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Richardson v. Kornegay

United States District Court, E.D. North Carolina, Western Division

March 24, 2017

JAMES EARL RICHARDSON, Petitioner,
v.
SUPERINTENDENT JOYCE KORNEGAY, Respondent.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         The matter comes before the court on respondent's motion for summary judgment (DE 7) pursuant to Federal Rule of Civil Procedure 56(a), motion to exceed the page limitation (DE 11), and motion to strike (DE 22). The matter also is before the court on petitioner's motion to exceed the page limitation (DE 30). Respondent's motion for summary judgment and motion to strike were fully briefed. The parties did not respond to their respective motions to exceed the page limitation. In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants the motions to exceed the page limitation and grants in part and denies in part respondent's motion to strike. The court also grants respondent's motion for summary judgment.

         STATEMENT OF CASE

         On April 6, 2011, petitioner was found guilty after a jury trial in the Pitt County Superior Court of two counts each of first-degree murder and discharging a weapon into occupied property. See State v.Richardson. No. COA12-731, 2013 WL 793569, at *2 ( N.C. App. March 5, 2013). The trial court then sentenced petitioner to consecutive sentences of life in prison without the possibility of parole for the two counts of first degree murder. Id. The trial court also sentenced petitioner to respective sentences of 25-39 and 73-97 months for the two counts of discharging a weapon into occupied property. Id. On March 5, 2013, the North Carolina Court of Appeals issued an unpublished opinion finding no error in petitioner's conviction and sentence. Richardson, 2013 WL 793569, at * 10.

         On September 11, 2014, petitioner, acting through counsel, filed a motion for appropriate relief ("MAR") in the Pitt County Superior Court. (Resp't's Appx. Ex. 9). The superior court denied the MAR on February 19, 2016. (Pet. Ex. 3). On April 29, 2016, petitioner filed a petition for a writ of certiorari in the North Carolina Court of Appeals. (Id. Ex. 4). Certiorari was denied on May 18, 2016. (Id.)

         On May 20, 2016, petitioner, acting through counsel, filed the instant petition for a writ of habeas corpus in this court pursuant to 28 U.S.C. § 2254. Petitioner raised the following claims: (1) he was denied the right to present favorable evidence when the trial court excluded testimony from his eyewitness identification expert; (2) he received ineffective assistance of counsel; (3) he was denied a fair and impartial jury in violation of the Sixth and Fourteenth Amendments to the United States Constitution; (4) he is actually innocent of his convictions based upon newly discovered evidence; and (5) he was denied due process in violation of the Fourteenth Amendment due to racial animosity in the jury's deliberations.

         On July 21, 2016, respondent filed a motion for summary judgment, arguing that petitioner is not entitled to habeas relief for his claims. Respondent also filed a motion for leave to exceed the page limitation for her brief in support of her motion for summary judgment. Respondent's motion for summary judgment was fully briefed. On November 23, 2016, respondent filed a motion to strike four affidavits petitioner submitted in response to respondent's motion for summary judgment. The motion was fully briefed. On January 5, 2017, petitioner filed a motion seeking permission to exceed the page limitation for his brief in response to respondent's motion for summary judgment.

         STATEMENT OF FACTS

         The facts as stated by the North Carolina Court of Appeals are summarized as follows:

