REID v. MOBLEY
Filing
25
MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 09/29/2014; that Reid's motion for leave to conduct discovery (Doc. 18 -1) is DENIED, Reid's motion for change of venue (Doc. 22 ) is DENIED, Mobley' s motion for summary judgment (Doc. 15 ) is GRANTED, and the petition for a writ of habeas corpus (Doc. 2 ) is DISMISSED WITH PREJUDICE. This disposition renders Mobley's motion to dismiss (Doc. 6 ) moot. Finding neither a substantial issue for appeal concerning the denial of a constitutional right affecting the conviction nor a debatable procedural ruling, a certificate of appealability is not issued. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JIMMY REID,
)
)
Petitioner,
)
)
v.
)
)
DONALD MOBLEY, Administrator,
)
Warren Correctional Institution,)
)
Respondent.
)
1:14CV29
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Pro se Petitioner Jimmy Reid is serving two consecutive prison
sentences in a North Carolina prison following convictions for
second-degree rape and incest.
(Doc. 7-3 at 41–43.)
Before the
court is Reid’s petition for a writ of habeas corpus pursuant to 28
U.S.C.
§ 2254.
(Doc.
2.)
Respondent
Donald
Mobley,
the
Administrator for Warren Correctional Institution, first moved to
dismiss Reid’s petition (Doc. 6) and now moves for summary judgment
on the petition (Doc. 15).
With his response to Mobley’s motion for
summary judgment, Reid attached a “Motion for Leave to Conduct
Discovery” (Doc. 18-1) and also filed a motion for change of venue
(Doc. 22).
For the reasons set forth below, the court will deny Reid’s
motions for discovery and change of venue, grant Mobley’s motion for
summary judgment, and dismiss Mobley’s motion to dismiss as moot.
Accordingly, the petition will be denied.
I.
BACKGROUND
On January 26, 2009, a jury in Guilford County Superior Court
convicted Reid of second-degree rape and incest.
7-3 at 41–43.)
(Doc. 2 at 1; Doc.
Reid waived his right to counsel, but the trial court
appointed stand-by counsel for trial and sentencing.
25, 29–31, 44–46.)
(Doc. 7-3 at
On January 30, 2009, the trial court sentenced
Reid to the aggravated range of 125 to 159 months of imprisonment
for the rape conviction and to the presumptive range of 19 to 23 months
imprisonment for the incest conviction, to be served consecutively.
(Doc. 2 at 1; Doc. 7-3 at 50–55.)
Reid
to
submit
to
lifetime
The trial court further ordered
sex
offender
registration
satellite-based monitoring upon his release from prison.
at 56–59.)
and
(Doc. 7-3
With the aid of court-appointed appellate counsel, Reid
appealed his convictions to the North Carolina Court of Appeals (Doc.
7-3 at 60–62), and that court filed a published opinion on May 18,
2010, finding no error (Doc. 7-2).1
Reid then filed a pro se motion for change of venue and a motion
for appropriate relief (“MAR”) with the Guilford County Superior
Court on April 8, 2011.
(Doc. 16-2.)
1
On February 21, 2013, the
Reid did not file a petition for discretionary review with the North
Carolina Supreme Court. (See Doc. 2 at 2.)
2
(Doc. 11-1.)2
State court denied both motions.
Reid subsequently
sought review of this order by filing a pro se certiorari petition
in the North Carolina Court of Appeals on April 15, 2013 (Doc. 11-2),
which was denied on April 25, 2013 (Doc. 11-4).
Reid thereafter dated his federal habeas petition December 18,
2013, and filed it in this court on January 15, 2014, alleging four
grounds for relief.
(Doc. 2.)
In response to Reid’s petition,
Mobley moved to dismiss, arguing that Reid’s claims were time-barred
by the one-year statute of limitations of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1).
(Docs. 6–7, 9–11.)
Reid responds that his petition was entitled to
a belated commencement of the statute of limitations under 28 U.S.C.
§ 2244(d)(1)(B) due to a State impediment that prevented him from
filing his petition.
(Docs. 12–13.)
Mobley did not file a reply
to Reid’s timeliness arguments, but instead moved for summary
judgment, contending that Reid’s claims should be denied on their
merits.
(Docs.
15–16.)
Reid
has
filed
multiple
documents
following Mobley’s motion for summary judgment: a response (Doc.
2
Both Reid and Mobley appear to take the position that the same judge who
presided over Reid’s trial, Judge Stuart Albright, also ruled on Reid’s
motion for change of venue and MAR. (See Doc. 7 at 1; Doc. 11-2 at 2; Doc.
16 at 2.) However, the order denying these motions makes clear that Judge
Albright “had no[] involvement with the post-conviction review at hand.”
