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Long v. Hooks

United States Court of Appeals, Fourth Circuit

January 8, 2020

RONNIE WALLACE LONG, Petitioner - Appellant,
ERIK A. HOOKS, Secretary, NC Dep't of Public Safety, Respondent - Appellee. THOMAS ALBRIGHT, Professor and Director Vision Center Laboratory Conrad T. Prebys Chair in Vision Research Salk Institute for Biological Studies; VALENA ELIZABETH BEETY, Professor and Director Vision Center Laboratory Conrad T. Prebys Chair in Vision Research Salk Institute for Biological Studies; BARBARA E. BIERER, Professor and Director Vision Center Laboratory Conrad T. Prebys Chair in Vision Research Salk Institute for Biological Studies; C. MICHAEL BOWERS, Professor and Director Vision Center Laboratory Conrad T. Prebys Chair in Vision Research Salk Institute for Biological Studies; ARTURO CASADEVALL, Professor and Director Vision Center Laboratory Conrad T. Prebys Chair in Vision Research Salk Institute for Biological Studies; JESSICA GABEL CINO, Professor and Director Vision Center Laboratory Conrad T. Prebys Chair in Vision Research Salk Institute for Biological Studies; SIMON A. COLE, Professor and Director Vision Center Laboratory Conrad T. Prebys Chair in Vision Research Salk Institute for Biological Studies; M. BONNER DENTON, Professor and Director Vision Center Laboratory Conrad T. Prebys Chair in Vision Research Salk Institute for Biological Studies; SHARI SEIDMAN DIAMOND, Professor and Director Vision Center Laboratory Conrad T. Prebys Chair in Vision Research Salk Institute for Biological Studies; RACHEL DIOSO-VILLA, Professor and Director Vision Center Laboratory Conrad T. Prebys Chair in Vision Research Salk Institute for Biological Studies; JULES EPSTEIN, Professor and Director Vision Center Laboratory Conrad T. Prebys Chair in Vision Research Salk Institute for Biological Studies; DAVID L. FAIGMAN, Professor and Director Vision Center Laboratory, Amici Supporting Appellant.

          Argued: March 20, 2019

          Appeal from the United States District Court for the Middle District of North Carolina at Greensboro. Catherine C. Eagles, District Judge. (1:16-cv-00539-CCE-LPA)


          Jamie Theodore Lau, DUKE UNIVERSITY SCHOOL OF LAW, Durham, North Carolina, for Appellant.

          Clarence Joe DelForge, III, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

         ON BRIEF:

          Theresa A. Newman, DUKE UNIVERSITY SCHOOL OF LAW, Durham, North Carolina; G. Christopher Olson, Raleigh, North Carolina, for Appellant.

          Joshua H. Stein, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh, North Carolina, for Appellee.

          Karen A. Newirth, THE INNOCENCE PROJECT, INC., New York, New York; Breon S. Peace, Matthew Aglialoro, Willam Segal, CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, for Amicus The Innocence Project, Inc. Brandon L. Garrett, L. Neil Williams Professor of Law, DUKE UNIVERSITY SCHOOL OF LAW, Durham, North Carolina; Mark D. Harris, Adam W. Deitch, PROSKAUER ROSE LLP, New York, New York, for Amici Curiae.

          Before NIEMEYER, THACKER, and RICHARDSON, Circuit Judges.


         Ronnie Wallace Long is serving two life sentences after a North Carolina jury convicted him of rape and burglary in 1976. Long has filed a second application for a federal writ of habeas corpus. In it, he claims that a state post-conviction court unreasonably applied Brady v. Maryland, 373 U.S. 83 (1963), when evaluating evidence disclosed to him for the first time thirty years after his trial. The district court disagreed and granted the state's motion for summary judgment.[1]

         We affirm. Although Long shows the state court's summary conclusion misstated the burden of proof for Brady claims, that error does not entitle Long to habeas relief. To overcome the required deference to state courts, Long must show that each reason supporting the state court's decision is objectively wrong beyond any possibility for fairminded disagreement. Wetzel v. Lambert, 565 U.S. 520, 525 (2012); Harrington v. Richter, 562 U.S. 86, 102 (2011). Here, the state court found "the cumulative [e]ffect of any [new evidence] with any value is so minimal that it would have had no impact on the outcome of the trial." J.A. 1359 (emphasis added). This reasonable finding adequately supports the state court's decision that any newly disclosed evidence falls short of the kind of materiality that Brady requires.