The State presented evidence that in June 2009, defendant borrowed a white 1993 BMW 525 ("the BMW") from a friend. On 30 June 2009, defendant drove the BMW to a bar called The Other Place ("the OP") in Greenville, North Carolina and parked in a nearby lot. Several friends accompanied defendant to the OP, including his brother, Andre Richardson ("Andre"), Cario Arlington ("Arrington"), and Latoya Boyd ("Boyd").
After engaging in an altercation at the OP, defendant was escorted from the bar. When Arrington and Andre observed defendant leaving the bar, they followed him outside. Once outside, another fight ensued between defendant and Matt Blackmon ("Blackmon"), a co-owner of the OP.
When the fight ended, several individuals observed defendant, or someone fitting his description, jogging from the OP toward a white BMW. Rachel Burke ("Burke") observed the person who approached the BMW remove a handgun from the trunk of the vehicle and cock the gun then enter the vehicle and drive away. Although Burke could not identify defendant as the driver of the BMW, Jeff Sealy (" Sealy") did. Following the altercation at the OP, Sealy followed defendant, saw him remove a gun from a white BMW he was driving, enter the vehicle and drive towards the OP.
As Arrington and Andre walked to their car, Arrington observed a white vehicle, later identified as a BMW, speeding by and subsequently heard shots fired. Bystanders in the OP parking lot also observed a white BMW speeding and traveling the wrong way on a one-way street. The parking lot bystanders indicated that a portion of the shooter's arm was visible, described the arm as light-skinned and stated that the shooter held a gun. However, only one observer, Vidal Thorpe ("Thorpe"), identified defendant as the shooter. Thorpe was acquainted with defendant and saw defendant's profile as he shot the gun from the vehicle. As a result of the shots that were fired, two men were injured, Edgar Landon Blackley and Charles Andrew Kirby. Both men died as a result of gunshot wounds to their chests.
Arrington and Andre rej oined defendant at a friend's house later that morning. When Arrington arrived, he noticed the BMW was parked a few houses up the street. Arrington then observed some individuals sitting in the BMW but could not identify them. Subsequently, defendant, Arrington, Andre and Boyd traveled to Raleigh and stayed in a hotel until the next afternoon.
When the officers investigated, they recovered six spent .45 casings from the area surrounding the shooting. All the casings had been fired from the same gun and were consistent with being fired from a Highpoint brand gun. Defendant owned a Highpoint .45 semi-automatic handgun.
A few days after the shooting, defendant contacted Detective Sean Moore ("Detective Moore"), a childhood friend and inquired if the situation was "f d up" or "did [defendant] 'f up?' " Detective Moore advised defendant that the situation was "not good." Several days later, defendant contacted Detective Moore again. This time, defendant indicated he was ready to surrender to law enforcement. Detective Moore arrested defendant.

Richardson. 2013 WL 793569, at *l-2.

         DISCUSSION

         A. Motions to Exceed the Page Limitation The parties each request permission to exceed the page limitation for their respective memorandums in support and in opposition to summary judgment. For good cause shown, the motions are GRANTED.

         B. Motion to Strike

         Respondent seeks to strike four affidavits which petitioner attached to his response to respondent's motion for summary judgment on the grounds that the affidavits were signed after petitioner's post-conviction proceedings and were not considered by the state post-conviction court. In Cullen v. Pinholster, 563 U.S. 170 (2011), the Supreme Court determined that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Id. at 181-182. Cullen states that "[provisions like §[]2254(d)(1) [] ensure that federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings." Id. at 186 (internal quotations and citations omitted); see also Harrington v. Richter. 562 U.S. 86, 103 (2011) ("Section 2254(d) is part of the basic structure of federal habeas jurisdiction, designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions").

         The affidavits at issue were executed by the following: Thomas J. Moore ("T. Moore"), an attorney appointed to represent petitioner at trial; Constance E. Widenhouse ("Widenhouse"), an attorney assigned to represent petitioner on appeal; Lamuel Anderson, who served as a juror during petitioner's trial; and Debbie Anderson, Lamuel Anderson's wife. ((DE 21), Exs. B-D; (DE28), Attach. I).[1] The court begins with the affidavits of Lamuel and Debbie Anderson which petitioner provided in support of his jury-related claims. Petitioner argues that these affidavits should be considered by the court because they contain information identical to the information contained in an affidavit from law student Brian T. Ziegler ("Ziegler"), which was presented to the MAR court.

         (See (DE 9), Ex. 9, pp. 76-79). While the new affidavits present information which is substantially similar to the information contained in Mr. Zeigler's affidavit, Lamuel Anderson's affidavit also contains new information regarding his recollection of a white juror talking about having driven past the location where the shooting occurred during trial. (Compare (DE 9), Ex. 9, pp. 76-79, 81-84 and (DE21), Ex. D).

         Regardless of whether the affidavits contain new information or information which already was presented to the court, they pertain to petitioner's jury-related claims which were adjudicated on the merits by the MAR court. The affidavits themselves were not presented to the MAR court. Thus, consideration of the affidavits of Lamuel and Debbie Anderson is precluded pursuant to the Court's ruling in Cullen, and respondent's motion to strike is GRANTED as to these affidavits. See Cullen. 563 U.S. at 181-82; see also. Williams v. Witherspoon. No. 3:14CV598, 2015 WL 5009210, at *4 (W.D. N.C. Aug. 21, 2015) (stating that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits."), appeal dismissed. No. 15-7588, 2016 WL 3997236 (4th Cir. July 26, 2016).

