HAYES v. CARVER
Filing
18
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD on 07/03/2017 recommending that Respondent's Motion for Summary Judgment 6 be granted, that the Petition 1 be dismissed, and that a judgment be entered dismissing this action, without issuance of a certificate of appealability. (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOHN R. HAYES, III,
Petitioner,
v.
MARK CARVER,
Respondent.
)
)
)
)
)
)
)
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)
1:16CV1100
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner of the State of North Carolina, seeks
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Entry 1.)
(Docket
Respondent has moved to dismiss the Petition on grounds
of untimeliness.
(Docket Entries 6, 7.)
For the reasons that
follow, the Court should dismiss the Petition as untimely.
I. Procedural History
On July 19, 1994, in the Superior Court of Forsyth County, a
jury found Petitioner guilty of two counts of second degree murder
in cases 93 CRS 36994 and 36995.
6; Docket Entry 7-4 at 2-3.)1
(See Docket Entry 1, ¶¶ 1, 2, 4-
The trial court sentenced Petitioner
to two consecutive life sentences.
(See Docket Entry 1, ¶ 3;
Docket Entry 7-5 at 2-3, 6-7.)
Petitioner appealed (see Docket Entry 1, ¶¶ 8, 9), and, on
August 15, 1995, the North Carolina Court of Appeals issued an
1
Throughout this document, pin citations refer to the page numbers that
appear in the footer appended to documents upon their docketing in the CM/ECF
system.
unpublished opinion finding no error arising from Petitioner’s
trial (Docket Entry 7-6 at 2-4).
Petitioner did not thereafter
petition the North Carolina Supreme Court for discretionary review.
(See Docket Entry 1, ¶ 9(g).)
Years later, the Director of the Wake Forest University
Innocence and Justice Clinic (“WFIJC”), Mark Rabil, began to
investigate Petitioner’s case, and assigned law students enrolled
in the WFIJC to assist.
(See Docket Entry 7-12 at 51-52, 55-57;
Docket Entry 7-9 at 5, 16.)2
investigation,
Petitioner
At an unidentified point during that
allegedly
first
learned
of
a
third
gunshot victim, Kenneth Evans, who survived his injuries.3
As a
result of learning about Evans, on February 10, 2011, Petitioner
(through Rabil as pro bono counsel) requested a copy of the police
file in his case from Jennifer Martin, the chief assistant district
attorney
of
Forsyth
County.
(See
Docket
Entry
7-10
at
4.)
According to Petitioner, Martin provided Petitioner with a copy of
a portion of the police file that did not include seventeen
transcribed witness statements. (See id.; see also Docket Entry 712 at 70, 77; Docket Entry 7-13 (copies of documents from police
file Martin provided to Petitioner).)
On March 23, 2011, Rabil
2
The date that Rabil began investigating Petitioner’s case does not appear
in the record. Moreover, the record does not indicate what prompted Rabil and/or
the WFIJC to begin investigating Petitioner’s case.
3
The record reflects neither the date on which Petitioner first learned
of Evans’s status as a gunshot victim nor the means through which Petitioner
discovered such information.
2
and two law students enrolled in the WFIJC, Christopher Jackson and
Travis Talbot, interviewed Petitioner’s trial attorney, Warren
Sparrow (see Docket Entry 7-10 at 11), and provided Sparrow with
copies of the documents produced by Martin (see Docket Entry 7-10
at 12; see also Docket Entry 7-12 at 53-68.)
According to Jackson,
“Sparrow . . . could guarantee he never received a copy of the
police file . . . presented to him.”
(Docket Entry 7-10 at 12.)
Thereafter, Petitioner’s counsel requested and received from
Martin a copy of a ballistics report and related documents from the
State Bureau of Investigation (“SBI”) reflecting its analysis of
certain physical evidence in Petitioner’s case. (See id. at 4; see
also Docket Entry 7-12 at 77-78; Docket Entry 7-14 (copies of SBI
documents Martin provided to Petitioner).)
After Petitioner’s
counsel mailed a copy of these additional documents to Sparrow (see
Docket Entry 7-10 at 12), Sparrow left Jackson a voicemail on April
19, 2011, indicating that Sparrow “would not be reviewing the file
and declined any further cooperation . . . in th[e] matter” (id.).
Between
April
and
October,
2012,
Petitioner’s
counsel
contacted Martin on several occasions, requesting to examine the
physical evidence and obtain copies of the remainder of the police
file.
89-90.)
(See Docket Entry 7-10 at 4; see also Docket Entry 7-7 at
On October 17, 2012, Martin sent an email to Petitioner’s
counsel declining his requests for further review of the evidence
and
police
file,
absent
a
court
3
order
for
post-conviction
discovery.
(See Docket Entry 7-10 at 5; see also Docket Entry 7-12
at 81-82.)
On February 12, 2013, Petitioner, through counsel, filed a
Motion to Compel Discovery in the Forsyth County Superior Court
(Docket Entry 7-7), requesting “copies of the complete police files
. . . includ[ing] . . . all transcribed and recorded statements
made by witnesses, . . . the video tape taken of the scene; any and
all photographs of the crime scene; medical records for any and all
of the shooting victims; and inventories or listings of any and all
property
taken
into
possession
by
law
enforcement
officers
concerning the shootings . . ., copies of the complete files of the
SBI Crime Lab for any and all inspection or testing of physical
evidence . . ., [and] any and all exculpatory evidence relating to
th[e] case” (id. at 6).
