Powell v. Shanahan

Filing 14

ORDER granting 7 Motion for Summary Judgment and the Petition is DISMISSED. Court declines to issue a Certificate of Appealability. Signed by Chief Judge Frank D. Whitney on 4/15/2014. (Pro se litigant served by US Mail.) (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:13-cv-496-FDW
KEVIN ANDREW POWELL,

)
)
Petitioner,
)
)
vs.
)
)
)
KIERAN J. SHANAHAN,
)
)
)
Respondent.
)
_________________________________________ )

ORDER

THIS MATTER comes before the Court on Respondent’s Motion for Summary
Judgment. (Doc. No. 7).
I.

BACKGROUND

On August 29, 2011, Kevin Andrew Powell, a prisoner of the State of North Carolina,
was found guilty by a jury in Mecklenburg County Superior Court of second-degree murder.
(Doc. No. 8-17 at 24: Trial Tr.; Doc. No. 8-23 at 20: Record on Appeal). The trial court
sentenced Petitioner as a Prior Record Level II offender in the presumptive range to 189 to 236
months of imprisonment. (Doc. No. 8-23 at 24). Petitioner was represented by Eric Bach at
trial. Petitioner appealed his convictions to the North Carolina Court of Appeals through
counsels Dianne Jones McVay and Chiege O. Kalu Okwara.
On December 2, 2011, before settling the record on appeal, Petitioner, through counsel,
filed a motion for appropriate relief (“MAR”) in the North Carolina Court of Appeals. (Doc. No.
8-18). On December 13, 2011, the State filed a response, and on December 15, 2011, the North

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Carolina Court of Appeals dismissed the MAR. (Doc. Nos. 8-19; 8-20). Petitioner then filed a
direct appeal with the North Carolina Court of Appeals and on October 2, 2012, the court
affirmed Petitioner’s conviction and sentence in a published opinion. State v. Powell, __ N.C.
App. __, 732 S.E.2d 491 (2012). Petitioner did not seek discretionary review from the North
Carolina Supreme Court.
On July 8, 2013, Petitioner filed a pro se MAR with the Mecklenburg County Superior
Court. (Doc. No. 8-27). On July 12, 2013, the MAR was denied. (Doc. No. 8-28). On July 31,
2013, Petitioner filed a pro se petition for writ of certiorari with the North Carolina Court of
Appeals. (Doc. No. 8-29). The State filed a response on August 12, 2013, and on August 15,
2013, the court denied the petition. (Doc. Nos. 8-30; 8-31). On August 28, 2013, Petitioner
placed his petition in the prison system for mailing, and the petition was stamp-filed by this
Court on September 3, 2013. (Doc. No. 1 at 1; 14). Petitioner brings the following alleged
grounds for relief in the petition: (1) the State failed to disclose exculpatory evidence and
permitted false testimony; (2) Petitioner received ineffective assistance of counsel on the ground
that his trial counsel failed to call certain fact witnesses to testify; (3) Petitioner is actually
innocent and the State failed to present sufficient evidence of his guilt; and (4) Petitioner
received ineffective assistance of counsel on the ground that his trial counsel failed to object
when the State improperly vouched for a witness’ credibility.
On November 26, 2013, Respondent filed the pending motion for summary judgment.
(Doc. No. 7). On December 4, 2013, this Court entered an Order pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), granting Plaintiff fourteen days to respond to the
summary judgment motion. (Doc. No. 9). On January 13, 2014, Petitioner filed a response to

