Opinion
No. 1:03CV00802.
October 14, 2004
RECOMMENDATION OF MAGISTRATE JUDGE ELIASON
Petitioner, a prisoner of the State of North Carolina, seeks a writ of habeas corpus pursuant 28 U.S.C. § 2254. On April 27, 2000, in the Superior Court for Forsyth County, petitioner was convicted by a jury of attempted statutory rape and taking indecent liberties with a child in cases 99 CRS 54836 and -37793. The convictions were consolidated for judgment and petitioner was sentenced to 192-240 months of imprisonment. Petitioner appealed his conviction, but the North Carolina Court of Appeals found no error. The North Carolina Supreme Court then denied petitioner's attempt to have that court review his conviction. Petitioner next turned to North Carolina's collateral review process for relief. He filed a motion for appropriate relief in the trial court and, when it was denied, filed a petition for certiorari with the North Carolina Court of Appeals. This too was denied and petitioner now seeks habeas relief in this Court.
Facts
The testimony at petitioner's trial can be summarized as follows. The chief witness for the state was Officer Christopher Fish of the Winston-Salem Police Department, who testified that on August 24, 1999, just after midnight, he received a report of a suspicious vehicle. When he approached the vehicle, he saw a man with no clothes on in the back seat of the car. The man had his arms down on the seat, with his head in the air and his eyes closed. Also, the man was making thrusting motions with his hips. At this point, Fish shined his light into the car and the occupants became aware of his presence. The man sat up and began putting on his clothes and Fish then observed a female also in the car. She was lying across the back seat on her back and wearing only her shirt.
Fish told the occupants of the car to put their clothes on and then asked them to get out of the car. When they did so, he asked the female how old she was and she responded "twelve." He then placed her in her patrol car and spoke to petitioner. The female's mother was later contacted and her actual age turned out to be fourteen. The girl told Fish that he was "interrupting their fun." (Trial Tr. at 75-76).
Petitioner initially gave Fish a false name. Officer Fish asked petitioner "`What were ya'll doing out here, having consentual [sic] sex?'" (Id. at 74) When petitioner answered affirmatively, Fish then arrested him for statutory rape.
Several other witnesses also testified at the trial. The fourteen-year-old's mother testified that shoes and underwear which were found in the back seat of the car petitioner was in belonged to her daughter. A nurse who examined the girl testified that she found no physical evidence of intercourse, but that this would be normal in a situation involving consensual sex. Petitioner and the girl both testified that they were sitting clothed in the front seat of the car when Fish arrived and that they never had any sexual contact that night. Finally, one of petitioner's friends, who actually owned the car that petitioner was in, testified that the shoes in the backseat were his and that the panties belonged to his twelve-year-old daughter.
Petitioner was originally charged with indecent liberties and with statutory rape. However, at the close of evidence, his counsel made a motion to dismiss the statutory rape charge on the ground that there had been no proof of penetration as was required for a conviction of that crime. The trial court did not dismiss the charge, but instead decided to submit the lesser included offense of attempted statutory rape to the jury. Petitioner's counsel admitted that his argument for dismissal did not cover attempted statutory rape because successful penetration was not an element of that crime. Therefore, attempted statutory rape and taking indecent liberties with a child were submitted to a jury, which then convicted petitioner on both counts. Following sentencing, petitioner switched attorneys and filed an ill-fated appeal. The only issue raised on appeal was insufficiency of the evidence.
Petitioner's Claims
In this Court, petitioner raises numerous grounds for relief. They are: (1) Fish gave false testimony because his version of events was untrue, (2) the trial court incorrectly used North Carolina's rape-shield rule to exclude DNA evidence indicating that the fourteen-year-old may have had sex with another man that night, (3) the trial court erred by instructing the jury on the wrong elements of the charges, not admonishing the jury during the first two days of trial, making an improper inquiry of the jury, eavesdropping on the jury deliberations, improperly allowing the jury foreman to communicate with the bailiff, and improperly refusing a jury request to review petitioner's testimony, (4) the trial judge erred by speaking for three to five minutes to the jury about a "survey that he and some of his colleagues had performed in reference to having sexual intercourse in compact cars and that it was possible etc. . . ." (Petition at 6), (5) the prosecutor abused his discretion in the case because he prosecuted petitioner without sufficient evidence, (6) petitioner received ineffective assistance of counsel at trial because trial counsel failed to object to the fourteen-year-old being referred to as "the victim," failed to do a pretrial investigation to develop exculpatory evidence, failed to object to the charge of attempted statutory rape being presented to the jury, and failed to object to many of the occurrences that form the basis for petitioner's other claims, (7) petitioner received ineffective assistance of appellate counsel because appellate counsel raised only the one ground for appeal and not the errors that form the basis for the other claims, and (8) the prosecution used false evidence, in the form of the panties and shoes, even after knowing that the fourteen-year-old denied that they were hers. Respondent has moved for summary judgment on all of these claims. Petitioner has also filed a "motion to revisit" which appears to be a motion for judgment in his favor.