After a hearing, the court denied that
Motion, finding that the “174 pages of the police reports and [SBI]
lab reports” previously provided by Martin constituted sufficient
“information . . . to allow [Petitioner] to review, investigate,
prepare and file a Motion for Appropriate Relief [(“MAR”)] and
raise any potential claims for appropriate relief.”
7-8 at 3.)
(Docket Entry
On March 7, 2013, Petitioner, through counsel, filed
a MAR in the Forsyth County Superior Court (Docket Entry 7-9; see
Docket Entry 1, ¶¶ 10, 11(a)(1)-(5).)
alleged
that
the
state
failed
to
In that MAR, Petitioner
produce
exculpatory
and
impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83
4
(1963), and solicited and failed to correct false testimony in
violation of Napue v. Illinois, 360 U.S. 264 (1959).
Entry
7-9
at
5-11;
see
also
Docket
Entry
1,
(See Docket
¶
11(a)(5).)
Contemporaneously, Petitioner filed a second Motion to Compel
Discovery with the Forsyth County Superior Court (Docket Entry 710), seeking the same materials from the state as the prior such
motion, and
adding
requests
for
(1)
“any
statements
made
by
[Petitioner’s] trial attorney to any representative of the State .
. ., [and] any records or notes . . . of any discovery which was
provided to [Petitioner’s] trial attorney and any records that
[Petitioner’s] trial attorney reviewed evidence in the possession
of the prosecution or law enforcement” (id. at 7).
On March 27,
2013, Forsyth County Assistant District Attorney Matthew Breeding
provided
additional
material
to
Petitioner,
including
the
transcribed statements of numerous witnesses. (See Docket Entry 711 at 3; see also Docket Entry 7-12 at 70-71.)
After obtaining leave of court, Petitioner filed an amended
MAR (“AMAR”) on August 30, 2013 (Docket Entry 7-11; see also Docket
Entry 1, ¶ 11(a)(4), (5)), which raised the same Brady and Napue
claims as the original MAR (compare Docket Entry 7-9, with Docket
Entry 7-11), but added a claim for ineffective assistance of trial
counsel (see Docket Entry 7-11 at 15-19) and additional citations
to the materials produced by Breeding in March 2013 (see id. at 718).
5
The Honorable William Z. Wood held a hearing on Petitioner’s
AMAR on October 7 and 8, 2014 (see Docket Entry 7-12), and
Petitioner called Sparrow, Jackson, and Evans as witnesses (see id.
at 13-108).
On November 21, 2014, Judge Wood entered an order
denying all three claims in Petitioner’s AMAR. (Docket Entry 7-16;
see also Docket Entry 1, ¶ 11(a)(7), (8).)
Petitioner, through
counsel, filed a certiorari petition with the North Carolina Court
of Appeals seeking review of his AMAR’s denial on July 16, 2016
(Docket Entry 7-18; Docket Entry 1, ¶ 11(d)), which that court
denied on August 24, 2016 (Docket Entry 7-20).
Petitioner, proceeding through counsel, filed the instant
Petition on September 2, 2016. (Docket Entry 1.) Respondent moved
to dismiss the Petition on grounds of untimeliness (Docket Entries
6, 7), Petitioner responded in opposition (Docket Entries 10, 11),
and Respondent replied (Docket Entry 17).
For the reasons that
follow, the Court should grant Respondent’s instant Motion, because
Petitioner
submitted
his
Petition
outside
of
the
one-year
limitations period.
II. Facts
On
direct
appeal,
the
North
Carolina
Court
of
Appeals
summarized the trial evidence as follows:
The State’s evidence tended to show that gunshots erupted
outside a “drink house” in Winston-Salem during the early
morning hours of 25 July 1993. [Petitioner] and others
within the building rushed outside to investigate.
[Petitioner] opened the trunk of an automobile, removed
a gun with a clip, and began shooting the weapon into the
6
air and into the crowd in the street. After firing a
number of shots, he entered the vehicle and drove away,
leaving two people dead as the result of medium caliber
gunshot wounds.
(Docket Entry 7-6 at 2.)4
III. Petitioner’s Claims
The Petition raises three grounds for relief: (1) “the State
violated
the
Petitioner’s
due
process
rights
under
the
14th
Amendment to the Constitution of the United States by soliciting
and failing to correct false or misleading testimony” (Docket Entry
1 at 6 (initial capital letters omitted)); (2) “the State violated
the Petitioner’s due process rights under the 14th Amendment to the
Constitution of the United States by failing to produce exculpatory
and impeaching evidence as required by [Brady] and its progeny”
(id.
at
8
(initial
capital
letters
omitted));
and
(3)
“the
Petitioner’s convictions were obtained in violation of the Sixth
Amendment’s guarantee to the effective assistance of counsel” (id.
at 9 (initial capital letters omitted)).
IV. Discussion
Respondent moves to dismiss the Petition as filed outside of
the one-year limitations period, see 28 U.S.C. § 2244(d)(1).
Docket Entry 7 at 8-22.)
(See
In order to assess Respondent’s statute
of limitations argument, the Court must first determine when
Petitioner’s one-year period to file his Petition commenced.
4
The
A witness at Petitioner’s criminal trial described a drink house as a
place “where people go to drink after hours.” (Docket Entry 3 at 20.)
7
United
States
Court
of
Appeals
for
the
Fourth
Circuit
has
explained:
Under § 2244(d)(1)(A)-(D), the one-year limitation period
begins to run from the latest of several potential
starting dates:
(A) the date on which the judgment became
final by the conclusion of direct review or
the expiration of the time for seeking such
review;
(B) the date on which the impediment to filing
an application created by State action in
violation of the Constitution or laws of the
United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the
Supreme Court, if the right has been newly
recognized by the Supreme Court and made
retroactively
applicable
to
cases
on
collateral review; or
(D) the date on which the factual predicate of
the claim or claims presented could have been
discovered through the exercise of due
diligence.