(Doc. 11-1 at 2.) The signature at the conclusion of the order appears
to be that of Judge A. Robinson Hassell. (Id. at 4.)
3
18);3 a “Supplemental Response” (Doc. 20); an “Amended Supplemental”
response to Mobley’s “full answer” (Doc. 21); and a motion seeking
a change of venue (Doc. 22).
The motions are now ready for consideration.
II.
ANALYSIS
A.
Motion for Summary Judgment
1.
Standard of Review
Rule 56 of the Federal Rules of Civil Procedure, which allows
a party to move for summary judgment, applies to habeas proceedings.
See Blackledge v. Allison, 431 U.S. 63, 80 (1977); Maynard v. Dixon,
943 F.2d 407, 412 (4th Cir. 1991).
Summary judgment is appropriate
when there exists no genuine dispute of material fact and the moving
party is entitled to judgment as a matter of law.
Fed. R. Civ. P.
56; Brandt v. Gooding, 636 F.3d 124, 132 (4th Cir. 2011).
The moving
party bears the burden of initially coming forward and demonstrating
the absence of a genuine dispute of material fact.
v. Catrett, 477 U.S. 317, 323 (1986).
Celotex Corp.
Once that burden is met, the
non-moving party must then affirmatively demonstrate that there is
3
Reid’s response to Mobley’s full answer contains an attachment titled
“Motion for Leave to Conduct Discovery.” (Doc. 18-1.) The Clerk did not
docket this attachment as a freestanding motion because Reid did not comply
with Local Rule 7.3(a) which requires all motions to be set out in a separate
pleading and accompanied by a brief. Nevertheless, in light of Mobley’s
response opposing discovery (Doc. 19) and Reid’s reply in support of
discovery (Doc. 20), the court will treat Reid’s request for discovery as
a motion and rule on it in this Memorandum Opinion and Order.
4
a genuine dispute of material fact that requires trial.
Matsushita
Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–87
(1986).
There is no issue for trial unless there is sufficient
evidence favoring the non-moving party for a fact-finder to return
a verdict for that party.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986); Sylvia Dev. Corp. v. Calvert Cnty., Md., 48 F.3d
810, 817 (4th Cir. 1995).
When making the summary judgment
determination, the court must view the evidence, and all justifiable
inferences from it, in the light most favorable to the non-moving
party.
Zahodnick v. Int’l Bus. Machines Corp., 135 F.3d 911, 913
(4th Cir. 1997); Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196
(4th Cir. 1997).
The
court
construes
petitions, liberally.
pro
se
petitions,
including
habeas
Haines v. Kerner, 404 U.S. 519, 520 (1972);
Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002).
However, this
liberal construction has its limits and does not require the court
to become an advocate for a petitioner.
Gordon v. Leeke, 574 F.2d
1147, 1152–53 (4th Cir. 1978).
This court must apply a highly deferential standard of review
in connection with habeas claims “adjudicated on the merits in State
court proceedings.”
28 U.S.C. § 2254(d); see also Woodford v.
Visciotti, 537 U.S. 19, 24 (2002).
5
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.”
28 U.S.C. § 2254(d).
To qualify as “contrary to”
United States Supreme Court precedent, a State court decision must
either arrive at “a conclusion opposite to that reached by [the United
States Supreme] Court on a question of law” or “confront[] facts that
are materially indistinguishable from a relevant [United States]
Supreme Court precedent and arrive[] at a result opposite” of that
reached by the Supreme Court.
06 (2000).
Williams v. Taylor, 529 U.S. 362, 405–
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”).
Finally, this court must presume that
State court findings of fact are correct unless rebutted by clear
and convincing evidence.
28 U.S.C. § 2254(e)(1).
6
2.
Alleged Withholding of Exculpatory Evidence
In Reid’s first ground for relief, he contends that the
prosecution failed to disclose a lab report from the State Bureau
of Investigation (“SBI”), until “it was to[o] late for [him] to mount
a proper defense using it.”
(Doc. 2 at 5.)
Reid alleges that the
withheld report is exculpatory because it confirmed that the DNA of
the sperm recovered from the victim did not match his DNA profile.
(Id.
at
6,
8.)
Reid
argues
that
the
prosecution’s
alleged
withholding of this evidence violated his due process rights under
the U.S. Constitution.
(Id. at 9.)
