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Gray v. Hooks

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

January 28, 2019

Williams Robert Gray, Jr., Petitioner,
v.
Erik A. Hooks, Respondent.

          MEMORANDUM & RECOMMENDATION

          Robert T. Numbers, II, United States Magistrate Judge.

         Petitioner 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.

         I. Background

         In May 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.

         During jury selection Gray's attorneys did not make a Batson[1] objection or otherwise challenge the racial composition of the jury. See Resp't. Exs. L, M, N, D.E. 51-12 through 51-14.

         Ultimately, the jury convicted Gray and the judge sentenced him to death. Pet. at 1, D.E. 4.

         Gray 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.[2] 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.

         The 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 conviction:

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 right.

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 (1997).

         Gray 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.

         In May 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.

         In February 2001, Gray petitioned the North Carolina Supreme Court to review the denial of his MAR. Id.[3]

         During 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.

         The 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.

         Based 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.

         Gray 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.

         Gray 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.

         In 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.

         At some 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.

         In 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. Id.

         Gray 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).

         Gray 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 ...


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