Green v. Johnson, 515 F.3d 290, 303-04 (4th Cir. 2008).
must determine timeliness on claim-by-claim basis.
The Court
See Pace v.
DiGuglielmo, 544 U.S. 408, 416 n.6 (2005).
Respondent contends that the Petition remains untimely under
subparagraph (A), because Petitioner’s conviction finalized prior
to the passage of the Anti-Terrorism and Effective Death Penalty
Act (“AEDPA”) and, thus, Petitioner had until April 24, 1997, one
year after AEDPA’s effective date, to file his instant Petition.
8
(See Docket Entry 7 at 9-10.)5
Petitioner has not contested
Respondent’s assertion of untimeliness under subparagraph (A) (see
Docket Entry 11); however, in the paragraph of the instant Petition
that requests an explanation of the timeliness of the Petition,
Petitioner states that “[h]e was unable to discover the facts upon
which his [AMAR] (filed on 8/30/2013) was based until all of the
post-conviction discovery was provided to him after filing his
initial MAR (filed on 3/7/2013)” (Docket Entry 1, ¶ 18), which
could represent a contention that subparagraph (D) applies in his
case.
Respondent’s Motion to Dismiss contends that the instant
Petition remains untimely even if subparagraph (D) applies.
Docket Entry 7 at 10-20.)
(See
In that regard, Respondent argues that
“[t]he record makes manifest Petitioner was either aware of, or
through the exercise of due diligence should have been aware of,
the factual predicates of his Brady, Napue, and [ineffective
assistance of trial counsel] claims on or before [April 19, 2011]”
(id. at 10), the date on “which [Sparrow] indicated he would
consider no further records and would no longer cooperate with the
[WFIJC’s]
investigation”
into
Petitioner’s
case
(id.
at
11).
Respondent further argues that “Petitioner should have filed the
instant [Petition] on or before [April 19, 2012]” (id.), and that
5
Neither Petitioner nor Respondent argue that subparagraphs (B) or (C)
apply in this situation. (See Docket Entries 2, 7, 11, 17.)
9
Petitioner has not shown entitlement to statutory or equitable
tolling (see id. at 12-20).6
Petitioner’s response to the Motion to Dismiss does not
specifically address Respondent’s above-described arguments, but
rather states: “[a]ssuming arguendo that the [Petition] was not
filed
within
the
limit
imposed
by
§
2244(d)(1)
for
‘newly
discovered evidence,’ this Court should allow [Petitioner] to
present
his
claims
for
false
or
misleading
testimony,
Brady
violations, and ineffective assistance of counsel under the ‘actual
innocence’ gateway.”
(Docket Entry 11 at 2 (emphasis added); see
also id. at 6-7 (contending that “[n]ew reliable evidence of actual
innocence creates a gateway for a habeas petitioner to present
procedurally
defaulted
constitutional
claims
by
allowing
an
exception to the limitations provisions of 28 U.S.C. § 2244(d)(1)
to prevent a fundamental miscarriage of justice” (citing McQuiggin
v. Perkins, 569 U.S. ___, 133 S. Ct. 1924 (2013))).)7
Thus, to the
extent Petitioner ever asserted an argument that subparagraph (D)
rendered the Petition timely, he has waived any such position by
ignoring the issue in responding to Respondent’s detailed challenge
to that timeliness theory in the Motion to Dismiss.
See, e.g.,
6
As detailed in Section I, Petitioner did not file his MAR until March 7,
2013.
State collateral filings made after the expiration of the federal
limitations period do not affect the timeliness analysis. See Minter v. Beck,
230 F.3d 663, 665 (4th Cir. 2000).
7
The Petition also asserts in conclusory fashion that “Petitioner is
actually innocent of the charges for which he was convicted.” (Docket Entry 1,
¶ 18.)
10
Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 152 n.4 (4th Cir.
2012) (“This issue is waived because [the plaintiff] fails to
develop this argument to any extent in its brief .”); United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[A] litigant has an
obligation to spell out its arguments squarely and distinctly, or
else forever hold its peace.” (internal quotation marks omitted));
Hughes v. B/E Aerospace, Inc., No. 1:12CV717, 2014 WL 906220, at *1
n.1 (M.D.N.C. Mar. 7, 2014) (unpublished) (Schroeder, J.) (“A party
should not expect a court to do the work that it elected not to
do.”) Nickelson v. Astrue, No. 1:07CV783, 2009 WL 2243626, at *2
n.1 (M.D.N.C. July 27, 2009) (unpublished) (Dixon, M.J.) (“[A]s
[the plaintiff] failed to develop these arguments in his Brief, the
court will not address them.”).
Turning to Petitioner’s actual innocence argument, the United
States Supreme Court has recognized that a showing of actual
innocence may excuse noncompliance with the one-year limitations
period.
McQuiggin, 569 U.S. at ___, 133 S. Ct. at 1928.
However,
the Supreme Court also ruled that showings of actual innocence “are
rare,” and that a petitioner must demonstrate that no reasonable
juror could vote to find the petitioner guilty beyond a reasonable
doubt.
Id.; see also United States v. Jones, 758 F.3d 579, 583
(4th Cir. 2014) (noting that “substantial claim[s] of actual
innocence are extremely rare” (quoting Schlup v. Delo, 513 U.S.
