed to object to
a victim’s testimony that a third victim had “told her to be
careful around the Petitioner, not to be alone with him and that
the Petitioner had tried to do certain sexual things to her in the
past”
(id.
at
9-10);
(16)
failed
to
object
to
a
victim’s
“inadmissible hearsay” testimony that Petitioner’s sister had told
her that she knew Petitioner “was probably having sex” with the
victim because Petitioner “had had sex with his sister’s friends in
the past” (id. at 10); (17) failed to object to the prosecutor
“repeatedly” asking Petitioner’s wife, during cross-examination,
why the victims “would say these things about her husband if they
were not true” (id.); and (18) failed to adequately challenge the
state’s investigation and evidence, and failed to provide an
alternative explanation for the physical findings of the SANE nurse
and SBI experts (id.; see also id. at 11, 13).
Petitioner claims
that the cumulative effect of his trial counsel’s errors deprived
him of a fundamentally fair trial.
Entry 12 at 3-4, 9, 10-11.)
(Id. at 5; see also Docket
Grounds One and Two lack merit.
Although Respondent has addressed the merits of Petitioner’s
ineffective assistance claims against his trial counsel (see Docket
Entry 5 at 3-9, 10-12), Respondent has additionally argued the
procedural default of such claims (see id. at 9-10).
Respondent
bases that argument upon N.C. Gen. Stat. § 15A-1419(a)(3) and (b)
(requiring denial of MAR claim where the defendant could have
-7-
raised such claim in a prior appeal but did not do so, absent cause
and prejudice or fundamental miscarriage of justice) and the MAR
court’s
order
which
denied
Petitioner’s
parallel
ineffective
assistance claims because Petitioner either previously raised such
claims, or could have raised them, on direct appeal.
see also Docket Entry 5-6 at 2.)
(Id. at 9;
Because Petitioner did not
present ineffective assistance of trial counsel claims on direct
appeal (see Docket Entry 1-1; Docket Entry 5-2), Respondent asserts
that the MAR court must have denied such claims because Petitioner
did not raise them on direct appeal, although he could have done
so, i.e., on grounds of procedural default (Docket Entry 5 at 9).
In response, Petitioner “contends that in Martinez v. Ryan,
[
U.S.
, 132 S. Ct. 1309 (2012)], [the] United States Supreme
Court held, where, under state law, ineffective [assistance] of
trial counsel claims must be raised in an initial review collateral
proceeding, a procedural default will not bar a federal habeas
court
from
hearing
those
claims,
if,
in
the
initial
review
collateral proceeding there was no counsel or counsel in that
proceeding was ineffective.”
(Docket Entry 13 at 10 (citing
Martinez, 132 S. Ct. at 1315-20).)
Petitioner also asserts that
“[a]n attorney’s errors during an appeal on direct review may
provide cause to excuse a procedural default” (id.), and, in Ground
Four of his instant Petition, Petitioner has indeed alleged that
his appellate counsel provided ineffective assistance by failing to
raise the ineffective assistance of trial counsel claims at issue
here (see Docket Entry 1 at 18.)
-8-
As
an
initial
matter,
Martinez
circumstances of the instant case.
does
not
apply
to
the
That case permits a petitioner
to excuse a procedural default under certain conditions when he or
she has failed to raise an ineffective assistance of trial counsel
claim in the first available collateral proceeding under state law.
Martinez, 132 S. Ct. at 1315-20. Here, Petitioner did raise all of
the instant ineffective assistance of trial counsel claims in his
MAR.
(See Docket Entry 1-2.)
Thus, in order to resolve the issue
of procedural default, the Court must address the question of
whether such claims could have, and thus should have, been brought
on direct appeal.
The MAR court procedurally barred all of Petitioner’s claims
because such claims could have been brought on direct appeal.
