ROBINSON v. VAUGHN
Filing
22
MEMORANDUM OPINION AND ORDER signed by JUDGE CATHERINE C. EAGLES on 05/01/2015; that the respondent's motion for summary judgment, (Doc. 7 ), is GRANTED and the petition is DISMISSED. To the extent Mr. Robinson's response to the motion for summary judgment constitutes a motion, (Doc. 19 ), that motion is DENIED. The Court finds no substantial issue for appeal concerning the denial of a constitutional right affecting the conviction, nor a debatable procedural ruling, and a certificate of appealability is DENIED. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DWIGHT LAMONT ROBINSON,
Petitioner,
v.
JAMES VAUGHAN,
Respondent.
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1:14-CV-642
MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
Petitioner Dwight Robinson, a prisoner of the State of North Carolina, contends
that his murder, assault, and robbery convictions were obtained in violation of his rights
and seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 2.) The
respondent has filed a motion for summary judgment. (Doc. 7.)1 For the reasons that
follow, the Court will grant the respondent’s motion and deny Mr. Robinson’s petition.
I. FACTUAL BACKGROUND
The State’s evidence at trial tended to show that Mr. Robinson and an accomplice
robbed a restaurant in High Point, North Carolina, in March 1986. See State v. Robinson,
330 N.C. 1, 7-8, 409 S.E.2d 288, 291-92 (1991) (hereinafter Robinson I). During the
robbery, Mr. Robinson shot three employees, one of whom died. See id.
1
In response to the summary judgment motion, Mr. Robinson filed a document titled
“Motion to Deny Respondent’s Motion for Summary Judgment, Rule 56.” (Doc. 19.) Although
this pleading was docketed as a motion, it is more properly characterized as a response to the
summary judgment motion, and the Court will treat it as such.
II. RELEVANT PROCEDURAL HISTORY
In September 1987, a state-court jury convicted Mr. Robinson of first-degree
murder, robbery with a dangerous weapon, and two counts of assault with a deadly
weapon with intent to kill inflicting serious injury, (Doc. 8-3 at 91-94), and then
sentenced him to death. (Doc. 8-5 at 18.) The North Carolina Supreme Court vacated his
death sentence and remanded for a new capital sentencing proceeding. See Robinson I,
330 N.C. at 35-36, 409 S.E.2d at 308. After a resentencing hearing in June 1992, a jury
again sentenced Mr. Robinson to death. (Doc. 8-19 at 28-34.)
Days later, Mr. Robinson filed a motion for appropriate relief (“MAR”) in state
court, (Doc. 8-15), which the court denied on July 30. (Doc. 8-17.) In late 1993, Mr.
Robinson appealed his death sentence to the North Carolina Supreme Court, (see Docs.
9-1 to 9-3), which the court upheld in May 1994. See State v. Robinson, 336 N.C. 78,
443 S.E.2d 306 (1994), superseded on other grounds by N.C. Gen. Stat. § 15A-2002
(hereinafter Robinson II). The United States Supreme Court later denied certiorari
review. See Robinson v. North Carolina, 513 U.S. 1089 (1995); (Doc. 9-8.)
In September 1995, Mr. Robinson filed a second MAR. (Docs. 9-9 to 9-15.) The
parties filed pleadings, (see Docs. 9-16, 9-18, 9-19), but for reasons unclear from the
record, the state court never issued a final ruling on the second MAR. In January 2002,
Mr. Robinson filed a third MAR in state court asking the court to impose a life sentence
on the grounds of mental retardation pursuant to N.C. Gen. Stat. § 15A-2005. (See Doc.
10-4.) After an evidentiary hearing, the court granted the motion, vacated his death
sentence, and imposed a life sentence. (See Doc. 10-5.)
2
In February 2013, Mr. Robinson filed a pro se MAR in state court. (Docs. 10-7,
10-8.) In an August 2013 order, Superior Court Judge John Craig denied this MAR.
(Doc. 10-9.) In January 2014, Mr. Robinson filed a petition for certiorari in the state
appellate court, (Doc. 10-10), which the court later denied. (Doc. 10-12.)
On July 30, 2014, Mr. Robinson filed the pending petition for habeas corpus.
(Doc. 2.) The respondent has moved for summary judgment. (Doc. 7.)
III. MR. ROBINSON’S CLAIMS
In his petition, Mr. Robinson raises four claims: (1) actual innocence based on a
newly discovered affidavit of his co-defendant; (2) failure to sequester the jury and
improper third-party contact with the jury; (3) a Batson violation during jury selection
and incomplete Batson analysis by the North Carolina Supreme Court; and (4) ineffective
assistance of trial, appellate, and post-conviction counsel. (See Doc. 2 at 5-10.)
