United States District Court, W.D. North Carolina, Asheville Division
D. WHITNEY UNITED STATES DISTRICT JUDGE
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.
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(unpublished).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
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.)
10, 2013,  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.
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.)
filed the instant § 2254 federal habeas Petition on
March 3, 2017. 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.
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.)
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.)
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).
STANDARD OF REVIEW
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).
The Antiterrorism and Effective Death Penalty Act of
Statute of Limitation
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