(Docket Entry 5-6 at 2.) The MAR court’s order overreached because
clearly Petitioner could not have raised his ineffective assistance
of appellate counsel claim on direct appeal. To complicate matters
further, the North Carolina Court of Appeals has held that, “[i]n
general, claims of ineffective assistance of [trial] counsel should
be considered through [MARs] and not on direct appeal.” State v.
Stroud, 147 N.C. App. 549, 553 (2001); see also State v. Fair, 354
N.C. 131, 167 (2000) (recognizing that, “because of the nature of
[ineffective assistance of counsel] claims, defendants likely will
not be in a position to adequately develop many IAC claims on
direct appeal”).
Nevertheless, “ineffective assistance of counsel
claims brought on direct review will be decided on the merits when
the cold record reveals that no further investigation is required,
-9-
i.e.,
claims
that
may
be
developed
and
argued
without
such
ancillary procedures as the appointment of investigators or an
evidentiary hearing.”
State v. Thompson, 359 N.C. 77, 122-23
(2004) (citations and quotation marks omitted).
Moreover, no bright line exists separating those ineffective
assistance claims which require further evidence to develop from
those which do not.
For example, the Court of Appeals has found
ineffective assistance claims based on trial counsel’s failure to
object to certain matters during trial resolvable from the cold
record.
S.E.2d
See, e.g., State v. Turner,
77,
83-84
(2014)
(reviewing
N.C. App.
and
,
rejecting
, 765
ineffective
assistance of trial counsel claim premised on counsel’s failure to
object to a jury instruction because such claim required no further
investigation).
In contrast, the Court of Appeals has also found
that it could not resolve an ineffective assistance claim based on
failure to object on the cold record and dismissed the claim
without prejudice to allow the petitioner to re-raise the claim in
a MAR.
WL
State v. James, No. COA14-36, 763 S.E.2d 338 (table), 2014
3510988,
at
*2-5
(N.C.
App.
July
15,
2014)
(unpublished)
(finding “an issue of fact about whether [the] defendant’s trial
counsel made a strategic decision not to object to [an out-of-court
identification]” precluded review of the defendant’s ineffective
assistance of trial counsel claim and dismissing claim without
prejudice). Accordingly, to decide whether procedural default bars
Petitioner’s ineffective assistance of trial counsel claims would
require this Court to speculate as to how the North Carolina Court
-10-
of Appeals would handle each of Petitioner’s 18 subcontentions of
ineffective assistance of trial counsel.
Rather than embark on that speculative journey turning on
matters of state law, the Court should instead proceed to resolve
Petitioner’s instant ineffective assistance of trial counsel claims
on the merits. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997)
(noting that procedural-bar issue need not “invariably be resolved
first; only that it ordinarily should be” and that federal courts
can
bypass
procedural
matters
when
the
merits
“were
easily
resolvable against the habeas petitioner, whereas the proceduralbar issue involved complicated issues of state law”); Muhammad v.
Secretary, Florida Dep’t of Corrs., 733 F.3d 1065, 1072-73 (11th
Cir.
2013)
(citing
Lambrix
and
opting
not
to
decide
“messy
procedural issue” where “petition is more easily resolvable against
[the petitioner] on the merits”); Fry v. Angelone, No. 98-8, 165
F.3d 18 (table), 1998 WL 746859, at *2 (4th Cir. Oct. 26, 1998)
(unpublished) (relying on Lambrix to avoid interpreting “apparently
contradictory . . . procedural rules because . . . the claims in
question are clearly without merit”).
Petitioner raises two ineffective assistance claims premised
on his trial counsel’s failure to object to alleged variances
between certain of his indictments and the corresponding verdict
forms.
(Docket Entry 1 at 6; see also Docket Entry 12 at 4-8.)
Petitioner first alleges that his indictments for the crime of
sexual offense - parental role (and the trial court’s corresponding
jury instructions) concerned whether Petitioner had engaged in
-11-
“vaginal intercourse” with the victims, but that the verdict forms
(and the jury’s resultant guilty verdicts) reflected the issue of
whether Petitioner had committed a “sex offense” against the
victims.
