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Long v. Perry

United States District Court, M.D. North Carolina

May 22, 2018

RONNIE WALLACE LONG, Petitioner,
v.
FRANK LEE PERRY, Respondent.

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

          L. Patrick Auld United States 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.) Respondent has moved for summary judgment (Docket Entry 5) and Petitioner has requested leave to conduct discovery (Docket Entry 10). For the reasons that follow, the undersigned United States Magistrate Judge will deny Petitioner's discovery request, and will recommend that the Court deny his Petition.

         I. Procedural History

         On October 1, 1976, in the Superior Court of Cabarrus County, a jury found Petitioner guilty of first-degree rape and first-degree burglary in cases 76 CRS 5708 and 76 CRS 5709, respectively. (See Docket Entry 1 at 6; see also Docket Entry 7-34 at 5-6.)[1] The trial court sentenced Petitioner to two concurrent life sentences. (Docket Entry 1 at 6.)

         Petitioner appealed (see id.), alleging that the victim's pretrial identification qualified as impermissibly suggestive, see State v. Long, 293 N.C. 286, 289, 237 S.E.2d 728, 730 (1977), law enforcement officers unlawfully searched Petitioner's vehicle, see id. at 292, 237 S.E.2d at 731, and the trial court improperly admitted evidence of a latent shoeprint, see id. at 295, 237 S.E.2d at 733. On October 11, 1977, the North Carolina Supreme Court found no prejudicial error. See id. at 296, 237 S.E.2d at 734 (“Evidence of [Petitioner's] guilt was clear. His convictions result from a trial free from prejudicial error. The verdicts and judgments of the trial court must therefore be upheld. No error.”).[2] Petitioner did not thereafter seek review by the United States Supreme Court. (See generally Docket Entry 1 at 6.)

         On August 1, 1986, Petitioner submitted a pro se motion for appropriate relief (“1986 MAR”) to the Cabarrus County Superior Court, alleging that (1) law enforcement officers illegally searched Petitioner's vehicle (see Docket Entry 7-15 at 4-8); (2) the state improperly selected the jury venire on the basis of race (see id. at 8-23); and (3) Petitioner received ineffective assistance of trial counsel in connection with the motions to quash the jury venire and to suppress evidence seized from Petitioner's vehicle, and Petitioner received ineffective assistance of appellate counsel generally (see id. at 23-28). Following appointment of counsel, Petitioner filed, through counsel, an amendment to his 1986 MAR, adding claims that (1) racial discrimination tainted the selection of the grand jury's foreperson; (2) trial counsel provided ineffective assistance by failing to move for a change of venue or special venire; and (3) appellate counsel acted ineffectively by not arguing the race discrimination in jury pool selection claim on appeal. (See Docket Entry 7-17 at 48-49.) After a hearing, the Honorable Russell G. Walker, Jr., denied the 1986 MAR on the merits. (See id. at 48-53.) The North Carolina Supreme Court subsequently denied certiorari review. State v. Long, No. 530P88, 377 S.E.2d 228 (Mem.), 1989 WL 14003 ( N.C. Jan. 4, 1989).

         On April 24, 1989, Petitioner filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court, alleging that (1) the trial court improperly admitted evidence seized during an illegal search of Petitioner's vehicle (Docket Entry 7-41 at 5); (2) the trial court improperly interfered with Petitioner's challenge to the jury pool selection process (id.); and (3) Petitioner received ineffective assistance of trial counsel generally and in regards to the challenge to the jury pool selection process (id. at 6). On May 3, 1990, United States District Judge N. Carlton Tilley, Jr., adopted United States Magistrate Judge Russell A. Eliason's recommendation of dismissal of that petition on the merits, Long v. Dixon, Civ. No. C-89-278-S (M.D. N.C. May 3, 1990) (unpublished). (See Docket Entry 7-43.)[3]

