WALLER v. PERRY
Filing
8
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 8/14/2015; that Respondent's Motion for Summary Judgment (Docket Entry 4 ) be granted and that judgment be entered dismissing this action without issuance of a certificate of appealability. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JAMES BENNETT WALLER, JR.,
Petitioner,
v.
FRANK L. PERRY,
Respondent.1
)
)
)
)
)
)
)
)
)
1:14CV763
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner of the State of North Carolina, seeks
a writ of habeas corpus via 28 U.S.C. § 2254.
(Docket Entry 1.)2
For the reasons that follow, this Court should deny relief.
I.
BACKGROUND
A jury in the Superior Court of Durham County found Petitioner
guilty of attempted sexual offense with a 13-year-old and indecent
liberties with a child in case 11CRS56021, whereupon the trial
court entered judgment sentencing him to consecutive prison terms
of 180 to 225 months and 19 to 23 months.
(Id., ¶¶ 1, 3, 5, 6; see
also Docket Entry 5-2 at 28 (verdict form), 31-34 (judgments);
Docket Entry 5-9 at 469-71 (portion of trial transcript documenting
1
Petitioner originally failed to name a respondent, but, pursuant to Rule
2(a) of the Rules Governing Section 2254 Cases, the Court designated the
Secretary of the North Carolina Department of Public Safety, Mr. Perry, as
Respondent. (See Docket Entry 2 at 1 n.1.)
2
Along with the standard form for Section 2254 petitions, Petitioner
submitted documents from his underlying state criminal case. (See Docket Entry
1 at 15-22; Docket Entry 1-1 at 2-51; Docket Entry 1-2 at 1-28.) Respondent also
attached to his summary judgment brief documents from that case. (See Docket
Entry 5-2 at 2-42; Docket Entry 5-3 at 2-30; Docket Entry 5-4 at 2-33; Docket
Entry 5-5 at 3-35; Docket Entry 5-6 at 1-33; Docket Entry 5-7 at 3-13; Docket
Entry 5-8 at 2-14; Docket Entry 5-9 at 2-486.) Pin cites to those materials, as
well as the summary judgment briefs, refer to the page number that appears in the
footer appended to each page upon filing with the Court’s CM/ECF system.
verdict),
477-78
sentence).)3
(portion
of
trial
transcript
documenting
Petitioner pursued but failed to obtain relief on
direct appeal.
State v. Waller, No. COA12-1531, 749 S.E.2d 110
(table),
WL
2013
(unpublished).4
4007775
(N.C.
Ct.
App.
Aug.
6,
2013)
The Superior Court thereafter denied his Motion
for Appropriate Relief (“MAR”) and the North Carolina Court of
Appeals declined review.
(Docket Entry 1, ¶¶ 10, 11; see also id.
at 15 (order denying certiorari), 16 (order denying MAR); Docket
Entries 5-5 & 5-6 (MAR).)
(Docket Entry 1.)
Petitioner then instituted this action.
Respondent has moved for summary judgment
(Docket Entry 4) and Petitioner has responded (Docket Entry 7).
The North Carolina Court of Appeals summarized some key
evidence from Petitioner’s state criminal case as follows:
At trial, the minor complainant MarjorieFN1 was first to
testify during the state’s case-in-chief. In May 2011,
Marjorie was a thirteen-year-old eighth-grader living in
Durham with her mother, Samantha.FN2 Marjorie testified
that Samantha operated a daycare center in their home.
Tabitha Waller (“Ms. Waller”), one of Samantha’s
customers, often left her son at the daycare. At the
time of trial, Ms. Waller was twenty-four years old. Ms.
Waller and Marjorie became friends.
Marjorie often
called Ms. Waller her “play aunt” even though they were
not related. Ms. Waller’s father, [Petitioner], did yard
work for Samantha and visited his grandson at the
daycare.
FN1. “Marjorie” is a pseudonym used to protect the
minor’s privacy.
3
The jury actually found Petitioner guilty of two counts of indecent
liberties with a child (see Docket Entry 1, ¶ 5; Docket Entry 5-2 at 28; Docket
Entry 5-9 at 470), but the trial court entered judgment only on one such count
(see Docket Entry 5-9 at 477-78).
4
Petitioner did not attempt to advance his direct appeal to the North
Carolina Supreme Court. (See Docket Entry 1, ¶ 9(g).)
-2-
FN2. “Samantha” is a pseudonym used to protect the
family’s privacy.