         I. Background

         A. The 1976 burglary, rape, and investigation

         On April 25, 1976, at around 9:30 p.m., a man entered the home of 54-year-old (now deceased) widow Sarah Bost in Concord, North Carolina. He put a knife to her throat and demanded money. When Mrs. Bost could not find money in her purse, the man became angry, cursed her, threw her to the ground, ripped her clothes off, beat her, and raped her. The man repeatedly ordered Mrs. Bost not to look at his face, but she defied him in hope that she could identify her attacker if she survived.

         During the assault, the phone rang and startled the man. He pulled up his pants and went out the front door. Mrs. Bost ran unclothed out the back door to her neighbor's house. Once there, she told her neighbor that an African-American man had just raped her. The neighbor brought Mrs. Bost inside and called the police.

         Concord Police Department officers investigated the attack. They gathered evidence from the scene and interviewed Mrs. Bost, who told them that she was "attacked and raped by a black male wearing a leather coat, toboggan, and [] gloves." J.A. 1429. She described her attacker as around five foot five inches to five foot nine inches tall, with a "slender build and slim hips" and a thin mustache. J.A. 1428; see also J.A. 200-1, 305. She also said that he wore blue jeans and used "correct [E]nglish and at times spoke very softly" with no noticeable accent. J.A. 1428. An ambulance then took Mrs. Bost to a local hospital.

         At the hospital, Mrs. Bost was examined by Dr. Monroe, a physician specializing in gynecology. Dr. Monroe observed extensive scratches, bruising, and lacerations from Mrs. Bost's face to her legs. He also noted her "fingernails looked like they had been traumatized, or nearly bent backwards." J.A. 295. As part of a pelvic exam, Dr. Monroe assembled a microscope slide of vaginal fluid that revealed an "extremely high count of live, very active, human spermatozoa[]." J.A. 296. Mrs. Bost remained at the hospital for five days for observation and treatment.[2]

         The day after the rape, officers showed Mrs. Bost a photographic lineup of thirteen male suspects, hoping she might identify her attacker. She did not identify a suspect from these photographs, which did not include a picture of Long.

         Less than two weeks later, officers asked Mrs. Bost to go to the local courthouse to observe the proceedings. The Concord Police had learned about a similar burglary and rape in Washington, D.C. In that case, the victim found Long's Social Security card in her apartment after the attack. Based on the card left behind, the Washington Metropolitan Police sought Long, a Concord resident, for questioning.

         Having asked Mrs. Bost to come to Court, officers informed Mrs. Bost that the man who raped her may, or may not, be present in court and that she should discretely notify them if she identified him. The officers also told her that she may have to come to court on two or more occasions. She was also asked to bring a neighbor or friend and to wear a disguise. At first reluctant, Mrs. Bost agreed.

         Mrs. Bost arrived at the courthouse on the morning of May 10, 1976, wearing a red wig and glasses. Accompanied by her neighbor, she sat in the second row, while two officers sat away from them. According to the officers, there were "approximately 60 to 65 persons in the court room either in the audience or persons on trial," with "12 adult black males in the general age group" of the description given by Mrs. Bost. J.A. 1433. As Mrs. Bost observed the proceedings, several cases were called involving African-American men as defendants.

         After about a half hour, Ronnie W. Long's case was called. Long, "wearing a medium brown leather coat, a l[ei]sure shirt flowered, no hat, [and] dress pants," exited the row of seats to the left side of the gallery and "walked around to the defense table where he was readily visible by Mrs. Bost." J.A. 1433. Mrs. Bost notified the officers that she had identified her attacker, telling them that "there was no doubt in her mind that this person Ronnie W. Long was the person who entered her house." J.A. 1433; see also J.A. 314-15 ("I will never forget his profile, the coloring of his skin . . . . Another reason, his mannerisms and the way he walked. . . . I knew his voice. . . . One thing I will never forget, the way he talked to me. . . . Another way I identified him was the way he carried himself."). Officers took her to the police station, where she again identified Long in a photographic lineup.

