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Cearley v. Perry

United States District Court, M.D. North Carolina

June 11, 2014

JACKIE RAY CEARLEY, Petitioner,
v.
FRANK L. PERRY, Respondent.[1]

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

L. PATRICK AULD, District Judge.

Petitioner, a prisoner of the State of North Carolina, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket Entry 1.) A jury in the Superior Court of Yadkin County found Petitioner guilty of four counts of assault with a deadly weapon inflicting serious injury, one count of involuntary manslaughter, and one count of felony hit and run in cases 03CRS1543-1548, whereupon the trial court entered judgment sentencing Petitioner to consecutive prison terms of 23 to 37 months, 25 to 39 months, 23 to 37 months, 27 to 42 months, 19 to 23 months, and 8 to 10 months. (Id., ¶¶ 1-6; see also Docket Entry 6-3 at 46-51 (jury verdict forms), 53-64 (judgments).) He pursued but failed to secure relief on direct appeal. State v. Cearley, No. COA04-1172, 172 N.C.App. 172 (table), 616 S.E.2d 32 (table), 2005 WL 1805026 (Aug. 2, 2005) (unpublished), review denied, 360 N.C. 68, 622 S.E.2d 111 (2005).

The Superior Court thereafter denied Petitioner's Motion for Appropriate Relief ("MAR") and the North Carolina Court of Appeals declined review. (Docket Entry 1, ¶¶ 10, 11; see also Docket Entries 6-10, 6-11, and 6-12 (MAR and amendments filed by counsel for Petitioner); Docket Entries 6-13 & 6-14 (order denying MAR (as amended)); Docket Entry 6-15 (certiorari petition); Docket Entry 6-17 (order denying certiorari).) He then instituted this action. (Docket Entry 1.) Respondent answered (Docket Entry 4) and moved for summary judgment (Docket Entry 5). Petitioner responded (Docket Entries 10, 11) and later sought leave to conduct discovery (Docket Entry 12). He also moved for partial judgment in his favor and prompt action by the Court. (Docket Entries 15, 31, 34.)[2] For the reasons that follow, this Court should deny any habeas relief.

I. FACTUAL BACKGROUND

The North Carolina Court of Appeals summarized the facts underlying Petitioner's convictions as follows:

The evidence tends to show that on 1 January 2003, [Petitioner] struck a vehicle driven by Bobby Taylor ("Taylor") at the intersection of U.S. 21 and Rocky Branch Road. Taylor's vehicle contained five additional occupants, Jimmy Yarborough ("Jimmy"), Mary Yarborough ("Mary"), Kimberly Yarborough ("Kimberly"), Luke Collins ("Luke"), and Kathy Taylor ("Kathy"). Kimberly, Luke, and Kathy were thrown from the vehicle and injured due to the collision. Jimmy also sustained injuries. Mary was fatally injured in the collision and died shortly thereafter.
At trial, Bradley Oliver ("Bradley") testified that he and his wife, Angela Oliver ("Angela"), were traveling approximately three to four car lengths behind Taylor's vehicle and witnessed the collision. Bradley testified that [Petitioner] was traveling at "the speed limit [i.e., fifty-five miles per hour] or pretty fast", and Angela testified [Petitioner] appeared to be traveling approximately sixty miles per hour. Both agreed [Petitioner] did not slow in any way when approaching the intersection. Following the collision, Angela testified she observed [Petitioner] run past the bodies lying in the road and away from the scene of the accident.
[Petitioner] went to a home a few miles from the intersection, where he requested a ride from Frank Fleming ("Fleming"), the owner of the home. [Petitioner] explained to Fleming that he had been in an automobile accident. Although Fleming did not know [Petitioner], he agreed to take him to his mother's home. [Petitioner] told Fleming he was not the driver of the automobile.
When they approached the collision site, Fleming testified that [Petitioner] became nervous. As a result, Fleming pulled over past the collision site and refused to take [Petitioner] further. [Petitioner] was then taken back to the accident scene by Fleming at [Petitioner's] request.
Upon returning to the scene, [Petitioner] told the investigating trooper that he had been riding in the vehicle which had struck Taylor's car, but that the driver was Edward Beamer ("Beamer"). Beamer was charged with failure to stop at a stop sign, misdemeanor death by motor vehicle, and felony hit and run. An investigation revealed that Beamer was in another town at the time of the collision. Beamer was not indicted by the grand jury.
On 5 June 2003, [Petitioner] admitted that he, rather than Beamer, was the driver of the truck which hit Taylor's vehicle. [Petitioner] made a written statement to police, stating that: "When I approached the intersection it was not clearly marked. It seemed as though I was traveling on a straight highway. I never seen [sic] the intersection when I approached it. A green Mustang came through the intersection and my truck struck the Mustang."
[Petitioner] was indicted on four counts of felonious assault with a deadly weapon inflicting serious injury, one count of involuntary manslaughter, and one count of felony hit and run.
Evidence was offered at trial as to the intersection where the collision occurred. Trooper Roger Smock ("Trooper Smock"), a specialist in accident reconstruction, testified that the site was a four-way intersection, with U.S. 21, the dominant road, being the north-south route, and Rocky Branch Road, the servient road, being the east-west route. The configuration of the road was changed in 2001, when U.S. 21 was widened and became the dominant highway. Prior to 2001, Rocky Branch Road had been a dominant highway with no stop signs. Trooper Smock stated that the posted speed limit on Rocky Branch Road was fifty-five miles per hour. A "stop ahead" sign was located on the shoulder of Rocky Branch Road, 962 feet prior to the intersection. Trooper Smock testified that two series of multiple rumble strips, defined as hard durable raised plastic strips placed in the roadway to alert a driver "there may be something ahead to be aware of, " were located on Rocky Branch Road approaching the intersection. Trooper Smock further stated that the first set of rumble strips were located 674 feet before the intersection, and the second set of fourteen rumble strips were located 457 feet before the intersection. Finally, a standard sized stop sign and a second stop sign, "substantially larger in size and higher in elevation, " were alongside each other and close to the actual intersection. Trooper Smock testified that all of these devices were in place prior to 1 January 2003.

Cearley, 2005 WL 1805026, at *1-2 (internal brackets and ellipses omitted).

II. PETITIONER'S CLAIMS

The Petition identifies three separate grounds for relief. (Docket Entry 1, ¶ 12.) Ground One, entitled "Ineffective Assistance of Trial Counsel, " complains that Petitioner's trial counsel:

1) "decided on a trial strategy of not presenting any witnesses or evidence..., despite the existence of favorable and exculpatory evidence made known to [him] in the accident investigation report of State Trooper Jerry Mathis" (id., ¶ 12(Ground One)(a));[3]

2) "fail[ed] to prepare and present evidence, including expert witness testimony, regarding the inherently dangerous nature of the intersection where the accident occurred" (id. (Continuation Page Six));

3) "fail[ed] to procure and call an expert [sic] accident reconstruction expert to testify regarding the forensic evidence indicating that the headlights of the vehicle in which the victims were traveling were turned off at the time of the collision" (id. (Continuation Page Seven));

4) "fail[ed] to request a jury instruction on the lesser included offense of misdemeanor assault with a deadly weapon as to two (2) of the victims" (id. (Continuation Page Eight));

5) "fail[ed] to object to the improper testimony of [Ms.] Oliver regarding Petitioner's thoughts or intent while driving his vehicle at the time of the accident" (id. (Continuation Page Ten)); and

6) "fail[ed] to adequately prepare and present mitigating evidence at sentencing" (id. (Continuation Page Eleven)).