(Id.; Docket Entry 12 at 4-6; see also Docket Entry 5-3
at 21, 25 (indictments), 35-36 (jury instructions), 45, 49 (verdict
forms).)
According
to
Petitioner,
that
distinction
holds
significance, because N.C. Gen. Stat. § 14-27.1(4) defines “sexual
act” as “cunnilingus, fellatio, analingus, or anal intercourse, but
does not include vaginal intercourse.”
(Docket Entry 12 at 5
(emphasis added).) Thus, Petitioner contends that he “was indicted
for
one
crime
but
was
convicted
of
another.”
(Id.)
That
contention falls short.
Petitioner’s instant argument confuses the elements of the
crime in question with the state’s use of an abbreviated title of
the
crime
question.
on
both
the
indictments
and
the
verdict
(See Docket Entry 5-3 at 21, 25, 45, 49.)
forms
in
Section 14-
27.7(a) criminalizes either a “sexual act” (as defined in Section
14-27.1(4)) or “vaginal intercourse” with a minor victim by an
individual in a parental role.
Here, both the indictments and the
jury instructions make clear that the state sought to charge
“vaginal intercourse” as the predicate act of the crime.
21, 25, 35-36.)
(Id. at
Thus, the use of the words “SEX OFFENSE” on both
the indictments and verdict forms in question clearly represents an
abbreviated title of the crime described in N.C. Gen. Stat. § 1427.7(a), rather than an attempt to charge a “sexual act” other than
“vaginal intercourse” as the predicate act of the crime.
-12-
Similarly, Petitioner alleges ineffective assistance based
upon his trial counsel’s failure to object to the variance between
his
indictments
for
the
crime
of
statutory
rape
and
the
corresponding verdict forms, which reflect that “the jury convicted
. . . Petitioner of either statutory rape or sex offense and thus,
. . . Petitioner may have been denied the right to a unanimous
verdict and may have been convicted of a crime for which he was not
indicted.”
(Docket Entry 1 at 6; Docket Entry 12 at 6-8;
see also
Docket Entry 5-3 at 19, 22, 23 (indictments), 43, 46, 47 (verdict
forms).)
This “variance” claim fails for the same reason as
Petitioner’s first such claim.
Again, Petitioner misunderstands the distinction between the
charged elements of the crime of statutory rape under N.C. Gen.
Stat. § 14-27.7A(a) and the abbreviated title of that crime used by
the state on the indictments and verdict forms.
Section 14-
27.7A(a) criminalizes either a “sexual act” (as defined in Section
14-27.1(4)) or “vaginal intercourse” with a victim aged 13, 14, or
15 by an individual six or more years older and not married to the
victim.
All
three
statutory
rape
indictments
(and
the
corresponding jury instructions) make clear that the state charged
“vaginal
intercourse”
statutory rape.
as
the
predicate
act
(Id. at 19, 22, 23, 34-35.)
of
the
crime
of
Given that fact, the
words “STATUTORY RAPE/SEX OFFENSE” on both the indictments and
verdict forms in question clearly represent an abbreviated title of
the crime described in N.C. Gen. Stat. § 14-27.7A(a), rather than
-13-
an
attempt
to
charge
a
“sex
offense”
other
than
“vaginal
intercourse” as the predicate act of the crime.
Accordingly,
Petitioner’s
trial
counsel
could
not
have
provided ineffective assistance for failing to raise such meritless
objections regarding the indictments in question.
See Oken v.
Corcoran, 220 F.3d 259, 269 (4th Cir. 2000) (“[C]ounsel was not
constitutionally ineffective in failing to object . . . [when] it
would have been futile for counsel to have done so . . . .”).
Petitioner also claims that his trial counsel failed him by
inadequately challenging the state’s investigation and evidence,
and by not providing an alternative explanation to counter the
physical findings of the SANE nurse and SBI experts. (Docket Entry
1 at 10, 11, 13; see also Docket Entry 12 at 11-22.)
