United States District Court, E.D. North Carolina, Western Division
C. DEVER III UNITED STATES DISTRICT JUDGE.
January 28, 2019, Magistrate Judge Numbers issued a
Memorandum and Recommendation ("M&R") [D.E. 68]
and recommended that the court grant respondent's motion
for summary judgment [D.E. 36], deny William Robert Gray,
Jr.'s ("Gray" or "petitioner") motion
for summary judgment [D.E. S3], and dismiss Gray's
petition for a writ of habeas corpus [D.E. 1]. Gray objected
to the M&R [D.E. 69]. As explained below, the court
overrules the objections, adopts the conclusions in the
M&R, and declines to disturb Gray's 1993 conviction
in North Carolina state court for murdering his wife, Roslyn
Gray, on November 24, 1992.
Federal Magistrates Act requires a district court to make a
de novo determination of those portions of the magistrate
judge's report or specified proposed findings or
recommendations to which objection is made." Diamond
v. Colonial Life & Accident Ins. Co., 416 F.3d
310.315 (4th Cir. 2005) (emphasis, alteration, and quotation
omitted); see 28 U.S.C. § 636(b). Absent a
timely objection, "a district court need not conduct a
de novo review, but instead must only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation." Diamond, 416 F.3d
at 315 (quotation omitted). Moreover, the court need not
conduct a de novo review where a party makes only
"general and conclusory objections that do not direct
the court to a specific error in the magistrate's
proposed findings and recommendations." Orpiano v.
Johnson,687 F.2d 44, 47 (4th Cir. 1982). Section
636(b)(1) does not permit a generalized objection concerning
"all issues addressed by the magistrate judge; it
contemplates that a party's objection to a magistrate
judge's report be specific and particularized, as the
statute directs the district court to review only those
portions of the report or specified proposed findings or
recommendations to which objection is made." United
States v. Midgette, 478 F.3d 616, 621 (4th Cir. 2007)
(quotation and emphasis omitted).
seeks relief under 28 U.S.C. § 2254 and alleges that new
forensic evidence in the Jason Report supports his actual
innocence and that state prosecutors violated Batson v.
Kentucky, 476 U.S. 79 (1986), during jury selection.
See M&R at 7-8. Under me doctrine of procedural
default, a federal court generally is precluded from
reviewing the merits of any claim that the state court found
to be procedurally barred based on independent and adequate
state grounds. See, e.g., Dretke v. Haley, 541 U.S.
386, 392 (2004); Daniels v. Lee, 316 F.3d 477, 487
(4th Cir. 2003). The doctrine also applies "when a state
court also discusses the claim on its merits, e.g., in
conducting a plain error review having found a procedural
default." Daniels. 316 F.3d at 487. A state
rule is "adequate" if it is firmly established and
regularly followed in the state court. See Johnson v.
Lee, 136 S.Q. 1802, 1805 (2016) (per curiam);
Johnson v. Mississippi, 486 U.S. 578, 587
(1988);Woodfolk v. Maynard, 857 F.3d 531, 543-44
(4th Cir. 2017); Lawrence v. Branke, 517 F.3d 700,
714 (4th Cir. 2008); McCarver v. Lee, 221 F.3d 583,
588 (4th Cir. 2000). "The relevant inquiry is whether
the particular procedural bar is applied consistently to
cases that are procedurally analogous."
Woodfolk, 857 F.3d at 544 (quotations and emphasis
omitted). A state rule is "independent" if it does
not depend upon a federal constitutional ruling. See
Ake v. Oklahoma, 470 U.S. 68, 75 (1985); McNeill
v. Polk, 476 F.3d 206, 211 (4th Cir. 2007); Williams
v. French, 146 F.3d 203, 209 (4th Cir. 1998).
federal habeas court may review a procedurally defaulted
claim if the petitioner demonstrates cause and prejudice as a
result of the alleged violation of federal law, or that the
failure to consider the federal claim will result in a
fundamental miscarriage of justice. See, e.g.. Coleman v.
Thompson, 501 U.S. 722, 750 (1991). To show cause, a
petitioner must show that something external to him prevented
him from complying with the state procedural rule.
See Id. at 753. To show prejudice, a
petitioner must show he was actually prejudiced as a result
of the alleged violation of federal law. See, e.g.,
United States v. Frady, 456 U.S. 152, 167-68 (1982).
did not cite the Jason Report or challenge the jury selection
under Batson on direct appeal or in his MAR. After
Gray's 2015 resentencing, Gray did not seek any state
post-conviction relief. Gray could have raised these claims
in the state court, but did not do so. Thus, the claims are
procedurally barred. See N.C. Gen. Stat. §
15A-1419(a)(3) (stating that a habeas claim should be denied,
absent cause and prejudice, when defendant was in an adequate
position to have raised it on direct appeal, but did not do
so); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001)
(holding that N.C. Gen. Stat. § 15A-1419 is mandatory);
Williams, 146 F.3d at 208-09 (holding that N.C. Gen.