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the summary judgment motion.1 (Doc. No. 12).
The North Carolina Court of Appeals summarized the facts from Petitioner’s trial as
follows:
The evidence presented at trial tended to show the following: On 10
March 2007, Latarshia Grant, the girlfriend of the victim, Jamarr Linell Flowers,
dropped Flowers off at his home around 9:00 p.m. Grant returned to Flowers’s
home between 10:30 and 11:00 p.m. and noticed that “the wood off the door was
gone.” When she pushed through the door, Grant saw Flowers lying dead on the
floor. Grant immediately called 911.
When law enforcement officers arrived, they observed that Flowers had
been shot six times at close range. Law enforcement officers also found a mobile
phone on the floor next to Flowers that did not belong to him. Through their
investigation of the murder, law enforcement officers determined that the phone
belonged to Defendant’s employer and that the employer had given the phone to
Defendant. Law enforcement officers later determined that Defendant received a
call from his girlfriend at 10:40 p.m. and that the call was transmitted to
Defendant’s phone by a cell phone tower located less than one mile from
Flowers’s home.
Thereafter, Defendant was interviewed by law enforcement officers and
admitted that the phone was his, but denied that he had been at the crime scene.
After his interview, Defendant was arrested. At trial, State’s witness Etoyi Blount
testified that, while sharing a jail cell with Defendant and several other men
following Defendant's arrest, Blount heard one of the men ask Defendant how
police had “caught” Defendant for Flowers’s murder:
And [Defendant] had told him that—[Defendant] told him that the
police had found his phone, or either he wouldn’t be in jail if the
police hadn’t found his phone. And then the guy asked
[Defendant], Well, how did the police get your phone? And
[Defendant] said, I must have dropped it after I killed him.
Following the presentation of evidence, the trial court instructed the jury
on both first- and second-degree murder. Thereafter, the jury returned a verdict of
guilty of second-degree murder, and the trial court sentenced Defendant, as a
Level II offender, to 189-236 months imprisonment.

1

Petitioner’s response is in the form of a memorandum. He has not presented any admissible
evidence, i.e., affidavits, in his response to the summary judgment motion.
3

State v. Powell, __ N.C. App. __, 732 S.E.2d 491, 493 (2012).
II.

STANDARD OF REVIEW

A. Summary Judgment Standard
Summary judgment is appropriate in those cases where there is no genuine dispute as to
any material fact, and it appears that the moving party is entitled to judgment as a matter of law.
FED. CIV. P. 56(c)(2); United States v. Lee, 943 F.2d 366, 368 (4th Cir. 1991). Any permissible
inferences to be drawn from the underlying facts must be viewed in the light most favorable to
the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587–88 (1986). Where, however, the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, disposition by summary judgment is appropriate.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).
B. Section 2254 Standard
In addition to the motion for summary judgment standard set forth above, this Court must
also consider the Petition for Writ of Habeas Corpus under the requirements set forth in 28
U.S.C. § 2254. Section 2254(d) provides that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless the adjudication of the
claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States;
or

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(2) resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d); see also Tice v. Johnson, 647 F.3d 87, 103 (4th Cir. 2011).
A claim is considered “adjudicated on the merits” when it is “substantively reviewed and
finally determined as evidenced by the state court’s issuance of a formal judgment or decree.”
Young v. Catoe, 205 F.3d 750, 755 (4th Cir. 2000) (quoting Thomas v. Davis, 192 F.3d 445, 455
(4th Cir. 1999)). A state court adjudication is “contrary to” clearly established federal law only
if “the state court arrives at a conclusion opposite to that reached by [the United States Supreme]
Court on a question of law or if the state court decides a case differently than [the United States
Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S.
362, 412-13 (2000). “It is not enough for us to say that, confronted with the same facts, we
would have applied the law differently; we can accord [the petitioner] a remedy only by
concluding that the state court’s application of the law in his case was objectively unreasonable.”
See Tice, 647 F.3d at 103 (citing Williams v. Ozmint, 494 F .3d 478, 483-84 (4th Cir. 2007)).
“[W]e will not discern an unreasonable application of federal law unless ‘the state court’s
decision lies well outside the boundaries of permissible differences of opinion.’” Id. at 108
(quoting Goodman v. Bertrand, 467 F.3d 1022, 1028 (7th Cir. 2006)).
In addition, “[a] federal habeas court will not review a claim rejected by a state court if
the decision of [the state] court rests on a state law ground that is independent of the federal
question and adequate to support the judgment.” Walker v. Martin, 131 S.Ct. 1120, 1127 (2011)
(internal quotations and citations omitted). “The state-law ground may be a substantive rule
dispositive of the case, or a procedural barrier to adjudication of the claim on the merits.” Id.