Ground Two of the Petition, which bears the title "Ineffective Assistance of Appellate Counsel on Direct Appeal, " presents two claims: 1) appellate counsel "fail[ed] to raise and argue on direct appeal the trial court's error of sustaining the prosecutor's objection to [Petitioner's trial] counsel's question of Trooper Smock regarding the dangerous nature of the intersection and whether he was aware of previous accidents" (id., ¶ 12(Ground Two)(a)); and 2) appellate counsel "fail[ed] to raise and argue the trial court's error in overruling Petitioner's trial counsel's objection to [Ms.] Oliver's lay opinion as to the speed of Petitioner's vehicle" (id. (Continuation Page Twelve)). Finally, beneath the title "Conviction Obtained upon Insufficient Evidence, " the Petition's Ground Three states: "there was insufficient evidence presented to prove culpable negligence to convict Petitioner of involuntary manslaughter and the four counts of assault with a deadly weapon inflicting serious injury." (Id., ¶ 12(Ground Three)(a).)[4]

III. HABEAS STANDARDS

The Court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Further, "[b]efore [the] [C]ourt may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to [this] [C]ourt in a habeas petition. The exhaustion doctrine... is now codified at 28 U.S.C. § 2254(b)(1)." O'Sullivan v. Boerckel , 526 U.S. 838, 842 (1999); see also 28 U.S.C. § 2254(b)(3) ("A State shall not be deemed to have waived the exhaustion requirement... unless the State, through counsel, expressly waives the requirement.").

When a petitioner has exhausted state remedies, this Court must apply a highly deferential standard of review in connection with habeas claims "adjudicated on the merits in State court proceedings, " 28 U.S.C. § 2254(d). More specifically, the Court may not grant relief unless a state court decision on the merits "was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or... was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id . To qualify as "contrary to" United States Supreme Court precedent, a state court decision either must arrive at "a conclusion opposite to that reached by [the United States Supreme] Court on a question of law" or "confront[] facts that are materially indistinguishable from a relevant [United States] Supreme Court precedent and arrive[] at a result opposite" to the United States Supreme Court. Williams v. Taylor , 529 U.S. 362, 406 (2000). A state court decision "involves an unreasonable application" of United States Supreme Court case law "if the state court identifies the correct governing legal rule from [the United States Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407; see also id. at 409-11 (explaining that "unreasonable" does not mean merely "incorrect" or "erroneous"). Finally, this Court must presume state court findings of fact correct unless clear and convincing evidence rebuts them. 28 U.S.C. § 2254(e)(1).

IV. DISCUSSION

A. Ineffective Assistance of Trial Counsel

When assessing Petitioner's first ground for relief, the Court first should take note that:

In order to establish an ineffective assistance of counsel claim..., [a petitioner must] establish that his "counsel's representation fell below an objective standard of reasonableness, " measured by the "prevailing professional norms, " [ Strickland v. Washington , 466 U.S. 668, 688 (1984)], and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, " id. at 694. "Unless a [petitioner] makes both showings, it cannot be said that the conviction or... sentence resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687.
In determining whether counsel's performance was deficient, "[i]t is all too tempting for a [petitioner] to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689. Hence, "court[s] must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance... [and] that, under the circumstances, the challenged action might be considered sound trial strategy." Id . (internal quotation marks omitted).
Similarly, in evaluating whether [a petitioner] has shown actual prejudice from any such deficient performance, it is insufficient for the [petitioner] "to show that the errors had some conceivable effect on the outcome of the proceeding, " because "[v]irtually every act or omission of counsel would meet that test." Id. at 693. Rather, a "reasonable probability" that the result would have been different requires "a probability sufficient to undermine confidence in the outcome." Id. at 694. When challenging a conviction, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695.

Fisher v. Lee , 215 F.3d 438, 446-47 (4th Cir. 2000) (internal parallel citations omitted).