         Years later, after enlisting the assistance of the University of North Carolina Innocence Project (see Docket Entry 7-25 at 49-50; Docket Entry 7-26 at 1-2), Petitioner filed, through pro bono (and later appointed) counsel, a Motion for Location and Preservation of Evidence in the Cabarrus County Superior Court, specifically seeking any biological evidence taken from the victim and/or her home, the victim's clothing, hair samples taken from Petitioner, as well as the green toboggan law enforcement found in Petitioner's vehicle and any hair contained therein (Docket Entry 7-18). Petitioner also filed, through counsel, a Motion for DNA Testing, seeking to test any available biological evidence, including the hair in the green toboggan. (See Docket Entry 1-2 (hearing transcript on Motion for DNA Testing); see also Docket Entry 7-20 at 20-22 (state court's order denying Motion for DNA Testing).)[4] On May 23, 2005, the Honorable Erwin Spainhour granted Petitioner's Motion for Location and Preservation of Evidence, ordering the Cabarrus County District Attorney's office, the Concord Police Department (“CPD”), and the State Bureau of Investigation (“SBI”) to locate and preserve all evidence. (Docket Entry 7-20 at 16-19.) In response, the SBI initially reported that it possessed no evidence related to Petitioner's case. (Docket Entry 7-21 at 23.)

         At a subsequent hearing to determine whether new evidence existed, a sergeant with the CPD testified that he had located the master case file in Petitioner's case and a spiral evidence notebook. (See Docket Entry 1-2 at 5-13, 19-20.) On June 17, 2005, Judge Spainhour denied Petitioner's Motion for DNA Testing, but granted his counsel the right to examine the master case file and spiral notebook. (See Docket Entry 7-20 at 20-22.) The master case file contained two reports from an identification officer with the CPD, Detective Van Isenhour, detailing items of evidence he had delivered to the SBI. (Docket Entry 1-5, ¶ 5; see also Docket Entry 7-37 at 3-8.) One undated report listed only the latent shoeprint and inked impressions of the bottoms of Petitioner's shoes as items Detective Isenhour had delivered to the SBI for testing. (Docket Entry 7-37 at 7-8.) The other report, dated May 12, 1976, listed numerous additional items of evidence Detective Isenhour had delivered to the SBI for testing, including Petitioner's leather jacket, toboggan, and leather gloves, as well as paint samples, carpet fiber samples, a sample of the victim's head and pubic hair, a sample of Petitioner's head and pubic hair, matchbooks from Petitioner's car, burned matches obtained from the scene, and the victim's clothing. (See id. at 3-6.)[5]

         On January 13, 2006, the SBI, with the assistance of the State Archives, located and provided Petitioner's post-conviction counsel with copies of three SBI test reports (and associated handwritten notes) corresponding to the items of evidence detailed in Detective Isenhour's May 12, 1976 report. (See Docket Entry 7-44; see also Docket Entry 7-36 at 31-51.) The newly disclosed SBI reports (and associated handwritten notes) revealed that SBI agents (1) compared the single hair found at the scene with Petitioner's head and public hair samples, and concluded that the hair from the scene did not match Petitioner's, and evaluated the victim's clothing and did not find any of Petitioner's hairs thereon (“SBI Hair Report”) (see Docket Entry 7-36 at 43-51); (2) examined Petitioner's leather jacket, leather gloves, and toboggan, and did not find any trace of paint or carpet fibers from the victim's home (“SBI Paint/Fiber Report”) (see id. at 31-40); (3) compared five matchbooks from Petitioner's car with the three burned matches from the scene, and found insufficient identifying characteristics to establish a linkage (“SBI Matches Report”) (id.); and (4) compared the latent shoeprint with the inked impressions of Petitioner's shoe bottoms, and concluded that Petitioner's shoes could have made the shoeprint, but that insufficient identifying characteristics existed to conclude that Petitioner's shoes did make the shoeprint (“SBI Shoeprint Report”) (see id. at 41-42).