On 4 May 2011, [Petitioner] picked up Marjorie at her
home after school to go ice skating. Since [Petitioner]
came straight from work, he first took Marjorie to his
home to change his clothes and pick up his skates.
[Petitioner] and Marjorie then went to the rink. At the
rink, [Petitioner’s] son and his son’s mother were
already present.
After about an hour and a half of
skating, [Petitioner] and Marjorie left.
They first
returned to [Petitioner’s] home so [he] could give a
haircut to a client.FN3
FN3. [Petitioner] was also a barber.
According
to
Marjorie,
once
they
arrived
at
[Petitioner’s] home, [he] cut the client’s hair on an
indoor porch. Marjorie was in the same room watching
television. Afterward, [Petitioner] cleaned up the porch
and he and Marjorie went into the living room. While
[Petitioner] and Marjorie were preparing to leave, [he]
asked her for a hug. After Marjorie hugged [Petitioner],
he asked for another one.
Marjorie again hugged
[Petitioner], but this time she testified he began
kissing the left side of her neck.
Marjorie pushed
[Petitioner] away, but he replied that it was okay and
continued kissing her. Marjorie began crying.
[Petitioner] then pulled Marjorie by the hand into a
bedroom.
She continued to try to pull away.
In the
bedroom, [Petitioner] pushed Marjorie down onto the bed,
laid her on her back and climbed onto the bed next to
her. [Petitioner] then unzipped his pants, removed his
penis, and put it six to eight inches from Marjorie’s
face. Marjorie understood this as a gesture for her to
perform oral sex. Marjorie continued crying, turned her
head away, and told [Petitioner] she wanted to go home.
He agreed and got off the bed.
In the living room,
[Petitioner] told Marjorie “make sure you don’t tell your
mom.” [Petitioner] then took Marjorie home. They did
not speak during the ten to fifteen minute drive to
Marjorie’s home.
From 4 May to 25 May, Marjorie did not tell anyone about
the incident at [Petitioner’s] home. Marjorie testified
that she did not tell anyone because she thought it would
ruin her relationship with Ms. Waller.
On 25 May 2011, Marjorie told her mother and Ms. Waller
what happened. Marjorie testified that her mom and Ms.
-3-
Waller had noticed she had been acting out and kept
asking her about her behavior. When she got tired of
them asking questions she told them what [Petitioner] had
done to her. Samantha then called the police. Marjorie
was interviewed by a police officer and told him the
story of the events on 4 May 2011.
Ms. Waller was the second witness to testify for the
State. She testified that she met Samantha and Marjorie
three years prior when she first began using Samantha’s
childcare services.
She also testified that on 25 May 2011 she was at
Samantha’s home picking up her son when Marjorie told her
of the events from 4 May 2011.
Samantha called the
police after Marjorie told them.
Following this testimony, the jury was excused while the
State conducted a voir dire [of] Ms. Waller. During the
voir dire, Ms. Waller testified that she lived with
[Petitioner] intermittently from when she was seven until
she was twelve, and [Petitioner] repeatedly raped her
vaginally at his home during that time span. Ms. Waller
also described how when she was twelve, [Petitioner] once
stood in front of her at his home, removed his penis from
his pants, and asked her to perform oral sex. When she
refused, he beat her with a belt but did not physically
force her to perform oral sex.
During voir dire, [Petitioner] objected to Ms. Waller’s
testimony under Rule 404(b) because the testimony
described acts that contain “more dissimilarities than
similarities” and the remoteness in time “makes the
probability of an ongoing plan more tenuous.” The trial
court ruled the testimony admissible under Rule 404(b)
and Rule 403 “to prove the existence of a plan or intent
to engage in sexual activity with young girls.”
[Petitioner] again objected at the end of voir dire. Ms.
Waller then testified before the jury.
Waller, 2013 WL 4007755, at *1-2.5
5
At the conclusion of Ms. Waller’s testimony, the trial court instructed
the jury as follows:
Ladies and gentlemen, evidence was just received before you tending
to show that this witness, [Ms.] Waller, was the victim of sexual
assaults on behalf of [Petitioner], her father. This evidence was
received solely for the purpose of showing the existence of a plan
or intent by [Petitioner] to engage in sexual activities with young
girls. If you believe this evidence, you may consider it, but only
(continued...)
-4-
II.
