FOOTE v. SOLOMON
Filing
11
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR on 09/25/2015; that Respondent's Motion for Summary Judgment (Doc. 6 ) is GRANTED, that Petitioner's Petition under 28 U.S.C. § 2254 for Writ of Habe as Corpus by a Person in State Custody (Doc. 2 ) is DENIED, and that this action is DISMISSED. An evidentiary hearing is not warranted in this matter. A Judgment dismissing this action will be entered contemporaneously with this Order. Finding no 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
DOMINIC EUGENE FOOTE,
)
)
)
)
)
)
)
)
)
Petitioner,
v.
GEORGE T. SOLOMON,
Respondent.
1:14CV877
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Petitioner, a prisoner of the State of North Carolina,
seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“the
Petition”).
(Docs. 2, 3.)
Respondent has filed an Answer (Doc.
5), a Motion for Summary Judgment (Doc. 6), and a Brief in
Support of the Motion for Summary Judgment (Doc. 8).
has filed a Response (Doc. 9).
Petitioner
Respondent’s motion is now ripe
for adjudication, and for the reasons that follow, this court
will grant the motion.
I.
BACKGROUND
On September 19, 2012, Petitioner was convicted by a jury
of second-degree murder and felony death by motor vehicle in the
Superior Court of Rockingham County.
(Petition (Doc. 2) at 1-2;1
Respondent’s Supp. Br. (“Respondent’s Br.”), Ex. 2 (Doc. 8-3) at
11-16.) He was sentenced to concurrent terms of 200-249 and
35-51 months of imprisonment.
(Id. at 13-16.)
Petitioner filed
a direct appeal and the North Carolina Court of Appeals found no
error in Petitioner’s second degree-murder conviction and
sentence, but vacated the felony death by motor vehicle
conviction, and remanded for resentencing.
State v. Foote, No.
COA13-334, 2013 WL 5629442, at *1 (N.C. Ct. App. Oct. 15, 2013)
(unpublished).
Consequently, on January 1, 2014, the trial court arrested
judgment on the death by motor vehicle charge, as per the
opinion of the North Carolina Court of Appeals, and left the
second-degree murder conviction to remain. (Respondent’s Br.,
Ex. 2 (Doc. 8-3) at 43.)
On July 17, 2014, Petitioner filed a
Motion for Appropriate Relief (“MAR”) in Superior Court,
Rockingham County.
(Id., Ex. 5 (Doc. 8-6).)
It was summarily
denied on August 11, 2014, for presenting “no probable grounds
All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
1
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for the relief.”2 (Petitioner’s Br. in Supp. of 2254 Petition
(“Petitioner’s Br.”) (Doc. 3) at 10.)
On September 22, 2014,
Petitioner filed a petition for writ of certiorari with the
North Carolina Court of Appeals, which was denied on
September 30, 2014.
(Respondent’s Br., Ex. 6 (Doc. 8-7);
Petitioner’s Br. (Doc. 3) at 11.)
Petitioner’s federal habeas
Petition was signed on October 14, 2014, and filed with this
court on October 20, 2014. (Petition (Doc. 2).)
II
PETITIONER’S CLAIMS
Petitioner contends: (1) he was incriminated by compelled
testimonial communication from his medical records; (2) the jury
was charged with an impermissible permissive presumption on the
element of malice; (3) ineffective assistance of trial counsel
and of appellate counsel; and (4) the state failed to disclose a
state witness’s pending drug offenses in the same jurisdiction
when such disclosure could have been used to impeach his
credibility.
(See id. at 5-11; Petitioner’s Br. (Doc. 3).)
2
Even though the MAR court’s order was a summary
adjudication, the deferential standard of review described below
is still applicable here. See Harrington v. Richter, 562 U.S.
86, 98-99 (2011); see also Hartman v. Lee, 283 F.3d 190, 194
(4th Cir. 2002) (noting that even though state court may not
state reasons for decision on merits, decision is still entitled
to deference if independent review of law reveals that result
meets standards established by Section 2254(d)).
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III. FACTUAL BACKGROUND
The North Carolina Court of Appeals summarized the facts
from Petitioner’s case as follows:
The State’s evidence tended to show that about
midnight on 24 October 2010, defendant picked up
Douglas Rontay Clark (the victim), Jamal Stewart
(Stewart), and Timothy Lee Dalton (Dalton) in a Dodge
Durango. Three female passengers were already in the
vehicle. Stewart testified that defendant was “driving
crazy,” and “everybody in the car was like, slow down,
and [defendant] was like, all right, I got this. So
he kept speeding.” At one point there was an “18–
wheeler on the right and a 18–wheeler on the left, and
he went through them speeding[.]” Dalton also
testified that defendant was “driving fast” and
“un-regular,” even playing “chicken” with a tractor
trailer. Dalton said, “I'm a grown man, and I said
stop.” Additionally, Deana Meeks, the front-seat
passenger, testified that defendant was speeding.
Ultimately, defendant lost control of the
vehicle, flipped it, and crashed on the side of the
road. Defendant and the victim were thrown from the
vehicle, and the victim died as a result of
complications from blunt force trauma to the head and
chest.
Following the collision, defendant was
transported to Morehead Memorial Hospital, where he
was treated by emergency room physician Dr. Paul
McGuire. At trial, Dr. McGuire was tendered as an
expert in emergency medicine. Dr. McGuire testified
that he ordered a blood panel and a urinalysis to aid
in his treatment of defendant. The results indicated
that defendant had a blood alcohol level of 175
milligrams per deciliter and he tested positive for
benzodiazepines and cannabinoids. Dr. McGuire
concluded that the presence of alcohol,
benzodiazepines, and cannabinoids would likely impair
a person.