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(citation omitted). A procedural default also occurs “when a habeas petitioner fails to exhaust
available state remedies and the court to which the petitioner would be required to present his
claims in order to meet the exhaustion requirement would now find the claims procedurally
barred.” Hyman v. Keller, No. 10–6652, 2011 WL 3489092, at *9 (4th Cir. July 21, 2011)
(quoting Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998)); see also 28 U.S.C. §
2254(b)(1)(A).
Section 2254’s exhaustion requirement demands that a petitioner give “the state courts
one full opportunity to resolve any constitutional issues by invoking one complete round of the
State’s established appellate review process.” Larry v. Branker, 552 F.3d 356, 366 (4th Cir.
2009) (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). However, a petitioner may
overcome a finding of procedural default by showing cause and prejudice arising from the
asserted constitutional error. McCarver v. Lee, 221 F.3d 583, 591–92 (4th Cir. 2000). To show
“cause,” a petitioner may make “a showing that the factual or legal basis for the claim was not
reasonably available to counsel.” Id. at 591 (quoting McCleskey v. Zant, 499 U.S. 467, 494
(1991)). To establish “prejudice,” a petitioner must show “not merely that the errors at his trial
created a possibility of prejudice, but that they worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions.” Id. at 592 (quoting United
States v. Frady, 456 U.S. 152, 170 (1982)).
A habeas petitioner may also overcome his procedural default by demonstrating that the
court’s failure to consider the claim will result in a fundamental miscarriage of justice. Hedrick
v. True, 443 F.3d 342, 359 (4th Cir. 2006) (citing Coleman v. Thompson, 501 U.S. 722, 750
(1991)). The “fundamental miscarriage of justice” exception applies only to a narrow class of

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cases involving extraordinary instances “where a constitutional violation has ‘probably resulted’
in the conviction of one who is ‘actually innocent’ of the substantive offense.” Dretke v. Haley,
541 U.S. 386, 392-94 (2004) (citing Murray v. Carrier, 477 U.S. 478, 494–96 (1986)).
III.

DISCUSSION

A.

Petitioner’s Ground One

In his first ground for relief, Petitioner contends that the State failed to disclose
exculpatory evidence and failed to correct false testimony. Specifically, Petitioner contends that
the State had been informed that Jacqueline McClurken (“McClurken”), a member of the
victim’s family, told Petitioner’s family during a lunch break in the sentencing hearing that she,
in turn, had been told by Latarshia Grant (“Grant”), the victim’s girlfriend, that Grant believed
“three other individuals were responsible for the said crimes.” (Doc. No. 1 at 16). Petitioner
contends that the State failed to disclose this information to Petitioner and his counsel and also
failed to correct Grant’s testimony when she “testified contrarily at trial.” (Id.). Petitioner first
raised this claim in his MAR, and the MAR Court denied the claim on the merits.
Under clearly established Supreme Court law as determined in Brady v. Maryland, the
prosecution, as a matter of due process, must disclose to the defendant evidence that is both
favorable and material to either his guilt or punishment. 373 U.S. 83, 87 (1963). “Impeachment
evidence . . . as well as exculpatory evidence, falls within the Brady rule.” United States v.
Bagley, 473 U.S. 667, 676 (1985). A prosecutor also has the duty to learn of and disclose any
favorable and material evidence known to others acting on the government’s behalf in the case,
including investigating law enforcement officers. Kyles v. Whitley, 514 U.S. 419, 438 (1995).
Brady is not violated, however, where the substance of the undisclosed information could