         After Mrs. Bost identified Long as her rapist, the officers asked him to come to the police station. Long drove himself to the station, where he waived his rights and permitted a search of his car. The search revealed a pair of black gloves over the visor, a green toboggan under the driver's seat, and several matchbooks. The officers seized these items, as well as Long's leather jacket. One of the officers, Officer Isenhour, took impressions of the bottoms of Long's shoes. Long was arrested and charged with burglary and rape.

         B. Long's trial

         Long's trial began in Cabarrus County Superior Court in September 1976. On the first day, Long's trial counsel moved to suppress Mrs. Bost's courthouse and photographic identifications, arguing that they were impermissibly tainted by the officers' actions. After permitting the parties to question Mrs. Bost outside the presence of the jury, the court denied Long's motions.

         In its case in chief, the State called Mrs. Bost along with her examining physician and several law enforcement officers. Mrs. Bost identified Long as her attacker, pointing to him in the courtroom. Long's defense had several components. First, he sought to impeach Mrs. Bost's testimony on the grounds that cross-racial eyewitness identification is often suspect. Second, the defense pointed to the lack of any physical evidence tying him to the crime scene. Third, Long introduced testimony about his whereabouts on the evening of the crime to establish an alibi.[3]

         The jury convicted Long of both burglary and rape. He was sentenced to two life terms in prison, and his conviction was affirmed on direct appeal by the Supreme Court of North Carolina. North Carolina v. Long, 237 S.E.2d 728 ( N.C. 1977).

         C. Disclosure of new evidence

         In the years that followed, Long filed unsuccessful post-conviction petitions in state and federal court, including a 28 U.S.C. § 2254 federal habeas application. North Carolina v. Long, 377 S.E.2d 228 (Mem.) ( N.C. 1989); Long v. Dixon, Civ. No. C-89-278-S (M.D. N.C. May 3, 1990). Then, in 2005, he moved in state court for location and preservation of evidence, seeking any biological evidence to use in DNA testing and the pieces of clothing recovered, such as his black leather jacket and green toboggan. The judge granted Long's motion, ordering the prosecution and law enforcement to locate and preserve all evidence related to his case.

         The order led to the disclosure of dozens of documents falling into three groups: (1) State Bureau of Investigation forensic reports documenting the testing of physical evidence; (2) the Master Case File on the investigation; and (3) excerpts of Mrs. Bost's medical records from her hospitalization.

         1. Forensic test reports

         The State disclosed copies of reports and handwritten notes from forensic tests conducted on evidence delivered to the lab by Officer Isenhour. The reports revealed that analysts (1) compared the single hair found at the crime scene with Long's head and pubic hair samples and concluded that they did not match, noting that no additional hairs were found on Mrs. Bost's clothing, J.A. 1466; (2) examined Long's leather jacket, gloves, and toboggan and did not find any trace of paint or carpet fibers matching samples taken from Mrs. Bost's home, J.A. 1454-55; (3) compared five matchbooks from Long's car with three burned matches recovered from the upstairs windowsill and found insufficient evidence to conclude that they were linked, J.A. 1463; and (4) compared a latent shoeprint recovered from the front porch bannister of Mrs. Bost's home with the inked impressions of Long's shoe bottoms, concluding that Long's shoes could have made the shoeprint, but there was insufficient information for a definite match, J.A. 1464. The testing of the hair, clothing, and matchbooks was not disclosed to Long's defense counsel before trial.

         2. Master case file documenting evidence submitted for forensic testing

         The Master Case File contained two "Request[s] For Examination of Physical Evidence," each written by Officer Isenhour to document items of evidence he delivered for forensic testing the day after Long's arrest. J.A. 1451, 1465.