298, 321 (1995))).
Moreover, “‘[a]ctual innocence’ means factual
11
innocence, not mere legal insufficiency.”
States, 523 U.S. 614, 623 (1998).
requires
[a]
petitioner
to
Bousley v. United
“To be credible, such a claim
support
his
allegations
of
constitutional error with new reliable evidence – whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence – that was not presented at trial.”
Schlup, 513 U.S. at 324.
The reviewing court must consider “all of
the evidence, old and new, incriminating and exculpatory, without
regard to whether it would necessarily be admitted under the rules
of admissibility that would govern at trial.”
House v. Bell, 547
U.S. 518, 538 (2006) (internal quotation marks omitted).
For the
reasons that follow, Petitioner has not satisfied that stringent
standard.
Petitioner bases his actual innocence argument on “over 1,000
pages of police reports, SBI Lab reports, photographs, videos, and
diagrams, plus [an] additional 18 recorded witness interviews . . .
not revealed to the trial jury, [that allegedly] contradict the
story presented by the State.”
(Docket Entry 11 at 2-3.)
evidence includes:
•
police and SBI reports regarding two shell casings
allegedly found on the porch of the drink house
•
inconsistent descriptions of the shooter in the
transcribed statement of and police reports
regarding witness Cynthia Coleman
•
impeachment evidence against the two identifying
witnesses, Mary Geter and Anita Jeter
12
That
•
statements of ten witnesses, including Evans, that
identify shooters other than Petitioner
(Id. at 4-6.)
According to Petitioner, the Court must evaluate
that evidence in the context of “evidence not presented in th[e]
case.
No murder weapon was ever recovered.
No forensic evidence
tied [Petitioner] to the crime (no [finger]prints or DNA).
There
was no confession or admissions by [Petitioner], who to this day
maintains his innocence.
[Petitioner].”
In
There was no evidence of motive by
(Id. at 6.)
reply,
Respondent
contends
that
Petitioner’s
actual
innocence argument “[c]omes [t]oo [l]ate” (Docket Entry 17 at 2),
and relies upon evidence that qualifies as neither “[r]eliable
[n]or [t]rustworthy” (id. at 3).
Further, Respondent points out
that “Petitioner presents this Court with the same evidence and
arguments presented to the MAR court in support of his Brady and
Napue claims.”
the
MAR
(Id.)
court’s
Thus, Respondent argues that, “[a]ffording
factual
findings
§
2254(e)(1)
deference,
if
Petitioner’s showing to the MAR court did not ‘undermine the
confidence in the verdict,’ then it cannot meet the weightier
Schlup standard.”
(Id. at 3-4 (quoting Docket Entry 7-14 at 3).)
A. Timing of Actual Innocence Argument
In Schlup, the United States Supreme Court instructed that
district courts “may consider how the timing of the [new evidence
submitted in support of an actual innocence argument] . . . bear[s]
on the probable reliability of that evidence.” Schlup, 513 U.S. at
13
332; see also McQuiggin, 569 U.S. at ___, 133 S. Ct. at 1935
(holding that “[u]nexplained delay in presenting new evidence bears
on the determination whether the petitioner has made the requisite
showing” under Schlup, and that “[c]onsidering a petitioner’s
diligence, not discretely, but as part of the assessment whether
actual innocence has been convincingly shown, attends to the
State’s concern that it will be prejudiced by a prisoner’s untoward
delay in proffering new evidence”).
In other words, “a federal
habeas court, faced with an actual-innocence gateway claim, should
count unjustifiable delay on a habeas petitioner’s part, not as an
absolute barrier to relief, but as a factor in determining whether
actual innocence has been reliably shown.”
McQuiggin, 596 U.S. at
___, 133 S. Ct. at 1928.
Here, the timing of Petitioner’s actual innocence argument
significantly decreases its reliability.
As succinctly put by
Respondent:
Petitioner has never before claimed actual innocence.
During the original investigation, he refused to speak
with investigators.
([Docket Entry 7-13 at 127.])
Petitioner declined to testify at trial. ([Docket Entry
7-3 at 148-49, 156.]) Petitioner did not claim actual
innocence in either his state post-conviction [MAR] or
his [AMAR], nor did he support either filing with [an]
affidavit of actual innocence. ([Docket Entry 7-9 at 13;
Docket Entry 7-11 at 21] (attorney’s verification of his
belief there was a good faith basis for Petitioner’s
claims – actual innocence not among them)[.]) Petitioner
did not testify at the AMAR hearing. ([Docket Entry 7-12
at 2, 110.]) While Petitioner verified his habeas
application, the claim of actual innocence was conclusory
and included no facts in support. ([Docket Entry 1 at
14, 16.])
14
(Docket Entry 17 at 2-3 (emphasis in original).)
Petitioner
possessed awareness of his alleged actual innocence since his
arrest and indictment in late 1993 and yet, inexplicably, he waited
over
two
decades
to
assert
that
innocence.
Petitioner’s
substantial delay in raising the issue of alleged actual innocence
weighs strongly against its reliability.
B. Reliability and Trustworthiness of New Evidence
Respondent maintains that “Petitioner’s ‘new evidence’ is
neither reliable nor trustworthy.”
(Docket Entry 17 at 3 (initial
capital letters and bold font omitted).)
“To be credible,” a
Schlup actual innocence claim “requires petitioner to support his
allegations of constitutional error with new reliable evidence —
whether
it
be
exculpatory
scientific
evidence,
trustworthy
eyewitness accounts, or critical physical evidence — that was not
presented at trial.”