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The State tendered Paul Glover, research
scientist for the Department of Health and Human
Services, as an expert witness in the fields of blood
alcohol testing, blood alcohol physiology,
pharmacology and the effects of drugs on humans. Mr.
Glover testified that defendant's blood alcohol level
was .14 grams per 100 milliliters, the measure
required by North Carolina Statute. Additionally, he
also concluded that the combination of alcohol,
cannabinoids, and benzodiazepines would likely impair
a person.
Trooper Darren Yoder of the North Carolina
Highway Patrol was tendered as an expert witness in
the field of automobile crash collision
reconstruction. Trooper Yoder responded to the
collision at approximately 2:53 AM. Trooper Yoder did
not perform an accident reconstruction but did
complete an accident investigation report. He
estimated that the vehicle was traveling at
approximately 80 m.p.h. immediately preceding the
collision. The State also called Officer Elizabeth
Tilley and Trooper Mark Rakestraw to testify to the
circumstances of defendant's prior arrests for driving
while impaired, which resulted in two separate
convictions.
Foote, 2013 WL 5629442, at *1-2.
IV.
STANDARD OF REVIEW
Where a state trial court adjudicated a petitioner’s claims
on their merits, this court must apply 28 U.S.C. § 2254(d)’s
highly deferential standard of review to such claims.
That
statute precludes habeas relief in cases where a state court has
considered a claim on its merits unless the decision was
contrary to or involved an unreasonable application of clearly
established federal law as set out by the United States Supreme
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Court or the state court decision was based on an unreasonable
determination of the facts.
28 U.S.C. § 2254(d).
A state court decision is “contrary to” Supreme Court
precedent if it either 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 a result
opposite” to that of the Supreme Court.
U.S. 362, 405 (2000).
Williams v. Taylor, 529
A state decision “involves an
unreasonable application” of Supreme Court law “if the state
court identifies the correct governing legal rule from [the
Supreme] Court’s cases but unreasonably applies it to the facts
of the particular state prisoner’s case.”
Id. at 407.
“Unreasonable” does not mean just “incorrect” or “erroneous,”
and the court must judge the reasonableness from an objective
standpoint.
Id. at 409-11.
State court factual findings are
presumptively correct unless rebutted by clear and convincing
evidence.
V.
28 U.S.C. § 2254(e)(1).
This standard applies below.
DISCUSSION
A.
Claim One
Petitioner’s first claim is that he was incriminated by his
own compelled testimonial communication from his own medical
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records.3
(Petition, Ground One (Doc. 2) at 5; Petitioner’s Br.
(Doc. 3) at 6-7.)
Petitioner raised the substance of this claim
on appeal and it was denied as follows:
Defendant argues that the trial court erred in
allowing testimony based upon hospital records in
violation of the Confrontation Clause of the United
States Constitution because those who had performed
the tests were not available for cross-examination.
We disagree.
Defendant did not object to the testimony of Dr.
McGuire or Mr. Glover at trial and has therefore
waived his right to argue this issue on appeal.
However, the North Carolina Supreme Court “has elected
to review unpreserved issues for plain error when they
involve either (1) errors in the judge's instructions
to the jury, or (2) rulings on the admissibility of
3
Petitioner incorporates by reference his state court MAR in
each of his federal habeas claims addressed herein.
(Petitioner’s Br. (Doc. 3) at 6-9.) Despite this, Petitioner
has failed to include a copy of his state court MAR with any of
his pleadings in this proceeding. Respondent, on the other
hand, has included a copy of Petitioner’s state court MAR,
though it appears to omit roughly five pages of Petitioner’s
81-page MAR. (Respondent’s Br., Ex. 5 (Doc. 8-6).) Petitioner
faults Respondent for this omission. (Petitioner’s Resp. (Doc.
9) at 1.) Regardless, the court need not pursue this matter
further. First, the burden lies with Petitioner to state and
prove his federal habeas claims, and not with Respondent.
Second, Petitioner has had at least eight months to remedy any
deficiency in his pleadings, but has not. (Id. filed 12/22/14.)
Third, Petitioner explains that the missing pages contain
“[b]asically the entire Claim 4 of Issue I [of the]
Confrontation Clause argument . . . .” (Id. at 1.) However, as
explained above, Petitioner’s Confrontation Clause claim lacks
merit and additional argumentation will not change this. Last,
the court has reviewed the state court MAR contained in the
record and has considered it, when proper, throughout the
remainder of this Memorandum Opinion and Order. None of
Petitioner’s claims has merit, factually or legally, under the
relevant standard.
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evidence.” State v. Gregory, 342 N.C. 580, 584, 467
S.E.2d 28, 31 (1996). Plain error arises when the
error is “‘so basic, so prejudicial, so lacking in its
elements that justice cannot have been done[.]’” State
v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(quoting United States v. McCaskill, 676 F.2d 995,
1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74
L.Ed.2d. 513 (1982)). “Under the plain error rule,
defendant must convince this Court not only that there
was error, but that absent the error, the jury
probably would have reached a different result.”
State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692,
697 (1993). Accordingly, we will review this issue
for plain error.
Under Crawford v. Washington, our Supreme Court
held that “[w]here testimonial evidence is at issue,
[] the Sixth Amendment demands what the common law
required: unavailability and a prior opportunity for
cross-examination.” 541 U.S. 36, 68, 158 L.Ed.2d 177,
203 (2004). Conversely, “[w]here nontestimonial
hearsay is at issue, it is wholly consistent with the
Framers’ design to afford the States flexibility in
their development of hearsay law . . . as would an
approach that exempted such statements from
Confrontation Clause scrutiny altogether.” Id.