         The first request listed the latent shoeprint taken from outside Mrs. Bost's house and inked impressions of Long's shoes. See J.A. 1465. It asked the forensic analysts to "[e]xamine for identification from latent lift to known shoe-bottom impressions." J.A. 1465.

         The second request listed 13 additional items of evidence provided for forensic testing, including Long's leather jacket, green toboggan, and leather gloves; paint and carpet samples taken from the crime scene; samples of Long's and Mrs. Bost's head and pubic hair; a "suspect hair from the scene"; matchbooks from Long's car; burned matches obtained from the upstairs windowsill; and Mrs. Bost's clothing. J.A. 1454. It requested the examination of Long's clothing "for the presence of paint and fibers" and to compare any paint or fibers found with the samples taken from Mrs. Bost's home. Id. It also requested a forensic comparison of the hair found at the scene (and any hairs found on Mrs. Bost's clothing) with the hair samples taken from Long as well as a comparison of the burned matches from the windowsill with the matchbooks recovered from Long's car.

         Neither request was disclosed to Long's counsel before trial. Moreover, at trial, Isenhour offered an incomplete picture of the testing he had requested. While he testified to delivering the shoeprints for testing, he also said that the black leather jacket, the green toboggan, and black leather gloves remained in his "custody and control" since he received them from another officer during the investigation. J.A. 415-16.

         3. The victim's medical records and biological evidence

         The county hospital produced to the superior court judge 26 pages of Mrs. Bost's medical records from her hospitalization and medical examination hours after the rape. After in camera review, the judge authorized the release of 11 pages of the records to Long's post-conviction counsel.

         The released records showed that Dr. Monroe collected biological evidence of the rape in accordance with the hospital's rape protocol: he prepared slides of live spermatozoa, took two swabs of vaginal secretions that he placed in test tubes, and obtained pubic combings. After the examination, the records show that the hospital released pubic hair and one of the test tubes to an officer after authorized by Mrs. Bost. J.A. 1475-79. These records were not disclosed to Long's defense counsel. Efforts to locate any biological evidence in 2007 were unsuccessful.

         D. State post-conviction proceedings

         After receiving the new evidence, Long filed a Motion for Appropriate Relief ("MAR") (North Carolina's version of a habeas petition), raising (1) an allegation that the state failed to disclose exculpatory material to the defense in violation of the Due Process Clause, the North Carolina Constitution, and Brady, and (2) a newly discovered evidence claim under state law. After an evidentiary hearing, the state court denied Long's motion, finding that both of Long's claims failed. An equally divided Supreme Court of North Carolina affirmed. North Carolina v. Long, 705 S.E.2d 735 ( N.C. 2011).

         After the state denied relief, Long filed another federal habeas application in 2012. But because he had failed to receive pre-filing authorization from this court as required by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), the district court dismissed Long's application for lack of jurisdiction. See Long v. Lancaster, No. 1:12-CV-119, 2012 WL 3151179, at *1 (M.D. N.C. Aug. 2, 2012). Long neither appealed nor sought the necessary pre-filing authorization.

         Then, in 2015, Long participated in the North Carolina Innocence Inquiry Commission's Postconviction DNA Testing Assistance Program. Those efforts revealed 43 latent fingerprints taken from the crime scene that had not been disclosed. Testing excluded Long as the source of those prints.

         Long returned to federal court and requested pre-filing authorization for a successive federal habeas application, which we granted. See In re Ronnie Long, No. 16-295, Dkt. 6 (4th Cir. May 24, 2016). Long then filed the application at issue here. The district court at first dismissed Long's application after finding that it presented, along with the Brady claims, an unexhausted claim involving the latent fingerprints taken from the crime scene and disclosed in 2015. See Long v. Perry, No. 1:16CV539, 2016 WL 7235779 (M.D. N.C. Dec. 14, 2016). We reversed and remanded to the district court, finding that Long had "unequivocally disclaimed" his latent fingerprint claim. Long v. Perry, 699 Fed.Appx. 260, 261 (4th Cir. 2017).