Schlup, 513 U.S. at 324 (emphasis added).
Most of Petitioner’s new evidence, however, does not qualify as
reliable or trustworthy.
Petitioner supports his actual innocence argument, in large
part, with witness statements memorialized in police reports and
transcripts of witness statements provided to law enforcement
during the investigation of the murders.
6, 13-23.)
(See Docket Entry 11 at
However, those statements lack sufficient indicia of
reliability to support a gateway claim of actual innocence.
As
Respondent argues (see Docket Entry 17 at 3), the statements do not
15
reflect oaths, affirmations, or verifications (see Docket Entry 713; see also Docket Entries 10-1 through 10-6) and all but the
statement of Avlon Fryer (Docket Entry 10-3), which she later
recanted after failing a polygraph examination (see id. at 14, 19,
21-23), lack even signatures (see Docket Entry 7-13; see also
Docket Entries 10-1, 10-2, and 10-4 through 10-6).8
Moreover, many
of the statements contain multiple omissions due to inaudibility.
(See Docket Entry 10-1 at 3, 4, 6-19; Docket Entry 10-4 at 4, 6, 8,
10, 12, 13, 15-18, 21-23, 25; Docket Entry 10-5 at 3, 6, 8, 11.)
The two 9mm shell casings allegedly found on the front porch
of the drink house fare no better in terms of reliability.
police
did
not
find
the
casings
investigation of the crime scene.
themselves
during
The
their
(See Docket Entry 7-13 at 30.)
Rather, a citizen by the name of John Ham approached a law
enforcement officer at the scene some time between 9:05 a.m. and
10:01 a.m. with the two casings that Ham claimed to have found on
the drink house’s porch.
Ham
allegedly
found
allegedly found them.
the
(Id.)
The record indicates neither when
casings,
nor
where
on
the
porch
he
(Id.) Further, police records reflect that
a resident of the house two doors down from the drink house, Essie
Mae Green, placed a 911 call about the shootings at 3:39 a.m. (see
Docket Entry 7-13 at 2), and that the police arrived on the scene
8
Indeed, Fryer later recanted her story that she saw two men named “Demo”
and “Sunshine” shoot the victims, and admitted that she had been at home asleep
at the time of the shootings. (Compare Docket Entry at 10-3 at 5-13, with id.
at 21-23.)
16
and began establishing a perimeter just minutes later at 3:42 a.m.
(See Docket Entry 7-13 at 3-5.)
No explanation exists in the
record to account for the five to six hour time lapse between the
police’s arrival on the scene and Ham’s decision to turn the
casings over to police.
In addition, the record does not reveal a
reason for Ham’s presence at the scene (i.e., as a partygoer, a
curious onlooker, an innocent bystander, etc.), whether Ham, who
did not reside on East 22nd Street (the street of the drink house)
(see Docket Entry 7-13 at 30), had been present at the drink house
during the shootings, or knew any of the individuals at the drink
house that evening.
Those facts also call into question Ham’s
motives for disturbing the crime scene rather than leaving the
casings for the police to collect as evidence.
Moreover, Ham died
on August 29, 2009 (see Docket Entry 7-12 at 80), and he apparently
did not give a statement attesting to the circumstances of his
discovery of the casings prior to his death.
Under these circumstances, much of Petitioner’s new evidence
lacks
sufficient
reliability
to
support
his
actual
innocence
argument.
C. The Schlup Standard
Respondent further argues that, even if the Court overlooks
Petitioner’s delay in raising the issue of actual innocence and the
unreliability of some of Petitioner’s new evidence, his actual
innocence argument still fails. (See Docket Entry 17 at 3-15.)
17
In
support of that position, Respondent “submits a number of screen
shots from [the crime scene video taken by law enforcement] . . .
[to] illustrate Respondent’s points.”
also Docket Entry 17-1 at 2-11.)9
(Docket Entry 17 at 5; see
According to Respondent, “[w]hen
Petitioner’s ‘new evidence’ is considered alongside what the jury
knew,
it
is
manifest
that
no
reasonable
reasonable doubt of Petitioner’s guilt.”
juror
would
have
a
(Docket Entry 17 at 9.)
1. The Two 9mm Shell Casings Found on the Front Porch
According
to
Petitioner,
the
state
“cover[ed]-up”
the
existence of the two 9mm shell casings allegedly found by Ham on
the drink house’s front porch.
(Docket Entry 11 at 12.)
In
support of that assertion, Petitioner maintains that two detectives
testified untruthfully at Petitioner’s criminal trial when they
each denied that they had found any shell casings on the drink
house’s front porch.
(See Docket Entry 11 at 10; see also Docket
Entry 7-3 at 93, 133.) Petitioner asserts the significance of that
“cover-up,” because an SBI report reflects that the same weapon
fired the 12 9mm shell casings found by law enforcement in the
street and on or near the sidewalk by the drink house, as well as
the two 9mm shell casings allegedly found by Ham on the drink
house’s front porch.
(See Docket Entry 11 at 10; see also Docket
9
The Court may consider Respondent’s new evidence, as the actual innocence
inquiry considers “all evidence, old and new, incriminating and exculpatory,
without regard to whether it would necessarily be admitted under rules of
admissibility that would govern at trial.” House, 547 U.S. at 538 (internal
quotation marks omitted).
18
Entry 7-14 at 2-12.)
Thus, Petitioner contends that, if he had
fired shots from next to a blue car parked in the street in front
of the drink house, as witnesses Geter and Jeter had testified (see
Docket Entry 7-3 at 31-38, 53-59), casings from his weapon could
not have landed on the drink house’s front porch.