PETITIONER’S CLAIMS
The Petition identifies these four grounds for relief:
1) “[the] [t]rial [c]ourt erred by admitting ‘evidence’ of
prior bad acts which had no basis in fact or occurrence” (Docket
Entry 1, ¶ 12(Ground One));
2)
¶
12
“[i]neffective
(Ground
Two);
[a]ssistance
see
also
of
id.,
¶
[c]ounsel”
12(Ground
(id.,
Two)(a)
(“[Petitioner’s] [d]efense [a]ttorney [was] ineffective for not
deposing [or] interviewing [an] alibi witness . . . .”));
3) “Durham PD and Asst. Dist. Attorney conspired to deny
[e]vidence on [Petitioner’s] behalf by refusing to depose/interview
[an] [a]libi [witness]” (id., ¶ 12(Ground Three)); and
4)
“[h]earsay
which
is
uncorroborated
was
leaned
on
as
evidence of past crimes despite no evidence or even allegations
made previously” (id., ¶ 12(Ground Four)).
5
(...continued)
for the purpose for which it was received.
for any other purpose.
You may not consider it
(Docket Entry 5-9 at 260.) Immediately prior to deliberations, the trial court
again instructed the jury:
[E]vidence has been received tending to show that [Petitioner]
engaged in sexual activities with his daughter. This evidence was
received solely for the purpose of showing that there existed -that there existed in the mind of [Petitioner] a plan, scheme,
system, or design involving the crime charged in this case. If you
believe this evidence, you may consider it, but only for the limited
purpose for which it was received. You may not consider it for any
other purpose.
(Id. at 455-56.)
-5-
III.
HABEAS STANDARDS
The Court “shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of
a State court only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States.”
U.S.C. § 2254(a).
28
Further, “[b]efore [the] [C]ourt may grant
habeas relief to a state prisoner, the prisoner must exhaust his
remedies in state court.
In other words, the state prisoner must
give the state courts an opportunity to act on his claims before he
presents those claims to [this] [C]ourt in a habeas petition.
exhaustion
doctrine
§ 2254(b)(1).”
.
.
.
is
now
codified
at
28
The
U.S.C.
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
When a petitioner has exhausted state remedies, this Court
must apply a highly deferential standard of review in connection
with habeas claims “adjudicated on the merits in State court
proceedings,” 28 U.S.C. § 2254(d).
More specifically, the Court
may not grant relief unless a state court decision on the merits
“was contrary to, or involved an unreasonable application of
clearly established Federal law, as determined by the Supreme Court
of the United States; or . . . was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.”
Id.
To qualify as “contrary to”
United States Supreme Court precedent, a state court decision
either must arrive at “a conclusion opposite to that reached by
[the
United
States
Supreme]
Court
on
a
question
of
law”
or
“confront[] facts that are materially indistinguishable from a
-6-
relevant [United States] Supreme Court precedent and arrive[] at a
result opposite” to the United States Supreme Court.
Williams v.
Taylor, 529 U.S. 362, 406 (2000). A state court decision “involves
an unreasonable application” of United States Supreme Court case
law “if the state court identifies the correct governing legal rule
from [the United States Supreme] Court’s cases but unreasonably
applies it to the facts of the particular state prisoner’s case.”
Id. at 407; see also id. at 409–11 (explaining that “unreasonable”
does not mean merely “incorrect” or “erroneous”).
IV.
A.
Grounds One and Four:
DISCUSSION
Challenges to Prior Act Evidence
Grounds One and Four of the Petition seek federal habeas
relief
based
on
the
trial
court’s
admission of
testimony about her prior sexual abuse by Petitioner.
Entry 1, ¶ 12(Ground One) & (Ground Four).)
Ms.
Waller’s
(See Docket
More particularly, in
connection with Ground One (which asserts that “[the] [t]rial
[c]ourt erred by admitting ‘evidence’ of prior bad acts which had
no basis in fact or occurrence” (Docket Entry 1, ¶ 12(Ground
One))), Petitioner offered the following “[s]upporting facts”:
No alleged bad acts had ever been stated prior to [the]
current case by “witness” [Ms.] Waller. No testing, [n]o
examinations, [and] [n]o third parties had ever found
[Ms.] Waller to have been or suspected to have been a
victim of alleged prior acts [b]ecause none occurred.
[Ms.] Waller [c]oerced an impressionable teen into lieing
[sic] for her own ends [and] then substantiated the lie
she created with false support lies all to remove an
obstacle to her own legal woes. Nothing exists(ed) to
support [Ms. Waller’s] allegations.
-7-
(Id., ¶ 12(Ground One)(a).)