         Without the fingerprint claim, Long's application relies solely on his argument that "the MAR Order was contrary to, or an unreasonable application of, the Supreme Court's clearly established Brady jurisprudence with respect to each of the three fundamental Brady components." J.A. 46. The state moved for summary judgment on procedural and merits grounds, and the matter was referred to a magistrate. In a 66-page report and recommendation, the magistrate found on the merits that the state court's application of Brady to the newly discovered evidence was reasonable. The district court adopted the magistrate's report and recommendation and granted summary judgment to the Respondent. Long timely appealed.

         II. Discussion

         We review the district court's decision de novo. Muhammad v. Kelly, 575 F.3d 359, 367 (4th Cir. 2009). And we "examine [Long's] argument through the dual lens of the AEDPA standard and the standard set forth by the Supreme Court in Brady." Richardson v. Branker, 668 F.3d 128, 144 (4th Cir. 2012).

         Under AEDPA, a federal court "shall entertain" a habeas application for a person in state custody "in violation of the Constitution or laws or treaties of the United States." § 2254(a). Although a violation of federal law is necessary for a writ to issue, it is not sufficient-"AEDPA demands more," Harrington v. Richter, 562 U.S. 86, 102 (2011), "consistent with the respect due state courts in our federal system," Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). State courts "possess sovereignty concurrent with that of the Federal Government . . . and are thus presumptively competent[] to adjudicate claims arising under the laws of the United States." Tafflin v. Levitt, 493 U.S. 455, 458 (1990). Recognizing this "foundational principle of our federal system," AEDPA "erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow, 571 U.S. 12, 19 (2013).

         ADEPA properly respects the central role of state courts by limiting the "federal courts' power to issue a writ to exceptional circumstances." Richardson, 668 F.2d at 138. In our review, we must remain ever mindful that state courts "are the principal forum for asserting constitutional challenges to state convictions, [and] that habeas corpus proceedings are a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Id. at 132 (quoting Richter, 562 U.S. at 103) (internal quotation marks omitted).

         Under ADEPA's deferential framework, we may grant relief for a habeas claim adjudicated on the merits in state court for only two reasons. See § 2254(d). If the state decision turns on a factual determination, that determination must be "objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El, 537 U.S. at 340; § 2254(d)(2). Otherwise, the earlier state decision must have been contrary to or involve an unreasonable application of, clearly established federal law. § 2254(d)(1); see Virginia v. LeBlanc, 137 S.Ct. 1726, 1728-29 (2017).[4] Here, the applicable federal law consists of the rules for determining whether the state violated a defendant's Fourteenth Amendment Due Process rights under Brady.

         The state violates Brady when the prosecution fails to disclose material evidence favorable to a criminal defendant. 373 U.S. at 87; Kyles v. Whitley, 514 U.S. 419, 432 (1995). Evidence is material if it creates a "reasonable probability of a different result," Kyles, 514 U.S. at 434, thus "undermin[ing] confidence in the outcome of the trial." United States v. Bagley, 473 U.S. 667, 678 (1985). It is not enough for the withheld evidence to create the possibility of a different verdict; a different result must be reasonably probable. Strickler v. Greene, 527 U.S. 263, 291 (1999); United States v. Agurs, 427 U.S. 97, 109-10 (1976); see also Richter, 562 U.S. at 112 ("The likelihood of a different result must be substantial, not just conceivable.").[5]

         A. The state court's conclusions

         Based on the evidence before it, the state court made the following "conclusion of law":

As to the cumulative [e]ffect of the items of evidence the defense alleges they did not receive, this court finds, based on the findings of fact and conclusions of law stated herein, that the contents of several of the items the defense alleges they did not receive were fully addressed in front of the jury; that other materials contained in reports were more favorable to the State's case than the defendant's; and that any remaining matters that were not presented to the jury were of little or no value to the case as a whole; and that the cumulative [e]ffect of any items with any value is so minimal that it would have had no impact on the outcome of the trial.