In Crawford, the Supreme Court specifically found
that most of the hearsay exceptions cover statements
that are not testimonial and therefore do not present
a Confrontation Clause problem. Id. at 56, 158 L.Ed.2d
at 196. Business records are specifically listed as
an example of such an exception. Id. “Business
records are defined to include the records of
hospitals.” State v. Miller, 80 N.C. App. 425, 428,
342 S.E.2d 553, 555 (1986). In Sims v. Charlotte
Liberty Mut. Ins. Co., 257 N.C. 32, 35, 125 S.E.2d
326, 328–29 (1962), our Supreme Court specifically
applied the business records exception to hospital
records.
Here, defendant challenges the expert testimony
pertaining to the results of his blood test and
urinalysis. However, defendant’s test results,
although hearsay, are admissible under the business
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records exception to the hearsay rule upon
authentication by the proponent. Miller, 80 N.C. App.
at 428, 342 S.E.2d at 555. Authentication may occur
“by the testimony of the custodian or other qualified
witness, unless the source of information or the
method or circumstances of preparation indicate lack
of trustworthiness.” Id. at 429, 342 S.E.2d at 556
(citation omitted) (alteration in original).
The record reflects that Dr. McGuire ordered the
tests to help him assess defendant’s condition, and
the results were recorded in defendant’s hospital
records. As such, we hold that defendant’s hospital
records constitute a record made in the usual course
of business and are therefore exempted from the rule
against hearsay. Moreover, the records were properly
identified and authenticated by Dr. McGuire, a
qualified witness, who testified that he ordered the
tests pursuant to standard hospital procedure.
Although the hospital records were used in
defendant’s criminal prosecution, they were not
prepared for that purpose. Instead, they were
prepared for purposes of treating the patient, not for
evidentiary purposes in preparation for trial. While
the experts may have referenced the test results in
their testimony, such testimony poses no per se
Confrontation Clause problem. Crawford distinctly
recognizes that business records are not testimonial.
Crawford, 541 U.S. at 56, 158 L.Ed.2d at 196.
Additionally, because the test results were an
inherently reliable source of information and because
defendant had the opportunity to cross-examine the
experts at trial, the trial court did not err in
admitting the testimony of either expert. See State
v. Huffstetler, 312 N.C. 92, 107–09, 322 S.E.2d 110,
120-21 (1984) (holding that the defendant was not
deprived of his Sixth Amendment right to confront his
accusers when the trial court allowed an expert
witness to testify to the results of blood tests that
he did not perform because (1) the test results were
inherently reliable, and (2) the defendant had the
opportunity to cross-examine the witness).
Accordingly, we hold that defendant's right to
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confront his accuser guaranteed by the Sixth Amendment
was not denied.
Foote, 2013 WL 5629442, *2-3.
Having reviewed both the issue raised here by Petitioner,
and the analysis of the North Carolina Court of Appeals, the
court concludes that the North Carolina Court of Appeals did not
contradict or unreasonably apply Crawford or its progeny in
denying Petitioner's parallel claim on direct appeal.
As
explained above, the evidence of - and related to - the results
of the blood panel test and urinalysis, ordered by the emergency
room physician in order to properly treat Petitioner for his
injuries on the night of the incident, was non-testimonial.
Medical reports prepared for treatment purposes obviously are
not, like forensic reports, prepared for the very purpose of
establishing or proving some fact at trial, and therefore do not
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implicate the Confrontation Clause.4
The resolution of this
matter by the state is neither contrary to nor an unreasonable
application of clearly established federal law nor was it based
4
See, e.g., Michigan v. Bryant, 562 U.S. 344, 362 n.9
(2011) (statements made for purpose of medical diagnosis or
treatment are “by their nature, made for a purpose other than
use in a prosecution”); Melendez–Diaz v. Mass., 557 U.S. 305,
312 n.2 (2009) (“[M]edical reports created for treatment
purposes . . . would not be testimonial under our decision
today.”); Giles v. Cal., 554 U.S. 353, 376 (2008) (“[O]nly
testimonial statements are excluded by the Confrontation Clause.
Statements to . . . physicians in the course of receiving
treatment would be excluded, if at all, only by hearsay
rules.”); Ascencio v. Spearmen, No. C 13–3433 PJH (PR), 2014 WL
6706014, at *6 (N.D. Cal. Nov. 26, 2014) (“The state court
opinion was not contrary to Supreme Court authority as the
records were prepared for medical treatment.”); Tatum v.
McQuiggin, No. 5:10-CVv-11383, 2011 WL 576751, at *5-6 (E.D.
Mich. Feb. 9, 2011) (finding that business records and medical
reports created for treatment purposes do not implicate the
Confrontation Clause); see also United States v. DeLeon, 678
F.3d 317, 321–24 (4th Cir. 2012), cert. granted, judgment
vacated on other grounds, ____ U.S. ____, 133 S. Ct. 2850 (2013)
(admission of evidence of stepson's statements describing his
defendant-stepfather's disciplinary methods to social worker
made several months before the stepson died did not implicate
the Confrontation Clause because they were made for purposes of
formulating a family treatment plan and were not testimonial).
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on an unreasonable determination of the facts.5
B.
Claim Two
Petitioner next asserts that the jury was charged with an
impermissible permissive presumption on the element of malice.
(Petition (Doc. 2), Ground Two at 6-7; Petitioner’s Br. (Doc. 3)
at 7-8.)
He contends that “no rational common sense connection
exists between the ‘basic facts’ proved and the ‘elemental fact’
of malice.”
(Petitioner’s Br. (Doc. 3) at 7.)
For the
following reasons, this claim fails.
The Fourth Circuit, referencing Supreme Court law, has
instructed that:
A permissive inference contains both a basic fact and
an elemental fact. The basic fact is what the
prosecution must first prove to allow the permissive
inference. The elemental fact is a fact critical to
proving an element of the charged crime. When the
prosecution proves the basic fact contained in the
permissive inference, the jury is permitted, but not
required, to infer proof of the elemental fact. See
5
To the extent Petitioner alleges a Fourth Amendment claim,
it is addressed below in the court’s assessment of Claim Three.