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have been discovered through due diligence by the defendant. Barnes v. Thompson, 58 F.3d
971, 976 n.4 (4th Cir.), cert. denied, 516 U.S. 972 (1995). Moreover, undisclosed evidence is
only “material” when “there is a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different. . . . A reasonable probability
of a different result is . . . shown when the government’s evidentiary suppression undermines
confidence in the outcome of the trial.” Kyles, 514 U.S. at 433-34 (internal quotation marks and
citations omitted). “The mere possibility that an item of undisclosed information might have
helped the defense, or might have affected the outcome of the trial, does not establish
‘materiality’ in the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109-10 (1976).
Ultimately, the criminal defendant or habeas petitioner has the burden of establishing all the
elements of a Brady claim. See Fullwood v. Lee, 290 F.3d 663, 685 (4th Cir. 2002).
Relatedly, the prosecutor has a constitutional duty to correct testimony the prosecutor
knows to be false. See Strickler v. Greene, 527 U.S. 263 (1999). Specifically, in Napue v.
Illinois, 360 U.S. 264, 269 (1959), the Supreme Court held that perjury relating to the credibility
of a witness should be corrected if the prosecutor knows of its falsity. In Giglio v. United States,
405 U.S. 150, 154 (1972), the Court expanded on Napue and held that if other attorneys in the
prosecutor’s office knew of the falsity of testimony, it did not matter that the prosecutor did not
personally know of the falsity. As with a Brady claim, a criminal defendant or habeas
“[p]etitioner bears the burden of establishing this claim.” Smith v. Gibson, 197 F.3d 454, 458
(10th Cir. 1999).
The MAR Court’s order did not result in a decision that was contrary to, or an
unreasonable application of, clearly established federal law, as determined by the Supreme

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Court–specifically, Brady, Napue, and Giglio. Nor was the MAR Court’s order based on an
unreasonable determination of facts, in light of the evidence presented in the state court
proceedings. Here, a review of the record shows that the State did not violate Brady by
withholding any information about either McClurken or Grant’s alleged statements to
McClurken, nor did the State violate Napue/Giglio during Grant’s testimony. First, with respect
to the Napue/Giglio claim, Petitioner has not identified any specific statement in Grant’s
testimony that he believes to be false. Assuming Petitioner is contending that Grant falsely
testified that she believed Petitioner was involved in the shooting or that she had not heard that
there were “three other individuals” involved, as she allegedly told McClurken, the transcript
shows that Grant never made any such statement during her testimony. See (Doc. No. 8-8 at 223). She was never asked whether she personally believed Petitioner was involved, nor was she
asked what the rumors were regarding the identity of the perpetrator or perpetrators of the crime.
As such, assuming Grant did tell McClurken that she had heard and believed that three other
individuals were involved and that Petitioner was not involved, Grant never testified to the
contrary at trial. Because there was no false testimony, let alone testimony that the State knew to
be false, there was nothing for the State to correct pursuant to Napue and Giglio.
Next, as for Petitioner’s Brady claim, the Court first finds that the evidence on summary
judgment shows that the State complied with all pre-trial disclosure requirements and the State
disclosed, in particular, potential evidence that three people, not including Petitioner, were
involved in the shooting. In a motion for a protective order, the State represented that it had
provided discovery pursuant to N.C. GEN. STAT. § 15A-903, and Petitioner’s response to that
motion indicated that Petitioner had, in fact, received discovery. (Doc. No. 8-21 at 16-20). Such

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discovery would have included “the complete files of all law enforcement agencies, investigatory
agencies, and prosecutors’ offices involved in the investigation of the crimes committed or the
prosecution of the defendant.” N.C. GEN. STAT. § 15A-903(a)(1). As such, the pre-trial
discovery from the State would have included the statements of investigating officers, some of
which Petitioner later submitted as Exhibit Numbers Two and Three to his MAR. (Doc. No. 1 at
44-46). In particular, Exhibit Number 2 notes that a neighbor of the victim told law enforcement
that: (a) “he heard about 5-6 shots coming from the victim’s area”; (b) “it sounded as if the
shot’s [sic] came from somewhere inside”; and (c) “he saw several Hispanic males running from
the victim’s apartment and a couple run into building 6518 apartment #5.” (Id. at 44).
Exhibit No. 3, in turn, notes that Grant told law enforcement that (a) she had been
“informed that Keith Cureton and ‘Felicia’ were involved”; (b) “the victim had bought marijuana
from ‘Keith’ in the past”; and (c) she had been informed that “‘Felicia’ supposedly knocked on
the victim’s door and ‘Keith’ shot the victim first in the leg.” (Doc. No. 1 at 46). Indeed, the
record clearly shows that both Petitioner’s counsel and the prosecutor were aware of these
statements in the law enforcement files since the State filed a motion in limine to preclude the
defense from introducing evidence of third-party guilt that (1) did not “point[] directly to the
guilt of some specific person,” and (2) was not “inconsistent with the defendant’s guilt.” (Doc.
No. 8-21 at 50).
Petitioner’s Brady claim relates to a statement allegedly made by Grant to McClurken
during the trial itself—specifically during the lunch break on the day the verdict was rendered—
that Grant believed that three other individuals killed the victim. At the conclusion of the
sentencing hearing, defense counsel stated for the record that he learned that Petitioner’s family

