United States District Court, W.D. North Carolina, Charlotte Division
AVERY J. LAIL, JR., Petitioner,
ERIK A. HOOKS, Secretary,  N.C. Dep't of Public Safety, Respondent.
D. WHITNEY CHIEF UNITED STATES DISTRICT COURT
MATTER is before the Court upon pro se Petitioner
Avery J. Lail, Jr.'s Petition for Writ of Habeas Corpus,
pursuant to 28 U.S.C. § 2254 (Doc. No. 1) and
Respondent's Motion for Summary Judgment (Doc No. 7).
is a prisoner of the State of North Carolina, who, on
September 28, 2015, in the Superior Court of Gaston County,
was convicted after trial by jury of second-degree murder.
The North Carolina Court of Appeals provided the following
summary of the evidence introduced at trial:
Just before 10:00 p.m. on 23 March 2014, Brian Dale Jones was
found dead on a driveway located on Old Dowd Road in
Mecklenburg County. His head and face had been beaten and
bruised, his neck cut and stabbed repeatedly by a knife, and
his right internal jugular vein severed. The autopsy on
Brian's body revealed that he was extremely intoxicated
at the time of his death, his blood alcohol level registering
at .43 on the breathalyzer scale, but that he died of blood
loss from his knife wounds.
On 11 April 2014, Mark Huntley, defendant, and Joyce Delia
Rick were arrested in connection with Brian's death. The
three had been living together in Joyce's home for a few
weeks before Brian arrived uninvited at Joyce's door on
the night he died. During interviews with police, the three
gave statements concerning the events surrounding Brian's
homicide. On 21 April 2014, defendant was indicted on one
count of first-degree murder. From 14 to 25 September 2015,
defendant was tried in Gaston County Superior Court. The
State's evidence generally established the following
facts relevant to which malice theory supported the
Mark testified that he witnessed defendant murder Brian with
a butcher knife. According to Mark's testimony, on 23
March 2014, he, defendant, and Joyce were in Joyce's
living room watching a NASCAR race on television. Around 1:00
p.m., defendant and Mark began drinking. A few hours later
that evening, Brian arrived at Joyce's home driving a
green car belonging to Brian's girlfriend, Susan Braddy.
Mark had previously dated Susan. Mark had met Brian a few
times before and the two had gotten into an altercation about
Susan once before at a convenience store. Brian brought with
him a Duke's Mayonnaise jar full of moonshine, which he
shared with defendant and Mark. Over the next hour or so, the
four of them hung out and talked. Joyce did not drink. Mark
took a few swigs of the moonshine, but defendant and Brian
drank most of it. Defendant and Brian also smoked crack
Once the moonshine was finished, Brian, heavily intoxicated,
slurring his words and barely able to stand, started to leave
Joyce's home in an attempt to drive home. Defendant tried
to persuade Brian to sleep on the couch and sober up before
driving but Brian refused. Defendant then helped Brian
stumble outside to Susan's car and crawl into the
vehicle. Mark followed. From outside the car, defendant
continued to encourage Brian not to drive. Mark remained
outside for a few minutes but then went back inside
When Mark returned outside a few minutes later, he noticed
that Brian had backed Susan's car into the driveway and
defendant was standing at the driver's side window
continuing to argue with Brian. The argument turned into a
fight, and defendant began punching Brian through the car
window. Defendant then opened the driver's side door,
pulled Brian out of the vehicle, and began punching, kicking,
and stomping him. Mark grabbed defendant from behind and
tried to stop defendant from beating Brian, but defendant hit
Mark in the head and then continued to beat a defenseless
Brian. Defendant, standing on Brian's chest, stopped
hitting Brian and then declared that he would be right back.
Defendant went inside Joyce's home and returned outside
wielding a butcher knife with an eight-inch stainless steel
blade. Defendant got back on top of Brian's chest. Mark
asked defendant what he was doing. Defendant replied:
"I'm gonna kill him" and then cut Brian's
throat two or three times with the butcher knife.
