United States District Court, E.D. North Carolina, Western Division
MEMORANDUM & RECOMMENDATION
T. Numbers, II, United States Magistrate Judge.
William Robert Gray, Jr., a state inmate proceeding pro
se, petitioned for a writ of habeas corpus under 28
U.S.C. § 2254. D.E. 1. This matter is before the court
upon the parties' cross-motions for summary judgment
(D.E. 36, 53). For the following reasons, the district court
should grant respondent Erik A. Hooks's summary judgment
motion and deny Gray's motion.
1993, a North Carolina Grand Jury indicted Gray on a charge
of first-degree murder for the death of his wife, Roslyn
Gray. Mar. 12, 2002 Order ¶ 1, D.E. 15-8. In the months
leading up to his trial, Gray's attorneys, Bob D.
Worthington and Dal F. Wooten, made several pretrial motions,
including at least three motions relating to the racial
composition of the jury. See Resp't. Ex. A-C,
D.E. 51-1 through 51-3. Although Gray's attorneys
withdrew two of the motions, the trial court agreed to ask
each potential juror to state his or her race. Resp't Ex.
F, D.E. 51-6.
jury selection Gray's attorneys did not make a
Batson objection or otherwise challenge the
racial composition of the jury. See Resp't. Exs.
L, M, N, D.E. 51-12 through 51-14.
the jury convicted Gray and the judge sentenced him to death.
Pet. at 1, D.E. 4.
appealed his conviction, raising 46 grounds for relief.
See State v. Gray, 347 N.C. 143, 491 S.E.2d 538
(1997), abrogated by State v. Long, 354 N.C. 534,
557 S.E.2d 89 (2001). He did not challenge to the racial
make-up of the jury. See Resp't. Ex. BB, D.E.
51-28. Nor did Gray claim actual innocence or challenge the
sufficiency of the evidence against him. Id.
North Carolina Supreme Court found no error in Gray's
trial or sentencing and rejected his appeal. Gray,
491 S.E.2d at 561. In doing so, the North Carolina Supreme
Court summarized the evidence supporting Gray's
The evidence showed that the defendant and the victim, his
wife, were separated and engaged in a bitter divorce action
involving child custody and equitable distribution. There was
evidence of numerous assaults on the victim by the defendant
prior to their separation and afterwards. The defendant had
allegedly sexually assaulted the victim, choked her to the
point of near unconsciousness, and stalked her.
On 24 November 1992, the victim went to the defendant's
house to leave their children after they had visited with
her. The defendant went outside and got into the victim's
Jeep. An eyewitness, who had been jogging on the street in
front of the defendant's house, testified that he
observed a Jeep in the street. He heard screaming and yelling
coming from the Jeep. He saw a woman break from the Jeep and
run up the driveway. The man, whom the witness identified as
the defendant, also ran from the vehicle. The defendant then
tackled the woman and straddled her. The two people were on
the ground struggling, with the defendant on top of the
victim. The witness stopped and asked what was going on, and
the defendant told him to leave. The victim said,
“Mister, please don't leave. If you leave,
he'll kill me.” The jogger then heard a shot, and
the defendant ran behind the house.
The victim was shot in the head. She died from this wound.
The victim also suffered injuries from a stun-gun and a
beating apparently with the butt of a pistol. The defendant
contended that the victim was in possession of the stun-gun
and that she had attempted to use it on him. The defendant
stated that he threw the stun-gun in the bushes. It was
subsequently found in the bushes beside the driveway.
The defendant first told police that he knew nothing about
the incident and that he was in the bathtub at the time. He
later stated that he and the victim were arguing and that the
victim began to use a stun-gun on him. They struggled in the
driveway, but he was only trying to subdue her so that they
could talk about their divorce. After he took the stun-gun
from her, he heard a click and looked to see the victim
holding a gun. The gun was not yet pointed at the defendant.
He pushed the gun away, and it went off.
The jury found the defendant guilty of first-degree murder
with premeditation and deliberation. After a capital
sentencing hearing, the jury recommended a sentence of death.
Judge Wright sentenced the defendant accordingly on 16
December 1993. The defendant appeals to this Court as of
Gray, 491 S.E.2d at 543-44. (1997). The United
States Supreme Court denied Gray's petition for a writ of
certiorari. Gray v. North Carolina, 523 U.S.1031
then sought state post-conviction relief. In March 1999,
Stanley F. Hammer and John D. Bryson filed Motion for
Appropriate Relief (“MAR”) in Superior Court on
Gray's behalf. Resp't. Ex. 17, D.E. 38-2. The MAR did
not challenge the racial make-up of the jury or the
sufficiency of the evidence against Gray. Id. Nor
did Gray's MAR assert his actual innocence. Id.