IV. ANALYSIS
A. Standard of Review
Summary judgment is appropriate when there is no genuine dispute of material
fact and the moving party is entitled to judgment as a matter of law. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986). Ordinarily at summary judgment, the
Court views the facts and draws all reasonable inferences in the light most favorable to
the non-moving party. See id. at 255; see also Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.
1994). Generally speaking, summary judgment applies to habeas proceedings. See
Brandt v. Gooding, 636 F.3d 124, 132 (4th Cir. 2011); Rules Governing Section 2254
Proceedings in the United States District Courts, Rule 12.
3
Federal habeas courts face additional constraints when a state court has
adjudicated a petitioner’s claim on the merits. See Brandt, 636 F.3d at 132. In these
circumstances, the Court must also consider the petition under the requirements in 28
U.S.C. § 2254. See id. If the state court adjudicated a petitioner’s claims on the merits,
this Court may not grant habeas relief unless the adjudication of that claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that 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); see also Williams v. Taylor, 529 U.S. 362, 409-10 (2000)
(discussing § 2254(d)’s “unreasonable application” standard).
A state-court decision is contrary to clearly established federal law “if the state
court arrives at a conclusion opposite to that reached by [the Supreme] Court on a
question of law” or “confronts facts that are materially indistinguishable from a relevant
Supreme Court precedent and arrives at [an opposite result].” Williams, 529 U.S. at 405.
A state court unreasonably applies federal law when it “identifies the correct governing
legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts of the
particular . . . case” or it “either unreasonably extends a legal principle . . . to a new
context where it should not apply or unreasonably refuses to extend that principle to a
new context where it should apply.” Id. at 407.
Section 2254(d) “is a difficult to meet and highly deferential standard for
evaluating state-court rulings, which demands that state-court decisions be given the
4
benefit of the doubt.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (internal
quotation marks and citations omitted). State-court factual determinations are presumed
correct and the petitioner bears the burden of rebutting this presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); see also Harrington v. Richter, 562 U.S.
86, 103 (2011).
Mr. Robinson raised all four of his claims in the state court, which adjudicated and
decided all four against him on the merits. Mr. Robinson raised his first, second, and
fourth claims in his 2013 MAR,2 (see Doc. 10-7 at 21-30; Doc. 10-8 at 3-9, 22-39), which
the state court denied, (see Doc. 10-9 at ¶¶ 2, 3, 5); thus, that Order is subject to
§ 2254(d)’s deferential standard of review. A review of his third claim indicates that it
arises from his 1992 resentencing, see infra note 8; that Mr. Robinson raised his third
claim both on direct appeal, (see Doc. 9-1 at 79-80; Doc. 9-2 at 1-32); see also Robinson
II, 336 N.C. at 93, 443 S.E.2d at 312, and in his MAR, (see Doc. 10-8 at 9-22); and that
the MAR court denied this claim because it had been denied on appeal. (See Doc. 10-9 at
¶ 4.) The relevant state-court decision for this claim, therefore, is the North Carolina
Supreme Court’s opinion in Robinson II.3 To the extent Mr. Robinson’s third claim
2
Unless otherwise noted, any subsequent reference to Mr. Robinson’s “MAR,” the “MAR
Order,” or the “MAR court” refers to Mr. Robinson’s 2013 pro se MAR.
3
Mr. Robinson contends that this Court’s review should not only focus on the 2013 MAR
Order, but also on “the fact that [Judge] Albright . . . ordered a hearing on [his] (1995) MAR but
the order cannot be located.” (Doc. 20 at 2 (internal quotation marks and citation omitted).)
This contention lacks merit. It is unclear from the record whether Judge Albright held a hearing
on the 1995 MAR. (E.g., Doc. 9-17.) However, Mr. Robinson’s 2013 MAR is virtually identical
to his 1995 MAR. (Compare Docs. 9-9 to 9-10, with Docs. 10-7 to 10-8.) To the extent that Mr.
Robinson contends that Judge Craig had no jurisdiction to rule on the 2013 MAR, (see Doc. 109), this argument is unavailing. See Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008) (“A
5
concerns the jury at his 1987 trial, the relevant state-court decision is Robinson I. See
Robinson I, 330 N.C. at 15-20, 409 S.E.2d at 296-98.