Specifically,
Petitioner faults his trial counsel for failing to investigate
whether “any of the [victims] had made any allegations of rape or
sexual abuse against other foster parents or any other person, and
the outcome of such allegations,” when “report[]s” showed that the
victims had made such prior allegations and “were very sexually
active prior to [the] allegations against . . . Petitioner.”
at 13; Docket Entry 12 at 11-14, 18.)
(Id.
Further, Petitioner argues
that his counsel should have retained experts to counter the SANE
nurse’s physical findings and the SBI’s DNA evidence.
(Docket
Entry 12 at 18-22.) According to Petitioner, “no matter[] what the
investigation may have revealed, such investigation would have
helped[] . . . Petitioner to make an intelligent choice of whether
-14-
or not to proceed to trial or work out a permissible plea.”
(Docket Entry 1 at 13.)
Such vague, speculative, and conclusory allegations fail to
state a claim for habeas relief as a matter of law.
See Nickerson
v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992), abrogation on other
grounds recognized, Yeatts v. Angelone, 166 F.3d 255, 266 n.4 (4th
Cir. 1999).
Here, given that consent to the alleged sexual
activity does not constitute a defense to the crimes in question,
Petitioner has not shown how the prior sexual activities of the
victims would have had any relevance to his case.
See N.C. Gen.
Stat. § 14-27.7(a) (describing crime of sex offense - parental role
and providing consent no defense); State v. Anthony, 133 N.C. App.
573, 575-79 (1999) (holding consent does not constitute defense to
crime of statutory rape of person aged 13, 14, or 15 under § 1427.7A(a)); State v. Hunt, 221 N.C. App. 489, 496 n.3 (2012)
(recognizing consent no defense to taking indecent liberties with
child under age of 16 under N.C. Gen. Stat. § 14-202.1).
Indeed,
the trial court granted the state’s motion in limine under Rule 412
of the North Carolina Rules of Evidence (rape shield law), which
deems evidence of the sexual behavior of the victims irrelevant in
a
rape
or
sex
offense
criminal
trial
except
in
four
narrow
circumstances which Petitioner did not show (and has not shown)
apply to his case.
(See Docket Entry 5-12 at 5-9.)4
4
Following an in camera voir dire examination of one of the victims
regarding previous instances of sexual abuse she had experienced, the trial court
modified its earlier ruling on the Rule 412 motion in limine to allow
Petitioner’s trial counsel to inquire of the SANE nurse if the victim’s
(continued...)
-15-
Moreover, Petitioner has not identified which “reports” show
that the victims had made prior rape or sexual abuse allegations
against other individuals, or indicated whether anyone investigated
those alleged prior allegations (and, more significantly, whether
any such allegations proved false); nor has Petitioner explained
how those prior accusations would have had any impact on the
outcome of his case.
12 at 11-22.)
(Docket Entry 1 at 10, 11, 13; Docket Entry
Similarly, Petitioner has made no attempt to show
what contribution defense experts would have made to any challenge
to the testimony of the SANE nurse and SBI experts, beyond what his
trial counsel elicited on his cross-examination (and recrossexamination) of those individuals.
(Id.; see also Docket Entry 5-
12 at 169-94 (cross-examination of SANE nurse), 200-02 (recrossexamination of SANE nurse), 308-09 (cross-examination of SBI body
4
(...continued)
allegations of sexual abuse occurring in the summer of 2008, a few months prior
to the victim’s allegations against Petitioner, would have changed the SANE
nurse’s opinion.
(See Docket Entry 5-12 at 61-84.)