Defendant threatened to kill Mark if he did not help dispose
of Brian's body. At this point, Brian was still alive but
bleeding profusely, and the only sound Mark heard from Brian
was "the gurgling of the blood in his throat and
lungs." After an unsuccessful attempt to load
Brian's body into Susan's vehicle, defendant and Mark
loaded him into the back of Joyce's minivan. Defendant
drove the minivan, and Mark followed in Susan's vehicle.
At one point, Mark noticed Brian's arm dangling out of
the back window and got defendant's attention. The two
pulled over, loaded Brian's arm back into the minivan,
and then continued driving. Brian was eventually dropped on
Old Dowd Road in Mecklenburg County.
Defendant and Mark then returned to Joyce's home, changed
clothes, and started for South Carolina in Susan's car,
leaving the minivan and without cleaning any of the blood.
Over the next few days, defendant and Mark drove to South
Carolina, and then to West Virginia, before returning to
Charlotte and ditching Susan's car on a road near the
U.S. Whitewater Center. Defendant called Joyce to come pick
them up and then the three proceeded home, where they
returned to sitting around watching television as if nothing
ever happened until Mark was arrested a few days later.
Joyce testified that she did not witness Brian's murder.
According to Joyce's testimony, on 23 March 2014, she,
defendant, and Mark were hanging around watching television
in her home when she heard an unexpected knock on her door
around 8:00 or 9:00 p.m. When she opened the door, she saw
Brian standing there. Joyce had known Brian for about four or
five years and had introduced Brian and Susan, Joyce's
friend of nearly forty years, to each other about a year
earlier. Brian and Susan were currently living together and
Joyce invited Brian into her home. Brian returned briefly to
Susan's car and retrieved ajar of moonshine before coming
inside and sitting down. He shared the moonshine with
defendant and Mark, and the three passed it back and forth
among them as they talked. Joyce did not sip any of the
moonshine but took her nightly sleeping medicine that
diminishes her mental faculties. Joyce was watching
television when she heard an argument develop. She was
unaware who was arguing or what they were arguing about but
the men started to get loud. Joyce glanced over and saw Brian
slam his fist into her glass coffee table. She told Brian to
leave. Brian stood up and defendant said, "Let's go
outside." All three men went outside.
A few minutes later, defendant came back inside, looking
angry and drunk, and told Joyce that "Brian slapped him
and he kicked [Brian's] ass." Joyce thought
defendant was bluffing and went down the hall to the
bathroom. When she came out, defendant was no longer in her
home. Joyce never saw Mark come back inside, and she never
saw Brian again. Approximately twenty minutes later,
defendant came back inside and told her that he was going to
put gas into her minivan. About an hour after that, Mark and
defendant returned to Joyce's home, their clothes
appearing wet, and the two went down the hall to change.
Joyce started the washing machine and Mark and defendant put
in their clothes. About thirty to forty-five minutes later,
Mark and defendant left again, and Joyce did not see them for
Defendant's evidence generally corroborated most of the
State's evidence except for one major difference-that it
was Mark who had cut Brian's neck.
Defendant testified that he witnessed Mark murder Brian with
a steak knife. According to defendant's testimony, during
the evening of 23 March 2014, he returned from a trip to the
bathroom to find Mark and Joyce arguing with someone at the
door. Joyce introduced this person as Brian, Susan's
boyfriend. Brian looked angry. Defendant had never met Brian
before and did not know Susan. Right after they met, Brian
asked defendant if he drank moonshine. Defendant replied that
he did, and Brian got the moonshine from Susan's car.
Defendant returned to the couch and continued watching
television as Brian and Mark started bickering. The more
moonshine Brian drank, the more Brian and Mark argued about
Susan. Eventually, Brian slammed his fist into the coffee
table. The slam woke up Joyce, who told Brian to leave.
Mark escorted Brian outside and defendant followed. When they
got to Susan's car, Mark and Brian started bickering
again about Susan. Defendant stepped in between them to break
up the fight. Brian backhanded defendant in the mouth,
breaking defendant's artificial teeth. Defendant lost his
temper and "beat the shit out of [Brian]," knocking
him out and then kicking him in the face for good measure.