Additionally, the Supreme Court has held that the Fifth
Amendment privilege against self-incrimination does not extend
to the results of blood tests, so any claims along those lines
must fail as well. See Schmerber v. Cal., 384 U.S. 757, 761,
764-65 (1966) (concluding that the Fifth Amendment did not bar
blood-alcohol analysis results, as results were not
testimonial); United States v. Jackson, Nos. 94-5338, 94-5440,
1995 WL 331080, at *4 (4th Cir. June 2, 1995) (unpublished)
(“[T]he Fifth Amendment privilege against self-incrimination
does not extend to the results of blood tests.”) (citation
omitted).
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County Court of Ulster County, New York v. Allen, 442
U.S. 140, 157, 99 S. Ct. 2213, 60 L.Ed.2d 777 (1979).
“Because this permissive presumption leaves the [jury]
free to credit or reject the inference and does not
shift the burden of proof, it affects the application
of the ‘beyond the reasonable doubt’ standard only if,
under the facts of the case, there is no rational way
the [jury] could make the connection permitted by the
inference.” Id.
Daniel v. W. Va., No. 97-6806, 1999 WL 713865, at *4 (4th Cir.
Sept. 14, 1999) (unpublished).
Here, there was no impermissible burden shifting
instruction given in this case as to malice or otherwise.6
This
is because there is a general presumption that juries follow
their instructions which Petitioner has failed to overcome with
his vague and conclusory allegations of impermissible burden
shifting.
See, e.g., Penry v. Johnson, 532 U.S. 782, 799 (2001)
(citing Richardson v. Marsh, 481 U.S. 200, 211 (1987)).
Additionally, the evidence at Petitioner’s trial, including his
prior convictions for driving while impaired, and the
circumstances attendant thereto, were rationally related to
(Compare Respondent’s Br., Ex. 9 (Doc. 8-10) at 239-59,
241-42, 244, 248 with Gilbert v. Moore, 134 F.3d 642, 647 (4th
Cir. 1998) (observing that jury instruction that “malice is
implied or presumed from the willful, deliberate and intentional
doing of an unlawful act without just cause or excuse”
unconstitutionally shifted the burden to the defendant with
regard to an essential element of the crime of murder).)
6
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prove malice (for example, by demonstrating that Petitioner knew
of the dangers of driving while impaired, but disregarded them)
and there was no improper burden shifting.
Petitioner may also be contending that the trial court’s
admittance of prior instances of driving while impaired in
violation of North Carolina Rule of Evidence 404(b) should not
have been admitted into evidence.
argument, it fails, too.
If Petitioner is making this
First, “it is not the province of a
federal habeas court to reexamine state-court determinations on
state-law questions. In conducting habeas review, a federal
court is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States.”
Estelle
v. McGuire, 502 U.S. 62, 67-68 (1991). It is only in
circumstances impugning fundamental fairness or infringing
constitutional protections that a federal question is presented.
Grundler v. N.C., 283 F.2d 798, 802 (4th Cir. 1960).
Such
circumstances are absent here.
Moreover, the North Carolina Court of Appeals considered
the admissibility of this evidence and rejected Petitioner’s
contention that evidence of his prior driving while impaired
convictions was inadmissible to show proof of malice:
On 6 September 2008, Trooper Rakestraw found
defendant “passed out” in the driver's seat of his
vehicle at approximately 4:00 AM after crashing into a
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nearby yard. Trooper Rakestraw testified that
defendant appeared appreciably impaired; he detected
the odor of alcohol, had glassy eyes, slurred speech,
and was unsteady on his feet. Officer Tilley testified
that she stopped defendant on 11 October 2008, after
observing his vehicle swerve into her lane of travel
before running a red light. Upon stopping defendant,
she detected the odor of alcohol on his breath. She
also noted his red, glassy eyes, nervous demeanor, and
saw that he was unsteady on his feet. She also
concluded that defendant was appreciably impaired.
As discussed above, the circumstances of a prior
arrest and the current offense need only support a
reasonable inference that the same person committed
the offenses. See id. Such inference is plausible.
Here, passengers testified that defendant was
speeding, played chicken with an eighteen-wheeler, and
drove recklessly. At the hospital, Dr. McGuire
detected the odor of alcohol on defendant. Thus, the
circumstances of each arrest show that defendant 1)
failed to maintain control of his vehicle, 2) drove
recklessly, 3) smelled of alcohol, and 4) endangered
those traveling on our roadways. We conclude that the
trial court did not err; the circumstances of
defendant's prior arrests are sufficiently similar to
the instant case so as to have probative value.
State v. Foote, 2013 WL 5629442, *4-5.
The court notes too that
the jury was instructed that this evidence, i.e., the prior
driving while impaired convictions, could only be considered to
the extent it related to the element of malice.
Br., Ex. 9 (Doc. 8) at 194-95.)
(Respondent’s
For all these reasons, any
contention by Petitioner that the aforementioned evidence was
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somehow not rationally related to the element of malice is
without merit.7
C.
Claim Three
Petitioner next asserts ineffective assistance of trial and
appellate counsel.
(Petition (Doc. 2) Ground Three at 8-9;
Petitioner’s Br. (Doc. 3) at 8.)
To prove ineffective
assistance of counsel generally, a petitioner must establish,
first, that his attorney’s performance fell below a reasonable
standard for defense attorneys and, second, that he suffered
prejudice as result.
668, 688, 694 (1984).
See Strickland v. Washington, 466 U.S.
Unsupported, conclusory allegations do
not entitle a petitioner to relief.