On direct and crossexamination, the SANE nurse testified that she asked the victim in question, at
the time of examination, whether the victim had engaged in any consensual sexual
intercourse in the recent past and that the victim had identified only abuse from
a foster father “years ago.” (Id. at 161-62, 192-93 (emphasis added).) The
record does not indicate that the state or Petitioner’s counsel actually asked
the SANE nurse whether the victim’s allegations of sexual abuse occurring in the
summer of 2008 would have changed the SANE nurse’s opinion. (See id. at 145202.) However, the SANE nurse did clarify the time frame of relevancy for prior
sexual activity: “What I'm looking for is I don't want anything with[in] the past
two weeks that could potentially contaminate my findings.” (Id. at 193 (emphasis
added).) Furthermore, with regard to vaginal tears, the SANE nurse explained
that the vaginal “area is highly vascular and that most injuries heal within a
24 hour period,” and that she did not see any evidence of “granulation” or
healing on the victim’s tear. (Id. at 192 (emphasis added.) Thus, the record
demonstrates that Petitioner’s counsel pursued the matter of one of the victim’s
prior allegations of sexual abuse to the extent that such allegations bore any
relevance to Petitioner’s case. Moreover, the SANE nurse’s testimony and the
trial court’s rulings on the Rule 412 motion in limine make clear the futility
of any further attempt to pursue questioning related to the victim’s prior
allegations of sexual abuse.
-16-
fluids analyst), 322-28 (cross-examination of SBI DNA analyst), 330
(recross-examination of SBI DNA analyst).)5
Thus, Petitioner’s unsupported and speculative assertions
about evidence and defense theories his trial counsel neglected to
develop fail to entitle him to habeas relief.
See, e.g., Cearley
v. Perry, 1:09CV397, 2014 WL 2607153, at *7 (M.D.N.C. Jun. 11,
2014) (unpublished) (rejecting as “entirely conclusory” ineffective
assistance claim premised on trial counsel’s alleged failure to
gather and present evidence, including expert testimony, where “the
related ‘Supporting Facts’ section makes no reference to any expert
witness testimony Petitioner’s trial counsel purportedly should
have presented”), recommendation adopted, 2014 WL 4809233 (M.D.N.C.
Sept. 26, 2014) (unpublished), appeal dismissed, No. 14-7433, 2015
WL 1428194 (4th Cir. Mar. 31, 2015) (unpublished); Powell v.
Shanahan, No. 3:13CV496FDW, 2014 WL 1464397, at *8 (W.D.N.C. Apr.
5
The medical articles Petitioner moved to add to his response in
opposition to Respondent’s summary judgment motion do not aid his argument
regarding his trial counsel’s failure to retain defense experts or develop an
alternative explanation for the findings of the SANE nurse and the SBI experts.
(See Docket Entry 13 at 4-14.) The first article, entitled “Appearance of the
genitalia in girls selected for nonabuse: review of hymenal morphology and
nonspecific findings” (id. at 4-5), concluded that “nonspecific genital findings”
(identified as “peri-hymenal bands, longitudinal intravaginal ridges, hymenal
tags, hymenal bumps/mounds, linea vestibularis, ventral hymenal cleft/notch
. . ., failure of midline fusion, hymenal opening size > 4mm, erythema, change
in vascularity, labial adhesions, posterior hymenal notch/cleft (partial),
posterior notch/cleft (complete), and posterior hymenal concavity or angularity”)
commonly occurred among girls who had not been sexually abused (id. at 4
(percentages omitted)). The second article, entitled “Medical Considerations in
the Diagnosis of Child Sexual Abuse, posits that horizontal hymen size, vaginal
rashes and redness, anal-genital warts, and reflex anal dilatation (“RAD”), do
not constitute accurate predictors of child sexual abuse.
(Id. at 6-14.)
However, the SANE nurse in this case testified that the victim had a 2.24
millimeter tear at the bottom of her vagina consistent with a “penetrating”
trauma and the victim’s allegations of sexual assault. (Docket Entry 5-12 at
159-60, 164.) Neither article addresses (much less challenges or discredits) the
use of vaginal tears as a method of detecting sexual abuse. (See Docket Entry
13 at 4-14.)
-17-
15, 2014) (unpublished) (“[T]o the extent [the][p]etitioner bases
his ineffective assistance of counsel claim on his attorney’s
alleged
failure
to
investigate,
[he]
has
presented
.