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had spoken with McClurken during the lunch break that day and that McClurken told them that
she had heard from Grant that Petitioner was not involved in the shooting and “that three other
people were involved.” (Doc. No. 8-17 at 39-40). After the court noted that the issue would
“have to be the subject of a motion for appropriate relief,” the prosecutor stated:
For the record, when we approached the bench, I also shared with the Court that
after Ms. Grant’s testimony, which was last week, Ms. McClurken approached me
and said that Ms. Grant has said that she thought three people were involved, and
Ms. McClurken wondered how Ms. Grant would know that. I shared that with
Mr. Bach the same day that information was shared with me. So this is not new –
the State would contend this is not new information. This was shared with the
defense during the course of trial. And I asked Mr. Bach, since I’m telling you
this information now, do you want me to reduce it to writing, or is this sufficient?
And I contend he conceded that it was sufficient for me to tell him in court.
(Id. at 40-41) (emphases added). Petitioner’s trial counsel agreed that the State had, in fact,
disclosed that Grant had stated that she believed three people were involved, but defense counsel
stated that “the main distinction . . . is that . . . the statement is that [Petitioner] wasn’t one of the
three people involved, which seems to be the new information . . . , which makes it more of a
complex situation.”2 (Id. at 41).

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Respondent argues in its brief that the prosecution indicated to the Court that it had disclosed
to defense counsel Grant’s statement that three people were involved in the shooting, and
Respondent states that defense counsel “agreed that the State had, in fact, made such a
disclosure. Accordingly, contrary to Petitioner’s contention, the State did disclose the
information from McClurken regarding Grant’s alleged belief that three other individuals were
involved in the shooting.” (Doc. No. 8 at 10) (emphases added). This latter assertion by
Respondent is simply incorrect. Indeed, Respondent specifically omits in its brief the fact that,
although defense counsel agreed that the State had disclosed Grant’s statement that she believed
three people were involved in the shooting, counsel asserted that the State did not disclose the
statement by Grant that “three other individuals”—i.e., three individuals, not including
Petitioner—were involved in the shooting. As quoted above, defense counsel specifically argued
that this was “the main distinction” that “makes it more of a complex situation.” Indeed, a
statement of belief that “three people” were involved in the shooting does not exclude Petitioner
as the shooter, whereas a statement of belief that “three other people” were involved in the
shooting expressly excludes Petitioner as the shooter. In the end, as the Court concludes, infra,
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Here, even assuming that Grant did, in fact, state to McClurken that she believed that
three people, not including Petitioner, were involved in the shooting, and even assuming that the
prosecution did not disclose this to defense counsel during the sentencing hearing, the MAR
Court’s denial of this claim was neither contrary to nor an unreasonable application of clearly
established Supreme Court law. First, the statement was not material and was, therefore, not
subject to the disclosure requirements under Brady. McClurken’s statement about Grant’s
statement to her concerning Grant’s personal belief about the perpetrators of the crime would not
have been admissible based on speculation, multiple levels of hearsay, and a lack of relevance.
See State v. Rose, 339 N.C. 172, 191-92, 451 S.E.2d 211, 222 (1994); Hammond v. Hall, 586
F.3d 1289, 1308 (11th Cir. 2009) .
Even if the evidence could have been admitted, because Grant was not a witness to the
shooting what she may have personally believed or not believed after hearing rumors about the
crime would not have had any impact on the proceeding. See (Doc. No. 1 at 46). In sum, there
is not a “reasonable probability” that “the result of the proceeding would have been different”
had the defense introduced evidence of Grant’s statement about the shooting. Kyles, 514 U.S. at
433-34. Even more importantly for purposes of habeas review under the AEDPA, even if the
MAR Court’s order was somehow contrary to or an unreasonable application of Brady and its
progeny, the result did not have a “substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 622 (1993). For all these reasons,
Petitioner’s first ground for relief is without merit.
any alleged non-disclosure of the statement by Grant does not warrant habeas relief, but the
Court is nevertheless troubled by Respondent’s omission in its brief of the very crux of defense
counsel’s argument during the sentencing hearing regarding the alleged non-disclosure by the
prosecution.
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In sum, Petitioner’s first ground for relief is dismissed.
B.