         In response to another order from Judge Spainhour to locate and preserve evidence (id. at 24-25), Northeast Medical Center (formerly Cabarrus Memorial Hospital) produced 26 pages of the victim's medical records from her hospitalization following the rape (see id. at 28). After in camera review, Judge Spainhour authorized the release of 11 pages of those medical records to Petitioner's post-conviction counsel. (Id.; see also id. at 52-56; Docket Entry 7-37 at 1-2.) Those records made clear that examining physician Dr. Lance Monroe prepared three slides of semen, took two swabs of vaginal secretions and placed them in a test tube, and took pubic combings from the victim. (See Docket Entry 7-20 at 30; Docket Entry 7-36 at 52-56; Docket Entry 7-37 at 1-2.) Subsequent orders from Judge Spainhour in 2007 to locate that biological evidence produced no results. (See Docket Entry 7-20 at 31-53.)

         On August 29, 2008, Petitioner filed, through post-conviction counsel, a second MAR (“2008 MAR”) with the Cabarrus County Superior Court (Docket Entries 7-19 to 7-23), claiming that (1) the state failed to disclose exculpatory material to the defense in violation of Petitioner's right to a fair trial under the Due Process Clause of the United States Constitution, Article I, Section 19 of the North Carolina Constitution, and Brady v. Maryland, 373 U.S. 83 (1963); and (2) Petitioner discovered new evidence with a direct and material bearing on his guilt or innocence under N.C. Gen. Stat. § 15A-1415(c) (see Docket Entry 7-19 at 1).[6] At the evidentiary hearing on Petitioner's 2008 MAR, Petitioner called (1) Richard Rosen, a professor at University of North Carolina Law School and founder of the school's innocence project (see Docket Entry 7-25 at 48-50; Docket Entry 7-26 at 1-12); (2) his trial counsel's investigator, Les Burns (see Docket Entry 7-26 at 12-73); (3) his trial counsel, Karl Adkins and James Fuller (see id. at 74-92; Docket Entry 7-27 at 1-30, 56-67; Docket Entry 7-28 at 1-35); (4) the assistant district attorney at Petitioner's trial, Ron Bowers (see Docket Entry 7-28 at 36-63); and (5) a rebuttal forensic evidence expert, Jeffrey Morris Hollifield (see Docket Entry 7-30 at 20-70).[7]

         On February 25, 2009, the Honorable L. Donald Bridges denied Petitioner's claims under Brady and N.C. Gen. Stat. § 15A-1415(c), but granted sentencing relief on grounds not relevant to the instant Petition (which ultimately resolved in a manner unfavorable to Petitioner). (Docket Entry 7-31.) Petitioner, through new counsel, submitted a petition for writ of certiorari to the North Carolina Supreme Court (Docket Entries 7-33 to 7-38), reasserting his Brady claim, and arguing that the state's failure to preserve the rape kit and the victim's clothing violated Arizona v. Youngblood, 488 U.S. 51 (1988), and California v. Trombetta, 467 U.S. 479 (1984) (see Docket Entry 7-33 at 3-5, 21-63). On February 4, 2011, the North Carolina Supreme Court issued a three-three per curiam decision, with one justice abstaining, resulting in affirmance of the trial court's denial of Petitioner's 2008 MAR. See State v. Long, 365 N.C. 5, 705 S.E.2d 735 (2011).

         On February 3, 2012, Petitioner submitted, through North Carolina Prisoner Legal Services counsel, a second petition for a writ of habeas corpus under Section 2254 to this Court, alleging a Brady claim. Long v. Lancaster, No. 1:12CV119, Docket Entry 1 (M.D. N.C. Feb. 3, 2012). On August 2, 2012, the Honorable Catherine C. Eagles dismissed the action as successive, as Petitioner had not first applied to the United States Court of Appeals for the Fourth Circuit for permission to file a second or successive petition. Long v. Lancaster, No. 1:12CV119, 2012 WL 3151179 (M.D. N.C. Aug. 2, 2012) (unpublished). Petitioner did not appeal that dismissal. See Docket, Long v. Lancaster, No. 1:12CV119 (M.D. N.C. ).