.
.
unsupported and conclusory allegations, which are insufficient to
warrant either an evidentiary hearing or habeas relief.” (citing
Nickerson, 971 F.2d at 1136)); Talbert v. Clarke, No. 2:13CV199,
2014 WL 644393, at *16 (E.D. Va. Feb. 18, 2014) (unpublished) (“The
petition fails to comply with the requirement of Rule 2(c) of the
Rules Governing Section 2254 Cases in District Courts that the
[p]etitioner ‘state the facts supporting each ground.’ Rule 2(c) is
more demanding than the notice pleading requirement of Fed. R. Civ.
P. 8(a).
Mayle v. Felix, 545 U.S. 644, 655 (2005).
‘[I]n order to
substantially comply with the Section 2254 Rule 2(c), a petitioner
must state specific, particularized facts which entitle him or her
to habeas corpus relief for each ground specified.
These facts
must consist of sufficient detail to enable the court to determine,
from the face of the petition alone, whether the petition merits
further habeas corpus review.’
Bullard v. Chavis, 153 F.3d 719,
1998 WL 480727, *2 (4th Cir. Aug. 6, 1998) (unpublished table
decision) (quoting Adams v. Armontrout, 897 F.2d 332, 333 (8th Cir.
1990)).”); Rice v. Cooper, No. 3:12CV7RJC, 2012 WL 4321320, at *10
(W.D.N.C.
Sept.
20,
2012)
(unpublished)
(“In
Ground
6,
[the][p]etitioner contends that his trial attorney did not want to
spend limited state resources to hire an expert to testify about
scientific evidence that would clear [him] . . . . [He] is not
entitled to relief on Ground 6.
-18-
First, Ground 6 is wholly
conclusory and unsupported.
That is, [the][p]etitioner does not
explain what evidence an expert would have testified about that
would have exculpated [him] . . . .” (internal brackets and
quotation marks omitted) (citing Nickerson, 971 F.2d at 1136)).
The remainder of Petitioner’s ineffective assistance of trial
counsel
subcontentions
involve,
as
detailed
above,
his
trial
counsel’s alleged failure to object to the inadmissible testimony
of a social worker, a police department investigator, the SANE
nurse, and one of the victims, as well as failure to object to
“argumentative” direct examination of Petitioner’s wife.
(Docket
Entry 1 at 6-10; see also Docket Entry 12 at 8-11.)
Even
considered cumulatively, those alleged errors do not establish
constitutionally
ineffective
assistance
by
Petitioner’s
trial
counsel.
In order to prove ineffective assistance of trial counsel,
Petitioner must satisfy the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984).
must
show
objective
that
(1)
standard
his
of
More specifically, Petitioner
counsel’s
performance
reasonableness;
and
(2)
fell
the
below
an
deficient
performance prejudiced Petitioner, i.e., a reasonable probability
that, but for his counsel’s unprofessional errors, the result of
the proceeding would have changed.
See id. at 678-88, 694.
Further, “counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment.”
-19-
Id. at 690.
Here, in light of the strong to overwhelming evidence against
Petitioner, he cannot show prejudice resulting from his trial
counsel’s allegedly deficient performance, even considering such
alleged errors cumulatively.
The two minor victims, who did not
know each other prior to Petitioner’s trial on the underlying
charges (see Docket Entry 5-12 at 46, 389), each testified in
detail
about
multiple
occasions
on
which
Petitioner
sexually
assaulted them (id. at 48-58, 85-102, 387-96, 400). The SANE nurse
testified that one of the victims had a 2.24 millimeter tear at the
bottom of her vagina consistent with a “penetrating” trauma and the
victim’s allegations of sexual assault. (Id. at 159-60, 164.) The
SBI bodily fluid analyst testified that a cutting from a washcloth,
which one of the victims testified Petitioner used to wipe himself
and her after ejaculation (see id. at 90, 102), tested positive for
the presence of sperm (id. at 305-09).