Petitioner’s Ground Two

In Petitioner’s second ground for relief, Petitioner contends that he received ineffective
assistance of counsel on the ground that his trial counsel failed to “form a meaningful
relationship with [Petitioner]” and failed to interview and call important fact witnesses to testify
at the trial, including “an eye witnesses who observed, on date and time of alleged offense, three
[H]ispanic males and a couple (implying male and female) run from the residence of the
deceased immediately after shots were fired and a second witness who had evidence disclosing
the same.” (Doc. No. 1 at 17). Petitioner contends that he received ineffective assistance of
counsel because his attorney failed to investigate and call as a witness Ismael Quintana
(“Quintana”), a neighbor of the victim, who allegedly told law enforcement that: (a) “he heard
about 5-6 shots coming from the victim’s area”; (b) “it sounded as if the shot’s [sic] came from
somewhere inside”; and (c) “he saw several Hispanic males running from the victim’s apartment
and a couple run into building 6518 apartment #5.”3 (Doc. No. 1 at 44).
Petitioner first raised this claim in his MAR, and the MAR Court summarily denied the
claim on the merits. The MAR Court’s adjudication of this claim was neither contrary to nor an
unreasonable application of clearly established Supreme Court law, nor was it based on an
unreasonable determination of facts, in light of the evidence presented in the state court
proceedings. First, in a motion to withdraw as counsel, Petitioner’s trial counsel informed the
trial court that: (a) “[t]he Defendant has not cooperated with preparing a defense”; (b) “[t]he

3

Respondent notes in its brief that Petitioner erroneously claims in his petition that Quintana
said he saw “three Hispanic males and a couple (implying male and female) run from the
residence of the decreased.” (Doc. No. 1 at 17).
13

Defendant asserts that he has witnesses that he wishes to call for trial, but he has refused to
provide this information to counsel”; and (c) Petitioner “refused to participate” in meetings with
a private investigator. (Doc. No. 8-21 at 21-22). It is well-settled that “[t]he reasonableness of
counsel’s actions may be determined or substantially influenced by the defendant’s own
statements or actions. . . . In particular, what investigation decisions are reasonable depends
critically on such information.” Strickland, 466 U.S. at 691. To the extent Petitioner is
complaining that his attorney did not “form a meaningful relationship” with him or did not
present a strong enough defense, Petitioner cannot fault his trial attorney for Petitioner’s own
refusal to cooperate. Further, to the extent Petitioner bases his ineffective assistance of counsel
claim on his attorney’s alleged failure to investigate, Petitioner has presented no evidence of
what his attorney did or did not do as part of a pretrial investigation. Rather, Petitioner presents
merely unsupported and conclusory allegations, which are insufficient to warrant either an
evidentiary hearing or habeas relief. Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992).
Petitioner’s counsel may well have contacted Quintana and attempted to ask him questions about
what he saw on the night of the shooting. Indeed, Petitioner’s counsel was clearly aware of
Quintana and his statement to police, as counsel asked Sergeant Michael Burke on crossexamination at trial about the report containing the statement from “Mr. Contana [sic]” and
whether anyone ever followed up on that particular report. (Doc. No. 8-10 at 42-43).
Moreover, Petitioner cannot demonstrate that his trial counsel was deficient in failing to
call Quintana as a defense witness. In addition to the fact that decisions on which witnesses to
call at trial are strategic decisions entitled to deference, Strickland, 466 U.S. at 689-90, the trial
court would have excluded such evidence anyway, and thus, counsel could not have been