B. Actual Innocence
In his first claim, Mr. Robinson contends that he is “actually innocent” based on
newly discovered evidence—an affidavit from George Gantt, Mr. Robinson’s codefendant in the underlying criminal case. (See Doc. 2 at 5; Doc. 2-1 at 10.) In that
affidavit, dated March 2002, Mr. Gantt testified that: (1) he participated in the March
1986 robbery; (2) he shot the three victims; and (3) Mr. Robinson was not present during
nor involved in any of the events that took place. (Doc. 2-1 at p. 10 ¶¶ 4-6.) Mr. Gantt
further testified that “two other persons” participated in the robbery with him, but he does
not identify them. (See Doc. 2-1 at p. 10 ¶ 5.) At trial, the State’s evidence showed that
Mr. Gantt participated in the robbery with Mr. Robinson. (E.g., Doc. 14-2 at 112-18;
Doc. 14-5 at 78-79; Doc. 14-6 at 45-48; Doc. 14-7 at 31-32.)
North Carolina law authorizes relief via MAR based on newly discovered
evidence showing actual innocence if the defendant establishes that: (1) the “witness or
witnesses will give newly discovered evidence;” (2) the “evidence is probably true;”
(3) the evidence is “competent, material and relevant;” (4) “due diligence was used and
state prisoner has no federal constitutional right to post-conviction proceedings in state court.
Thus, even where there is some error in state post-conviction proceedings, a petitioner is not
entitled to federal habeas relief because the assignment of error relating to those post-conviction
proceedings represents an attack on a proceeding collateral to detention and not to the detention
itself.” (internal citations omitted)).
Though, a review of his arguments in light of the record indicates that Mr. Robinson’s
Batson claim concerns the jury at his 1992 resentencing, in which case Robinson II is the
relevant state-court decision under § 2254(d). See infra note 8. Also, to the extent Mr.
Robinson’s Batson claim concerns the jury at his 1987 trial, the relevant state-court decision is
Robinson I. See Robinson I, 330 N.C. at 15-20, 409 S.E.2d at 296-98.
6
proper means were employed to procure the testimony at the trial;” (5) the “evidence is
not merely cumulative;” (6) the evidence does not tend only to contradict, impeach, or
discredit a former witness; and (7) the evidence “is of such a nature as to show that on
another trial a different result will probably be reached and that the right will prevail.”
State v. Britt, 320 N.C. 705, 712-13, 360 S.E.2d 660, 664 (1987), superseded on other
grounds by N.C. Gen. Stat. § 15A-2004(a), (b). In the MAR Order, Judge Craig cited
Britt and held that “[t]he Court does not find Mr. Gantt’s predicted testimony to be
‘probably true,’ to be ‘competent,’ or ‘of such a nature as to show that on another trial a
different result will probably be reached,’ or ‘likely would have resulted in a
determination that [Mr. Robinson] was not guilty of the crimes charged.’” (Doc. 10-9 at
¶ 2.)
To the extent Mr. Robinson alleges that the state court erred in applying N.C. Gen.
Stat. § 15A-1420(c)(1) in failing to hold an evidentiary hearing or in applying Britt’s
seven-factor test, (see Doc. 20 at 3-4), he is not entitled to review by this Court because
“it is not the province of a federal habeas court to reexamine state-court determinations
on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also McNeill
v. Branker, 601 F. Supp. 2d 694, 703-04 (E.D.N.C. 2009) (“Claims based on state court
rulings on state-law questions are only cognizable on federal habeas review if they
violate specific constitutional provisions or are so egregious they render the entire trial
fundamentally unfair.”).
Moreover, under the highly deferential standard of habeas review, a state court’s
factual findings are presumed to be correct. See 28 U.S.C. § 2254(e)(1). Mr. Robinson
7
has identified no findings in the MAR Order related to this “new evidence” that are
contrary to established federal law or based on an unreasonable determination of the facts
in light of the evidence presented in the state-court proceedings. See id. § 2254(d).
Mr. Robinson also appears to contend that he is entitled to habeas relief because
he is actually innocent based on Mr. Gantt’s affidavit. (See Doc. 20 at 3-4.) While the
Supreme Court has not definitively rejected stand-alone habeas claims based on actual
innocence, it seems unlikely one exists.4 Even if actual innocence does constitute an
independent basis for habeas relief, the Supreme Court “has made clear that the threshold
for any hypothetical freestanding innocence claim is extraordinarily high.” Teleguz v.
Pearson, 689 F.3d 322, 328 n.2 (4th Cir. 2012) (internal alteration and quotation marks
omitted) (quoting House v. Bell, 547 U.S. 518, 555 (2006)). Assuming arguendo that a
freestanding actual-innocence claim is cognizable, Mr. Robinson has not met this burden.