In turn, an SBI DNA analyst
testified
of
that
the
sperm
fraction
the
washcloth
cutting
contained DNA from the Petitioner, and that the non-sperm fraction
of the cutting contained DNA from the victim in question.
316-19.)
(Id. at
Notably, that analyst opined that the probability of
those DNA profiles matching individuals other than Petitioner and
the victim “[wa]s one in greater than one trillion.”
(Id. at 319,
320.)
Under these circumstances, no reasonable probability of a
different outcome for Petitioner’s trial existed.
See United
States v. Flute, 363 F.3d 676, 678 (8th Cir. 2004) (“The strength
of the properly admitted evidence was great.
-20-
Two [minor] victims
testified directly about how [the defendant] had victimized them,
and there was additional medical evidence consistent with the
abuse.”);
Slate
v.
Vargo,
No.
1:12cv1477
(CMH/TCB),
2014
WL
3378627, at *6 (E.D. Va. July 8, 2014) (unpublished) (finding no
prejudice where “no reasonable probability exists that the outcome
at trial would have differed had [the petitioner’s proposed]
evidence been introduced.
The witnesses were certain that Slate
was the perpetrator of the offense, and the scientific evidence
conclusively
established
that
‘the
probability
of
randomly
selecting an unknown individual with a DNA profile matching [that
of Slate’s recovered] . . . from the pistol is one in greater than
6.5 billion’”); Juniper v. Pearson, No. 3:11–cv–00746, 2013 WL
1333513, at *44 (E.D. Va. March 29, 2013) (unpublished) (holding
that the petitioner could not “overcome the very high threshold on
prejudice, for nothing that counsel did or failed to do can alter
the unmistakable forensic evidence against [the petitioner].
The
simple fact that his thumbprint and DNA were discovered on the
knife with which [the victim] was stabbed . . .
sufficiently
deflects any collateral attack based on ineffective assistance of
counsel”), vacated in part on other grounds sub nom. Juniper v.
Davis, 737 F.3d 288 (4th Cir. 2013); Hernandez v. Pliler, No. 032368PJH, 2004 WL 2047570, at *12 (N.D. Cal. Sept. 14, 2004)
(unpublished)
(“[T]he
evidence
in
this
case
was
not
‘thin.’
Instead, the prosecution presented a strong case against [the
defendant], including physical evidence which corroborated [the
minor victim’s] accusation of molestation.”), aff’d, No. 04-17131,
-21-
2006 WL 377136 (9th Cir. Feb. 17, 2006) (unpublished); Denney v.
Nelson, No. 01-3406-DES, 2002 WL 731698, at *6 (D. Kan. Apr. 18,
2002) (unpublished) (describing “weight of evidence against [the]
petitioner” as “overwhelming” where “jury heard graphic testimony
from two different victims regarding two separate instances of
sodomy and sexual battery perpetrated by [the] petitioner”).
Accordingly, because Petitioner cannot establish that his
trial counsel’s alleged errors prejudiced him, his ineffective
assistance claims fail.
See Strickland, 466 U.S. at 697 (“[T]here
is no reason . . . to address both components of the [performance
and prejudice] inquiry if the defendant makes an insufficient
showing on one.”).
In sum, Grounds One and Two do not entitle
Petitioner to habeas relief.
II.
Ground Three
In Petitioner’s third ground for relief, he contends that the
trial court violated the Confrontation Clause of the United States
Constitution by allowing (1) a social worker to testify that
Petitioner’s son told her that he knew one of the victims had told
his aunt that Petitioner had raped the victim because “that was why
[the victim] was being punished”; and (2) one of the victims to
testify that Petitioner’s sister said she knew Petitioner “was
probably having sex with the [victim], because . . . Petitioner had
had sex with his sister’s friends in the past.”
14, 16; see also Docket Entry 12 at 22.)
(Docket Entry 1 at
That claim lacks merit.