"Surmounting Strickland's high bar is never an easy task.... Even under de novo review, the standard for judging counsel's representation is a most deferential one." Harrington v. Richter, ___ U.S. ___, ___ , 131 S.Ct. 770, 788 (2011) (internal quotation marks omitted). Moreover, "[w]here the issue is whether the state court has unreasonably applied Strickland standards to a claim of ineffective assistance of counsel, ... double deference is required...." Lavandera-Hernandez v. Terrell, No. 1:12-cv-553, 2013 WL 1314721, at *4 (M.D. N.C. Mar. 28, 2013) (Schroeder, J.) (unpublished) (internal quotation marks omitted), appeal dismissed, 539 F.App'x 159 (4th Cir. 2013); see also Harrington, ___ U.S. at ___ , 131 S.Ct. at 788 ("The standards created by Strickland and § 2254(d) are both highly deferential and when the two apply in tandem, review is doubly so." (internal citations and quotation marks omitted)). Accordingly, when the Court's examination of an ineffective assistance claim proceeds under Section 2254(d), "[t]he question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, ___ U.S. at ___ , 131 S.Ct. at 788; see also Cullen v. Pinholster, ___ U.S. ___, ___ , 131 S.Ct. 1388, 1398 (2011) (observing that Section 2254(d) imposes "a difficult to meet and highly deferential standard..., which demands that state-court decisions be given the benefit of the doubt... [and that a] petitioner carries the burden of proof" (internal citations and quotation marks omitted)). In other words, "under the dual, overlapping lenses of [Section 2254(d)] and Strickland [the Court must] ask[] the following question: Was the MAR court's holding incorrect to a degree that its conclusion was so lacking in justification that it was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement?" Moore v. Hardee , 723 F.3d 488, 496 (4th Cir. 2013) (internal brackets, ellipses, and quotation marks omitted).

1. Failure to Call Trooper Mathis

Ground One of the Petition first alleges that trial counsel provided ineffective assistance by not calling Trooper Mathis "as a witness in the trial to testify regarding his observations and investigation of the accident and other testimony which would have been helpful to the defense...." (Docket Entry 1, ¶ 12(Ground One)(a) (Continuation Page Five).) In that regard, the Petition focuses on what it describes as Trooper Mathis's "testimony at Petitioner's hearing on his [MAR] that this accident was no different than any other accident where a motorist had overrun an intersection, that there had been numerous accidents at this intersection prior to Petitioner's accident, that [Trooper Mathis] and other troopers in the county had had discussions of the dangerousness of this intersection and that they were of the belief that it was only a matter of time before someone would get killed at this intersection." (Id.) Trooper Mathis "investigate[d] [the] accident scene... involving [Petitioner] on January 1, 2003[.]" (MAR Hrg. Tr. 176.)[5] In Spring 2003, Trooper Smock and Trooper Craig Caudill, specially-trained accident reconstruction investigators, received assignment to the case and obtained information from Trooper Mathis. (Trial Tr. I 31-32, 57-58, 60, 78-79, 82; Trial Tr. II 25-26, 28, 41-42; MAR Hrg. Tr. 182-83, 190, 192, 196-98, 202.) Trooper Mathis retired on June 30, 2003 (MAR Hrg. Tr. 179) and did not testify at Petitioner's trial (MAR Hrg. Tr. 183; see also Trial Tr. I 2; Trial Tr. II 2; Trial Tr. III 2).

At the MAR hearing, Trooper Mathis testified he interacted with Petitioner at the accident scene for "a good 15, 20 minutes, at least" and formed the opinion that Petitioner "had not in any form or fashion touched alcohol, any kind of drugs that [he] could tell." (MAR Hrg. Tr. 177.) Trooper Mathis further averred "that there was not a great amount of speed involved in this collision. This was no different than numerous other accidents [he] had investigated through the years of a - what you would call sliding through an intersection and T-boning someone when they went by." (MAR Hrg. Tr. 180.) Finally, when asked if he knew "about other accidents at this intersection, " Trooper Mathis responded: "I knew we had had numerous accidents prior to this accident, and we had even talked, as troopers in the county, that we knew it was just going to be a matter of time, somebody was going to get killed in this intersection." (Id.; see also MAR Hrg. Tr. 181 ("Q. How many other accidents were you aware of? A. At least three or four.").)