Mr. Gantt’s affidavit falls far short of persuasively demonstrating Mr. Robinson’s
innocence. Courts are generally wary of after-the-fact exculpatory statements from codefendants. See Cagle v. Branker, 520 F.3d 320, 325 (4th Cir. 2008) (collecting cases).
When he signed the affidavit, almost fifteen years after the trial in this matter, (see Doc.
2-1 at 10; Doc. 8-3 at 91-94), Mr. Gantt was in prison for the same crimes for which Mr.
Robinson was facing the death penalty. (See Doc. 2-1 at p. 10 ¶¶ 1-3.) Mr. Gantt did not
4
See McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013) (“We have not resolved whether a
prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.”).
Other courts have explicitly held that such claims may not be brought in a habeas proceeding.
See, e.g., Buckner v. Polk, 453 F.3d 195, 199 (4th Cir. 2006) (“Claims of actual innocence based
on newly discovered evidence have never been held to state a ground for federal habeas relief
absent an independent constitutional violation.” (quoting Herrera v. Collins, 506 U.S. 390, 400
(1993)); Fielder v. Varner, 379 F.3d 113, 122 (3d Cir. 2004) (same).
8
identify the persons he claimed participated in the robbery with him. (See Doc. 2-1 at p.
10 ¶ 5.) At trial, the two surviving victims identified Mr. Robinson in court as the man
who shot them. (See Doc. 14-6 at 22-27, 47-55; Doc. 14-11 at 47-53, 66-72); see also
Robinson I, 330 N.C. at 8, 22-23, 409 S.E.2d at 291, 300. Another co-defendant, Thomas
Wood, testified that he drove Mr. Robinson and Mr. Gantt to the scene of the robbery,
drove with them to Maryland the next day, and later confessed his involvement in the
crime to his employer. (See Doc. 14-2 at 49, 91-120; Doc. 14-3 at 1-15, 25-29); see also
Robinson I, 330 N.C. at 8, 23, 409 S.E.2d at 291-92, 300. Another witness testified that
he saw Mr. Robinson driving a new car days after the robbery and that Mr. Robinson told
him “he got the car with the money that he got from the robbery.” (See Doc. 14-13 at 8488.)
In the face of this strong evidence of Mr. Robinson’s guilt, Mr. Gantt’s affidavit
fails to establish actual innocence.5 The Court will deny this first ground for relief.
C. Failure to Sequester the Jury and Improper Jury Contact
5
To the extent Mr. Robinson seeks an evidentiary hearing on this claim, the Court will deny
that request. The state courts have already rejected this new evidence of actual innocence,
finding that it lacked credibility. (See Doc. 10-9 at ¶ 2.) This factual finding is entitled to a
presumption of correctness by federal habeas courts. See 28 U.S.C. § 2254(e)(1); see also
Harrington, 562 U.S. at 102-03; Ellis v. Collins, 956 F.2d 76, 79-80 (5th Cir. 1992) (per curiam)
(holding that a state court’s determination that affidavits lacked credibility was entitled to a
presumption of correctness in federal habeas proceedings). Based on Mr. Gantt’s affidavit,
signed almost fifteen years after the crimes, as compared to the multiple witnesses who testified
at trial to Mr. Robinson’s involvement in the crimes, the Court finds no basis to disturb the state
court’s conclusion. In any event, none of the reasons for holding an evidentiary hearing apply,
see Fullwood v. Lee, 290 F.3d 663, 681 & n.7 (4th Cir. 2002), and summary judgment is
appropriate as to this claim. See Maynard v. Dixon, 943 F.2d 407, 411-12 (4th Cir. 1991).
9
In his second claim, Mr. Robinson contends that the trial court failed to properly
sequester his jury and that there was improper third-party contact with the jury.6 (Doc. 2
at 7; see also Doc. 20 at 4.) The decision to sequester a jury is in the trial court’s
discretion. N.C. Gen. Stat. § 15A-1236(b); see also State v. Wilson, 322 N.C. 117, 127,
367 S.E.2d 589, 595 (1988). To the extent Mr. Robinson contends that the trial court
abused its discretion in deciding not to sequester the jury, that is a matter of state law and
any claim alleging error in such a decision is not cognizable in a federal habeas
proceeding. See Estelle, 502 U.S. at 67-68.
To the extent Mr. Robinson contends that his due process rights were violated by
the failure to sequester, he has failed to demonstrate how the lack of sequestration
prejudiced him and has offered no evidence to support this claim. The trial judge gave
the jury suitable instructions as to their conduct given potential trial publicity. (See Doc.