Similarly, as the basis for Ground
Four (which contends that “[h]earsay which is uncorroborated was
leaned on as evidence of past crimes despite no evidence or even
allegations made previously” (id., ¶ 12(Ground Four))), Petitioner
cited these “[s]upporting facts”:
[The] State attempted to utilize [h]earsay testimony of
a previous similar act when it had no knowledge or proof
of said [a]ct. No crime was ever previously alleged. No
tests or reports support [the] allegations and [n]o new
evidence to substantiate such was presented.
This in
turned [sic] [was] used as the basis to show “new”
crimes, a violation of [Petitioner’s] Constitutional
rights and [the] States [sic] own [s]tatutes.
(Id., ¶ 12(Ground Four)(a).)
In essence, Grounds One and Four complain that Ms. Waller
falsely testified at trial that Petitioner sexually abused her and
that the absence of evidence of prior reporting by Ms. Waller or
corroboration of her testimony rendered its admission erroneous (as
well as, at least as to Ground Four, violative of Petitioner’s
(unspecified) constitutional rights).6
“[T]he admissibility of
evidence is generally a matter of state law which does not concern
a federal habeas court unless it impugns the fundamental fairness
of the trial.”
Stockton v. Virginia, 852 F.2d 740, 748 (4th Cir.
1988) (emphasis added); see also Burket v. Angelone, 208 F.3d 172,
6
Ground Four mis-characterizes Ms. Waller’s trial testimony that
Petitioner sexually abused her as hearsay. See United States v. Halter, 259 F.
App’x 738, 741 (6th Cir. 2008) (“[The defendant] claims in very general terms
that testimony by government witnesses . . . constituted hearsay . . . . This
argument is meritless. Hearsay is an out-of-court statement offered for the
truth of the matter asserted. The government witnesses testified in court based
on their personal knowledge . . . .” (internal citation omitted)). Petitioner’s
MAR indicates that this error stems from his mistaken equating of testimony
lacking corroboration with hearsay. (See Docket Entry 5-5 at 20 (arguing that
the State “us[ed] [a] flawed Rule 404(b) hearing to introduce uncorroborated, and
therefore hearsay testimony of [Ms.] Waller”).)
-8-
186 (4th Cir. 2000) (“In federal habeas actions, we do not sit to
review
the
admissibility
of
evidence
under
state
law
unless
erroneous evidentiary rulings were so extreme as to result in a
denial of a constitutionally fair proceeding.”).
United
States
Supreme
Court
“ha[s]
defined
the
Moreover, the
category
of
infractions that violate ‘fundamental fairness’ very narrowly.”
Dowling v. United States, 493 U.S. 342, 352 (1990); see also
Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974) (“[N]ot every
trial error or infirmity which might call for application of
supervisory powers [on direct appeal] correspondingly constitutes
a failure to observe that fundamental fairness essential to the
very concept of justice.” (internal quotation marks omitted)).
According to Respondent, consideration by this Court of even
the very limited question of whether the admission of Ms. Waller’s
testimony
deprived
Petitioner
of
fundamental
procedurally barred for two separate reasons.
fairness
“is
First, a review of
Petitioner’s appellate brief shows he did not raise this contention
in federal constitutional terms in the [North Carolina Court of
Appeals] . . . .
Second, Petitioner did not raise [this claim] in
a timely filed notice of appeal or petition for discretionary
review to the North Carolina Supreme Court . . . .”
(Docket Entry
5 at 4 (internal parentheticals omitted); see also id. at 18
(“[Ground Four] is merely a re-phrasing or slight permutation of
Ground [One].
Therefore, for the same reasons and authorities set
forth above in response to Ground [One], . . . Ground [Four] is
procedurally barred . . . .”).)
As to the latter point, Petitioner
-9-
has conceded that he did not pursue a direct appeal before the
North Carolina Supreme Court.
(Docket Entry 1, ¶ 9(g).)
The
record also reflects that Petitioner did not present a federal
constitutional claim in his direct appeal to the North Carolina
Court of Appeals (see Docket Entry 5-3 at 6, 17-27); to the
contrary, “[o]n appeal, [Petitioner] argue[d] the trial court erred
by admitting Ms. Waller’s testimony under North Carolina Rule of
Evidence 404(b).” Waller, 2013 WL 4007755, at *3 (emphasis added).
Under these circumstances, a procedural bar generally would
have precluded Petitioner from raising a federal constitutional
claim related to Ms. Waller’s testimony in collateral proceedings
both in North Carolina state courts and in this Court.