As Respondent correctly argues, procedural default bars this
claim, because Petitioner failed to object to the admission of this
-22-
evidence at trial, resulting in a plain error review of these
issues on direct appeal.
Docket Entry 5-2.)
(See Docket Entry 5 at 13; see also
Plain error review in an appellate court
triggers the procedural bar for failing to object at trial and
precludes federal habeas review.
Daniels v. Lee, 316 F.3d 477,
487-88 (4th Cir. 2003).
In light of that procedural bar, Petitioner must demonstrate
either that cause for and prejudice from his procedural default
exists or that the refusal to address the defaulted claim will
result in a miscarriage of justice.
437, 447–48 (4th Cir. 2004).
Longworth v. Ozmint, 377 F.3d
In his MAR and Ground One of the
instant Petition, Petitioner has alleged ineffective assistance of
trial counsel for failing to object to the testimony in question
(see Docket Entry 1-3 at 24, 27; Docket Entry 1 at 7, 10), which
can constitute cause excusing procedural default, see Cole v.
Branker, 328 F. App’x 149, 158 (4th Cir. 2008) (recognizing that
“[t]he
Supreme
Court
has
‘acknowledged
that
in
certain
circumstances counsel’s ineffectiveness in failing properly to
preserve [a] claim for review in state court will suffice’ to
establish cause for a procedural default” (citing Edwards v.
Carpenter, 529 U.S. 446, 451 (2000))).
However, as discussed
above, because the strength of the evidence against Petitioner
precludes him from demonstrating the requisite prejudice arising
from this alleged ineffective assistance, such a claim fails on its
merits and thus cannot constitute cause sufficient to excuse his
procedural default.
See Dunaway v. Director of Va. Dep’t of
-23-
Corrs., 414 F. App’x 560, 562 (4th Cir. 2012) (“Because his
ineffective assistance claim fails, [the petitioner] has also
failed
to
show
cause
and
prejudice
excusing
the
procedural
default.”).
III.
Ground Four
Finally,
Petitioner
alleges
that
his
appellate
counsel
provided ineffective assistance by failing to raise on direct
appeal
all
of
the
ineffective
assistance
of
trial
counsel
allegations he asserts in Grounds One and Two of the instant
Petition.
(Docket Entry 1 at 18; Docket Entry 12 at 22-23.)
According to Petitioner, his appellate counsel’s failure to raise
these ineffective assistance claims resulted in the North Carolina
Court of Appeals reviewing the issues for plain error and deprived
him of the opportunity to have the Court of Appeals consider the
cumulative effect of all of his trial counsel’s alleged errors,
see Burch, 2011 WL 3891031, at *11 (observing that “‘the plain
error rule may not be applied on a cumulative basis, but rather a
defendant must show that each individual error rises to the level
of plain error’” (citing State v. Dean, 196 N.C. App. 180, 194 674
S.E.2d 453, 463 (2009)).
(See Docket Entry 1 at 18; Docket Entry
12 at 22-23.)
The Strickland standard applies with equal force to claims of
ineffective assistance of appellate counsel.
Evitts v. Lucey, 469
U.S. 387, 396 (1985) (“A first appeal as of right therefore is not
adjudicated in accord with due process of law if the appellant does
not
have
the
effective
assistance
-24-
of
an
attorney.”)
Here,
Petitioner’s claim that his appellate counsel failed him lacks
merit, because Petitioner cannot meet the prejudice prong of
Strickland.
Even if the Court of Appeals had considered the
cumulative effect of all of Petitioner’s allegations of ineffective
assistance
of
trial
counsel,
no
reasonable
probability
of
a
different outcome exists due to the strong to overwhelming nature
of the evidence against Petitioner as outlined above.
IT IS THEREFORE RECOMMENDED that Respondent’s Motion for
Summary Judgment (Docket Entry 4) be granted, that the Petition
(Docket Entry 1) be denied, and that this action be dismissed
without issuance of a certificate of appealability.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 14, 2015
-25-
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