This argument provides no basis
for habeas relief.4
4
Reid’s first, third, and fourth grounds for relief are likely procedurally
barred. “Federal habeas review of a state prisoner’s claims that are
procedurally defaulted under independent and adequate state procedural
rules is barred unless the prisoner can show cause for the default and
demonstrate actual prejudice as a result of the alleged violation of federal
law, or prove that failure to consider the claims will result in a
fundamental miscarriage of justice.” McCarver v. Lee, 221 F.3d 583, 588
(4th Cir. 2000). In dismissing Reid’s MAR, the North Carolina Superior
Court rejected those three grounds for relief as procedurally barred under
N.C. Gen. Stat. § 15A-1419(a)(3) (“Upon a previous appeal the defendant
was in a position to adequately raise the ground or issue underlying the
present motion but did not do so.”). See McCarver, 221 F.3d at 588 (holding
that N.C. Gen. Stat. § 15A-1419(a)(3) is an independent and adequate state
procedural bar). Reid could have brought those claims in his direct appeal
but did not. Id. (noting that N.C. Gen. Stat. § 15A-1419(a)(3) “requires
North Carolina courts to determine whether the particular claim at issue
could have been brought on direct review”). There is no indication that
N.C. Gen. Stat. § 15A-1419(a)(3) has been inconsistently or irregularly
applied by the state court. Brown v. Lee, 319 F.3d 162, 170 (4th Cir. 2003);
see also McCarver, 221 F.3d at 589 (requiring a petitioner to cite “a
non-negligible number of cases” in which state courts do not consistently
and regularly use a state procedural rule to bar the relevant federal
claim). Moreover, Reid does not offer, and cannot demonstrate, “cause and
7
Reid raised the substance of this ground for relief in his MAR,
and the state trial court denied that claim on the merits as follows:
[Reid] further alleges denial of due process upon
allegations of noncompliance with procedural discovery
requirements and the U.S. Supreme Court decision of Brady
v. Maryland, 373 U.S. 83 (1963), specifically as related
to the DNA testing results from the N.C. SBI Crime Lab.
This contention is wholly without merit in that [Reid]’s
identity as the perpetrator was not in issue as he conceded
he had had sexual intercourse with the complaining
witness, the lab results and report in fact implicate
[Reid] and are not exculpatory, and they were never
introduced into evidence.
(Doc. 11-1 at 3–4.)
When analyzed under the deferential standard
of review, the State trial court’s ruling on this claim was not
contrary to, nor involved an unreasonable application of, Brady v.
Maryland and was not based on an unreasonable determination of the
facts in light of the evidence presented in the state court
proceeding.
In Brady, the United States Supreme Court held that “suppression
by the prosecution of evidence favorable to an accused . . . violates
due process where the evidence is material either to guilt or to
prejudice” or “a fundamental miscarriage of justice” averting his claims
from procedural default. Coleman v. Thompson, 501 U.S. 722, 750 (1991);
see also Murray v. Carrier, 477 U.S. 478, 486, 496 (1986) (observing that
(1) “default of a constitutional claim by counsel pursuant to a trial
strategy or tactical decision would, absent extraordinary circumstances,
bind the habeas petitioner even if he had not personally waived that claim”;
and (2) a fundamental miscarriage of justice excuses a procedural default
only “where a constitutional violation has probably resulted in the
conviction of one who is actually innocent”). However, the court need not
ultimately decide whether Reid is procedurally barred under N.C. Gen. Stat.
§ 15A-1419 because his claims fare no better on the merits.
8
punishment, irrespective of the good faith or bad faith of the
prosecution.”
Brady, 373 U.S. at 87.
The prosecutor’s duty to
disclose such exculpatory evidence is applicable even in the absence
of a request for the information by the accused.
Agurs, 427 U.S. 97, 110–11 (1976).
United States v.
To successfully demonstrate a
Brady violation, a petitioner must satisfy three requirements.
First, “[t]he evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching.”
Strickler v. Greene, 527 U.S. 263, 281–82 (1999).
Second, the
evidence must have been willfully or inadvertently suppressed by the
State (i.e., the State had the materials and failed to disclose them).
Id.; see also United States v. Stokes, 261 F.3d 496, 502 (4th Cir.
2001).
Finally, prejudice against a petitioner must have resulted
(i.e., the evidence at issue was “material”).
at 281–82; see also Stokes, 261 F.3d at 502.
Strickler, 527 U.S.
Evidence is considered
“material” and thus subject to Brady disclosure “if there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.”
United States v. Bagley, 473 U.S. 667, 682 (1985).
The record in
this case fails to establish any of the three elements necessary to
demonstrate a Brady violation.
First, as the State trial court correctly recognized, the DNA
9
evidence at issue is not exculpatory because the report confirmed
that the DNA of the semen recovered from the victim matched Reid’s
DNA profile.
(See Doc. 16-8 at 2–4; Doc. 10-3 at 1–2.)
Second, not only does the record fail to show that the prosecutor
withheld the DNA report from Reid, but it demonstrates that the
prosecution did not even possess the DNA report until after Reid’s
conviction by the jury.