Respondent argues that this claim fails due to procedural bar because Petitioner did not raise it in his MAR (as amended) and state law would preclude him from doing so at this juncture. (Docket Entry 6 at 9-10.) A careful review of the argument portions of Petitioner's MAR and amendments thereto confirms that he did not fairly present to the state court an ineffective assistance claim predicated on trial counsel's failure to call Trooper Mathis as a witness. (See Docket Entry 6-10 at 21-46; Docket Entry 6-11 at 2-5; Docket Entry 6-12 at 2-3.) Nor do the legal conclusions set forth in the order denying the MAR (as amended) indicate that the MAR court deemed Petitioner to have articulated such a claim. (See Docket Entry 6-14 at 1-45.)[6]

Under these circumstances, a procedural bar applies to this particular ineffective assistance of counsel claim. See Rose v. Lee , 252 F.3d 676, 683 (4th Cir. 2001) (discussing mandatory nature of procedural bar under N.C. Gen. Stat. § 15A-1419, which applies to collateral claims regarding matters the petitioner could have raised previously); Breard v. Pruett , 134 F.3d 615, 619 (4th Cir. 1998) (quoting Coleman v. Thompson , 501 U.S. 722, 735 n. 1 (1991), for proposition that "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'"). In light of that procedural bar, Petitioner must demonstrate either that cause for and prejudice from his procedural default exists or that the refusal to address the defaulted claim will result in a miscarriage of justice. Longworth v. Ozmint , 377 F.3d 437, 447-48 (4th Cir. 2004). Petitioner has made no argument on these points (see Docket Entry 10 at 1-3; Docket Entry 11 at 3-16) and no basis adequate to excuse his default appears evident in the record. Accordingly, the Court should rule this claim procedurally barred.

2. Failure to Present Evidence of Intersection's Dangerousness

The second ineffective assistance claim included in Ground One alleges that "trial counsel... fail[ed] to prepare and present evidence, including expert witness testimony, regarding the inherently dangerous nature of the intersection where the accident occurred...." (Docket Entry 1, ¶ 12(Ground One)(a) (Continuation Page Six).)[7] Notwithstanding the general reference to "expert witness testimony" in the description of this claim, the related "Supporting Facts" section makes no reference to any expert witness testimony Petitioner's trial counsel purportedly should have presented about any dangers posed by the intersection. (See id. (Continuation Pages Six and Seven).) Instead, in terms of specifics, this claim identifies only the failure of trial counsel to gather documentation "pertaining to the number of accidents that had previously occurred at the intersection" and the fact that trial counsel "spoke with local sheriff's deputies and highway patrolmen about the dangerousness of the intersection, but... did not call any witnesses or put on any evidence at trial as to the high number of accidents at that particular intersection [because] he would lose his right to have the last argument to the jury and he considered that important." (Id. (emphasis added).)

Given these considerations, any portion of the instant claim that asserts trial counsel provided ineffective assistance by failing to gather and to present evidence (including expert testimony) about the subject intersection other than as to the number of accidents there fails as entirely conclusory. See, e.g., Powell v. Shanahan, No. 3:13CV496FDW, 2014 WL 1464397, at *8 (W.D. N.C. Apr. 15, 2014) (unpublished) ("[T]o the extent [the] [p]etitioner bases his ineffective assistance of counsel claim on his attorney's alleged failure to investigate, [he] has presented... unsupported and conclusory allegations, which are insufficient to warrant either an evidentiary hearing or habeas relief." (citing Nickerson v. Lee , 971 F.2d 1125, 1136 (4th Cir. 1992))); Talbert v. Clarke, No. 2:13CV199, 2014 WL 644393, at *16 (E.D. Va. Feb. 18, 2014) (unpublished) ("The petition fails to comply with the requirement of Rule 2(c) of the Rules Governing Section 2254 Cases in District Courts that the [p]etitioner state the facts supporting each ground.' Rule 2(c) is more demanding than the notice pleading requirement of Fed.R.Civ.P. 8(a). Mayle v. Felix , 545 U.S. 644, 655 (2005). [I]n order to substantially comply with the Section 2254 Rule 2(c), a petitioner must state specific, particularized facts which entitle him or her to habeas corpus relief for each ground specified. These facts must consist of sufficient detail to enable the court to determine, from the face of the petition alone, whether the petition merits further habeas corpus review.' Bullard v. Chavis, 153 F.3d 719, 1998 WL 480727, *2 (4th Cir. Aug. 6, 1998) (unpublished table decision) (quoting Adams v. Armontrout , 897 F.2d 332, 333 (8th Cir. 1990))."); Rice v. Cooper, No. 3:12CV7RJC, 2012 WL 4321320, at *10 (W.D. N.C. Sept. 20, 2012) (unpublished) ("In Ground 6, [the] [p]etitioner contends that his trial attorney did not want to spend limited state resources to hire an expert to testify about scientific evidence that would clear [him].... [He] is not entitled to relief on Ground 6. First, Ground 6 is wholly conclusory and unsupported. That is, [the] [p]etitioner does not explain what evidence an expert would have testified about that would have exculpated [him]...." (internal brackets and quotation marks omitted) (citing Nickerson , 971 F.2d at 1136)).[8]