         Thereafter, at Petitioner's counsel's request, the North Carolina Innocence Inquiry Commission (“NCIIC”) agreed to review his case under the Postconviction DNA Testing Assistance Program. (See Docket Entry 1-5, ¶ 7; see also Docket Entry 9-3.)[8] Upon inquiry by the NCIIC, the CPD located three envelopes containing 43 latent fingerprint lifts the CPD had taken from the scene. (See Docket Entry 9-3 at 2; see also Docket Entry 1-1.) An independent expert analyzed the prints, and excluded Petitioner and several alternate suspects as sources of the prints. (See Docket Entry 9-3 at 2.)[9] Additionally, the CPD ran the four latent fingerprint lifts of sufficient value to test through an Automated Fingerprint Identification System (“AFIS”), which returned “no possible contributors” for the lifts. (See Docket Entry 1-1.) The NCIIC provided Petitioner's new (and current) counsel from the Duke University Wrongful Convictions Clinic with a copy of the CPD's report reflecting the AFIS queries. (See Docket Entry 9-3 at 2.)

         On July 30, 2015, the NCIIC decided not to pursue Petitioner's case, because of the lack of evidence appropriate for DNA testing. (Id.) Shortly thereafter, Petitioner requested a copy of the NCIIC's file in his case (which contained the Cabarrus County District Attorney's file and the CPD's file on Petitioner's case), but the District Attorney, Roxann Vaneekhoven, refused to consent to release of the District Attorney's file and the CPD's file. (See Docket Entry 9-2 at 2.) The NCIIC also refused to consent to production of its file due to the “undu[e] burden[] for [the NCIIC] to separate out investigative materials and documents related to [the District Attorney's and CPD's] files from the [NCIIC's] files.” (Id.)

         On April 4, 2016, Petitioner filed, through his current counsel, a motion under 28 U.S.C. § 2244 in the Fourth Circuit for an order authorizing this Court to consider a second or successive petition under Section 2254. In re: Ronnie Wallace Long, No. 16-295, Docket Entry 2 (4th Cir. Apr. 4, 2016). The Fourth Circuit granted that motion. (Docket Entry 1-6.) Thereafter, Petitioner, proceeding through counsel, filed the instant Petition in this Court. (Docket Entry 1.) Respondent moved for summary judgment both on the merits and on the procedural grounds of successiveness, non-exhaustion, and untimeliness (Docket Entries 6, 7), Petitioner responded (Docket Entry 9), and Respondent replied (Docket Entry 12). Petitioner subsequently filed a Motion for Leave to Conduct Discovery (Docket Entry 10) (with a memorandum in support (Docket Entry 11)), which Respondent opposed (Docket Entry 13), whereupon Petitioner replied (Docket Entry 14).

         The undersigned United States Magistrate Judge thereafter issued an Order denying Petitioner's Motion for Leave to Conduct Discovery (Docket Entry 10), and a Recommendation that the Court grant in part and deny in part Respondent's Motion for Summary Judgment (Docket Entry 5), by entering a judgment dismissing the action without prejudice pending Petitioner's exhaustion of his fingerprint-based Brady claim in the state courts, without issuance of a certificate of appealability, Long v. Perry, No. 1:16CV539, 2016 WL 7235779 (M.D. N.C. Dec. 14, 2016) (unpublished) (Auld, M.J.). Petitioner objected to the Order and Recommendation primarily on the grounds that “the latent prints were new, undeveloped evidence to be considered in a holistic assessment of his actual innocence gateway claim, [and] not an independent claim under Brady.” (Docket Entry 19 at 4.) The Court (per United States District Judge Catherine C. Eagles) entered an Order and a Judgment adopting the Recommendation in full and dismissing the matter without prejudice, without issuance of a certificate of appealability. Long v. Perry, No. 1:16CV539, slip op. (M.D. N.C. Feb. 1, 2017) (Eagles, J.).