Entry 11 at 10.)
(See Docket
Petitioner further maintains that the “cover-up
. . . was further compounded by the State when it hid the fact that
the third eyewitness, Cynthia Coleman, described the shooter [in
her August 10, 1993 transcribed statement] as initially firing from
or just off the porch of the drink house.”
(Id. at 12; see also
Docket Entry 7-11 at 48.)
Assuming that Ham’s alleged discovery of the two casings on
the front porch constituted reliable new evidence, Petitioner’s
arguments miss the mark.
As an initial matter, Petitioner’s claim
of a “cover-up” by the state falls short.
As Respondent observes,
“[t]he question posed to both officers was ‘did you [the police]
find any shell casings on the porch,’ and the answer was ‘No, we
did not.’” (Docket Entry 17 at 11 (emphasis added) (quoting docket
Entry 7-3 at 98, 137).)
As neither those officers, nor any other
law enforcement officer, themselves found shell casings on the
drink house’s front porch, their testimony does not qualify as
untruthful,
particularly
given
that
nothing
in
the
record
establishes either officer’s knowledge of the one-page report
documenting Ham’s encounter with another law enforcement officer
19
(see Docket Entry 7-14 at 30).
Moreover, the state sent the two
casings allegedly found by Ham to the SBI for testing (see Docket
Entry 7-14 at 2-12), which generated discoverable material, see
N.C. Gen. Stat. § 15A-903(d), (e) (1994), thus belying Petitioner’s
charge of a “cover-up” (Docket Entry 11 at 12).
Setting aside Petitioner’s allegations of a “cover-up” (id.),
the existence of the two casings Ham allegedly found on the porch
does not discredit the testimony of Geter and Jeter regarding the
location
of
the
shooter.
The
MAR
court
recognized
(and
Petitioner’s counsel conceded), that “most 9-millimeters . . .
eject [their shell casings] upward and to the right” (Docket Entry
7-12 at 165), and that the casings can “bounce every which way”
(id. at 166).
Thus, given the relatively short distance between
the curb in front of the drink house where witnesses placed
Petitioner while shooting and the front porch of the drink house
(see Docket Entry 17-1 at 2-4, 10, 11 (depicting, visually, that
distance)), the casings Ham allegedly found on the front porch
could have arrived there when Petitioner fired from his location by
the curb.
Petitioner also emphasizes that “the State . . . hid the fact
that the third eyewitness, Cynthia Coleman . . . said the shooter
at first shot from the porch, where [two] shell casings were found,
and then from near the car, where 12 casings were found.”
Entry 11 at 12; see also Docket Entry 7-11 at 48.)
20
(Docket
According to
Petitioner, Coleman’s testimony about the initial shots from the
porch, along with the Ham’s alleged discovery of two shell casings
on that porch, “severely impeache[s]” the testimony “of Geter and
Jeter – the only two witnesses to connect [Petitioner] to the
crimes.”
(Id.)
However, Coleman never stated that the same
individual shot from the porch up into the air and then later from
the car at the curb (see Docket Entry 7-11 at 48-49, 51-53), and
other
witnesses
identified
in
their
transcribed
statements
individuals other than Petitioner who shot guns into the air on the
porch to break up an argument (see Docket Entry 10-1 at 7; Docket
Entry 10-4 at 9; Docket Entry 10-5 at 7).
Thus, Coleman’s
statement does not exculpate Petitioner.
2. Witness Coleman’s Statements to Police
Next, Petitioner faults the state for “not reveal[ing] to the
jury what Cynthia Coleman actually described in her recorded
statement.”
(Docket Entry 11 at 14.)
In particular, Petitioner
argues that the state suppressed Coleman’s statements (1) regarding
a group of males walking away from the drink house and going after
someone with a glass bottle (id. at 15 (citing Docket Entry 7-11 at
49)); and (2) describing the shooter as having dreadlocks or plats
in his hair, as between 5’5” to 5’8” tall, and as wearing jeans and
a striped and/or dark colored shirt (id. (citing Docket Entry 7-11
at 41, 44, 52)).
Petitioner maintains that he measures 6 feet
tall, points to three photographs attached to his AMAR which
21
purport to establish that he wore his hair in a short afro at the
time of the murders, and notes Coleman’s trial testimony that the
shooter wore “a light colored [t]-shirt and maybe dark clothes at
the bottom” (Docket Entry 7-3 at 77).
(Docket Entry 11 at 15-16.)
None of these statements by Coleman exculpate Petitioner.
Coleman’s statement about the group with the glass bottle does not
exculpate Petitioner, as Coleman stated neither that Petitioner
formed a part of that group, nor that anyone in the group shot a
gun.
(See Docket Entry 7-11 at 49.)
With regard to Petitioner’s
hair, the photographs Petitioner submitted with his AMAR do not
establish his hairstyle on July 25, 1993, the date of the murders.
The first photograph, a mugshot dated September 11, 1993, showing
Petitioner
with
short
hair, does
not aid
his
cause,
because
Petitioner could have changed his appearance after the murders but
before his arrest.
(See Docket Entry 7-11 at 30.)
The second
photograph purports to depict Petitioner, with short hair, in the
summer
of
1993,
but
the
picture
itself
bears
no
date,
and
Petitioner has introduced no testimony or affidavits substantiating
the date of the photograph.
(See id. at 31.)
The third
photograph, a mugshot dated December 24, 1990, showing Petitioner
with short hair, predates the murders by over two and a half years,
which
constitutes
sufficient
time
for
Petitioner
significantly changed his hairstyle before the murders.
at
32.)