To the extent the instant claim asserts that trial counsel provided ineffective assistance by failing to secure records and/or to offer witness testimony about the number of accidents at the subject intersection, it does not suffer from the same degree of vagueness that defeated the remainder of the claim, but still falls short as a matter of law. First, the Petition does not allege what any admissible records might show (or what any witness competently might say) about the number of accidents at the intersection. (See Docket Entry 1, ¶ 12(Ground One)(a) (Continuation Pages Six and Seven).) Second, the Petition does not allege what competent testimony a witness (presumably an expert) could have offered as to what any particular number of accidents proved about the intersection's dangerousness. (See id.) Third, Petitioner's filings in response to Respondent's summary judgment motion do not address these issues. (See Docket Entries 10, 11.)[9]

Those defects preclude habeas relief in this context, as now-retired United States Magistrate Judge P. Trevor Sharp well-explained when faced with a like situation:

[The] [p]etitioner claims also that trial counsel failed to have the decedent's pockets and hands checked for powder residue... and failed to employ a crime-scene expert.... [The] [p]etitioner has failed to show... how he was prejudiced by the alleged failure of counsel; that is, he has failed to show what materially helpful evidence or testimony would have been uncovered had trial counsel taken the actions [the] [p]etitioner now says they should have. Accordingly, all of [his] claims of ineffective assistance of trial counsel are conclusory and speculative and do not support a claim for relief....

Broadnax v. Bullock, No. 1:06CV696, 2008 WL 762255, at *9 (M.D. N.C. Mar. 19, 2008) (unpublished) (citing Nickerson , 971 F.2d at 1136); see also Davis v. Clarke, No. 3:13CV119, 2014 WL 693536, at *4 (E.D. Va. Feb. 21, 2014) (unpublished) ("Where a petitioner faults counsel for not calling a witness, the petitioner must provide concrete evidence of what the witness would have testified to in exculpation, ' so that the reviewing court can adequately assess the significance of the decision not to call the witness." (internal brackets omitted) (quoting United States v. Terry , 366 F.3d 312, 316 (4th Cir. 2004))). The Court similarly should grant summary judgment for Respondent on Petitioner's instant claim.[10]

3. Failure to Offer Expert Testimony on Headlights

For its third ineffectiveness claim, Ground One of the Petition relies on the allegation that trial counsel "fail[ed] to procure and call an expert [sic] accident reconstruction expert to testify regarding the forensic evidence indicating that the headlights of the vehicle in which the victims were traveling were turned off at the time of the collision." (Docket Entry 1, ¶ 12(Ground One)(a) (Continuation Page Seven).) As support for said claim, the Petition declares:

Prior to trial Petitioner told [trial] counsel that he did not believe that at the time of collision that the [victims' vehicle] had its headlights on. The state highway patrol's lamp examination of the right rear tail-light bulb of [the victims' vehicle] revealed cold shock. Cold shock is indicative of a bulb filament that was not incandescent at the time of impact. In lay terms, cold shock indicates that at the time of the accident the tail-light was not burning, which would also indicate that the headlights were not burning at the time of impact. Counsel failed to procure and call an accident reconstruction expert to testify regarding these facts.

