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Reich v. Slagle

United States District Court, W.D. North Carolina, Asheville Division

July 8, 2018

SCOTT RANDALL REICH, Petitioner,
v.
MIKE SLAGLE, Respondent.

          ORDER

          FRANK D. WHITNEY UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court upon Petitioner Scott Randall Reich's pro se 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus (Doc. No. 1) and Respondent's Motion for Summary Judgment (Doc. No. 10). Also before the Court is Petitioner's Motion for Discovery. (Doc. No. 19.)

         I. BACKGROUND

         Petitioner is a prisoner of the State of North Carolina, who, on October 2, 2008, was convicted by a Rutherford County jury of the first-degree murder of Adam Kay. State v. Reich, 690 S.E.2d 769, 2010 WL 347910, at *1 ( N.C. Ct. App. 2010) (unpublished). The trial court sentenced defendant to life imprisonment without possibility of parole. Id. The North Carolina Court of Appeals summarized the evidence presented at trial, as follows:

In early 2005, Scott Randall Reich (defendant) and his wife Margaret moved to Dills Road in Rutherford County. In November 2005, Adam Kay (Kay), his wife, and children also moved to Dills Road. The Reichs' relationship with their neighbors deteriorated. Defendant accused [neighbors] Mark and Tyler Dorsey of shooting at his home, peeping at his wife, stealing, setting fires, tampering with his vehicle, puncturing his tires, and poisoning his dogs.
On 29 October 2006, defendant approached his neighbors, Mr. and Mrs. Cordell. He was dressed in camouflage clothing, with a pistol and a long knife. Defendant was carrying a rifle with a scope and stated that he was looking for Mark Dorsey and Kay because they had been “shooting in his house in his kitchen that day.” After telling the Cordells many stories about things that had happened to him, defendant stated that he was “going to get” Kay.
On 30 October 2006, Kay left work and drove home. Kay's fifteen-year-old son found his father's body lying in the driveway when he got home from school. The autopsy revealed two bullet wounds to Kay's head and neck, which the medical examiner opined were fired from an “indeterminate range.” The medical examiner testified that based upon test firings, the gun would have been over a foot away from Kay, but how much over a foot, he could not say for certain. Defendant acknowledged that he shot Kay but testified that his gun went off as the two men struggled. As Kay was pulling him forward, defendant believed he may have shot Kay a second time. Defendant disassembled the pistol and threw the gun barrel into the woods. The barrel was never located. In the course of searching defendant's home and the nearby woods, officers discovered a cache of weapons.
Defendant was indicted for the murder of Kay. The trial court submitted possible verdicts of first degree murder, second degree murder, voluntary manslaughter, and not guilty to the jury.

Id.

         Petitioner appealed, arguing only one ground - that the trial court erred in admitting evidence of explosive devices found on his property by law enforcement officers. Id. at *2. On February 10, 2010, the North Carolina Court of Appeals issued an opinion, finding no error had occurred. Id. at *3. Petitioner did not seek discretionary review of the decision in the North Carolina Supreme Court. (§ 2254 Pet. 2, Doc. No. 1.)

         On July 10, 2013, [1] Petitioner filed a 28 U.S.C. § 2254 petition for writ of habeas corpus in this Court, alleging that the State and his defense attorney withheld crime scene photos and investigators' case notes from him and that the State used “damaged and fabricated evidence to obtain a conviction.” § 2254 Pet. 5, Reich v. Perry, No. 1:13-cv-00221-FDW (W.D. N.C. ), Doc. No. 1. The Court dismissed the petition without prejudice on January 16, 2014, because Petitioner had not exhausted his state court remedies before filing his federal habeas petition. Order Dismiss. § 2254 Pet., id. at Doc. No. 3.

         Petitioner next filed a pro se motion for appropriate relief (“MAR”) on October 17, 2015, in the Superior Court of Rutherford County. (State's Resp. to Cert. Pet. 1 ¶ 3, Doc. No. 1-4.) It was denied on the merits on April 8, 2016. (Order Den. MAR, Doc. No. 1-12.) Petitioner filed petitions for writ of certiorari in the North Carolina Court of Appeals on October 31, 2016, and November 3, 2016. (State's Resp. to Cert. Pet. 2 ¶ 4.) The North Carolina Court of Appeals denied each in separate orders entered on November 17, 2016. (Orders Den. Cert. Pets., Doc. Nos. 1-2, 1-3.)

         Petitioner filed the instant § 2254 federal habeas Petition on March 3, 2017.[2] He raises the following grounds for relief: 1) the State knowingly withheld exculpatory and impeaching evidence that one of the officers tasked with securing the crime scene had pending criminal charges; 2) defense counsel rendered ineffective assistance at trial because he knew one of the officers tasked with securing the crime scene had pending criminal charges; (3) defense counsel rendered ineffective assistance when he did not give Petitioner crime scene photos, either prior to or during trial, that contradicted statements made by one of the investigating detectives; and 4) defense counsel rendered ineffective assistance when he failed, either prior to or during trial, to bring to Petitioner's attention that there were crime scene photos that contradicted each other.

         With respect to his first two grounds for relief, Petitioner alleges that that he did not learn until after judgment was entered that one of the officers tasked with securing the crime scene pled guilty a few months before Petitioner's trial to crimes that cast doubt on the officer's integrity and credibility. Accordingly, the Court directed Petitioner to submit information about how and when he learned of the officer's convictions. (Doc. No. 2.) Petitioner has complied (Doc. Nos. 3, 5.)

         Respondent has filed an Answer (Doc. No. 9) and a Motion for Summary Judgment (Doc. No. 10) raising the statute of limitations defense and, with respect to Petitioner's fourth ground for relief, a procedural default defense (Doc. Nos. 10, 11). Respondent also argues that Petitioner's claims are without merit. (Doc. No. 11.)

         Petitioner has responded to the Motion for Summary Judgment (Doc. No. 14), replied to the Answer (Doc. No. 16), and filed various supplements and addendums to his pleadings (Doc. Nos. 4, 5, 7, 18). He also has filed a Motion for Discovery (Doc. No. 19), which Respondent opposes (Doc. No. 20).

         II. STANDARD OF REVIEW

         A. Summary Judgment

         Summary judgment is appropriate in those cases where there is no genuine dispute as to any material fact, and it appears that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c)(2); United States v. Lee, 943 F.2d 366, 368 (4th Cir. 1991). Any permissible inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). Where, however, the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

         B. The Antiterrorism and Effective Death Penalty Act of 1996

         1. Statute of Limitation

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides a statute of limitation for § 2254 petitions by a person in custody pursuant to a state court judgment. 28 U.S.C. § 2244(d)(1). The petition must be filed within one year of the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the ...

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