See Nickerson v. Lee, 971
F.2d 1125, 1136 (4th Cir. 1992), abrog’n on other grounds
recog’d, Yeatts v. Angelone, 166 F.3d 255 (4th Cir. 1999). A
petitioner bears the burden of affirmatively showing deficient
performance.
1994).
See Spencer v. Murray, 18 F.3d 229, 233 (4th Cir.
Prejudice requires a showing of a reasonable probability
See, e.g., Bauberger v. Haynes, 632 F.3d 100, 102 (4th
Cir. 2011) (“At trial the government introduced Bauberger's
troubled driving record. He had two prior driving-while-impaired
(‘DWI’) convictions, as well as a reckless driving conviction
and other driving offenses.”); United States v. Tan, 254 F.3d
1204, 1210 (10th Cir. 2001) (“[A] number of state courts have
addressed this issue and have also held prior drunk driving
convictions to be properly offered under Rule 404(b) for the
purpose of proving malice in second degree murder prosecutions
arising from drunk driving accidents.”) (collecting cases).
7
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that but for counsel’s unprofessional errors, the result of the
proceeding would have differed.
Strickland, 466 U.S. at 694.
The Strickland standard described above also applies to claims
that appellate counsel was ineffective. See Lawrence v. Branker,
517 F.3d 700, 708-09 (4th Cir. 2008).
Here, Petitioner asserts that trial counsel “failed to
object, failed to know crucial facts of case law, failed to
timely object, failed to sufficiently object, failed to crossexamine, failed to suppress, failed to impeach and when he
failed to advise his client.”
(Petitioner’s Br. (Doc. 3) at 8.)
These claims all fail for being vague, conclusory, and
unsupported.
See Nickerson, 971 F.2d at 1136.
Petitioner
asserts too that appellate counsel “failed to rebut the states’
argument that the medical records were testimonial.”
(Petitioner’s Br. (Doc. 3) at 8.)
As explained above, however,
the use of Petitioner’s medical records in this case does not
offend the Confrontation Clause.
Petitioner also incorporates by reference into his Petition
(Doc. 2) the arguments he set forth in his state court MAR.
(Petitioner’s Br. (Doc. 3) at 8 referencing Respondent’s Br.,
Ex. 5 (Doc. 8-6).)
However, for the reasons explained below,
the state MAR court did not err, much less act contrary to or
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unreasonably apply clearly established federal law, when it
concluded there had been no ineffective assistance.
First, Petitioner faults trial counsel for failing to
object to the testimony of Dr. McGuire, the emergency room
physician who treated Petitioner, and Paul Glover, a state
scientist.
(Respondent’s Br., Ex. 5 (Doc. 8-6) at 44.)
Petitioner specifically contends that counsel should have
objected to their testimony as to the contents of his medical
records.
(Id.)
As explained above, however, the contents of
the medical records discussed above do not offend the
Confrontation Clause.
Moreover, as explained below, Petitioner
has failed to demonstrate that any objection to the testimony of
either Dr. McGuire or Mr. Glover had any likelihood of success.
Specifically, McGuire testified at trial that the
combination of alcohol, benzodiazepines, and cannabinoids would
be enough to impair a person. (Id., Ex. 9 (Doc. 8-10) at
99-100.)
At trial, Dr. McGuire was qualified as an expert
witness in emergency medicine. He was also the doctor on call in
the emergency room when Petitioner was admitted for treatment
and was the doctor who ordered that Petitioner’s blood be drawn,
as per the standard treatment for trauma patients under these
circumstances.
(Id. at 99.)
(Id. at 94-98.)
He also ordered a urinalysis.
Petitioner’s blood tested positive for alcohol and
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his urine for benzodiazepines and cannabinoids.
(Id. at 98-99.)
Dr. McGuire testified that the combination of the three would
“have increased sedation” and would, based on his training and
experience, be enough to impair a person.
(Id. at 99-100.)
Dr. McGuire also noted in the medical records that Petitioner’s
“general appearance” was “[i]ntoxicated” and that he smelled of
alcohol.
(Id. at 101, 141.)
Dr. McGuire was therefore
qualified to speak hypothetically8 as an expert witness and to
speak as an eyewitness as to Petitioner’s appearance.
There is
no reason to believe that the objections Petitioner faults
counsel for omitting as to Dr. McGuire’s testimony would have
been sustained had they been raised.
Additionally, Mr. Glover testified as an expert witness for
the state in the field of blood alcohol testing and the effects
of drugs on human performance and behavior.
(Id. at 174.)
He
testified that he reviewed Petitioner’s medical records and that
8
Petitioner faults counsel for failing to object to what he
characterizes as the state’s “hypothetical questions” directed
to various expert witnesses and for failing to object to their
subsequent answers. Nevertheless, “[i]t has long been accepted
that an expert witness may voice an opinion based on facts
concerning the events at issue in a particular case even if the
expert lacks first-hand knowledge of those facts.” Williams v.
Illinois, 567 U.S. ____, ____, 132 S. Ct. 2221, 2234 (2012)
(“There is a long tradition of the use of hypothetical questions
in American courts.”) The court notes too that Petitioner may
also be contesting the sufficiency of the evidence on impairment
here, and elsewhere in his pleadings, and the court considers
this argument in greater detail below.
- 19 -
the results from Petitioner’s blood and urine test indicated the
presence of alcohol (“0.14 grams per 100 milliliters”),
benzodiazepines, and cannabinoids, and that the effect of these
drugs together would result in “severe impairment” and would
impact one’s ability to drive a car.
(Id. at 179-86.)
Mr.
Glover testified that based on his training, experience, and
education, he concluded that a person with this concentration
(the concentration Petitioner demonstrated) of alcohol,
benzodiazepines, and cannabinoids in their system would “be
impaired.”
(Id. at 186.)
As with the testimony of Dr. McGuire,
there is no reason to believe that any objection to the
testimony of Mr. Glover would have been sustained.