(Id. (Continuation Pages Seven-Eight) (emphasis added).)

The accident reconstruction report prepared by Troopers Smock and Caudill (attached by Petitioner to his Response to Respondent's summary judgment motion) states that "[t]he right tail lamp lenses [of the victims' vehicle] were missing. A lamp examination of the right rear taillight bulb displayed cold shock, ' indicative of a filament that was not incandescent. The right brake light bulb was missing." (Docket Entry 10-1 at 22 (emphasis added).) At Petitioner's trial, Trooper Smock testified on direct that said report reflected the following as to the victims' vehicle:

The right tail lamp lenses were missing, and I did a lamp examination of the bulb within that tail lamp assembly, and during my examination, I concluded that the bulb filament had experienced cold shock.' That indicates there was no heat to that element at the time that it experienced a shock or a force strong enough to displace the element within the bulb from its mount.

(Trial Tr. I 51 (emphasis added).) Later, during Trooper Smock's redirect examination, this colloquy occurred:

Q. Now, with regards to your brake lights on page 22 [of] the accident reconstruction report], you talk a little about the cold shock indicative of a filament that was not incandescent. What are you trying to say there, Trooper Smock, with regards to the brake lights at the time of the accident?
A. It indicates that the - it was not hot - cold shock, and a filament inside a light bulb or a standard incandescent light bulb or a bulb in a vehicle has tungsten which is coiled and then comes to the electrode and if it is hot and experiences a movement lateral or vertical it will be stretched because it is hot and pliable. When it is cold, there is no heat to it, and it is more of a breaking-type action so it will remain coiled evenly and break off the electrodes.
Q. So in other words, is that a way of saying at the time of the accident, the driver of the [victims' vehicle] did not have his brakes on?
A. Yes, sir.
Q. But it doesn't say anything about the headlights?
A. No, sir.

(Trial Tr. I 85-86 (emphasis added).)

In his MAR, Petitioner asserted that "[t]here [wa]s new evidence... that would have had a direct and material bearing on the issue of whether [Petitioner] was guilty of culpable negligence..., which [Petitioner's] trial counsel negligently failed to procure and present at the trial [as shown] in the attached affidavit of Don Moore, P.E., an expert in accident reconstruction and analysis...." (Docket Entry 6-10 at 23; see also id. at 21 ("The primary issue in the trial of this case was whether [Petitioner's] conduct in driving his vehicle on the night in question rose to the level of culpable negligence, ' such that he could be properly convicted of the charges of involuntary manslaughter and assault with a deadly weapon inflicting serious injury.").) According to the MAR, "Mr. Moore's affidavit[] proves that [Petitioner] could have been keeping a proper lookout for approaching vehicles and still would not have been able to see the [victims' vehicle] because... the credible scientific evidence indicates that the headlights of [the victims' vehicle] were off' as it approached the intersection and at the time of impact with [Petitioner's] truck[.]" (Id. at 26.)

More specifically, the MAR states:

As Mr. Moore indicates in his affidavit, "the trial testimony of Trooper Smock which indicated that the analysis of the bulb and the finding of cold shock' merely indicated that the brakes were not being applied at the time of the collision is, in my opinion, incorrect." Mr. Moore goes on to state in his affidavit that, based on his review of [the] Highway Patrol reconstruction report [by Troopers Smock and Caudill], the headlights of the [victims' vehicle] were not on at the time of the collision[.]

(Id. at 27 (internal brackets and citation omitted) (emphasis added).) Finally, the MAR asserts that such "evidence, as shown in Mr. Moore's affidavit, could have been procured by [Petitioner's] trial counsel through the exercise of reasonable diligence.... [T]rial counsel was ineffective in failing to investigate, procure and present the foregoing pivotal evidence." (Id. at 28-29.)

At the MAR hearing, the following exchange occurred between Petitioner's MAR ...


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