14-2 at 35-37.) The state court’s decision against Mr. Robinson, (see Doc. 10-8 at 3;
Doc. 10-9 at ¶ 3), is entitled to deference, see Cullen, 131 S. Ct. at 1398, and Mr.
Robinson has shown no lack of fundamental fairness as would violate his due process
rights. Cf. Bowman v. Bordenkircher, 522 F.2d 209, 210-11 (4th Cir. 1975).
Mr. Robinson also contends that he did not receive a fair trial because of improper
third-party contact with jury members. (Doc. 2 at 7; see also Doc. 20 at 4.) He alleges
that during his 1987 trial, several jurors were approached at lunch by “a member of the
public” who “said the jury ‘ought to burn him’” and that a waiter at the restaurant
6
Mr. Robinson also appears to contend that the jury was “biased” based on the exclusion of
potential black jurors. (See Doc. 2 at 7.) Because this claim is more properly raised in
connection with Mr. Robinson’s Batson claim, it will be discussed later. See discussion infra.
10
“expressed [to the jurors] the hope that the jury ‘would do the right thing.’” (Doc. 2-1 at
p. 32 ¶ 3; see also Doc. 2 at 7.)
The Sixth Amendment “guarantees to the criminally accused a fair trial by a panel
of impartial, indifferent jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961) (internal
quotation marks omitted). “The Supreme Court has clearly stated that private
communications between an outside party and a juror raise Sixth Amendment concerns.”
Fullwood v. Lee, 290 F.3d 663, 677 (4th Cir. 2002) (citing Parker v. Gladden, 385 U.S.
363, 364 (1966) (per curiam)). The introduction of prejudicial extraneous influences into
the jury room constitutes misconduct that may result in the reversal of a conviction. E.g.,
Parker, 385 U.S. at 364-66.
Third-party contact with a jury is “presumptively prejudicial.” Remmer v. United
States, 347 U.S. 227, 229 (1954). Prejudice is presumed—and a defendant is entitled to a
hearing—“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.”
Barnes v. Joyner, 751 F.3d 229, 242 (4th Cir. 2014), petition for cert. filed, No. 14-395
(U.S. Oct. 6, 2014); see also Hurst v. Joyner, 757 F.3d 389, 395 n.3 (4th Cir. 2014),
petition for cert. filed, No. 14-395 (U.S. Oct. 6, 2014). However, a mere allegation of
jury interference is not enough to require an evidentiary hearing, much less relief. See
Barnes, 751 F.3d at 242; see also Brown v. Finnan, 598 F.3d 416, 424-25 (7th Cir. 2010)
(collecting cases and holding that the defendant’s allegation of improper out-of-court
statements did not warrant a Remmer hearing).
11
The MAR court found that Mr. Robinson did “not allege sufficient factual
allegations of the improper jury contact as to allow [the court] to give relief” because “the
alleged hearsay statement of an anonymous waiter at an unmentioned restaurant is so
attenuated from an evidence standpoint that it is of no consequence whatsoever.” (Doc.
10-9 at ¶ 3.) This Court must determine whether that decision was contrary to, or
involved an unreasonable application of, clearly established federal law. See 28 U.S.C.
§ 2254(d).
Mr. Robinson has identified no case in which a court has found unsworn
statements by unidentified jurors made almost ten years after a trial about statements
made on an unspecified date at an unspecified location to unidentified jurors by
unidentified third-parties as sufficient to establish a credible allegation of improper jury
contact. There are no affidavits from any juror or anyone else who could have first-hand
knowledge of the alleged statements.7 This evidence stands in marked contrast to that in
Remmer and its progeny, where the testimony presented was from the jurors themselves
or witnesses to or participants in the alleged improper contact. See Remmer, 350 U.S. at
380-81 (juror reported improper communication); Hurst, 757 F.3d at 392 (juror reported
that she sought religious guidance from her father on her decision on a proper sentence);
Barnes, 751 F.3d at 235-36 & n.6 (juror signed an investigator’s summary of her
statement, and investigators reported statements from specific, named jurors).
7
The alleged statements made to jurors are before the court in an affidavit Mr. Robinson
attached to his petition. (See Doc. 2-1 at 32-33.) The affiant is an individual who interviewed
jurors in 1995 on behalf of an attorney, and he does not give the names of the jurors or third
parties who allegedly made the statements. (See Doc. 2-1 at 32-33.)