         Petitioner appealed that Judgment to the Fourth Circuit, and requested a certificate of appealability. (See Docket Entries 23 through 25.) The Fourth Circuit granted Petitioner a certificate of appealability, and vacated and remanded this Court's Judgment via an unpublished per curiam opinion on the grounds that Petitioner “unequivocally disclaimed, both before th[e Fourth Circuit] and the district court, any independent claim based upon newly discovered latent fingerprint evidence, [and] [t]hus, [that] [Petitioner] did not present the district court with a mixed petition that required dismissal.” Long v. Perry, 699 Fed.Appx. 260, 261 (4th Cir. 2017).[10]

         II. Petitioner's Claims

         The Petition identifies two grounds for relief: 1) Petitioner's “credible claim of actual innocence creates a ‘gateway' to federal habeas relief” (Docket Entry 1 at 39 (bold font and capitalization omitted)); and 2) “the state violated Petitioner's constitutional rights under Brady v. Maryland by failing to disclose SBI reports and notes, the victim's medical records, and Detective Isenhour's Reports” (id. at 54 (bold font and capitalization omitted)).

         III. Facts

         On direct appeal, the North Carolina Supreme Court described the trial evidence as follows:

The State offered evidence tending to show that on the evening of 25 April 1976, [the victim], a fifty-four-year-old widow, was alone in her home [in] Concord. She walked into her den around 9:30 p.m. and was grabbed from behind by a black man wearing a black leather jacket, black gloves, and a green toboggan cap covering his ears but not his face. He threw her onto the floor, put a knife at her throat, and demanded money.
He pushed her into her bedroom to her bed, where she rummaged through her pocketbook only to find that her money was gone. He then shoved her into a lighted hall, threw her onto the floor, and raped her. Other sordid details concerning [the assailant's] acts, not necessary to decision, are omitted. The assault continued until the phone rang, at which time the assailant jumped up and left. [The victim] then ran unclothed out the back door to her neighbor's home, and was rushed by ambulance to the hospital.
A gynecologist found live active spermatozoa in her vagina, as well as numerous scratches and bruises on her face and body.
[Petitioner] offered evidence tending to show that on Sunday, 25 April 1976, [he] attended a class reunion planning meeting. He made arrangements with friends to go to Charlotte later that night. [Petitioner's] mother[] testified that her son was at home from around 8:30 p.m. until after 10:00 p.m. Mrs. Long, [Petitioner] and [Petitioner's girlfriend] participated in a phone conversation which lasted about forty-five minutes. [Petitioner's girlfriend] indicated that she called the Long residence at 9:00 p.m. She said that she and her son talked with [Petitioner] and Mrs. Long until 9:45 p.m. Shortly after 10:00 p.m., [Petitioner's] father returned home with the car and [Petitioner] left for a party in Charlotte.
. . . .
[O]n 5 May 1976 officers came to [the victim's] house and requested her to come and sit in district court to see if there might be a man she could recognize as her assailant. The officers told her that they did not know who would be in court, and that she may have to come to court on two or more occasions before she could identify anyone. [The victim] went to the courthouse on 10 May and talked with officers before entering the courtroom. Again, they made no suggestion to her that [Petitioner] or anyone else in particular would be in the courtroom. They simply told her to sit in the courtroom and look around and see if she could recognize the man who raped her. [The victim] entered the courtroom with her friend . . . and sat apart from the officers. There were as many as sixty people in the courtroom, and as many as a dozen black males. [The victim] testified that when the judge called the name Ronnie Wallace Long, a name she had never heard before, a man she recognized as her assailant walked down the aisle past her. She testified that she immediately recognized him, and that, without prompting, she motioned to police that [Petitioner] was the man. . . .
[A]fter the courtroom identification the police took [the victim] to the station and showed her six or eight photographs, and once again, without prompting, she identified [Petitioner]. She also testified that officers did not point out any particular picture to her, and that she recognized [Petitioner] from seeing him at the time of the assault. . . .
[Petitioner] agreed to [a] search [of his vehicle on 10 May 1976] . . . . Upon search, [an officer] found a green toboggan cap under the front seat, and a pair of black leather gloves over the sun visor. [Petitioner] was wearing a black leather jacket. [The victim] described the jacket, the toboggan cap and the gloves as similar or identical to those worn by [her assailant] at the time of the assault. . . .
[According to] an expert on prints, . . . [a] shoe print [lifted from the banister of the front porch of the victim's home near a post leading to the roof which provided access to an unlocked, second-story window above the porch] . . . could have been made by shoes worn by and taken from [Petitioner] at the time of his arrest.

