Harden v. Polk et al

Filing 83

ORDER denying 44 Second Motion to Expand the Record; denying as moot 61 Motion to Expand the Record. Signed by District Judge Martin Reidinger on 9/7/2010. (tmg)

H a r d e n v. Polk et al

D o c . 83

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE WESTERN DISTRICT OF NORTH CAROLINA C H AR L O TTE DIVISION C IV IL CASE NO. 3:06cv248 AL D E N JEROME HARDEN, ) ) P e t it io n e r , ) ) v. ) ) ) G E R AL D BRANKER, Warden, ) C e n tra l Prison ) R a le ig h , North Carolina, ) ) R e s p o n d e n t. ) __________________________________)

ORDER

TH IS MATTER is before the Court upon Petitioner Alden Jerome H a rd e n 's Second Motion to Expand the Record. [Doc. 44]. Also before the C o u rt is Respondent's Motion to Expand the Record. [Doc. 61]. P R O C E D U R AL HISTORY In 1994, Harden was convicted of two counts of first-degree murder a n d sentenced to death for killing Charlotte-Mecklenburg Police Officers A n th o n y Nobles and John Burnette. He appealed his convictions and s e n te n c e s . The North Carolina Supreme Court found no error, and the U n ite d States Supreme Court denied certiorari review. State v. Harden,

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3 4 4 N.C. 542, 476 S.E.2d 658 (1996), cert. denied, 520 U.S. 1147, 117 S .C t. 1321, 137 L.Ed.2d 483 (1997). F o llo win g a protracted state post-conviction process, Harden filed a P e titio n for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in the F e d e ra l District Court on June 13, 2006. Subsequent pleadings were filed b y both Harden and Respondent. On August 11, 2008, Harden filed the S e c o n d Motion to Expand the Record that is the subject of this Order. [Doc. 44]. In it, he seeks to expand the federal habeas record to include e vid e n c e that he contends is relevant to Claim V of his habeas petition. On D e c e m b e r 5, 2008, Respondent filed a Response opposing Harden's S e c o n d Motion to Expand the Record. [Doc. 60]. Respondent also filed a m o tio n seeking further expansion of the record in the event that the Court g ra n te d Harden's Second Motion to Expand the Record. [Doc. 61]. On J a n u a ry 12, 2009, Harden filed a Reply. [Doc. 63]. D I S C U S S IO N A. Legal Standard H a rd e n 's motion to expand the record is governed by Rule 7 of the R u le s Governing Section 2254 Cases in the United States District Courts, wh ic h provides that "[i]f the petition is not dismissed, the judge may direct

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th e parties to expand the record by submitting additional materials relating to the petition." When a petitioner seeks to introduce evidence pursuant to R u le 7, he must meet the same conditions prescribed by § 2254(e)(2) for o b ta in in g an evidentiary hearing. See Holland v. Jackson, 542 U.S. 649, 6 5 2 -5 3 , 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004) (per curiam). Under § 2254(e)(2)(A), "[a] habeas petitioner must develop the fa c tu a l basis of his claim in the state court proceedings rather than in a fe d e ra l evidentiary hearing unless he shows that his claim relies upon a n e w, retroactive law, or due diligence could not have previously discovered th e facts." Cox v. Burger, 398 F.3d 1025, 1030 (8th Cir. 2005). In the c o n te xt of a Rule 7 motion, this means that in order to expand the record, H a rd e n must show that the evidence he now seeks to add to the federal h a b e a s record was before the state court when it adjudicated his claim or th a t he made diligent efforts to put it before the state court. See Bradshaw v. Richey, 546 U.S. 74, 79, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) (holding th a t federal appellate court erred when it relied on evidence that was not p ro p e rly presented to the state courts without first determining whether the h a b e a s petitioner had met the § 2254(e)(2) criteria); Williams v. Taylor, 529 U .S . 420, 429-32, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Alternatively,

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H a rd e n must show that the evidence he is seeking to add could not have b e e n discovered previously through due diligence and that the evidence c le a rly and convincingly establishes that but for constitutional error, no re a s o n a b le factfinder would have found him guilty. See Williams, 529 U.S. a t 430-31, 120 S.Ct. 1479; 28 U.S.C. § 2254(e)(2)(B). B. The Transcript T h e two pieces of evidence that Harden wishes to add to the federal h a b e a s record pertain to pretrial publicity in his case. The first is the tra n s c rip t of the pretrial hearing on Harden's motions to change venue (h e re in a fte r "the transcript"). [Docs. 44-3 through 44-11]. Harden asserts th a t the transcript was part of the state court record and that he is seeking to add it to the federal habeas record to bolster Claim V of his habeas p e titio n . [Doc. 44-2 at 2]. R e s p o n d e n t counters that Claim V is based upon a claim raised in H a rd e n 's Motion for Appropriate Relief (hereinafter "MAR") and that a lth o u g h the transcript technically is part of the state court record, it was d e ve lo p e d in connection with pretrial motions, not in connection with the M A R . Furthermore, Respondent contends, Harden did not use the tra n s c rip t to support his MAR. Therefore, Respondent argues, it was not