See
generally N.C. Gen. Stat. § 15A-1419(a)(3) & (b); Jones v. Sussex
I State Prison, 591 F.3d 707, 712-13 (4th Cir. 2010).
However,
Petitioner’s MAR (at least arguably) fairly presented the federal
constitutional claim now asserted in Grounds One and Four.
(See
Docket Entry 5-5 at 7-8 (“I am legally entitled to [r]elief from my
conviction [because it was] . . . based upon and supported not by
facts, evidence, or informations garnered by the alleged charge but
by illegal hearsay evidence offered by a third unaffected party and
such
uncorroborated
evidence . . . .
evidence’s
being erroneously
allowed
into
[My] conviction and/or sentencing were obtained
in violation of due process of law . . . in violation of the
Constitution[] of the United States of America . . . .”), 20-21
(“[The]
State
attempted
to
circumvent
the
statutory/Federal
[r]equirements . . . by using [a] flawed Rule 404(b) hearing to
-10-
introduce uncorroborated, and therefore hearsay testimony of [Ms.]
Waller in which she assigns to [Petitioner] prior bad acts of a
similar nature to crimes [Petitioner] was facing in the instant
case.”), 22 (arguing that the State cannot present prior bad act
evidence “to the detriment of Due Process”).)
And, moreover, the
Superior Court summarily denied that claim (along with the rest of
Petitioner’s MAR) not based on any procedural bar, but because said
claim “sets forth no probable grounds for the relief requested,
either in law or in fact.”
(Docket Entry 1 at 16.)
Respondent insists that the Superior Court’s “summary MAR
order should be construed as . . . [a] denial of Petitioner’s
Ground[s] [One and Four] on grounds of procedural bar, and on the
merits.”
(Docket Entry 5 at 6.)
The Court should decline to adopt
that position and instead should treat the Superior Court’s MAR
order only as an adjudication on the merits.
See Harris v. Reed,
489 U.S. 255, 263 (1989) (holding that “procedural default does not
bar consideration of a federal claim on either direct or habeas
review unless the last state court rendering a judgment in the case
‘“clearly and expressly”’ states that its judgment rests on a state
procedural bar” (quoting Caldwell v. Mississippi, 472 U.S. 320, 327
(1985), in turn quoting Michigan v. Long, 463 U.S. 1032, 1041
(1983))); see also Johnson v. Williams, ___ U.S. ___, ___, 133 S.
Ct. 1088, 1096 (2013) (“When a state court rejects a federal claim
without expressly addressing that claim, a federal habeas court
must presume that the federal claim was adjudicated on the merits
-11-
. . . [and that] presumption is a strong one that may be rebutted
only in unusual circumstances . . . .”).
Despite avoiding the procedural bar raised by Respondent,
Petitioner cannot prevail on Grounds One and Four. “[B]ecause this
matter comes before [this Court] pursuant to [a] § 2254 petition
for habeas corpus relief, . . . [the Court] may award [Petitioner]
relief only if [the Superior Court’s denial of the MAR claim
parallel to the one raised in Grounds One and Four] . . . can be
found deficient under the highly deferential standards . . .
contained
in
§
2254(d)(1)’s
‘contrary
to’
and
‘unreasonable
application’ clauses, as well as in § 2254(d)(2)’s ‘unreasonable
determination of the facts’ provision.”
Baum v. Rushton, 572 F.3d
198, 209 (4th Cir. 2009); see also Cullen v. Pinholster, ___ U.S.
___, ___, 131 S. Ct. 1388, 1398 (2011) (observing that Section
2254(d)
imposes
“a
difficult
to
meet
and
highly
deferential
standard . . ., which demands that state-court decisions be given
the benefit of the doubt . . . [and that a] petitioner carries the
burden of proof” (internal citations and quotation marks omitted));
Baum, 572 F.3d at 209 (“We emphasize ‘that it is Supreme Court
precedent, and not Fourth Circuit precedent, to which we look in
applying [Section 2254(d)(1)’s] standard of review.’” (quoting
Bustos v. White, 521 F.3d 321, 325 (4th Cir. 2008))).
Petitioner has not made the showing required by Section
2254(d).
First, he has not identified any unreasonable fact-
finding (made or relied upon) by the Superior Court in denying his
claim that the admission of Ms. Waller’s testimony resulted in
-12-
fundamental unfairness proscribed by the Due Process Clause.
(See
Docket Entry 1, ¶ 12(Ground One)(a) & (Ground Four)(a); Docket
Entry 7 at 2-7.)