Long, 293 N.C. at 288, 290, 292, 295, 237 S.E.2d at 729, 730-31, 732, 733-34.

         IV. Discussion

         A. Motion for Summary Judgment

         Respondent moves for summary judgment on three grounds: (1) the Court should dismiss the instant Petition as successive under 28 U.S.C. § 2244(b)(2) (see Docket Entry 7 at 15-22); (2) the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) bars the claims in the Petition (see id. at 22-31); and (3) the Petition's claims lack merit under the deferential standard of review of 28 U.S.C. § 2254(d) and (e) (see id. at 31-48).

         In response, Petitioner contends that “otherwise defaulted claims, including those filed outside of the one-year statute of limitations under AEDPA . . ., are excused when a petitioner satisfies the actual innocence gateway.” (Docket Entry 9 at 8 (citing Schlup v. Delo, 513 U.S. 298, 319-22 (1995), and McQuiggin v. Perkins, 569 U.S. 383, 392-93 (2013)).) According to Petitioner, “the actual innocence gateway overcomes Respondents' affirmative defenses and entitles [Petitioner] to an evidentiary hearing.” (Id. (capitalization omitted).) In connection with the actual innocence gateway issue, Petitioner points to Detective Isenhour's two summary reports, the SBI reports and associated notes, and the victim's medical records, turned over to Petitioner's counsel in 2005 and 2006, as well as the latent fingerprint lifts discovered by the NCIIC and compared against six alternate suspects and submitted to an AFIS in 2014 and 2015. (See Docket Entry 1 at 27, 34, 35; see also Docket Entry 9 at 8-12.) Petitioner argues that consideration of this new evidence, especially in light of the victim's “highly unreliable” identification of Petitioner (Docket Entry 1 at 39) and “the scant evidence presented against [Petitioner] at trial makes plain that it is more likely than not that no reasonable juror would have convicted [him]” (id. at 47; see also Docket Entry 9 at 8-15).

         The United States Supreme Court has recognized that a showing of actual innocence may (1) excuse a petitioner's non-compliance with AEDPA's one-year limitations period, see McQuiggin, 569 U.S. at 392-98; (2) permit a federal court to evaluate the merits of a constitutional claim even though a procedural default otherwise would preclude review, see Schlup, 513 U.S. at 315, 319-22; and (3) allow “a petitioner otherwise subject to defenses of abusive or successive use of the writ [to] have his federal constitutional claim considered on the merits, ” Herrera v. Collins, 506 U.S. 390, 404 (1993). However, the Supreme Court also ruled that showings of actual innocence “are rare, ” and that a petitioner must demonstrate that no reasonable juror could vote to find the petitioner guilty beyond a reasonable doubt. McQuiggin, 569 U.S. at 392; see also United States v. Jones, 758 F.3d 579, 583 (4th Cir. 2014) (noting that “substantial claim[s] of actual innocence are extremely rare” (quoting Schlup, 513 U.S. at 321)). Moreover, “‘[a]ctual innocence' means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). “To be credible, such a claim requires [a] petitioner to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup, 513 U.S. at 324. The reviewing court must consider “all of the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under the rules of admissibility that would govern at trial.” House v. Bell, 547 U.S. 518, 538 (2006) (internal quotation marks omitted).