Stat. § 15A-1419(a)(3) is an independent and adequate
state procedural bar that precludes federal habeas review);
McCarver, 221 F.3d at 588-89 (same). As a result,
this court may not review the merits of Gray's claims
unless he can overcome his default
overcome his default, Gray argues the Jason Report
establishes his innocence. "[A]ctual innocence, if
proved, serves as a gateway through which a petitioner may
pass whe[n] the impediment is a procedural bar"
McQμiggin v. Perkins, 69 U.S. 383, 386 (2013).
However, "tenable actual-innocence gateway pleas are
rare: '[A] petitioner does not meet the threshold
requirement unless he persuades the district court that, in
light of the new evidence, no juror, acting reasonably, would
have voted to find him guilty beyond a reasonable
doubt '"Id. (quoting and citing Schlup
v. Delo, 513 U.S. 298, 329 (1995)) (alteration in
original). Gray must "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 court must evaluate the credibility of the new evidence
in light of the entire record. See O'Dell v.
Netherland, 95 F.3d 1214, 1250 (4th Cir. 1996) (en
banc), aff'd, 521 U.S. 151 (1997).
court has reviewed the credibility of the Jason Report in
light of the entire record. The Jason Report does not meet
the exacting standard for the actual innocence gateway.
See M&R at 13-15. On its face, the Jason Report
states that Roslyn Gray's injuries were consistent with a
pistol-whipping. See Id. Thus, in light of the
entire record, the Jason Report does not refute that Roslyn
Gray suffered injuries that Gray inflicted during a fight
that he started before shooting her and does not provide
access to the actual innocence gateway. Cf Finch v.
McCoy, 914 F.3d 292, 294, 297-302 (4th Cir. 2019)
(explaining how a petitioner met the "exacting
standard" for the actual innocence gateway).
even if Gray did not proceduralry default his claims, the
claims fail on the merits. As for the sufficiency of the
evidence, the Jason Report does not call into question the
sufficiency of the evidence against Gray or establish his
innocence. See M&R at 13-15. The evidence at
trial overwhelmingly supported Gray's conviction, and the
Jason Report does not alter this conclusion. See
Gray, 347 N.C. at 161-62, 166-71, 176-77, 347 S.E.2d
at 543-44, 546-49, 552-53.
extent Gray asserts a Batson claim, his allegations
are speculative and do not establish a prima facie case of
race discriminatinn. See M&R at 16--19;
Batson, 476 U.S. at 96--97; cf. Golphin v.
Branker, 519 F.3d 168, 187 (4th Cir. 2008); Coulter
v. McCann, 484 F.3d 459, 468 (7th Cir. 2007);
Williams v. Branker, No. 5:99-HC-123-F, 2013 WL
5442213, at *32 (E.D. N.C. Sept. 27, 2013) (unpublished),
aff'd sub nom. Williams v. Stanley 581 Fed.Appx.
295 (4th Cir. 2014) (per curiam) (unpublished); Wiggins
v. Jackson, No. 3:05cv346--1-MU, 2009 WL 484668, at
*6-12 (W.D. N.C. Feb. 25, 2009) (unpublished). Similarly, any
argument that Gray's jury pool did not reflect a fair
cross-section of the community fails. See M&R at
19-20; Lockhart v. McCree, 476 U.S. 162,
174 (1986); Duren v. Missouri, 439 U.S. 357, 364
(1979); Truesdale v. Moore, 142 F.3d 749, 755 (4th
original and amended petitions do not explicitly allege
ineffective assistance of trial counsel, but his later
filings arguably couch his arguments in those terms. The
M&R analyzed and properly rejected any ineffective
assistance of trial counsel claims. See M&R at
14-16 see also Burt v. Titlow, 571 U.S. 12, 22
(2013) ("Although a defendant's proclamation of
innocence does not relieve counsel of his normal
responsibilities under Strickland, it may affect the
advice counsel gives.") Strickland v.
Washington, 466 U.S. 668, 687-96 (1984); Jones v.
Murray, 947 F.2d 1106, 1111, 1113-14 (4th Cir. 1991).
also argues he is entitled to summary judgment because
respondent did not specifically respond to his motion and
exhibits. See Objs. [D.E. 69] 2. Respondent,
however, properly relied on his cross-motion for summary
judgment rather than specifically responding to Gray's
motion. See Desmond v. PNGI Charles Town Gaming.
L.L.C., 630 F.3d 351.354 (4th Cir. 2011): Custer v.
Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993).
Thus, Gray's argument fails.
also challenges the dismissal of his parole and custody
classification claims. See Objs. [D.E. 69] 1. As
this court explained in its order of March 21, 2018, Gray
must file these claims in a separate section 1983 action.
See [D.E. 29] 10-11; See, e.g.,
Wilkinson v. Dotson, 544 U.S. 74, 82 (2005);
Nelson v. Campbell, 541 U.S. 637, 643 (2004);
Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976);
Preiser v. Rodriguez, 411 U.S. 475, 494, 498-99
Gray alleges ineffectiveness of his post-conviction counsel.
See, e.g.. Obj. [D.E. 69] 22. Gray,
however, cannot rely on the "ineffectiveness or
incompetence of counsel during Federal or State collateral
post-conviction proceedings" as an independent ground
for relief. 28 U.S.C. § 2254(i); see M&R at 12-13;
Martinez v. Ryan,566 U.S. 1, ...