12
Mr. Robinson has failed to present credible, admissible evidence that the
extrajudicial communications occurred or that suggests the jury was improperly
influenced by the alleged statements. As such, there is insufficient evidence to invoke the
Remmer presumption of prejudice, and he is not entitled to a hearing. See Barnes, 751
F.3d at 242. The MAR court did not reach a result contrary to, or involving an
unreasonable application of, clearly established federal law, nor is the MAR court’s
decision based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. See 28 U.S.C. § 2254(d). The Court will deny
Mr. Robinson’s second ground for relief.
D. Batson Claim
In his third claim, Mr. Robinson appears to allege that, at his resentencing
proceeding,8 the State exercised its preemptory strikes in a discriminatory manner in
violation of Batson v. Kentucky, 476 U.S. 79 (1986). (See Doc. 2 at 7-8.) He further
contends that the North Carolina Supreme Court did not properly review his Batson
claims. (Doc. 2 at 8.)
In his petition, Mr. Robinson alleges that “the State improperly excluded potential
black jurors resulting in a biased jury.” (Doc. 2 at 7); see also supra note 6. Nowhere
does Mr. Robinson name or describe any specific juror whose exclusion he challenges.
8
On the face of his petition, it is not clear whether Mr. Robinson’s allegations concern the
jury at his 1987 trial or the jury at his 1992 resentencing proceeding. (See Doc. 2 at 7-8; Doc.
10-8 at 9-14.) However, a review of his arguments in light of the record, including the affidavit
of a law student who interviewed an unnamed juror, (Doc. 2-2 at 2-3), the court’s Batson
analysis in Robinson I, see Robinson I, 330 N.C. at 15-20, 409 S.E.2d at 296-98, and Robinson
II, see Robinson II, 336 N.C. at 93-99, 443 S.E.2d at 312-15, and the voir dire in Mr. Robinson’s
1992 resentencing, (see Doc. 15-10 at 37, 74-76, 86), indicates that Mr. Robinson is challenging
the State’s exclusion of a juror at his 1992 resentencing.
13
(See Docs. 2, 18, 20.) He relies only on an affidavit from a law student who interviewed
one unnamed juror from an unspecified proceeding. (See Doc. 2-2 at 2-3.)
Mr. Robinson is not entitled to any relief based on this alleged error. First, he has
not shown that the state court’s adjudication of this issue “was contrary to, or involved an
unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1);
see Allen v. Lee, 366 F.3d 319, 328 (4th Cir. 2004) (en banc) (per curiam). In any event,
the alleged error occurred at his resentencing proceeding, where the only issue was
punishment, after which the jury sentenced Mr. Robinson to death. (See Doc. 8-19 at 2833.) This sentence was later vacated, and Mr. Robinson is now serving a life sentence.
(See Doc. 10-5.) Any error in the capital resentencing proceeding obviously had no
effect on the guilty verdict in the previous trial.9 See Brecht v. Abrahamson, 507 U.S.
619, 623 (1993) (stating that a petitioner is not entitled to habeas relief unless the alleged
error had “substantial and injurious effect or influence in determining the jury’s verdict”
(internal quotation marks and citation omitted)); Barnes, 751 F.3d at 239 (“[B]efore a
federal court grants habeas relief, it must conclude that the state court’s constitutional
error ‘actually prejudiced’ the habeas petitioner.”).
To the extent Mr. Robinson’s petition can be read to challenge the exclusion of a
juror at his 1987 trial, the North Carolina Supreme Court decided this claim against him
on direct appeal. See Robinson I, 330 N.C. at 15-20, 409 S.E.2d at 296-98. The court
9
The Court does not mean to imply that there was error. Indeed, the Court’s review
indicates that there was no Batson violation, much less an unreasonable application of clearly
established federal law by the North Carolina Supreme Court. However, a lengthy analysis is
unnecessary given the lack of prejudice to Mr. Robinson.
14
discussed each black juror the State struck and the State’s reasons for each: three
potential jurors failed to reveal past criminal histories, one did not admit she knew a
witness, and one had previously testified against the State in a manslaughter case. See id.
at 17-19, 409 S.E.2d at 297-98. The court concluded that the State met its burden under
the second prong of Batson in providing “neutral, nonracial explanations for each
peremptory challenge.” See id. at 19, 409 S.E.2d at 298; see also Miller-El v. Dretke,
545 U.S. 231, 239 (2005) (summarizing Batson’s three-prong test). The Robinson I
court’s decision regarding Mr. Robinson’s Batson challenges did not result in a decision
that “was contrary to, or involved an unreasonable application of, clearly establish
Federal law.” See 28 U.S.C. § 2254(d)(1); see also Hernandez v. New York, 500 U.S.