         Here, however, the Court need not undertake the analysis of whether new evidence sufficiently demonstrates Petitioner's actual innocence (or whether/what discovery should proceed on that issue), as required to overcome Respondent's affirmative defenses. Even assuming, arguendo, that no affirmative defense barred Petitioner's Brady claim, that claim fails on the merits. Specifically, for the reasons described below, the 2008 MAR court's denial of relief on the merits must stand.

         This Court must apply a highly deferential standard of review in connection with any habeas claim “adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). In particular, the Court may not grant relief on any such habeas claim unless the underlying 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.; see also 28 U.S.C. § 2254(e)(1) (establishing, in federal habeas proceedings, presumption of correctness as to state court factual findings, subject to rebuttal only by “clear and convincing evidence”). “Where the state court conducted an evidentiary hearing and explained its reasoning with some care, it should be particularly difficult to establish clear and convincing evidence of error on the state court's part, ” Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir. 2010), especially where the state court has “resolved issues like witness credibility, which are ‘factual determinations' for purposes of Section 2254(e)(1), ” id. at 379.

         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”). In other words, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011); see also Burt v. Titlow, 571 U.S.__, __, 134 S.Ct. 10, 16 (2013) (“Recognizing the duty and ability of our state-court colleagues to adjudicate claims of constitutional wrong, AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.”).

         Pursuant to Brady, “a State violates a defendant's due process rights when it fails to disclose to the defendant prior to trial ‘evidence favorable to an accused where the evidence is material.'” Basden v. Lee, 290 F.3d 602, 608 (4th Cir. 2002) (quoting Brady, 373 U.S. at 87). “There are three fundamental components to a Brady claim: (1) ‘The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching'; (2) the ‘evidence must have been suppressed by the State'; and (3) the evidence must be material to the defense, that is, ‘prejudice must ensue.'” Walker v. Kelly, 589 F.3d 127, 137 (4th Cir. 2009) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)) (internal brackets and ellipses omitted) (emphasis added); see also Kyles v. Whitley, 514 U.S. 419, 434 (1995) (“[The] touchstone of materiality [in the Brady context] is a reasonable probability of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the [suppressed] evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” (internal quotation marks omitted)). “It is the petitioner's burden to establish the three elements of a Brady violation[.]” Fullwood v. Lee, 290 F.3d 663, 685 (4th Cir. 2003) (internal citation omitted).

         The 2008 MAR court determined that Petitioner had not satisfied any of the three elements of his Brady claim, as follows:

[Petitioner] has failed to prove by a preponderance of the evidence that his due process rights have been violated under Brady[], in that he has not shown by a preponderance of the evidence that the claimed evidence was withheld by the State, that it was exculpatory, or that the result likely would have been different with the claimed evidence. Decisions made by trial counsel for strategic purposes have been weighed as part of this determination.

(Docket Entry 7-31 at 13.) Petitioner contends that “the [2008] MAR [c]ourt's [o]rder was contrary to, or an unreasonable application of, the [United States] Supreme Court's clearly established Brady jurisprudence with respect to each of the three fundamental Brady components.” (Docket Entry 1 at 57.) Those contentions ultimately fall short.

         1. Favorability

         Petitioner challenges the 2008 MAR court's conclusion that Petitioner “ha[d] not shown by a preponderance of the evidence that the claimed evidence . . . was exculpatory” (Docket Entry 7-31 at 13) in three respects: the 2008 MAR court (1) failed to recognize that “[e]xculpatory evidence need not affirmatively exonerate Petitioner” (Docket Entry 1 at 57); (2) did not acknowledge that “[e]vidence that discredit[ed] the investigation is Brady material” (id. at 60; see also Docket Entry 9 at 21-22); and (3) “failed to recognize any impeachment value in the SBI reports and associated notes, and in Det[ective] Isenhour's report fully describing the items he collected and submitted to the SBI for analysis” (Docket Entry 1 at 62; see also Docket Entry 9 at 19-21).