Second, Petitioner has not established that the
Superior Court’s rejection of the federal constitutional claim now
presented in Grounds One and Four contradicted or unreasonably
applied any United States Supreme Court decision.
(See id.)
Nor could Petitioner carry that burden, given the United
States Supreme Court’s rulings and/or reservation of rulings in
this area.
See, e.g., Perry v. New Hampshire, ___ U.S. ___, ___,
___, 132 S. Ct. 716, 723, 728 (2012) (“The Constitution, our
decisions indicate, protects a defendant against a conviction based
on
evidence
of
questionable
reliability,
not
by
prohibiting
introduction of the evidence, but by affording the defendant means
to persuade the jury that the evidence should be discounted as
unworthy of credibility.
Constitutional safeguards available to
defendants to counter the State’s evidence include the Sixth
Amendment rights to counsel, compulsory process, and confrontation
plus
cross-examination
of
witnesses.
.
.
.
[T]he
potential
unreliability of a type of evidence does not alone render its
introduction
at
the
defendant’s
trial
fundamentally
unfair.”
(internal citations omitted)); Dowling, 493 U.S. at 352-53 (“[The]
petitioner also contends that the introduction of this evidence [of
prior
crimes
for
unconstitutional
which
because
‘fundamental fairness.’
evidence
in
he
it
previously
failed
the
was
due
acquitted]
process
test
was
of
We recognize that the introduction of
circumstances
like
-13-
those
involved
here
has
the
potential to prejudice the jury . . . .
The question, however, is
whether it is acceptable to deal with the potential for abuse
through
nonconstitutional
sources
like
the
Federal
Rules
of
Evidence, or whether the introduction of this type of evidence is
so
extremely
unfair
that
its
admission
violates
‘fundamental
conceptions of justice.’ Beyond the specific guarantees enumerated
in
the
Bill
of
Rights,
the
Due
Process
Clause
has
limited
operation. We, therefore, have defined the category of infractions
that
violate
‘fundamental
fairness’
very
narrowly.
As
we
[previously have] observed . . . [judges] are to determine only
whether
the
action
complained
of
violates
those
fundamental
conceptions of justice which lie at the base of our civil and
political institutions and which define the community’s sense of
fair play and decency.
Especially in light of the limiting
instructions provided by the trial judge [emphasizing the narrow
purpose
for
which
the
jury
could
consider
the
prior
crimes
evidence], we cannot hold that the introduction of the [prior
crimes] testimony merits this kind of condemnation.” (internal
block quotation formatting, citations, ellipses, footnote, and some
quotation marks omitted)); Spencer v. Texas, 385 U.S. 554, 560-64
(1967) (“The rules concerning evidence of prior offenses are
complex, and vary from jurisdiction to jurisdiction, but they can
be
summarized
broadly.
Because
such
evidence
is
generally
recognized to have potentiality for prejudice, it is usually
excluded except when it is particularly probative in showing such
things as intent, an element of the crime, identity, malice,
-14-
motive, a system of criminal activity, or when the defendant has
raised the issue of his character, or when the defendant has
testified and the State seeks to impeach his credibility. . . .
The defendants’ interests are protected by limiting instructions
and by the discretion of the trial judge to limit or forbid the
admission
of
particularly
prejudicial
evidence
even
though
admissible under an accepted rule of evidence. This general survey
sufficiently indicates that the law of evidence, which has been
chiefly developed by the States, has evolved a set of rules
designed to reconcile the possibility that this type of information
will have some prejudicial effect with the admitted usefulness it
has as a factor to be considered by the jury for any one of a large
number
of
valid
purposes.
.
. .
To
say
the
United States
Constitution is infringed simply because this type of evidence may
be prejudicial and limiting instructions inadequate to vitiate
prejudicial effects, would make inroads into this entire complex
code of state criminal evidentiary law, and would threaten other
large areas of trial jurisprudence. . . .
long
proceeded
on
the
premise
that
Cases in this Court have
the
Due
Process
Clause
guarantees the fundamental elements of fairness in a criminal
trial.
But it has never been thought that such cases establish
this Court as a rule-making organ for the promulgation of state
rules of criminal procedure.
And none of the specific provisions
of the Constitution ordains this Court with such authority.”
(internal citations omitted)); Bugh v. Mitchell, 329 F.3d 496, 51213 (6th Cir. 2003) (“There is no clearly established Supreme Court
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precedent
which
holds
that
a
state
violates
due
process
by
permitting propensity evidence in the form of other bad acts
evidence.