352, 360 (1991) (“Unless a discriminatory intent is inherent in the prosecutor’s
explanation [for striking a potential juror], the reason offered will be deemed race
neutral.”). The Court will deny Mr. Robinson’s third ground for relief.
E. Ineffective Assistance of Counsel
In his fourth claim, Mr. Robinson asserts that he received ineffective assistance of
counsel at trial, on appeal, and in post-conviction proceedings. (Doc. 2 at 10.) To
demonstrate ineffective assistance of counsel, a petitioner must show that counsel’s
performance was deficient and but for counsel’s deficient performance, there was a
reasonable probability of a different result. See Strickland v. Washington, 466 U.S. 668,
687, 694 (1984). Courts “must be highly deferential” in evaluating counsel’s
performance and apply “a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance” and that counsel “made all significant
15
decisions in the exercise of reasonable professional judgment.” Id. at 689-90. To
overcome that presumption and establish deficient performance, a petitioner “must show
that counsel failed to act reasonably considering all the circumstances.” Cullen, 131 S.
Ct. at 1403 (internal alteration and quotation marks omitted).
A federal court may only grant habeas relief if the state court unreasonably applied
Strickland’s ineffective-assistance standard. See Harrington, 562 U.S. at 105; Knowles v.
Mirzayance, 556 U.S. 111, 122 (2009); Moore v. Hardee, 723 F.3d 488, 496 (4th Cir.
2013). “The standards created by Strickland and § 2254(d) are both highly deferential,
and when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105
(internal citations and quotation marks omitted). Thus, the question for a federal habeas
court “is not whether counsel’s actions were reasonable” but “whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.
Mr. Robinson contends that North Carolina Prisoner Legal Services failed to file a
MAR for him. (Doc. 2 at 10.) This claim is not cognizable on federal habeas review
because there is no right to post-conviction counsel. See Coleman v. Thompson, 501 U.S.
722, 752 (1991), abrogated on other grounds by Martinez v. Ryan, 132 S. Ct. 1309
(2012). The fact that Mr. Robinson, as a capital defendant, was entitled to postconviction counsel at his initial post-conviction proceeding is immaterial. (See Doc. 20
at 5.) Section 2254(i) plainly states that “[t]he ineffectiveness or incompetence of
counsel during Federal or State collateral post-conviction proceedings shall not be a
ground for relief in a proceeding arising under section 2254.” 28 U.S.C. § 2254(i); see
also Martel v. Clair, 132 S. Ct. 1276, 1287 n.3 (2012). Moreover, Mr. Robinson has not
16
pointed to any specific deficient conduct by his post-conviction counsel. See United
States v. Roane, 378 F.3d 382, 400-01 (4th Cir. 2004) (holding that “airy generalities”
and “conclusory assertions” of ineffective assistance will not “stave off summary
judgment or entitle a habeas petitioner to an evidentiary hearing”).
Similarly, Mr. Robinson has failed to direct the Court to any specific deficiency on
the part of his appellate counsel. (See Doc. 2 at 10; see generally Docs. 18, 20.) To the
extent Mr. Robinson has asserted a claim for ineffective assistance of appellate counsel,
this claim also fails. See Roane, 378 F.3d at 400-01.
Next, Mr. Robinson states that his “[t]rial counsel failed to challenge [the]
contents of [a] photographic lineup, no [written] motions to suppress filed, only oral
motions made.” (Doc. 2 at 10.) Mr. Robinson’s trial counsel did orally object to the
photographic line-up and the in-court identifications of Mr. Robinson by the two
surviving victims on the ground of improper pretrial identification procedures. (See Doc.
14-6 at 3-7.) The trial court overruled that objection and found that the pretrial
identification procedures were not “suggestive or conducive to mistaken identification.”
(See Doc. 14-6 at 14-21); see also Robinson I, 330 N.C. at 27-29, 409 S.E.2d at 303-04.
The North Carolina Supreme Court found no error in the trial court’s denial of the
motions to suppress the in-court identifications. See Robinson I, 330 N.C. at 28-29, 409
S.E.2d at 304. The trial court noted that counsel did not file any written motions to
suppress the evidence at issue, (see Doc. 14-6 at 5-6), and had therefore waived the right
to move to suppress some of this evidence, (see Doc. 14-6 at 18), but found, in the
alternative, that the pretrial identification procedures were proper. (See Doc. 14-6 at 1417
21.) Therefore, trial counsel’s failure to file written motions to suppress did not result in
prejudice, as there is no reasonable probability of a different result had counsel filed
written motions. See Strickland, 466 U.S. at 687, 694.