Second, Petitioner faults trial counsel for not objecting
to Trooper Darren Yoder’s testimony that the vehicle was
traveling at least 80 miles an hour just prior to the accident.
(Respondent’s Br., Ex. 5 (Doc. 8-6) at 46.)
Petitioner asserts
that this was error because Trooper Yoder did not conduct an
accident reconstruction.
(Id.)
This argument has no merit
because there is no reason to believe that any such objection
would have been sustained and, in fact, the North Carolina Court
of Appeals reached a similar conclusion:
At trial, Trooper Yoder was tendered, without
objection, as an expert witness in the field of
automobile collision reconstruction. The record
- 20 -
indicates that he successfully completed a collision
reconstruction course and was certified in advanced
traffic crash investigation. Here, Trooper Yoder did
more than review the accident investigation report
prior to testifying, because he in fact wrote the
report. As such, defendant has failed to convince us
that Trooper Yoder's testimony as to the speed of the
vehicle failed to surpass the threshold of
admissibility under N.C. Gen. Stat. § 8C–1, Rule
702(i). We conclude that the trial court did not err.
Foote, 2013 WL 5629442, at *4-5.
The North Carolina Court of
Appeals did not err, much less act contrary to or unreasonably
apply clearly established federal law in this regard, nor did
the state MAR court err in rejecting Petitioner’s ineffective
assistance claim based on the same.
Third, Petitioner faults trial counsel for failing to be
aware of the relevant case law on impairment, an element to his
second-degree murder conviction.
8-6) at 49.)
(Respondent’s Br., Ex. 5 (Doc.
The gravamen of this contention appears to be that
counsel was so ignorant as to what constituted impairment as to
fail to more vigorously seek dismissal of the criminal charges
at the close of the evidentiary phase of the trial.
49-53.)
(Id. at
This argument lacks merit.
Specifically, a federal court reviewing a habeas claim of
insufficient evidence must determine whether, after viewing the
evidence in the light most favorable to the state, any rational
trier-of-fact could find the essential elements of the crime
- 21 -
beyond a reasonable doubt.
See Wright v. West, 505 U.S. 277,
284 (1992); Jackson v. Virginia, 443 U.S. 307, 319 (1979). Here,
ample evidence (described above) permitted a reasonable
inference that Petitioner drove while impaired by drugs and
alcohol.
Specifically, taken in the light most favorable to the
state, a rational trier of fact could find impairment here,
where drugs and alcohol were found in Petitioner’s system soon
after the accident, during which he was driving recklessly and
erratically, and Petitioner smelled of alcohol in the hospital.
See, e.g., State v. Vassey, 154 N.C. App. 384, 391, 572 S.E.2d
248, 253 (2002) (concluding that the fact that a motorist has
been drinking, when considered in connection with faulty
driving, such as, following an irregular course on the highway
or other conduct indicating an impairment of physical or mental
faculties, is sufficient prima facie evidence to show impairment
(citation omitted)).
Petitioner has failed to demonstrate
ineffective assistance of counsel here.
Fourth, Petitioner faults trial counsel for failing to
object to photographs of the accident scene.
(Respondent’s Br.,
Ex. 5 (Doc. 8-6) at 53 referencing Ex. 9 (Doc. 8-10) at 131-34.)
Yet, Petitioner himself acknowledges that counsel did indeed
object to the introduction of these photographs, but was
overruled by the trial court.
(Id.)
- 22 -
Petitioner faults counsel
for not objecting at a different time or in a different manner,
yet, given the trial court’s overruling of the objection counsel
did make, there is no reason to believe that an earlier or
different form of the same objection would have reached a
different result.
Fifth, Petitioner contests trial counsel’s failure to
object to a hypothetical question asked of Dr. McGuire.
(Respondent’s Br., Ex. 5 (Doc. 8-6) at 55-57 referencing Ex. 9
(Doc. 8-10) at 99-100, 224.) Here, as explained earlier,
Petitioner has failed to provide any meaningful reason to
conclude that the trial court or counsel erred in handling the
testimony of Dr. McGuire and so there is no reason to believe
that any objection to his testimony would have been sustained.
Additionally, to the extent Petitioner contests the sufficiency
of the evidence on the element of impairment, that argument
lacks merit for reasons described above.
Sixth and seventh, Petitioner faults trial counsel for
failing to object to evidence regarding his two prior arrests
for driving while impaired or for at least seeking to redact
portions of that evidence.
(Respondent’s Br., Ex. 5 (Doc. 8-6)
at 57-60 referencing Ex. 9 (Doc. 8-10) at 195-216.)
As
explained earlier, however, Petitioner has failed to demonstrate
- 23 -
error under any standard of review regarding his two prior
arrests and convictions for driving while impaired.
Eighth, Petitioner faults trial counsel for failing to
object to the testimony of Officers Tilley and Rakestraw, the
officers who testified as to Petitioner’s two prior driving
while impaired arrests, which the trial court cautioned could be
used, if at all, only as a factor going towards the element of
malice, an element necessary to distinguish second-degree murder
from manslaughter.
195-216.)
(Id. at 59-61 referencing Ex. 9 (Doc. 8-10)
Petitioner also faults counsel for failing to cross-
examine these witnesses.
(Id.)
Again, Petitioner fails to set
forth any meaningful grounds for objection or for the filing of
a pre-trial motion to exclude testimony here, fails to give any
justification for sustaining an objection, and fails to explain
why or how counsel should have cross-examined the officers.
Petitioner’s claim is vague, conclusory, unsupported, and
speculative and fails for these reasons alone. See Nickerson,
971 F.2d at 1136.
Ninth, Petitioner appears to fault counsel for failing to
contest a warrant issued for his medical records.