At the start of Reid’s trial on January 20,
2009, the SBI laboratory had already performed a preliminary test
(dated January 7, 2009) on the evidentiary samples recovered from
the victim and had concluded that certain of the samples revealed
the presence of semen, sperm, and blood.
(Doc. 10-2 at 4–5.)
The
SBI laboratory, however, had not yet performed its DNA analysis.
(Doc. 16-6 at 3–7.)
After Reid marked the SBI’s preliminary report
as a defense exhibit and questioned the detective about its contents,
the trial court admitted the preliminary test report into evidence
at the request of the prosecutor.
(Doc. 16-6 at 69–90.)
Following
the jury’s guilty verdict but before sentencing Reid, the trial court
entered an order under N.C. Gen. Stat. § 15A-269 requiring the SBI
laboratory to expedite its DNA analysis of the evidentiary samples.
(Doc. 16-7 at 120, 123–28; Doc. 7-3 at 45–46.)
On January 30, 2009,
outside the presence of the jury (who had been discharged from service
four days earlier) and just before the trial court sentenced Reid,
10
the prosecutor provided Reid, his stand-by counsel, and the trial
court with a copy of the SBI laboratory’s DNA report, which was dated
January 29, 2009, and confirmed that DNA recovered from the victim
matched Reid’s DNA profile.
2.)
(See Doc. 16-8 at 2–4; Doc. 10-3 at 1–
The State, therefore, could not withhold evidence it did not
yet possess, and, moreover, the State provided Reid with the DNA
evidence at its first opportunity to do so.
Finally, the State trial court correctly found that the DNA
report was not material evidence, because Reid’s identity as the
perpetrator was no longer in issue after Reid admitted to engaging
in sexual intercourse with the victim on the day in question both
in his voluntary statement to a detective (Doc. 7-3 at 13) and in
his closing argument (see, e.g., Doc. 16-7 at 42–43, 45, 51–53, 57,
59, 68).
Thus, the absence of this DNA evidence could not have
prejudiced Reid.
In sum, the State court did not act contrary to or unreasonably
apply clearly established federal law when it determined that the
SBI DNA report identified by Reid did not meet the Brady standards.
Reid’s first ground for habeas relief therefore lacks merit.
3.
Claims of Ineffective Assistance of Trial and
Appellate Counsel
Reid next alleges that both his trial and appellate counsel
provided constitutionally ineffective assistance.
11
(Doc. 2 at 5, 37–
53.)
Reid claims that his appointed trial counsel “refused to talk
or meet with [him]” to discuss his case, which lead him to request
the right to represent himself and to the trial court’s granting his
trial counsel’s motion to withdraw and assigning her as stand-by
counsel.
counsel
(Id. at 5, 37.)
“gave
[him]
very
Further, Reid asserts that his trial
bad
advi[c]e”
regarding
“important
matters,” including that he should not inform the trial court of a
tape-recorded conversation between Reid and a detective, which the
“state” allegedly erased and in which Reid invoked his right to
counsel.
(Id. at 37–38.)
Finally, Reid contends that his trial
counsel had “a conflict of interest because her goal was to help the
State by not performing as an attorney for her client.”
(Id. at 39.)
As to his appointed appellate counsel, Reid claims that counsel
failed to raise numerous issues, such as alleged perjury at trial
and the trial judge’s purported conflict of interest.
39.)
(Id. at 38–
Reid contends that his appellate counsel’s representation was
also ineffective because counsel “misle[d] [him] about what was in
[the] transcript from trial,” including informing Reid that the SBI’s
DNA evidence was not introduced as evidence at Reid’s trial.
at 39–41, 46–47.)
(Id.
Reid further faults appellate counsel because he
failed to object to “more than 75 pages of [the] trial transcript
being missing” and “wouldn’t argue anything [Reid] asked of him.”
12
(Id. at 38–39)
Reid’s allegations of ineffective assistance lack
merit.5
As an initial matter, the court will deny Reid’s ineffective
assistance allegations to the extent that those claims are based upon
his trial counsel’s “conflict of interest” due to a “goal . . . to
help the state.”
Such allegations are entirely unsupported and
conclusory, and will be denied.
See Nickerson v. Lee, 971 F.2d 1125,
1136 (4th Cir. 1992) (“In order to obtain an evidentiary hearing on
. . . any claim[,] a habeas petitioner must come forward with some
evidence that the claim might have merit.
Unsupported, conclusory
allegations do not entitle a habeas petitioner to an evidentiary
hearing.”); Jones v. Polk, 401 F.3d 257, 269–70 (4th Cir. 2005).