In Estelle v. McGuire, the Supreme Court declined to
hold that the admission of prior injury evidence violated due
process, thus warranting habeas relief.
502 U.S. 62, 75 (1991).
The Court stated in a footnote that, because it need not reach the
issue, it expressed no opinion as to whether a state law would
violate due process if it permitted the use of prior crimes
evidence to show propensity to commit a charged crime.
n.5. . . .
Id. at 75
While the Supreme Court has addressed whether prior
acts testimony is permissible under the Federal Rules of Evidence,
see Old Chief v. United States, 519 U.S. 172 (1997); Huddleston v.
United States, 485 U.S. 681 (1988), it has not explicitly addressed
the issue in constitutional terms. Accordingly, the district court
correctly found that there is no Supreme Court precedent that the
trial
court’s
decision
could
be
deemed
‘contrary
to,’
under
[Section 2254(d)].” (internal parallel citations omitted)).
In sum, the Court should enter judgment against Petitioner on
Grounds One and Four, pursuant to Section 2254(d).
B.
Grounds Two and Three:
Via
Grounds
Two
and
Alibi Witness-Related Challenges
Three
of
the
Petition,
Petitioner
collaterally attacks his convictions due to alleged ineffective
assistance of counsel and prosecutorial misconduct related to a
purported alibi witness.
(Ground Three).)
(See Docket Entry 1, ¶ 12(Ground Two) &
Specifically, Ground Two (which bears the label
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“Ineffective Assistance of Counsel” (Docket Entry 1, ¶ 12(Ground
Two))), relies on these “[s]upporting facts”:
[Petitioner’s] [d]efense [a]ttorney [was] ineffective for
not deposing [or] interviewing [an] alibit witness [who
was] an officer of the [c]ourt Keenan Headen (attorney
Durham County) who repeatedly attempted to contact
[d]efense and [p]rosecution on [Petitioner’s] behalf, as
well as other violations.
(Id.,
¶
12(Ground
Two)(a).)7
In
turn,
Ground
Three
(which
Petitioner entitled “Durham PD and Asst. Dist. Attorney conspired
to deny [e]vidence on [Petitioner’s] behalf by refusing to depose/
interview
[an]
[a]libi
[witness]”
(id.,
¶
12(Ground
Three)))
identifies the following “[s]upporting facts”:
Durham PD Investigator Glover attempted to cover up the
fact that [a]libi [w]itness K. Headen was a [k]nown
[a]ttorney and officer of the [c]ourt in order to deny
[Petitioner an] [a]libi which [r]efuted the allegations
which he himself neglected to investigate even going so
far as to send an interagency e-mail to [an] Asst. DA
stating that K. Headen couldn’t be located (a lie) and
was maybe an [a]ttorney. This despite (1) working in the
same Judicial System as Attorney K. Headen (2) being
contacted numerous times by K. Headen [and] (3) [h]aving
K. Headen [sic] direct contact [n]umber and Attorney ID.
(Id., ¶ 12(Ground Three)(a) (emphasis in original).)
Petitioner’s MAR raised these same claims.
(See Docket Entry
5-5 at 7 (“[Petitioner’s] trial attorney was ineffective for not
interviewing [an] alibi witness . . . .”), 8 (“[P]olice and [a]
7
To the extent Ground Two alleges ineffective assistance based on
unspecified “other violations” (Docket Entry 1, ¶ 12(Ground Two)(a)), the “claim
is vague, conclusory, speculative, and unsupported and fails for all these
reasons,” Cabrera v. United States, Nos. 1:09CR323–1, 1:12CV695, 2014 WL 6386902,
at *9 (M.D.N.C. Nov. 14, 2014) (unpublished) (Osteen, Jr., C.J.); see also
Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992) (“In order to obtain an
evidentiary hearing on an ineffective assistance claim - or, for that matter, 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.”), abrogation on other grounds
recognized, Yeatts v. Angelone, 166 F.3d 255, 266 n.4 (4th Cir. 1999).
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prosecutor intentionally mislead [sic] both [the] [g]rand [j]ury
and [c]ourt as to the existence of [an] alibi witness [who was]
also
an
officer
of
the
[c]ourt
(Attorney
Keenan
Headen)
by
attempting to present to court no such attorney existed (when he
was easily found via NC Attorney ID) and omitting such to [g]rand
[j]ury to obtain [an] [i]ndictment and [t]rial [j]ury to withhold
exculpatory evidence.”), 10-11 (“My conviction was obtained in
violation of Due Process of Law as protected/laid out in (and by)
the United States Constitution . . . .