         Petitioner first contends that the 2008 MAR court unreasonably applied Brady and Kyles by failing to recognize that “[e]xculpatory evidence need not affirmatively exonerate Petitioner.” (Docket Entry 1 at 57.) In that regard, Petitioner challenges the 2008 MAR court's finding of fact that “‘both the expert for the State and the defense testified that the absence of evidence was not evidence of evidence [sic] and the lack of fibers or fragments did not exonerate [Petitioner]'” (id. (quoting Docket Entry 7-31 at 6) (emphasis added)), [11] and the 2008 MAR court's conclusion of law that the SBI Paint/Fiber Report “‘contained no meaningful analysis . . . [and was] not exculpatory'” (id. at 58 (quoting Docket Entry 7-31 at 12) (emphasis added)). According to Petitioner, the 2008 MAR court's “narrow view of favorable evidence is contrary to well-established federal law [set forth] [i]n Kyles” (id.), because the “SBI reports and accompanying notes . . ., like the [withheld evidence] in Kyles, contain no evidence connecting [Petitioner] to the crime” and, thus, qualify as favorable (id. at 59).

         The 2008 MAR court's conclusion that the SBI Paint/Fiber Report and the SBI Hair Report did not qualify as exculpatory (see Docket Entry 7-31 at 12, 13) runs contrary to Kyles. In that case, the United States Supreme Court rejected the state's argument that a printout of the license plate numbers of cars parked at the crime scene which lacked the number of the defendant's car failed to qualify as “impeachment []or exculpatory evidence because [the petitioner] could have moved his car before the list was created and because the list does not purport to be a comprehensive listing of all the cars [at the crime scene].” Kyles, 514 U.S. at 450-51.

         In that regard, the Supreme Court further reasoned:

Such argument . . . confuses the weight of the evidence with its favorable tendency, and even if accepted would work against the [s]tate, not for it. If the police had testified that the list was incomplete, they would simply have underscored the unreliability of the investigation . . . . But however the evidence would have been used, it would have had some weight and its tendency would have been favorable to [the petitioner].

Id. at 451 (emphasis added).

         Here, with regard to the conclusion in the SBI Paint/Fiber Report that “[e]xamination of [Petitioner's] clothing . . . failed to reveal the presence of any [carpet] fibers or paint similar to those [found at the crime scene]” (Docket Entry 7-36 at 31), and the conclusion in SBI Hair Report that “[m]icroscopic examination and comparison of the hair found at the [crime] scene showed it to be different from [Petitioner's head and public] hair” (id. at 43), “however [such] evidence would have been used, it would have had some weight and its tendency would have been favorable to [Petitioner], ” Kyles, 514 U.S. at 451.[12]

         The 2008 MAR court also contradicted Kyles by considering only whether the SBI Matches Report exculpated Petitioner (see Docket Entry 7-31 at 13), noting that the Report indicated that Special Agent Rick D. Cone “could not definitively say that the matches found at the crime scene did not match the matchbooks found in [Petitioner's] car” (id. at 12). In the Report, Special Agent Cone concluded that “[e]xamination of the matches . . . failed to reveal sufficient identifying characteristics to allow the examiner to give an opinion with regard to their origin relative to the matchbooks.” (Docket Entry 7-36 at 31.) However, in the accompanying notes, Special Agent Cone reported that “[a]ll but one of the match books [were] eliminated by color. Characteristics of the last were not sufficient for [identification] with matches . . . . They probably did not originate from this match book.” (Id. at 40 (emphasis added).) Thus, Special Agent Cone eliminated four of the five matchbooks from Petitioner's car as sources of the matches ...


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