Moreover,
discrepancies
22
between
Coleman’s
to
have
(See id.
initial
recollection and trial testimony regarding the shooter’s clothing,
and her apparent error in assessing the shooter’s height, do not
support Petitioner’s actual innocence claim.
Coleman testified
that she did not know Petitioner (see Docket Entry 7-3 at 78, 85,
87), and did not identify Petitioner at trial (see generally id. at
65-88). Given those circumstances, Petitioner cannot show that the
jury would have rejected Coleman’s testimony about the sequence of
events, the shooter’s location and actions, and the description of
the car in which the shooter left the scene.
3. Impeachment Evidence Regarding Witnesses Geter and Jeter
Petitioner also accuses the state of suppressing “significant
impeachment evidence against the two key witnesses at trial, Geter
and Jeter.”
(Docket Entry 11 at 17.)
In particular, Petitioner
asserts that the state failed to disclose that (1) Jeter told
investigators that she worked part-time at the drink house serving
drinks to customers (Docket Entry 11 at 17 (citing Docket Entry 711 at 85)); and (2) Geter and Jeter both told the police that
Petitioner had fired a “large caliber semi-automatic handgun that
was dark in color” (id. at 18 (citing Docket Entry 7-11 at 85,
88)).
Petitioner points out that these statements to police
conflict with Jeter’s testimony at trial that she only knew of the
drink house through word of mouth and had never worked there (see
Docket Entry 7-3 at 55-56), both witness’s trial testimony that
they
did
not
know
the
difference
23
between
a
revolver
and
an
automatic (see id. at 34, 55), Jeter’s testimony that she did not
notice anything in particular about the shooter’s gun (see id. at
54-55), and the medical examiner’s testimony that medium caliber
bullets killed both murder victims (see id. at 121).
According to
Petitioner, “disclosure of [Jeter’s] misrepresentation to the jury
[about her employment at the drink house] would have cast serious
doubt on her credibility, as it could have been argued that she was
protecting or covering up for the real shooter, or that she was
testifying in return for a deal – i.e., it is a crime to sell
alcohol without a license, and she was not charged.” (Docket Entry
11 at 18.)
Further, Petitioner contends that suppressing the
witness’s statements to police that the shooter used a large
caliber handgun gave the jury the “false impression” that the
witnesses saw Petitioner “shoot down the street with a medium
caliber, 9mm handgun, the weapon that murdered the two young men.”
(Id.)
Petitioner’s arguments lack merit. Although disclosing to the
jury that Jeter told police that she worked at the drink house
might have impeached her credibility on that particular point, such
disclosure would not likely have impacted the jurors’ assessment of
Jeter’s testimony about the sequence of events and the identity and
location
of
the
shooter,
which
24
the
testimony
of
Geter
corroborated.10
Petitioner’s assertion that his defense counsel at
trial could have “argued that [Jeter] was protecting or covering up
for the real shooter, or that she was testifying in return for a
deal”
with
the
prosecution
constitutes
sheer
insufficient to support an actual innocence claim.
speculation
See O'Boyle v.
Ortiz, 242 F. App’x 529, 531 (10th Cir. 2007) (holding that
“speculation is insufficient to meet the heavy burden to produce
new evidence from which we could conclude it is more likely than
not that no reasonable juror would have convicted him”); Gandarela
v. Johnson, 286 F.3d 1080, 1086 (9th Cir. 2002) (observing that
“speculative and collateral impeachment falls far short of showing
actual innocence”).
Moreover, non-disclosure of statements to
police that the shooter used a large caliber handgun could not have
given
the
jury
a
“false
impression”
that
the
witnesses
saw
Petitioner “shoot down the street with a medium caliber, 9mm
handgun” (see Docket Entry 11 at 18), as the jury heard both
witnesses testify that they could not describe the shooter’s gun
(other than Geter’s recollection that the gun had “clips in it”
(see Docket Entry 7-3 at 34)) and did not know the difference
between a revolver and an automatic (see Docket Entry 7-3 at 34,
54-55).
10
Jeter testified that she had known Petitioner for more than two years
prior to the incident. (See Docket Entry 7-3 at 50.)
25
4. Witness Statements Regarding Shooters Other Than Petitioner
Petitioner next relies on the statements of ten witnesses who
“identified
the
shooter
as
someone
other
than
[Petitioner].”
(Docket Entry 11 at 19.) Petitioner contends that the state’s nondisclosure of those statements “created a false impression that
only [Petitioner] was shooting in the direction of the two young
men who were killed.”
(Id. (bold font omitted).)
In that regard,
Petitioner relies on the following witness statements not disclosed
by the state:
•
Evans told police he had heard from others at the
scene that a man named Grant shot him (see Docket
Entry 7-13 at 68, 69), and that, although he did
not see who shot him in the foot, he saw a person
standing behind a white Cavalier across from the
drink house firing a handgun (see Docket Entry 7-11
at 62-81);11
•
Haushen Lionell Lindsey told police Grant Mobley
shot Evans because Grant had “beef” with Evans over
money (Docket Entry 10-1 at 17), and that Grant
asked Dedrick Crump who else he had beef with
before murder victim Waddell Lynn Bitting got shot
(see id. at 14);
•
Josephine Latrice McGill told police that Grant and
Darrell were shooting from a white car at the time
that two of the victims got shot (see Docket Entry
10-2 at 5-7);
11
Petitioner distorts Evans’s statements to suggest that he reportedly
“saw a shooter firing a handgun in the direction of the two men that were
killed.” (Docket Entry 11 at 22 (citing Docket Entry 7-11 at 12-81 (emphasis
added)).) In actuality, Evans stated that he saw an individual shooting in the
air near [U.S. Highway 52] six time[s] [from] behind . . . [a] white Cavalier.”