[T]he Det. (Glover)
attempted to ‘explain away’ not contacting Attorney Keenan Headen
stating he could not reach him, and he (Headen) was ‘supposedly’ a
lawyer in Durham . . . [w]hen in [r]eality it would have been
simple to locate a NC [a]ttorney [because] each has an ID# assigned
by the bar and are online and in NC B[ar] [d]atabase.
This was an
undisguised (or at best thinly/very disguised) attempt to discredit
and ignore [Petitioner’s] alibi witness who was/is an officer of
the [c]ourt so easily locateable [sic].
A blatant violation of
[Petitioner’s] Due Process [r]ights.”), 31 (“By refusing to contact
alibi witness and . . . refusing to take statement(s) of [a]libi by
the [a]fore-mentioned Keenan Headen . . . Det. Glover and State (by
proxy) conspired to deny [Petitioner’s] [r]ight(s) to present
evidence
favorable
to
himself.”),
35
(“Defense
counsel
was
ineffective in that . . . [he did not] directly contact [a]ny
[a]libi
witness
Attorney-at-Law
despite
to
come
multiple
forth
[a]ttempts
and
supply
by
[an]
Keenan
alibi
contacting both [the] State (Inv. Glover) and defense.”).
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Headen
[a]nd
Further
(as
discussed
in
the
preceding
subsection),
the
Superior Court summarily denied Petitioner’s entire MAR (and thus
the foregoing claims) on the merits.
(See Docket Entry 1 at 16.)
As a result, the Court “may award [Petitioner] relief only if [the
Superior Court’s denial of the MAR claim parallel to the ones
raised in Grounds Two and Three] . . . can be found deficient under
the highly deferential standards . . . contained in § 2254(d)(1)’s
‘contrary to’ and ‘unreasonable application’ clauses, as well as in
§
2254(d)(2)’s
provision.”
‘unreasonable
determination
of
the
facts’
Baum, 572 F.3d at 209; see also Cullen, ___ U.S. at
___, 131 S. Ct. at 1398 (observing that Section 2254(d) imposes “a
difficult to meet and highly deferential standard . . ., which
demands that state-court decisions be given the benefit of the
doubt . . . [and that a] petitioner carries the burden of proof”
(internal citations and quotation marks omitted)).
Petitioner has failed to satisfy Section 2254(d).
As an
initial matter, he has not shown that the Superior Court engaged in
or adopted any unreasonable fact-finding on point.
(See Docket
Entry 1, ¶ 12(Ground Two)(a) & (Ground Three)(a); Docket Entry 7 at
2-7.)
Nor has Petitioner established that the Superior Court
contradicted or unreasonably applied any United States Supreme
Court decision by denying the MAR claims that mirrored Grounds Two
and Three. (See id.)
To the contrary, as Respondent has observed,
“[t]he Headen affidavit Petitioner attached to his MAR basically
states that Petitioner was [Headen’s] barber and [Headen] went to
Petitioner’s house for hair cuts and never saw any young females.
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He could not say, however, whether he had a hair cut on the date of
the crimes.”
(Docket Entry 5 at 16; see also Docket Entry 5-6 at
19-20 (affidavit from Keenan Headen attached to MAR).)
In other
words, the evidence presented to the Superior Court regarding
Headen did not tend to show that an interview with Headen (by
Petitioner’s counsel or Investigator Glover) would have revealed an
alibi.
Accordingly,
Petitioner
cannot
carry
his
burden
of
demonstrating that, by summarily denying the claims now presented
in Grounds Two and Three, the Superior Court contradicted or
unreasonably
applied
United
States
Supreme
Court
authority
pertaining to ineffective assistance of counsel and prosecutorial
misconduct in the form of exculpatory-evidence-suppression, because
the United States Supreme Court has made clear that both of those
types of claims require proof of a reasonable probability of a
different outcome.
See Kyles v. Whitley, 514 U.S. 419, 434-41
(1995); Strickland v. Washington, 466 U.S. 668, 693-95 (1984).
Simply put, Grounds Two and Three fall short under Section
2254(d).
V.
CONCLUSION
Petitioner’s habeas claims all fail as a matter of law.
IT IS THEREFORE RECOMMENDED that Respondent’s Motion for
Summary Judgment (Docket Entry 4) be granted and that judgment be
entered dismissing this action without issuance of a certificate of
appealability.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 14, 2015
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