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deficient. Cf. Moody v. Polk, 408 F.3d 141, 151 (4th Cir. 2005) (“Counsel is not required to
engage in the filing of futile motions.”), cert. denied, 546 U.S. 1108 (2006). Specifically, as the
State correctly noted in its motion in limine, “‘[w]here the evidence is proffered to show that
someone other than the defendant committed the crime charged, admission of the evidence must
do more than create mere conjecture of another’s guilt in order to be relevant. Such evidence
must (1) point directly to the guilt of some specific person, and (2) be inconsistent with the
defendant’s guilt.’” (Doc. No. 8-21 at 50 (quoting State v. May, 354 N.C. 172, 176, 552 S.E.2d
151, 154 (2001), cert. denied, 535 U.S. 1060 (2002))). The fact that Quintana allegedly saw
“several Hispanic males running from the victim’s apartment and a couple run into building 6518
apartment #5” did not negate Petitioner’s presence at the scene of the crime nor did it exclude
Petitioner as the actual shooter. Petitioner’s counsel, therefore, cannot be considered deficient
for failing to call a witness to testify when that witness’ testimony would have been excluded.
Further, even if the evidence could have been admitted, Petitioner cannot demonstrate
prejudice under Strickland because there is not a substantial likelihood that the jury would have
reached a different verdict. Harrington, 131 S. Ct. at 792 (holding that in assessing prejudice
under Strickland, “[t]he likelihood of a different result must be substantial, not just
conceivable”). The evidence of Petitioner’s guilt would have remained undisturbed and
uncontradicted had Petitioner’s counsel called Quintana to testify and had Quintana testified
consistent with his statement to police. That is, even if Quintana were allowed to testify that he
saw three Hispanics and a couple run from the victim’s residence, the fact remains that
Petitioner’s phone was found on the floor next to the victim and cell tower records placed
Petitioner’s phone less than a mile from the victim’s residence around the time of the murder. In

15

sum, Petitioner has failed to demonstrate either deficiency or prejudice under Strickland. Thus,
the MAR Court’s denial of this claim was neither contrary to nor an unreasonable application of
clearly established Supreme Court law.
In sum, Petitioner’s second ground for relief is dismissed.
C.

Petitioner’s Ground Three

In Petitioner’s third ground for relief, he contends that his conviction and sentence were
obtained in violation of due process on the ground that he is “actually innocent of the underlying
offense” and that the State failed to produce sufficient evidence of his guilt. (Doc. No. 1 at 19).
Petitioner raised the claim of insufficient evidence on direct appeal, but he failed to then raise the
issue in a timely filed petition for discretionary review (“PDR”) to the North Carolina Supreme
Court, pursuant to N.C. R. APP. P. 15. The claim, therefore, is non-exhausted. See O’Sullivan v.
Boerckel, 526 U.S. 838, 839-40 (1999) (claims not raised in petition for discretionary review to
state’s highest court from intermediate state appellate court on direct review are non-exhausted).
Moreover, if Petitioner were to return to state court and attempt to raise the claim to the state
Supreme Court, a PDR would no longer be available to him as the time for filing such a petition
has long since expired. See N.C. R. APP. P. 15(b) (“A petition for review following
determination by the Court of Appeals shall be similarly filed and served within fifteen days
after the mandate of the Court of Appeals has been issued to the trial tribunal.”); N.C. R. APP. P.
32(b) (“Unless a court orders otherwise, its clerk shall enter judgment and issue the mandate of
the court twenty days after the written opinion of the court has been filed with the clerk.”).
Petitioner’s failure to present his claim regarding the sufficiency of the evidence to the North
Carolina Supreme Court in a timely PDR, thus, renders his claim procedurally defaulted for