(Respondent’s
Br., Ex. 5 (Doc. 8-6) at 61.) As explained earlier, Petitioner’s
blood and urine were tested as part of his treatment at the
hospital.
Officer Yoder testified that on the night of the
- 24 -
accident, three witnesses told him that Petitioner was driving
at a high rate of speed and lost control of the vehicle at the
curve.
(Id., referencing Ex. 9 (Doc. 8-10) at 140-42.)
They
were unsure if he had been drinking that night, however, Dr.
McGuire spoke with Officer Yoder and indicated that he smelled
the odor of alcohol coming from Petitioner’s breath, and based
on all this he “got a search warrant and did serve that over at
the hospital records department.”
(Id. at 141.)
Given that
Officer Yoder had probable cause to believe a crime had
occurred, there is no reason to believe that had counsel
attacked the warrant, he would have been successful.9
Tenth, Petitioner faults trial counsel for failing to
impeach Jamal Stewart, who, as noted, testified against
Petitioner at trial.
(Respondent’s Br., Ex. 5 (Doc. 8-6) at 61-
64 referencing Ex. 9 at 31-54.)
Petitioner faults counsel for
failing to challenge Stewart’s statements that the accident
9
See, e.g., Commonwealth v. Ruey, 586 Pa. 230, 244-53, 892
A.2d 802, 810-16 (2006) (finding probable cause for a search
warrant regarding hospital records where defendant received
treatment after an accident based upon officer's observations at
scene of fatal traffic accident, of half-empty bottle of wine
and a partially full bottle of vodka inside defendant's vehicle,
and an empty wine bottle on the ground nearby); Thurman v.
State, 861 S.W.2d 96, 100 (Tex. App.-Houston [1st Dist.] 1993)
(concluding that state had probable cause for search warrant for
record of blood test administered by hospital for medical
reasons where defendant “had driven his car through a red light
at 2:30 a.m., at 60 to 90 miles an hour, had a one-car accident,
and smelled of alcohol”).
- 25 -
vehicle was gold, even though it was not; that he was on his
cell phone, but could still hear statements made by others to
“[s]low down”; and that Petitioner drove for a few hours, but
later said the drive took only a few minutes.
(Id., Ex. 5 at
61-64.)
Petitioner also asserts that approximately three months
before the trial, Stewart was charged with misdemeanor and
felony drug possession and that he had a prior conviction in
2009 for larceny.
(Id.)
A search of the public record
confirms that Stewart pled guilty to possession of schedule II
and schedule VI substances on June 13, 2012, and ultimately
received a probationary sentence, but does not confirm the
latter allegation of a prior conviction for larceny.10
Here, it is sheer speculation11 that any further crossexamination of Stewart in an effort to impeach his credibility
by counsel would have increased the likelihood of a different
10
See North Carolina Department of Public Safety Offender
Public Information, available at
http://webapps6.doc.state.nc.us/opi/offendersearch.do;jsessionid
=144B6C0659358A5F879CD5B491768312.WV6JFHAP56T_512?method=list.
11
Petitioner speculates that Stewart may have received a
more lenient sentence in his criminal matter in return for
testifying against him. However, Petitioner provides no
evidence in support of this assertion (if it is indeed an
assertion), and, in fact, apparently concedes he does not “know
for certain” but that it was “possibl[e].” (Docket Entry 8, Ex.
5 at 64.)
- 26 -
verdict.
Many of the purported inconsistencies pointed to by
Petitioner, such as the color of the vehicle, the length of the
drive, and whether Stewart was on the phone, are trivial or
could have been easily explained.
In other words, the
contention that impeachment on these issues increased the
likelihood of a different result at trial is unpersuasive.
Similarly, as for Stewart’s alleged criminal record or
pending charges, there is no reason to believe that had it been
made known to the jury, a different result at trial was any more
likely.
Stewart was not a criminal co-defendant who stood to
benefit at sentencing by testifying against Petitioner, but a
witness who testified to an accident in which he was personally
involved.
Moreover, as explained in greater detail below in
Claim Four, the evidence against Petitioner was strong even
absent Stewart’s testimony.
The allegations here are
speculative, conclusory, and therefore lack merit.
Nickerson,
971 F.2d at 1136.
Eleventh, Petitioner faults trial counsel for failing to
“[s]ufficiently [a]dvise” Petitioner.
(Doc. 8-6) at 64.)
(Respondent’s Br., Ex. 5
Petitioner contends that counsel misadvised
him in telling him that the state could only bring up his prior
criminal record if he testified at trial.
(Id.)
Petitioner
contends further that had he known the state could use his two
- 27 -
prior convictions for driving while impaired at trial, he would
have accepted a “more favorable” plea agreement offered by the
state.
(Id.)
He states further that on the basis of this
representation, he declined to testify at his trial.
(Id.)
The Supreme Court has considered whether a criminal
defendant can be prejudiced by going to trial rather than
accepting a guilty plea, where that decision results from
deficient performance of counsel.
See Lafler v. Cooper, 566
U.S. ____, ____, 132 S. Ct. 1376, 1383 (2012).
The Court
concluded that “[A] defendant has the right to effective
assistance of counsel in considering whether to accept [a plea
bargain].
If that right is denied, prejudice can be shown if
loss of the plea opportunity led to a trial resulting in . . .
the imposition of a more severe sentence.”
Id. at 1387.
Prejudice in the context of a rejected plea bargain requires:
[A] defendant [to] show that but for the ineffective
advice of counsel there is a reasonable probability
that the plea offer would have been presented to the
court (i.e., that the defendant would have accepted
the plea and the prosecution would not have withdrawn
it in light of intervening circumstances), that the
court would have accepted its terms, and that the
conviction or sentence, or both, under the offer’s
terms would have been less severe than under the
judgment and sentence that in fact were imposed.
Id. at 1385.