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b e fo re the MAR court when it adjudicated Harden's claims. [Doc. 60 at 81 0 ]. Harden, in his Reply, argues that the transcript was before the MAR c o u rt by virtue of the fact that it was part of the state court record. [Doc. 63 1 3 -1 4 ]. He notes that North Carolina law governing the filings of motions fo r appropriate relief requires that an MAR be supported by documentary e vid e n c e only if it is "based upon the existence or occurrence of facts wh ic h are not ascertainable from the records and any transcript of the c a s e ." [Doc. 63 at 13 citing N.C. Gen. Stat. § 15A-1420(b)(1)]. According to Harden, the implication of MAR filing requirements is that everything in th e state court record preceding post-conviction is before the MAR court. This Court need not decide whether Harden's interpretation is accurate b e c a u s e at the MAR evidentiary hearing, the State conceded that "the re c o rd before [the MAR court] . . . consists of everything that has gone on in this case prior to now." [State Ex. L: MAR Tr. 11:21-12:5] (manually file d ) . T h is , however, does not answer the question of whether the record s h o u ld be expanded to include the transcript. Rule 7 of the Rules G o ve rn in g Section 2254 Cases in the United States District Courts

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p ro vid e s for expansion of the federal habeas record to include evidence "re la tin g to the petition." The transcript does not "relate" to the petition b e c a u s e none of the claims therein rely on evidence of pretrial publicity. Harden contends that the transcript is relevant to Claim V of his h a b e a s petition in which he alleges that he was denied a fair trial due to the h e a vy presence of armed, uniformed police officers and yellow-ribbon we a rin g civilians in the spectators' gallery. Claim V, however, is solely a s p e c ta to r conduct claim that does not rely for support on any allegations of n e g a tive pretrial publicity. Furthermore, the transcript is from a pretrial h e a rin g whereas the conduct complained of in Claim V occurred after the tr ia l began. As such, none of the facts alleged to support Claim V are a d d r e s s e d in the transcript. Therefore, the transcript of the evidentiary h e a r in g in which Harden's pretrial motions to change venue were c o n s id e re d is not related to Harden's federal habeas petition, and the m o tio n to expand the record to include the transcript is denied. C. The Video Footage T h e second piece of evidence that Harden wishes to add to the fe d e r a l habeas record is video footage of a May 5, 1994 television news b ro a d c a s t in which Harden confesses to shooting Officers Nobles and

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B u rn e tte . [Doc. 44 Ex. B] (manually filed). Harden does not contend, nor c o u ld he, that the video footage was not available at the time of his state c o u rt proceedings. The broadcast occurred prior to trial, and Harden cited it in his pretrial motions to change venue. As he did with the transcript, H a rd e n asserts that the video footage is part of the state court record and th a t he is seeking to add it to the federal habeas record to bolster Claim V o f his habeas petition. [Doc. 44-2 at 2]. Respondent contends that the vid e o footage was not introduced as evidence in any state court and, th e re fo re , was not before the MAR court when it adjudicated Harden's c la im s . [Doc. 60 at 10-11]. H a rd e n does not contest Respondent's assertion that the video fo o ta g e was not introduced into evidence during state court proceedings. Nor does he contend that the video footage was viewed by the trial court, th e appellate court, or the MAR court. Harden also does not assert that he in tro d u c e d a transcription of the video footage into evidence. Instead, H a rd e n argues that the footage was before the MAR court because the s ta te trial court was informed by written motion that the video footage e xis te d and because Harden summarized some of the content of the fo o ta g e in his brief on appeal. [Doc. 63 at 14-20].

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T h e fact that Harden described some of the content of the video in h is brief on appeal is insufficient to demonstrate that the video footage itself wa s before the MAR court when it adjudicated his claims. As noted p re vio u s ly, Harden does not contend that the video footage was u n a va ila b le at the time of his state court proceedings or that he attempted to introduce the video into evidence but was presented from doing so th ro u g h no fault of his own. Therefore, Petitioner has failed to meet the re q u ire m e n ts of § 2254(e)(2). Furthermore, even if he could show that the vid e o footage was before the MAR court, the footage is not related to his h a b e a s petition for the same reasons that the transcript is not related to his h a b e a s petition. Harden's motion to expand the record to include the video fo o ta g e is denied. RESPONDENT'S MOTION T h e Respondent has filed a Motion to Expand Record [Doc. 61] wh ic h is contingent upon this Court's granting the Petitioner's Motion to A m e n d Petition [Doc. 49] and the Petitioner's Motion to Expand Record [D o c . 44] addressed herein. The Motion to Amend Petition was denied by s e p a ra te order entered contemporaneously herewith. The Petitioner's

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M o tio n to Expand Record is denied herein. Respondent's motion is, th e re fo re , moot.

ORDER IT IS, THEREFORE, ORDERED that Harden's Second Motion to E xp a n d the Record [Doc. 44] is DENIED. IT IS FURTHER ORDERED that Respondent's Motion to Expand the R e c o rd [Doc. 61] is DENIED as moot.

IT IS SO ORDERED.

Signed: September 7, 2010

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