The
fact that Reid filed a bar complaint against his stand-by counsel
5
This ground for relief is likely procedurally barred as to Reid’s trial
counsel. “Federal habeas review of a state prisoner’s claims that are
procedurally defaulted under independent and adequate state procedural
rules is barred unless the prisoner can show cause for the default and
demonstrate actual prejudice as a result of the alleged violation of federal
law, or prove that failure to consider the claims will result in a
fundamental miscarriage of justice.” McCarver, 221 F.3d at 588. The
North Carolina Superior Court denied this ground for relief on an
independent and adequate State procedural bar.
See N.C. Gen. Stat.
§ 15A-1419(a)(3); see also McCarver, 221 F.3d at 588–93. Neither limited
exception to avoid State procedural bars applies here. See Coleman, 501
U.S. at 750; see also Fowler v. Joyner, 753 F.3d 446, 460–63 (4th Cir. 2014)
(noting a “narrow exception” to Coleman allowing North Carolina State
prisoners to bring their ineffective assistance of counsel claims in
federal habeas review, despite not raising those claims on direct appeal).
However, as noted earlier, the court need not ultimately decide whether
Reid is procedurally barred under N.C. Gen. Stat. § 15A-1419 because his
claim lacks merit.
13
(Doc. 10-3 at 6-7), standing alone, does not create an actual conflict
of interest.
United States v. Blackledge, 751 F.3d 188, 196 (4th
Cir. 2014); United States v. Jones, 900 F.2d 512, 519 (2d Cir. 1990).
Reid also makes allegations regarding his stand-by counsel’s
ineffective assistance during his trial.
However, whether Reid can
even assert an ineffective assistance of counsel claim against
stand-by counsel is questionable.
See United States v. Schmidt, 105
F.3d 82, 90 (2d Cir. 1997) (holding that because defendant has no
constitutional right to stand-by counsel, he has no such right to
effective stand-by counsel) (citing McKaskle v. Wiggins, 465 U.S.
168, 183 (1984) and Faretta v. California, 422 U.S. 806, 834–35 n.46
(1975)); United States v. Cochrane, 985 F.2d 1027, 1029 n.1 (9th Cir.
1993) (rejecting a similar ineffective assistance of standby counsel
claim without foreclosing that argument in the future); United States
v. Windsor, 981 F.2d 943, 947 (7th Cir. 1992) (“This court knows of
no
constitutional
right
to
effective
assistance
of
standby
counsel.”); Allen v. Warden, Keen Mountain Corr. Ctr., No. 1:13cv726
(JCC/TCB), 2014 WL 1613455, at *5–6 (E.D. Va. Apr. 22, 2014) (same);
Gripper v. United States, No. 1:06CV85-T, (1:03CR4-T), 2008 WL
2704304,
at
*4
(W.D.N.C.
July
3,
2008)
(observing
that
“an
ineffective assistance of counsel claim against standby counsel is
suspect”).
14
In any event, Reid’s allegations against his trial counsel fall
short because he has not met his burden for establishing such claims
as set forth in Strickland v. Washington, 466 U.S. 668 (1983).
prove
ineffective
assistance
of
counsel,
a
petitioner
To
must
establish, first, that his counsel’s performance “fell below an
objective standard of reasonableness” and, second, that prejudice
resulted from counsel’s deficient performance.
Id. at 687–96.
The
United States Supreme Court has recognized that, in order to avoid
“the distorting effects of hindsight,” courts should employ “a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.”
Id. at 689.
To establish
prejudice, the petitioner “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Id. at 694.
“In assessing prejudice under Strickland, the question is not whether
a court can be certain counsel’s performance had no effect on the
outcome or whether it is possible a reasonable doubt might have been
established if counsel acted differently.”
131 S. Ct. 771, 791 (2011).
Harrington v. Richter,
Rather, “[t]he likelihood of a different
result must be substantial, not just conceivable.”
Id. at 792.
Regarding Reid’s allegations that his appointed trial counsel
refused to meet with him or otherwise discuss his case, a letter to
15
Reid from his counsel upon her appointment shows that Reid had already
indicated to the judge that he wanted to represent himself prior to
her appointment.
(Doc. 2 at 43.)
Notwithstanding Reid’s request,
counsel enclosed copies of the court file records, the statutes Reid
was charged under, and the pattern jury instructions on those
charges.
(Id.)
She further advised Reid that she would not be able
to speak with him in the coming week due to a jury trial and encouraged
Reid to communicate with her by letter or collect call.
(Id.)
When
discussing her motion to withdraw with the State trial court, counsel
also stated that she had reviewed Reid’s files, conducted research
on legal issues relating to Reid’s case, and met with him to discuss
his case.
(Doc. 16-3 at 10–11, 21 (reflecting the trial court’s
observation that counsel “worked very hard on [Reid’s] case”).)
Reid’s showing fails to overcome the presumption that his trial
counsel’s performance fell “within the wide range of reasonable
professional assistance.”