         The court now considers the affidavits of T. Moore and Widenhouse, which petitioner submitted in support of his ineffective assistance of counsel claim. As discussed further below, the MAR court determined that petitioner's ineffective assistance of counsel claim was procedurally barred pursuant to N.C. Gen. Stat. § 1419(a)(3). As such, this claim was not adjudicated on the merits by the state court and is not subject to the analysis set forth by the Court in Cullen. See Cullen. 563 U.S. at 181-182; Gallow v. Cooper. 133 S.Ct. 2730, 2731 (2013) (suggesting that new affidavits may be used to overcome procedural default) (denying certiorari petition). Thus, respondent's motion to strike the affidavits of T. Moore and Widenhouse is DENIED.

         C. Motion for Summary Judgment

         1. Standard of Review

         Summary judgment is appropriate when there exists no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the burden of initially coming forward and demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmoving party then must affirmatively demonstrate that there exists a genuine issue of material fact requiring trial. Matsushita Elec. Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 250.

         The standard of review for habeas petitions brought by state inmates, where the claims have been adjudicated on the merits in the state court, is set forth in 28 U.S.C. § 2254(d). That statute states that habeas relief cannot be granted in cases where a state court considered a claim on its merits unless the decision was contrary to or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court, or the state court decision was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1) and (2). A state court decision is "contrary to" Supreme Court precedent if it either arrives at "a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite" to that of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 406 (2000). A state court decision "involves an unreasonable application" of Supreme Court law "if the state court identifies the correct governing legal principle from [the Supreme] Court's cases but unreasonably applies it to the facts of the state prisoner's case." Id. at 407; see White v. Woodall 134S.Q. 1697, 1702-07

         (2014); Nevada v. Jackson. 133 S.Ct. 1990, 1992 (2013) (per curiam). A state court decision also may apply Supreme Court law unreasonably if it extends existing Supreme Court precedent to a new context where it does not apply, or unreasonably refuses to extend existing precedent to a new context where it should apply. Id. The applicable statute

does not require that a state court cite to federal law in order for a federal court to determine whether the state court's decision is an objectively reasonable one, nor does it require a federal habeas court to offer an independent opinion as to whether it believes, based upon its own reading of the controlling Supreme Court precedents, that the [petitioner's] constitutional rights were violated during the state court proceedings.

Bell v. Jarvis. 236 F.3d 149, 160 (4th Cir. 2000), cert, denied. 534 U.S. 830 (2001). Moreover, a determination of a factual issue made by a state court is presumed correct, unless rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

         Congress intended the standard in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") to be difficult to meet. See White. 134 S.Ct. at 1702 (2014); Harrington. 562 U.S. at 102. "Section 2254(d) is part of the basic structure of federal habeas jurisdiction, designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions." Harrington, 562 U.S. at 103. To prevail in an action brought under section 2254(d), a petitioner must show that "there was no reasonable basis for the state court to deny relief." Id. at 784; see DeCastro v. Branker. 642 F.3d 442, 449 (4th Cir. 2011).

         2. Analysis

         a. Exclusion of Eyewitness Expert Testimony

         In his first claim, petitioner asserts that the trial court denied him the right to present favorable evidence and hindered his ability to present a complete defense when it excluded testimony from petitioner's eyewitness identification expert, Dr. Lori Van Wallendael ("Dr. Wallendael"), in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The court of appeals adjudicated this claim and determined that the superior court did not abuse its discretion when it concluded that the eyewitness expert testimony would have been unfairly prejudicial and was more prejudicial than probative. Richardson, 2013 WL 793569 at *3. In particular, the court of appeals reasoned:

In the instant case, witnesses for the State and defendant provided conflicting testimony regarding the identification of the shooter. While several of the witnesses described the shooter as having characteristics matching those of defendant, the descriptions were not identical. Only one witness, Thorpe, indicated that he saw defendant's profile in the car and identified him as the shooter. Dr. Van Wallendael visited the scene, reviewed witness statements and lineup materials and observed some of the in-court testimony. However, she did not interview the witnesses and did not hear all of the in-court testimony, particularly the testimony of the defense witnesses and Thorpe's testimony. Defendant indicates that he only intended to question Dr. Van Wallendael regarding the testimony of the witnesses whose testimony she did observe. However, since she did not hear the testimony of the defense witnesses, she would have only testified ...

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