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Hawkins v. Hargrave

United States District Court, M.D. North Carolina

October 10, 2014

WENDELL HARGRAVE, Respondent.[1]


L. PATRICK AULD, Magistrate 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 Davidson County found Petitioner guilty of two counts of statutory rape and four counts of statutory sexual offense against a 14-year-old victim in cases 04CRS57564-57566, whereupon the trial court entered judgment sentencing Petitioner to two consecutive prison terms of 240 to 297 months. (Id., ¶¶ 1-6; see also Docket Entry 6-4 at 56-58 (jury verdict forms), 61-64 (judgments).) Petitioner appealed, and the North Carolina Court of Appeals found merit to Petitioner's argument of a clerical error in the judgment, but affirmed the judgment on all other grounds. State v. Hawkins, No. COA09-821, 202 N.C.App. 585 (table), 691 S.E.2d 133 (table), 2010 WL 522702 (Feb. 16, 2010) (unpublished), review denied, 364 N.C. 244, 698 S.E.2d 662 (2010).

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 Entry 6-10 (MAR filed by counsel for Petitioner); Docket Entry 6-11 (order denying MAR); Docket Entries 6-12 & 6-14 (certiorari petition and amendment filed by counsel for Petitioner); Docket Entry 6-15 (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 in opposition (Docket Entry 7) and Respondent filed a reply (Docket Entry 8). For the reasons that follow, the Court will deny any habeas relief.[2]


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

In March 2004, L.K. was a fourteen-year-old girl who had been expelled from her middle school for putting whiteboard cleaner into her teacher's coffee. Her parents decided that she would stay with [Petitioner] and his family, who they hoped would be able to discipline L.K. effectively. [Petitioner] was a Master Sergeant in the United States Air Force and lived with his wife and child.
L.K. lived with [Petitioner] and his family from Monday through Friday each week from March through early July 2004. According to L.K., after the first week of her living at [Petitioner's] house, [Petitioner] began to sexually assault her. The first instance of sexual assault occurred one day when L.K. came out of the bathroom upstairs, and [Petitioner], standing in the doorway of his bedroom with a gun, requested that she enter his bedroom. She complied. Once in the bedroom, [Petitioner] pulled down L.K.'s pants and underwear. He forced his penis into her mouth and made her give him oral sex. Then [Petitioner] put his penis into L.K.'s vagina and began to rape her. According to L.K., these events lasted approximately thirty minutes.
L.K. testified that [Petitioner] assaulted her another time on the couch downstairs. Late one night after the family had gone to bed, [Petitioner] returned downstairs where L.K. was sitting on the couch and watching T.V. [Petitioner] then pulled his penis out of his shorts, which L.K. understood to be a command for oral sex because "by this time this [had] happened multiple times." L.K. then performed oral sex on [Petitioner]. Afterwards, [Petitioner] pulled down L.K.'s pants and "stuck his fingers inside" her vagina. He "started moving [his fingers] around inside [L.K.]" for approximately three to four minutes. [Petitioner] then stood with one leg on the floor and knelt on the couch with his other leg. He put his penis into L.K.'s vagina and had sex with her for approximately thirteen to fifteen minutes.
L.K. testified to another instance of sexual assault that occurred in the half-bathroom downstairs. [Petitioner] met her as she was leaving the bathroom and "walked [her] backwards" back into the bathroom. He pulled his penis out of his shorts. L.K. recognized this "command" and testified that she was scared. She performed oral sex on [Petitioner] for approximately four to five minutes.
According to L.K., [Petitioner] also sexually assaulted her on the balcony of his house. He "bent [her] over the balcony" and had anal intercourse with her. L.K. could not recall how long the anal intercourse lasted.
On another night, [Petitioner] made L.K. lay on her back on the floor next to the balcony and pulled down her pants and underwear. [Petitioner] then performed oral sex on L.K. for two to three minutes.
L.K. gave a written statement that she was a virgin before [Petitioner] raped her and that she had not had sex with anyone else during the applicable time period. On 21 July 2008, [Petitioner] was indicted on six counts of first-degree statutory sexual offense and two counts of first-degree statutory rape.
The jury trial lasted from 20 January through 22 January 2009. At trial, L.K. testified that all of these events occurred between March and June 2004. She recalled various details personal to [Petitioner], including that he has several moles on his buttocks and that he keeps lubricant in the top drawer beside his bed. [Petitioner] denied all of the allegations of sexual assault and offered alternative explanations for L.K.'s knowledge of those personal details - for example, that he had caught L.K. spying on him through the bathroom door once after he had exited the shower. He also noted that he has a prominent surgical scar that L.K. did not recall and that the abnormal curvature of his penis would have made certain sexual positions that L.K. described impossible.
The State presented evidence that on 14 July 2004, L.K.'s hymen was not intact, indicating that some sort of vaginal penetration had occurred prior to that date. [Petitioner] attempted to introduce testimony from a witness ("the proposed witness") who claimed to have had sex with L.K. during the applicable time period. However, after an in camera review of the proposed testimony, the trial court ruled that it was inadmissible based upon the proposed witness's inability to remember exactly when he had had sex with L.K. The trial court also prevented defense counsel from cross-examining L.K. with the proposed witness's information. On 22 January 2009, the jury found [Petitioner] guilty of four counts of sexual offense and two counts of rape but not guilty on the other two counts of sexual offense. [Petitioner] was sentenced to two consecutive terms of 240 to 297 months imprisonment.