Strickland, 466 U.S. at 689.
Even
assuming Reid could demonstrate deficient performance by counsel,
he fails to show any resulting prejudice.
Reid not only insisted
that his appointed attorney withdraw but also refused appointment
of any other attorney.
(Doc. 16-3 at 4–25.)
Any prejudice that may
have resulted from his self-representation cannot therefore be
visited upon his appointed trial counsel.
16
To support his allegations of “bad advice” by trial counsel,
Reid only points to counsel’s alleged recommendation not to inform
the judge of the tape-recorded conversation containing Reid’s
invocation of his right to counsel.
(Doc. 2 at 38.)
in the record supports this allegation.
No evidence
At trial, Reid did allege
that such a recording existed and was contained on a phone in a
briefcase at his house.
(Doc. 16-5 at 134–35.)
The trial court then
advised Reid to speak to counsel (then serving as stand-by counsel)
about retrieving the recording.
(Id. at 134–35, 170.)
In reviewing
the record, Reid raised no issue or problem in obtaining the alleged
recording but never presented evidence of the recording at trial.
Even assuming Reid’s trial counsel gave him this advice, Reid has
again failed to show any resulting prejudice.
Reid discharged his
counsel prior to trial and insisted, over the protestations of the
trial court, on proceeding pro se.
(Doc. 16-3 at 4-25.)
Thus, at
any time during the trial, Reid was free to bring to the trial court’s
attention his allegations regarding erasure of the tape-recording,
and any prejudice resulting from his failure to do so cannot be the
fault of his appointed stand-by counsel.
Reid’s
assertions
that
his
appellate
counsel
provided
ineffective assistance similarly fail to show deficient performance
under the Strickland standard.
Reid’s claim that appellate counsel
17
misled him about the introduction of DNA evidence during Reid’s trial
falls short.
Appellate counsel informed Reid that the DNA evidence
was not admitted at trial.
(Doc. 2 at 46.)
As discussed above in
the context of Reid’s first ground for relief, the SBI’s DNA evidence
was in fact not introduced as evidence at Reid’s trial.
Thus,
appellate counsel’s correct assertion of that fact in communications
with Reid cannot constitute deficient performance.
Reid’s argument that appellate counsel failed to object to
seventy-five pages missing from the trial transcript and to make
other arguments to the North Carolina Court of Appeals similarly
misses the mark.
Reid has proffered no evidence to support his
assertion that seventy-five or more pages are missing from the trial
transcript.
Reid has submitted an email dated March 30, 2009, from
the court reporter to appellate counsel, requesting a thirty-day
extension to complete the transcription of the trial transcript due
to a “computer crash.”
(Doc. 2 at 45.)
The court reporter indicated
that she “lost approximately seventy-five pages during the ‘crash.’”
(Id.)
The court reporter’s email makes clear that she lost
seventy-five pages worth of transcription when her computer crashed,
not
that
testimony.
she
irretrievably
lost
seventy-five
pages
worth
of
The court has before it the entire six-volume trial
transcript which the court reporter certified was complete.
18
(Docs.
16-3 to 16-8.)
As Reid’s allegation regarding missing transcript
pages lacks merit, appellate counsel was not deficient for his
failure to make such an argument on appeal.
Regarding the other arguments Reid alleges his appellate
counsel failed to make on appeal, letters from his counsel make
abundantly clear that such arguments were considered by counsel but
were not pursued because they were considered by counsel to be
meritless or legally “weak.”
(Doc. 2 at 47-50.)
decisions
range
fall
within
the
of
Such strategic
reasonable
professional
assistance.
See Jones v. Barnes, 463 U.S. 745, 750–54 (1983)
(recognizing
that
appellate
counsel
need
not
raise
non-frivolous issue requested by defendant); see also
every
Evans v.
Thompson, 881 F.2d 117, 124 (4th Cir. 1989) (declaring that counsel
pursued sound strategy when he “determined what he believed to be
petitioner’s most viable arguments and raised them on appeal”).
In conclusion, Reid’s allegations that his trial and appellate
attorneys failed him warrant no habeas relief.
4.
Due Process Claim Regarding DNA Evidence
In his third ground for relief, Reid alleges that the trial court
violated his Fifth Amendment due process rights when it ordered the
SBI to expedite its DNA analysis but then permitted the jury to reach
19
a verdict without the SBI’s DNA evidence.
(Doc. 2 at 54.)
This
argument provides no basis for habeas relief.
Reid is entitled to relief if a constitutional error by the trial
court
“had
substantial
and
injurious
determining the jury’s verdict.”
619, 637 (1993).
effect
or
influence
in
Brecht v. Abrahamson, 507 U.S.