Defendant then left Mark and Brian outside and went back
inside Joyce's home. He saw Joyce and told her that he
beat up Brian. About five minutes later, defendant returned
outside and saw Mark kneeling beside Brian, giving the
appearance that Mark was robbing Brian. When defendant
grabbed Mark by the arm and pulled him back, he saw that
Brian was covered in blood and that Mark had a knife.
Defendant asked Mark why he had murdered Brian, and Mark
responded that he had to do it for Susan. Mark then asked
defendant to help him dispose of Brian's body, which he
After the presentation of evidence, the trial court charged
the jury on first-degree murder, second-degree murder, and
manslaughter, and instructed on express malice and deadly
weapon implied malice but not depraved-heart malice. On 25
September 2015, the jury returned a verdict finding defendant
guilty of second-degree murder, not guilty of first-degree
murder, and not guilty of manslaughter.
State v. Lail, 795 S.E.2d 401, 404-06 ( N.C. Ct.
App. 2016). The trial court sentenced Petitioner as a Class
BI felon to 483-592 months imprisonment.
appealed. On December 30, 2016, the North Carolina Court of
Appeals ("NCCOA") filed a published opinion finding
no error in the judgment, and on March 16, 2017, the North
Carolina Supreme Court ("NCSC") denied his petition
for discretionary review ("PDR"). State v.
Lail, 795 S.E.2d 401 ( N.C. Ct. App. 2016), disc,
review denied, 796 S.E.2d 927 ( N.C. 2017).
December 15, 2017, Petitioner filed a pro se Motion for
Appropriate Relief ("MAR") in the Superior Court of
Gaston County, which was denied on May 22, 2018. Thereafter,
Petitioner filed a pro se certiorari petition in the NCCOA,
which was denied on August 17, 2018.
filed the instant § 2254 Petition in this Court on
September 9, 2018, see Doc. No. 1 at 14. See Houston v.
Lack, 487 U.S. 266, 267 (1988). He sets forth the
following grounds for relief: (1) he should have been
sentenced at the B2 felony level instead of Bl because the
jury did not decide this issue; (2) ineffective assistance of
counsel for failing to remove jurors Petitioner believe might
be biased because they had family or friends who had been
murdered; (3) ineffective assistance of counsel for moving
for a change of venue; and 4) ineffective assistance of
counsel for failing to interview and call witnesses who would
have impeached the State's witnesses. Respondent has
filed a Motion for Summary Judgment seeking judgment as a
matter of law on the merits of Petitioner's claims (Doc.
No. 7), and Petitioner has filed a responses in support of
his § 2254 Petition (Doc. Nos. 13, 13-3).
Anti-Terrorism and Effective Death Penalty Act of 1996
("AEDPA"), 28 U.S.C. § 2254, states that a
district court "shall entertain an application for a
writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or
laws or treaties of the United States." 28 U.S.C. §
2254(a). "[I]t is not the province of a
federal habeas court to reexamine state-court determinations
on state-law questions." Estelle v. McGuire,
502 U.S. 62, 67-68 (1991). Absent violation of a Federal
constitutional right, a habeas petitioner fails to state a
cognizable claim for relief. Wilson v. Corcoran, 562
U.S. 1, 14 (2011) ("Federal courts may not issue writs
of habeas corpus to state prisoners whose confinement does
not violate federal law.").
limits the federal court's power to grant habeas relief.
When a claim was adjudicated on the merits in State court
proceedings, the federal court may not grant habeas relief on
that claim unless the State court's adjudication:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
§ 2254(d)(1), (2). The "contrary to" and
"unreasonable application" clauses contained in
§ 2254(d)(1) are to be given independent meaning-in
other words, a petitioner may be entitled to habeas corpus
relief if the state court adjudication was either contrary to
or an unreasonable application of clearly established federal
standard is intentionally "difficult to meet."
White v. Woodall,572 U.S. 415, 419 (2014) (internal
quote and citation omitted)." '[C]learly established
Federal law' for purposes of § 2254(d)(1) includes
only 'the holdings, as opposed to the dicta, of th[e
Supreme] Court's decisions.'" Id.
(quoting Howes v. Fields, 565 U.S. 499, 505 ...