(Docket Entry 7-11 at 62 (emphasis added); see id. at 70 (reflecting Evans’s
statement that “some dude . . . was on the side of a white Caviler [and] started
shooting up in the air” from the “turn around spot” on East 22nd Street)
(emphasis added).)
26
•
Fryer told police that men named Demo and Sunshine
shot the two murder victims (see Docket Entry 10-3
at 5-13);
•
An anonymous tip to Crimestoppers indicated that
Demo and Sunshine shot the two murder victims (see
Docket Entry 10-6 at 2);
•
Donnell Ray Garner told police Sunshine and a “big,
fat boy” participated as shooters (Docket Entry 105 at 13);
•
Shanta Levette Smith identified Fat
shooter (see Docket Entry 7-13 at 37);
•
Teresa Smith identified Fat Cat and Rob White as
shooters (see Docket Entry 7-13 at 38);12
•
Michael Tolliver observed Rob White and Valmark
Cuthrell shooting into the crowd (see Docket Entry
10-4 at 23);13 and
•
Another anonymous caller to Crimestoppers claimed
that Petitioner did not shoot the victims, and
implicated Fat Cat and Rob as the shooters (see
Docket Entry 10-8 at 2).
Cat
as
a
(See Docket Entry 11 at 19-23.)
Petitioner’s contentions regarding these witness statements
fail
to
support
his
actual
innocence
Petitioner
do
claim.
not
The
constitute
only
two
statements
exonerating
reliable
evidence.
Fryer recanted in full her statement that Demo and
12
Although Petitioner maintains that Teresa Smith also implicated Valmark
Cuthrell as a shooter (see Docket Entry 11 at 21 (citing Docket Entry 7-13 at 3738)), that statement does not exist on the pages cited by Petitioner (see Docket
Entry 7-13 at 37-38).
13
Petitioner maintains that Tolliver specifically recalled White and
Cuthrell firing their guns “into the crowd” (Docket Entry 11 at 21); however,
Tolliver’s statement indicates that White and Cuthrell shot into the air, toward
the street, and “everywhere” (Docket Entry 10-4 at 21), but does not specify that
White and Cuthrell targeted the crowd.
27
Sunshine killed the two murder victims over money (see Docket Entry
10-3 at 14-23), and admitted that she made the anonymous call to
Crimestoppers on August 2, 1993, implicating Demo and Sunshine as
the murderers (see Docket Entry 10-6 at 2).
The other exonerating
witness called Crimestoppers anonymously (see Docket Entry 10-8 at
2), and the record does not indicate that police ever determined
the identity of that caller or the veracity of the report.
Furthermore, none of the other witness statements exonerates
Petitioner.
Critically, not one of those witnesses saw anyone
shoot the two murder victims.
Moreover, the fact that these
witnesses observed (and/or even identified) other shooters in the
vicinity of the drink house would have had little impact on the
jury, given that the jury already heard testimony from (1) Geter
and Jeter describing at least one other shooter than Petitioner
(see Docket Entry 7-3 at 28-30, 51-53 (testimony indicating that
they
each
heard
gunshots
outside
of
the
drink
house
while
Petitioner remained in their presence)); (2) Coleman describing
multiple individuals shooting from different locations and in
different directions, and indicating that she heard up to fifty
gunshots, which continued even after Petitioner drove away from the
scene and after law enforcement had arrived (see Docket Entry 7-3
at 73-88); and (3) law enforcement officers at the scene describing
shell casings of differing calibers and in various locations on the
sidewalk and street, and bullet holes in the columns and roof of
28
the front porch (see id. at 96-104, 137).
7:14CV00042,
2017
WL
819500,
at
*8
See Clark v. Clarke, No.
(W.D.
Va.
Mar.
1,
2017)
(unpublished) (holding that, “even with some uncertainty as to the
precise identities of the shooters, legal insufficiency is not
enough to prove actual innocence under Schlup”); Ros v. Ducart, No.
1:15-CV-01050-JLT, 2015 WL 4478128, at *5 (E.D. Cal. July 22, 2015)
(unpublished) (“[W]hile the declaration contains [the witness’s]
recollections and impressions of the chaotic scene the night of the
crimes, it does not, by itself establish innocence nor does it
seriously undermine the prosecution’s case.
Had he been called at
trial, the jury would have been instructed to weigh [the witness’s]
credibility against that of the other eyewitnesses and to accept or
reject some or all of [the witness’s] testimony regarding [the
petitioner’s] involvement in the crime.”).
After consideration of “all of the evidence, old and new,
incriminating and exculpatory, without regard to whether it would
necessarily be admitted under the rules of admissibility that would
govern at trial,” House, 547 U.S. at 538 (internal quotation marks
omitted), Petitioner has not demonstrated that “no reasonable juror
would have found [him] guilty beyond a reasonable doubt,” Schlup,
513 U.S. at 327.
Accordingly, the statute of limitations bars the instant
Petition.
29
IT IS THEREFORE RECOMMENDED that Respondent’s Motion for
Summary Judgment (Docket Entry 6) be granted, that the Petition
(Docket Entry 1) be dismissed, and that a judgment be entered
dismissing this action, without issuance of a certificate of
appealability.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 3, 2017
30
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