A federal habeas court must grant relief if it is
in “grave doubt” as to the harmlessness of the error.
O’Neal v.
McAninch, 513 U.S. 432, 436 (1995); Fullwood v. Lee, 290 F.3d 663,
679 (4th Cir. 2002).
“‘[G]rave doubt’ exists when, in the relevant
circumstances, the question is so evenly balanced that the reviewing
court finds itself in ‘virtual equipo[i]se’ on the harmlessness
issue.”
Barbe v. McBride, 521 F.3d 443, 461 (4th Cir. 2008) (quoting
Fullwood, 290 F.3d at 679); accord O’Neal, 513 U.S. at 435.
Here, the trial court’s decision to permit the jury to
deliberate and reach a verdict without the SBI’s DNA evidence could
not have had a substantial and injurious effect or influence in
determining the jury’s verdict because, as discussed in the context
of Reid’s first ground for relief, the SBI’s DNA evidence confirmed
that DNA recovered from the victim matched Reid’s DNA profile.
Doc. 16-8 at 2–4; Doc. 10-3 at 1–2.)
(See
As such, this evidence was
consistent with the other trial evidence that the jury did consider.
This contention is without merit.
20
5.
Alleged Partiality of Trial Judge
In his final ground for relief, Reid contends that his Sixth
Amendment “right to an impartial judge of the State” was violated
when his trial judge “refused to recuse hi[m]self” and failed to
“remain impartial during [the] trial.”
(Doc. 2 at 54.)
Reid claims
the trial judge was biased because he is “somehow” related to an
attorney who had a purported interest in the outcome of Reid’s trial.
(Id.)
This attorney employed Reid’s wife (the victim’s mother) and
was also allegedly having an affair with her.
(Id.)
In addition,
Reid asserts that this attorney was “involved in [his] case on the
side of the state,” because the victim and Reid’s wife told this
attorney about the rape, and the attorney then accompanied the victim
and Reid’s wife to the sheriff’s department to report the rape.
at 68–73.)
(Id.
As a result of this alleged bias, Reid claims that the
trial judge ordered his legal papers taken from him, allowed the State
to erase a tape-recording in which Reid invoked his right to counsel,
sustained improper objections during Reid’s cross-examination of
witnesses, and failed to control the emotions of State witnesses.
(Id. at 59–65.)
Reid’s allegations fail to establish a basis for
relief.
Reid’s allegations in his fourth ground for relief are wholly
unsupported and conclusory, and thus will be summarily denied.
21
See
Nickerson, 971 F.2d at 1136; Jones, 401 F.3d at 269.
First, Reid
fails to offer any evidentiary support for his allegations that the
trial judge’s actions were motivated by bias.
The most the record
indicates is that the trial judge is “somehow” related to an attorney
who employed Reid’s wife (the victim’s mother) and who initially
assisted the victim with reporting the rape to the authorities.
record
does
not
reflect
involvement in Reid’s case.
that
this
attorney
had
any
The
further
So far as the record shows, the attorney
did not communicate with the trial judge about the case, did not
assist the detectives further in investigating the case, did not
participate in the case in his role as an attorney, and did not testify
as a witness for either side at trial.
Further, Reid has provided
no evidence beyond his own unsupported allegations of an “affair”
between his wife and this attorney.
Similarly, Reid provides no support for his claim that the trial
judge ordered his legal papers confiscated.
As recognized by the
North Carolina Court of Appeals when discussing this allegation on
direct appeal, the trial transcript shows that “the trial court made
a point of clarifying that [Reid] had not been physically attacked,
had access to his materials during the evening in his cell, had all
his materials when he arrived in court, and was organized and prepared
to proceed.”
State v. Reid, 693 S.E.2d 227, 233 (N.C. Ct. App. 2010);
22
(see Doc. 16-6 at 3, 7–9, 11–13.).6
Finally, Reid fails to provide this court with any information
regarding the trial judge’s failure to control the emotions of the
State’s witnesses or which objections the trial judge improperly
sustained, let alone demonstrate how such alleged trial errors had
a substantial and injurious impact on his case under Brecht, 507 U.S.
at 637.7
Such unsupported allegations do not entitle Reid to habeas
relief.
See Rule 2(c), Rules Governing Sect. 2254 Cases; see also
Talbert v. Clarke, No. 2:13CV199, 2014 WL 644393, at *16 (E.D. Va.
Feb. 18, 2014) (“Rule 2(c) is more demanding than the notice pleading
requirement of Fed. R. Civ. P. 8(a).
655 (2005).
Mayle v. Felix, 545 U.S. 644,
‘[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
6
The Court of Appeals also found that Reid had failed to preserve this issue
for appeal. Reid, 693 S.E.2d at 233.