Mr. Robinson also contends that trial counsel was ineffective in “fail[ing] to elicit
testimony from Dr. Cole about his experiments at trial described in voir dire.” (Doc. 2 at
10 (emphasis omitted).) The MAR court denied this claim, finding that Mr. Robinson
failed to establish either prong under Strickland. (See Doc. 10-9 at ¶ 5.)
Dr. Cole was an expert witness for the defense who testified on the weaknesses of
eyewitness testimony. (See Doc. 14-15 at 3, 29; Doc. 14-16 at 8-15.) During his
testimony before the jury, the court sustained several objections by the State, thus
limiting Dr. Cole’s testimony on his experiments and opinions on the accuracy of
eyewitness identification, specifically, errors in “cross race identification.” (See Doc. 1416 at 5-13; see also Doc. 14-15 at 15-19.) To the extent Mr. Robinson contends that his
trial counsel was ineffective for failing to elicit testimony from Dr. Cole, he cannot show
deficient performance or prejudice, see Strickland, 466 U.S. at 687; his lawyer attempted
to do exactly what Mr. Robinson says he should have done.10
To the extent Mr. Robinson contends that trial counsel was ineffective for not
asking Dr. Cole other questions, (see Doc. 2 at 10), this claim also fails. First, he has not
proffered any evidence that this failure was unreasonable. See Strickland, 466 U.S. at
689-91. Mr. Robinson has not shown what this other evidence was or explained how his
10
To the extent Mr. Robinson contends that the trial court improperly sustained the State’s
objections to this testimony, (see Doc. 18 at 2), this Court may not review the state court’s
interpretation and application of state rules of evidence. See Estelle, 502 U.S. at 67-68.
18
attorney failed to elicit it. Second, Mr. Robinson has failed to show that counsel’s failure
to elicit further testimony from Dr. Cole was prejudicial. See Strickland, 466 U.S. at 687,
694. The record shows that the two surviving victims, who had face-to-face contact with
Mr. Robinson during the robbery, (see Doc. 14-6 at 22-55; Doc. 14-11 at 47-72), selected
him from a photographic lineup and a physical line-up specifically requested by defense
counsel. (See Doc. 14-7 at 28-31; Doc. 14-11 at 81-90; see also Doc. 14-5 at 86-89; Doc.
14-9 at 83-88; Doc. 14-6 at 7-21.) Both victims identified Mr. Robinson at trial. (See
Doc. 14-6 at 52-54; Doc. 14-11 at 52-56, 70-71.) Defense counsel had the opportunity to
address concerns about misidentification through cross-examination and closing
argument. (E.g., Doc. 14-7 at 57-70; Doc. 14-12 at 5-20; Doc. 15-2 at 24-25, 51-52.)
In these circumstances, the Court gives deference to counsel’s strategic decisions
regarding Dr. Cole’s direct examination and finds that counsel’s representation did not
fall below an objective standard of reasonableness. See Strickland, 466 U.S. at 688-90.
The MAR court’s adjudication of Mr. Robinson’s ineffective assistance claim was not
contrary to, or an unreasonable application of, clearly established federal law and was not
based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d).
Finally, to the extent Mr. Robinson contends that counsel provided ineffective
assistance at his capital resentencing hearing in failing to raise a Batson challenge, (see
Doc. 20 at 5), this claim fails. Because the jury’s death sentence at that hearing was later
vacated, see discussion supra, Mr. Robinson cannot establish the prejudice required by
Strickland. See Strickland, 466 U.S. at 687, 694.
V. CONCLUSION
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Mr. Robinson has failed to establish that the decisions of the North Carolina state
courts were contrary to, or involved an unreasonable application of, clearly established
federal law as determined by the Supreme Court or that the state courts’ decisions were
based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d).
Therefore, the Court will grant the respondent’s motion for summary judgment. (Doc. 7.)
For the reasons stated herein, it is ORDERED that the respondent’s motion for
summary judgment, (Doc. 7), is GRANTED and the petition is DISMISSED. To the
extent Mr. Robinson’s response to the motion for summary judgment constitutes a
motion, (Doc. 19), that motion is DENIED. The Court finds no substantial issue for
appeal concerning the denial of a constitutional right affecting the conviction, nor a
debatable procedural ruling, and a certificate of appealability is DENIED.
This the 1st day of May, 2015.
_________________________________
UNITED STATES DISTRICT JUDGE
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