1999, Gray's post-conviction counsel received an expert
report from Dr. Donald Jason (the “Jason
Report”). Resp't. Ex. 3, D.E. 15-4. Dr. Jason
opined that it was speculative to conclude that a gun was
used to pistol-whip Roslyn Gray, and that other mechanisms
could have caused her injuries. Id. But Dr. Jason
conceded Mrs. Gray's injuries were not necessarily
inconsistent with a pistol-whipping. Id. Ultimately,
Gray did not amend his MAR to incorporate Dr. Jason's
findings. After an evidentiary hearing, the state court
denied Gray's MAR. See Gray v. Lee, No.
5:02-HC-00335-BO (E.D. N.C. filed May 20, 2002)
(“Gray I”), D.E. 1 at 2.
February 2001, Gray petitioned the North Carolina Supreme
Court to review the denial of his MAR.
his MAR, Gray filed a pro se motion with the North
Carolina Supreme Court seeking appointment of new
post-conviction counsel. Resp't. Ex. 4, D.E. 15-5. In
support of this motion, Gray alleged that Hammer and Bryson
were ineffective because they did not introduce the Jason
Report during Gray's MAR proceedings. Id. at 3.
Gray also asserted that Hammer and Bryson ignored his
“objections and input” about the Jason Report and
other matters. See Resp't. Ex. 7 at 5, D.E.
15-8. In December 2001, the North Carolina Supreme Court
remanded Gray's pro se motion to Lenoir County
Superior Court for a hearing. Resp't. Ex. 5, D.E. 15-6.
Honorable Paul L. Jones held a hearing on Gray's pro
se motion in January 2002. Resp't. Ex. 6, D.E. 15-7.
One of Gray's trial counsel, Wooten, reviewed the Jason
Report and other purportedly new evidence Gray sought to
introduce. At the hearing, Wooten said that, if he were
post-conviction counsel, he may have included the Jason
Report in the MAR as part of a “shot-gun”
approach. Id. at 5-6. Ultimately, however, Wooten
opined that the Jason Report, by itself, could not justify
post-conviction relief. Id.
on this testimony, Judge Jones determined that Gray failed to
present a compelling reason to remove Hammer and Bryson as
post-conviction counsel, and denied Gray's pro
se motion. The North Carolina Supreme Court then denied
Gray's Petition for a Writ of Certiorari for his MAR.
Gray I, D.E. 1 at 2.
then petitioned for a writ of habeas corpus under 28 U.S.C.
§ 2254 in United States District Court for the Eastern
District of North Carolina, asserting several ineffective
assistance of counsel claims. Gray I, D.E. 1.
Gray I did not include claims based on the failure
to introduce expert forensic evidence or the composition of
his jury. Id. The court dismissed Gray's
petition. Gray I, D.E. 47.
appealed, and the Fourth Circuit affirmed in part and
reversed and remanded in part. Gray v. Branker, 529
F.3d 220 (4th Cir. 2008). The Fourth Circuit found that
Gray's trial counsel “rendered ineffective
assistance by failing to investigate and develop, for
sentencing purposes, evidence that Gray suffered from a
severe mental illness, and it is reasonably probable that
this failure prejudiced the outcome at sentencing.”
Id. at 223. The Fourth Circuit thus remanded the
matter, instructing the district court to “grant the
writ of habeas corpus unless the State of North Carolina
affords Gray a new sentencing hearing within a reasonable
time.” Id. at 242.
August 2008, the district court ordered that the State of
North Carolina must begin the resentencing process within 180
days or it would have to sentence him to life in prison.
Gray I, D.E. 74. But by 2013, the North Carolina
still had not resentenced Gray.
point in 2014, Gray apparently filed counseled motions under
the North Carolina Racial Justice Act. See Pet. at
7, D.E. 4; Resp't. Mem. at 11, D.E. 60. It appears that
these motions are still pending. Id.
response to the delay, Gray filed several pro se
motions asking for his release on various constitutional
grounds. See, e.g., Gray I, D.E. 76, 79.
The court at first denied these motions because of its
mistaken belief that the state had already resentenced Gray
to life in prison. Id., D.E. 81. Gray moved for
reconsideration. Id., D.E. 82. In August 2014, the
district court determined that the delay was reasonable,
partially because Gray's trial counsel had negotiated
with the state several postponements during this five-year
period for Gray's benefit. Id. at D.E. 98.
Despite the reasonableness of the delay, the district court
ordered the State of North Carolina to regularly file status
reports about Gray's resentencing proceedings.
appealed the disposition of his 2013 motions. Id.,
D.E. 99. While his appeal was pending, Gray also filed two
pro se motions for reconsideration in this court,
which were denied. Id., D.E. 100, 101, 104. In July
2015, the Fourth Circuit affirmed the disposition of
Gray's 2013 motions. Gray v. Lee, 608 Fed.Appx.
172, 173 (4th Cir. 2015).
also advanced a claim of actual innocence under McQuiggin
v. Perkins, 569 U.S. 383 (2013), as part of his appeal
of the 2013 Motions. As for Gray's ...