7
Again, the Court of Appeals found that Reid did not preserve for appeal
his challenges to the trial court’s rulings on objections. Reid, 693
S.E.2d at 232.
23
332, 333 (8th Cir. 1990)).”).
B.
Motion for Leave to Conduct Discovery
In his motion for leave to conduct discovery, Reid requests that
the court order the State to (1) produce “any and all” exculpatory
or mitigating evidence; and (2) obtain cheek swabs from the victim’s
boyfriend and mother and send the swabs to the SBI laboratory for
DNA testing.
(Doc. 18-1 at 1–3.)
Reid previously filed this same
motion for discovery with his petition (Doc. 3 at 20–30), which
another judge of this court denied on January 16, 2014 (Doc. 4).
“Unlike other civil litigants, a § 2254 habeas petitioner ‘is
not entitled to discovery as a matter of ordinary course.’”
Stephens
v. Branker, 570 F.3d 198, 213 (4th Cir. 2009) (quoting Bracy v.
Gramley, 520 U.S. 899, 904 (1997)).
Instead, to secure discovery,
a habeas petitioner “must provide reasons for the request” that
establish “good cause.”
Rule 6, Rules Governing Sect. 2254 Cases.
“A showing of good cause must include specific allegations suggesting
that the petitioner will be able to demonstrate that he is entitled
to habeas corpus relief.”
Stephens, 570 F.3d at 213.
Here, Reid has failed to demonstrate good cause for the
discovery he seeks.
As discussed in more detail in the context of
Reid’s first ground for relief, Reid has made no showing that the
State has failed to produce all exculpatory evidence in his case.
24
Thus, no basis exists for the court to order the State to produce
“any and all” exculpatory and mitigating evidence.
Further, because
the post-conviction DNA analysis showed that DNA recovered from the
victim matched Reid’s DNA profile and Reid admitted at trial that
he had sexual intercourse with the victim on the day in question,
Reid has failed to show why obtaining DNA evidence from the victim’s
boyfriend
and
mother
would
entitle
him
to
habeas
relief.
Accordingly, the court will deny Reid’s motion for leave to conduct
discovery.
C.
Motion for Change of Venue
As with Reid’s motion for leave to conduct discovery (Doc. 22),
Reid filed a previous motion for change of venue with his petition
in this matter based on the “strong involvement” of certain persons
in the Guilford County justice system (Doc. 3 at 1–9).
A magistrate
judge of this court denied that motion on January 16, 2014, noting
that the federal court system and the Guilford County court system
are
“entirely
separate
court
systems
operated
by
separate
governments,” and that Reid presented “no reason to consider changing
venue to a different federal court.”
(Doc. 4.)
Reid now reasserts
that he is entitled to a change of venue because (1) the trial judge
in his underlying criminal case is a “federal judge” and therefore
a “colleague” of the magistrate judge that denied his first motion
25
for change of venue; and (2) that same magistrate judge “was a
prosecutor” in Greensboro, North Carolina, and “tried cases” under
the trial judge in his underlying criminal case.
(Doc. 22 at 1–2.)
Reid’s allegations do not entitle him to a change of venue.
As an initial matter, Reid is incorrect that the trial judge
in his underlying criminal case is (or ever has been) a “federal
judge.”
However, even if Reid were factually correct, to show
entitlement to a change of venue based on judicial bias requires much
more than an assertion that two individuals are professional
colleagues.
See United States v. Sundrud, 397 F. Supp. 2d 1230, 1236
(C.D. Cal. 2005) (quoting Smith v. State, 375 S.E.2d 69, 74 (Ga. Ct.
App.
1988))
(recognizing
that
“the
existence
of
a
working
relationship in and of itself does not demonstrate or presume
personal bias or prejudice”).
Reid’s assertion that this purported
professional relationship makes the court “unable to put it[s]
personal feeling[s] aside” in deciding this case is entirely
speculative and insufficient to entitle Reid to a change of venue.
(Doc. 22 at 1.)
As such, Reid’s motion for change of venue will be
denied.
III. CONCLUSION
For the reasons stated herein,
IT IS THEREFORE ORDERED that Reid’s motion for leave to conduct
26
discovery (Doc. 18-1) is DENIED, Reid’s motion for change of venue
(Doc. 22) is DENIED, Mobley’s motion for summary judgment (Doc. 15)
is GRANTED, and the petition for a writ of habeas corpus (Doc. 2)
is DISMISSED WITH PREJUDICE.
This disposition renders Mobley’s
motion to dismiss (Doc. 6) moot.
Finding neither a substantial issue for appeal concerning the
denial of a constitutional right affecting the conviction nor a
debatable procedural ruling, a certificate of appealability is not
issued.
/s/
Thomas D. Schroeder
United States District Judge
September 29, 2014
27
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