Hawkins, 2010 WL 522702, at *1-2.


The Petition identifies three separate grounds for relief. (Docket Entry 1, ¶ 12; Docket Entry 1-1 at 10-24.) Petitioner alleges that (1) the trial court violated his right under the Sixth Amendment's Confrontation Clause by excluding (a) his cross-examination of the victim regarding her sexual history and (b) the testimony of a witness ("R.M.") who claimed to have had sexual intercourse with the victim (Docket Entry 1-1 at 10-12); (2) his trial counsel provided ineffective assistance by failing to renew his request that the trial court allow R.M.'s testimony as an alternative explanation for a nurse practitioner's testimony that her examination of the victim was consistent with sexual assault (id. at 12-14); and (3) his trial counsel performed ineffectively by failing to assert Petitioner's right to a speedy trial and failing to move to dismiss the case based on a speedy trial violation (id. at 14-24).


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.[3] 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").


A. Sixth Amendment Right to Confront Witnesses

In his first ground for relief, Petitioner asserts that the trial court deprived him of his Sixth Amendment right to confront his accuser by (1) denying him the right to cross-examine the victim regarding her sexual history; and (2) excluding the testimony of a witness, R.M., who would have testified that he had engaged in sexual intercourse with the victim. (Docket Entry 1-1 at 10-12.) He asserts that North Carolina's rape shield statute, N.C. Gen. Stat. § 8C-1, Rule 412, did not bar the excluded inquiry and evidence, because the statute permits such matters when "offered for the purpose of showing that... the acts charged were not committed by the defendant." (Id. at 11 (citing N.C. Gen. Stat. § 8C-1, Rule 412(b).) Petitioner contends that the instant case bears substantial similarity to Davis v. Alaska , 415 U.S. 308 (1974), which found the defendant's constitutional right to confront his witnesses "paramount" to the state's policy to protect the anonymity of juvenile offenders, id. at 318-19.

Petitioner's argument implicitly suggests that here, as in Davis, this Court should find his Sixth Amendment right to elicit evidence intended to challenge the credibility of the victim's statement that she was a virgin at the time of Petitioner's first rape, paramount to the state's interest in protecting the victim's privacy under North Carolina's rape shield law. According to Petitioner, his interest in pursuing such a credibility attack held particular importance because the state based its case "primarily on [the victim's] testimony." (Docket Entry 1-1 at 12.) Petitioner argues that the North Carolina Court of Appeals' decision finding no error in the exclusion of this line of impeachment "conflict[s] with and misappl[ies] clearly established federal law as determined by the United States Supreme Court" in Davis. (Id.) Petitioner's arguments provide no basis for habeas relief.

Petitioner raised the substance of this claim on direct appeal and the North Carolina Court of Appeals denied the claim on the merits, as follows:

[Petitioner] first argues that his trial was not fair because [Petitioner] was prevented from cross-examining his accuser concerning her sexual activity and from confronting his accuser with testimony that would impeach her testimony. [Petitioner] challenges both the trial court's evidentiary ruling that prevented cross-examination on this issue and trial counsel's failure to renew a motion to admit the testimony of a prospective defense witness. We disagree on both points and will address them separately.
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." N.C. Gen. Stat. § 8C-1, Rule 403 (2003). "Whether to exclude evidence under Rule 403 is a matter within the sound discretion of the trial court." State v. Cotton , 318 N.C. 663, 668, 351 S.E.2d 277, 280 (1987) (citing State v. Mason , 315 N.C. 724, 340 S.E.2d 430 (1986)).
"While a defendant clearly is entitled to cross-examine an adverse witness, the scope of that cross-examination lies within the sound discretion of the trial court, and its rulings thereon will not be disturbed absent a showing of abuse of discretion.'" State v. Dorton , 172 N.C.App. 759, 766, 617 S.E.2d 97, 102 (2005) (quoting State v. Herring , 322 N.C. 733, 743-44, 370 S.E.2d 363, 370 (1988)). "When cross-examination involves the sexual behavior of the complainant, our Rape Shield Statute further limits the scope of cross-examination by declaring such examination to be irrelevant to any issue in the prosecution except in four very narrow situations." Id . (internal citations and quotation marks omitted).
North Carolina Rules of Evidence, Rule 412(b) ("Rule 412") provides:
Notwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior:
(1) Was between the complainant and the defendant; or
(2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or
(3) Is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant's version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or
(4) Is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.
N.C. Gen. Stat. § 8C-1, Rule 412(b) (2003).
In the instant case, the trial court conducted an in camera hearing to determine whether the proposed testimony and line of questioning with respect to L.K.'s sexual activity were admissible pursuant to Rule 412. Defense counsel offered the evidence for purposes of impeaching L.K.'s testimony that she was a virgin prior to March 2004. However, during the hearing, the proposed witness was unable to state with confidence that he had engaged in sexual intercourse with L.K. before March of 2004. This lack of certainty diminished both the relevance and the probative value of the proposed witness's testimony and provided a reason for the trial court to exercise its discretion by excluding the offered evidence. Accordingly, the ...

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