See also Missouri v. Frye, 566 U.S. ____, ____,
132 S. Ct. 1399, 1404 (2012) (addressing ineffective assistance
- 28 -
of counsel claim “aris[ing] in the context of claimed
ineffective assistance that led to the lapse of a prosecution
offer of a plea bargain, a proposal that offered terms more
lenient than the terms of the guilty plea entered later”).
Here, Petitioner’s allegations in this claim are simply too
vague, conclusory, and speculative to proceed further.
Nickerson, 971 F.2d at 1136.
See
Petitioner has entirely failed to
explain in even a cursory form what the terms of the alleged
plea agreement were except to note that it was “more favorable.”
“More favorable” is susceptible to many reasonable different
interpretations and, consequently, it is impossible for this
court to determine the likelihood Petitioner would have accepted
any plea agreement under the circumstances of his case given the
evidence against him and the amount of time he faced if
convicted at trial.
Petitioner has also failed to set forth any
reason to believe that the court would have accepted the terms
of this purported plea agreement or that the conviction or
sentence, or both, would have been less severe.
Additionally, Petitioner further asserts he was denied the
right to testify.
He does not meaningfully set forth what
testimony he wanted to provide at his trial and so it is
impossible to determine the probability of a different result.
Had Petitioner testified, he would have been cross-examined on
- 29 -
his extensive criminal history, which includes felony
convictions for common law robbery, possession with the intent
to sell a schedule II substance, and receiving a stolen
vehicle.12
(Respondent’s Br., Ex. 2 (Doc. 8-3) at 21.)
See,
e.g., Mills v. United States, Nos. 5:03-CR-249-1-BR, 5:05-CV734-BR, 2007 WL 4458304, at *3 (E.D.N.C. Dec. 14, 2007)
(unpublished) (“Had petitioner testified, his multiple
convictions would have been brought to the jury's
attention . . . [this] factor[ ] would likely have significantly
affected petitioner's credibility in the eyes of the jury.”).
Finally, Petitioner faults appellate counsel for failing to
“rebut the State’s argument that the medical records [were] nontestimonial.”
(Respondent’s Br., Ex. 5 (Doc. 8-6) at 67.)
As
explained above, the use of Petitioner’s medical records in this
case did not offend the Confrontation Clause.
Consequently,
See North Carolina Department of Public Safety Offender
Public Information, available at
http://webapps6.doc.state.nc.us/opi/offendersearch.do;jsessionid
=144B6C0659358A5F879CD5B491768312.WV6JFHAP56T_512?method=list.
12
- 30 -
appellate counsel was not constitutionally ineffective.13
D.
Claim Four
Petitioner’s fourth claim is that the state failed to
disclose potentially impeaching evidence that state’s witness,
Jamal Stewart, had pending drug charges. (Petition (Doc. 2),
Ground Four at 10-11; Petitioner’s Br. (Doc. 3) at 8-9.)
In
Brady v. Maryland, 373 U.S. 83, 87 (1963), the 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 punishment, irrespective of the
good faith or bad faith of the prosecution.”
The prosecutor’s
duty to disclose exculpatory evidence is applicable even in the
absence of a request for the information. United States v.
Agurs, 427 U.S. 97, 110-11 (1976). Brady encompasses evidence
known to police investigators, even if not known to the
prosecutor. Kyles v. Whitley, 514 U.S. 419, 438 (1995).
To successfully show a Brady violation, a petitioner must
establish three things.
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,
13
To the extent Petitioner is asserting ineffective
assistance of appellate counsel for failing to raise on appeal
any of the other issues discussed herein, those claims also
fail. Appellate counsel has no obligation to raise on appeal
meritless claims.
- 31 -
281-82 (1999).
Second, the evidence must have been willfully or
inadvertently suppressed by the state.
Id. at 282; 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”).
Strickler, 527
U.S. at 282; see also Stokes, 261 F.3d at 502. 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).
In this case, the state MAR court did not err, much less
act contrary to or unreasonably apply clearly established
federal law, when it concluded there had been no Brady
violation.
First, the evidence in question does not appear
particularly favorable to Petitioner, given that there is no
evidence that Stewart stood to benefit at sentencing by
testifying against Petitioner, but was rather a witness who
testified to an accident in which he was personally involved.
Second, the evidence in question was not material. There is
no reason to believe that had Stewart’s purported criminal
record (or his pending charges) been made known to the jury, a
different result to Petitioner’s trial was any more likely.
- 32 -
There was a great deal of evidence of Petitioner’s guilt.
For
example, in addition to the evidence of drugs and alcohol in his
system, Dalton also testified that he told Petitioner to “stop,”
but that Petitioner was “driving fast” and “un-regular,” even
playing “chicken” with a tractor trailer.
Consequently, even if
Stewart’s credibility were placed in doubt, there is no reason
to believe the trial would have resolved differently.
For all
these reasons, Petitioner’s last claim fails.
VI.
CONCLUSION
None of Petitioner’s claims has merit.
Petitioner has
failed to demonstrate that the state’s resolution of these
issues was contrary to or an unreasonable application of clearly
established federal law or was based on an unreasonable
determination of the facts.
For the reasons set forth above,
IT IS HEREBY ORDERED that Respondent’s Motion for Summary
Judgment (Doc. 6) is GRANTED, that Petitioner’s Petition under
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State
Custody (Doc. 2) is DENIED, and that this action is DISMISSED.
An evidentiary hearing is not warranted in this matter. A
Judgment dismissing this action will be entered
contemporaneously with this Order.
Finding no substantial issue
for appeal concerning the denial of a constitutional right
- 33 -
affecting the conviction, nor a debatable procedural ruling, a
certificate of appealability is not issued.
This the 25th day of September, 2015.
_______________________________________
United States District Judge
- 34 -
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