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purposes of this habeas proceeding. See O’Sullivan, 526 U.S. at 848.
Next, even if this claim were not procedurally defaulted, the Court notes that Petitioner’s
claim of being “actually innocent” is not a recognized ground for habeas relief. See McQuiggin
v. Perkins, 133 S. Ct. 1924, 1931 (2013) (“We have not resolved whether a prisoner may be
entitled to habeas relief based on a freestanding claim of actual innocence.”). To the extent that
Petitioner is arguing that the evidence was insufficient to convict him, the clearly established
Supreme Court law governing this Court’s review of such a claim is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could find the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319 (1979); In Re Winship, 397 U.S. 358, 362 (1970).
Petitioner argued on direct appeal that the evidence was insufficient to convict him, and
the North Carolina Court of Appeals denied the claim, stating:
Here, the uncontradicted evidence established that Defendant’s cell phone was
found next to the victim, cell phone records showed that Defendant’s cell phone
was located within one mile of the murder scene at the approximate time of the
murder, Defendant gave inconsistent statements about his whereabouts at the time
of the murder, and a witness testified that after his arrest Defendant stated, “I must
have dropped [my phone] after I killed him.” Taken in the light most favorable to
the State, giving the State the benefit of all reasonable inferences, and leaving for
the jury any questions of witness credibility, this evidence was “adequate to
convince a reasonable mind to accept a conclusion” that Defendant killed Flowers
and thereafter dropped his cell phone at the scene. Whether the evidence proved
Defendant was the perpetrator was a question for the jury. Accordingly, the trial
court did not err in denying Defendant’s motion to dismiss for insufficiency of the
evidence. This argument is overruled.
Id. at __, 732 S.E.2d at 498 (internal citations and emphasis omitted). The North Carolina Court
of Appeals’ adjudication of Petitioner’s sufficiency of the evidence claim was neither contrary to
nor an unreasonable application of clearly established Supreme Court law. Nor is the opinion

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based on an unreasonable determination of facts, in light of the evidence presented in the state
court proceedings. See Cullen, 131 S. Ct. at 1389-99; Harrington, 131 S. Ct. at 784-85.
Accordingly, Petitioner is not entitled to habeas relief on this ground.
In sum, Petitioner’s third ground for relief is dismissed.
D.

Petitioner’s Ground Four

In Petitioner’s fourth ground for relief, he contends that he received ineffective assistance
of counsel on the ground that his trial counsel failed to “make proper objections to the State’s
prosecutor vouching for [the] credibility of [a] State witness.” (Doc. No. 1 at 20). Specifically,
Petitioner contends his attorney should have objected when the prosecutor allegedly vouched for
the credibility of Etoyi Blount, Petitioner’s cell mate in the Mecklenburg County jail, who
overheard Petitioner state that he must have dropped his cell phone after he killed the victim.
(Doc. No. 8-12 at 4). Petitioner did not raise this claim either on direct appeal or in his MAR.
On direct appeal, appellate counsel argued that the State improperly vouched for a witness’
credibility, but counsel did not specifically raise this as an ineffective assistance of counsel
claim. See (Doc. No. 8-24 at 36-41). Thus, Petitioner’s ineffective assistance of counsel claim
is non-exhausted. See Duncan v. Henry, 513 U.S. 364, 365-65 (1995) (per curiam). Moreover,
if Petitioner were to return to state court and attempt to raise his this claim, it would be
considered procedurally barred since he could have raised it in his MAR. See N.C. GEN. STAT. §
15A-1419(a)(1), (b). It is well settled that the procedural default rule of N.C. GEN. STAT. § 15A1419(a)(1) is an adequate and independent state ground precluding habeas review. See Boyd v.
French, 147 F.3d 319, 332 (4th Cir. 1998), cert. denied, 525 U.S. 1150 (1999). For these

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reasons, Petitioner’s fourth ground for relief is non-exhausted and procedurally defaulted.4
In sum, Petitioner’s fourth ground for relief is dismissed.
IV.

CONCLUSION

For the reasons stated herein, Respondent is entitled to summary judgment as to all of
Petitioner’s claims.
IT IS, THEREFORE, ORDERED that:
1.

Respondent’s Motion for Summary Judgment, (Doc. No. 7), is GRANTED, and
the petition is dismissed.

2.

It is further ordered that pursuant to Rule 11(a) of the Rules Governing Section
2254 and Section 2255 Cases, this Court declines to issue a certificate of
appealability. See 28 U.S.C. § 2253(c)(2); Miller–El v. Cockrell, 537 U.S. 322,
338 (2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (when
relief is denied on procedural grounds, a petitioner must establish both that the

4

Respondent correctly argues in its brief that Petitioner’s ineffective assistance of counsel claim
likewise fails on the merits because the prosecutor’s statements, in fact, did not constitute
improper vouching, but the Court does not reach the merits since the claim is non-exhausted.
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dispositive procedural ruling is debatable and that the petition states a debatable claim of
the denial of a constitutional right).
Signed: April 15, 2014

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