J.A. 1358-59 (emphasis added). The court's determination compels a specific outcome under Brady: if evidence has no impact on the trial outcome, then it must leave no reasonable probability of a different result. On this basis, the state court's decision that no Brady violation occurred adheres to controlling Supreme Court precedent. See Strickler, 527 U.S. at 291.

         But Long instead asks us to scrutinize the summary conclusions of the state court. Pet'r's. Br. 26 (citing J.A. 1359 ¶17). After determining the evidence would have "no impact," the state court "in summary" writes:

The Defendant has failed to prove by a preponderance of the evidence that his due process rights have been violated under Brady, in that he has not shown by a preponderance of the evidence that the claimed evidence was withheld by the state, that it was exculpatory, or that the result likely would have been different with the claimed evidence.

J.A. 1359 (citations omitted). As the Petitioner argues, this summary conclusion incorrectly articulates Brady's burden of proof. Brady requires that the defendant show that there is a reasonable probability that a jury would find him innocent, given the new evidence. It does not require "demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal." Kyles, 514 U.S. at 434. Because the state court's conclusion imposed a preponderance burden, it directly contradicts Supreme Court precedent.[6]

         This inaccuracy alone does not make the state court's decision unreasonable. If another ground provided by the state court can sustain its decision, this error is "beside the point." Wetzel v. Lambert, 565 U.S. 520, 524 (2012); cf. Woodford v. Visciotti, 537 U.S. 19, 23-24 (2003) (inconsistent descriptions of the burden of proof did not make the state court's decision unreasonable under AEDPA). In Wetzel, the Supreme Court held that we may only disturb the state court's judgment if "each ground supporting the state court decision is examined and found to be unreasonable." 565 U.S. at 525. Because the state court's no impact conclusion is "sufficient" to reject Long's claim, "it is irrelevant that the court also invoked [an improper] ground." Parker v. Matthews, 567 U.S. 37, 42 (2012); see also Littlejohn v. Trammell, 704 F.3d 817, 831 (10th Cir. 2013).

         The dissent asserts Wetzel applies only if a proper reason for the state court's decision can be "isolated from" another improper reason so as to be entirely "separate[]." Dissent at 30, 32. This mandate goes too far-the Supreme Court tells us when this kind of an 'adequate and independent' examination is necessary. See Coleman v. Thompson, 501 U.S. 722, 732-33 (1991). And in Wetzel, the grounds supporting the Pennsylvania Supreme Court's decision were not so isolated as the dissent here demands.[7] There, the petitioner-convicted of murder, robbery, and other offenses at trial-argued the Commonwealth violated Brady when it failed to disclose a police "activity sheet" that supposedly identified another participant in the robbery. Wetzel, 565 U.S. at 521. According to petitioner, the activity sheet was exculpatory and would have impeached one of the Commonwealth's primary witnesses. Id. at 521-22. The state court disagreed, finding that the activity sheet was "'not exculpatory or impeaching' but instead 'entirely ambiguous.'" Id. at 524 (citations omitted). "Moreover," the state court continued, the contents of the activity sheet would be cumulative to other impeachment evidence. Id. These rationales supporting the state court's conclusion were neither "isolated from" one another nor entirely separate-on the contrary, both turned on an assessment of the contents of the activity sheet. See Commonwealth v. Lambert, 884 A.2d 848, 855-56 (Pa. 2005).

         Nevertheless, the Supreme Court held that the Third Circuit erred when it granted the writ based on its disagreement with the state court's assessment of the impeachment value of the activity sheet. Wetzel, 565 U.S. at 523. As the Supreme Court explained, if the state court reasonably found the activity sheet to be ambiguous, then the court's conclusion about the impeachment value of the sheet did not matter. Id. After all, an "ambiguous" document is neither exculpatory nor impeaching.

         Here, the unqualified conclusion that the new evidence has 'no impact' logically precedes the erroneous preponderance determination. Wetzel teaches that if the 'no impact' conclusion-which alone is sufficient to reject Petitioner's argument-is reasonable, "whatever [the state] courts had to say" in another conclusion "is beside the point." 565 U.S. at 524. And in our deferential review of state court reasoning, see Richter, 562 U.S. at ...

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