Standard of Review
If the Court finds that petitioner's claims were adjudicated by the state courts on their merits, it must then apply 28 U.S.C. § 2254(d)'s highly deferential standard of review to petitioner's claims. Under that standard, habeas relief cannot be granted in cases where a state court has considered a claim on its merits unless the decision was contrary to or involved an unreasonable application of clearly established federal law as set out by the United States Supreme Court or the state court decision was based on an unreasonable determination of the facts. A state court decision is "contrary to" Supreme Court precedent if it either arrives at "a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite" to that of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000).
Here, petitioner presented all of his claims to the state courts during his pursuit of his motion for appropriate relief. They were subsequently considered and denied. However, they were all denied for being procedurally barred, not on their merits. Respondent has not argued that the AEDPA standards apply. Still, it makes no difference because petitioner's claims fail under any possibly applicable standard of review.
Discussion
Although petitioner has raised numerous claims for relief, some with sub-claims, all of his claims really merge into one because most are procedurally barred. Absent cause and prejudice or a miscarriage of justice, a federal habeas court may not review constitutional claims when a state court has declined to consider their merits on the basis of an adequate and independent state procedural rule. See Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). A procedural rule under which the state court has declined to consider the merits of a petitioner's claims is adequate if it is regularly or consistently applied by the state court, Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), and is independent if it does not "depend . . . on a federal constitutional ruling," Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).In the present case, petitioner submitted all of his claims to the Superior Court of Forsyth County in his motion for appropriate relief. That court responded with an order that refused to hear the claims on their merits because petitioner had either already raised the claims on appeal and had them decided or had been in a position to raise his claims on direct appeal and had not. Therefore, the court found them to be procedurally barred under N.C. Gen. Stat. § 15A-1419(a).
In Boyd v. French, the Fourth Circuit considered whether a petitioner whose claim had been denied under N.C. Gen. Stat. § 15A-1419(a) was thereby barred from bringing that claim in a federal habeas petition. 147 F.3d 319 (4th Cir. 1998), cert. denied, 525 U.S. 1150, 119 S.Ct. 1050, 143 L.Ed.2d 56 (1999). In finding that such a petitioner was barred, the circuit court stated:
This court has consistently held, however, that § 15A-1419 is an adequate and independent state-law ground for decision foreclosing federal habeas review. See Williams v. French, 146 F.3d 203, 208-09 (4th Cir. 1998); Ashe v. Styles, 39 F.3d 80, 87-88 (4th Cir. 1994) (explaining that a federal habeas petition should have been denied on the basis of procedural default because the state court denied relief pursuant to § 15A-1419 (a) which is "an adequate and independent state law ground of decision"); see also O'Dell v. Netherland, 95 F.3d 1214, 1241 (4th Cir. 1996) (en banc) (holding that unambiguous procedural rules derived from state statutes or court rules are necessarily "firmly established" (internal quotation marks omitted)), aff'd, 521 U.S. 151, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997). . . .Boyd, 147 F.3d at 332. Unless the petitioner alleges either cause and prejudice for his procedural default, or attempts to establish that this Court's refusal to address his claims on the grounds of procedural fault would result in a miscarriage of justice, his claims will be barred.
Petitioner has made little or no effort to establish either cause and prejudice or a miscarriage of justice. Nor can he for the reasons that will be set out below. As a result, most of his claims are procedurally barred. However, this Court must, at least in a limited fashion, still discuss the merits of his claims because it appears that his claim of ineffective assistance of appellate counsel was erroneously labeled as procedurally barred by the state courts. This is so because petitioner did not make such a claim in his direct appeal and because he was not in a position to raise such a claim. His appellate attorney could not have made an ineffective assistance claim against herself. In fact, respondent does not argue in her brief that petitioner's ineffective appellate assistance claim is procedurally barred.
Not only will the Court decide the merits of petitioner's ineffective appellate assistance claim, but in doing so it must consider petitioner's other allegations. This is because he essentially contends that his appellate counsel was ineffective for failing to raise arguments based on the errors that he contends support his various claims for relief. Of course, all of petitioner's claims will be considered under the standards for ineffective assistance of appellate counsel.
An ineffective assistance of counsel claim is evaluated by using a two-part test:
In order to establish an ineffective assistance of counsel claim . . . [a petitioner is] required to establish that his "counsel's representation fell below an objective standard of reasonableness," measured by the "prevailing professional norms," [citing Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, 104 S.Ct. 2052. "Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 687, 104 S.Ct. 2052.
In determining whether counsel's performance was deficient, "[i]t is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689, 104 S.Ct. 2052. Hence, "court[s] must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . [and] that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (internal quotation marks omitted).
Similarly, in evaluating whether the defendant has shown actual prejudice from any such deficient performance, it is insufficient for the defendant "to show that the errors had some conceivable effect on the outcome of the proceeding," because "[v]irtually every act or omission of counsel would meet that test." Id. at 693, 104 S.Ct. 2052. Rather, a "reasonable probability" that the result would have been different requires "a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. When challenging a conviction, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. 2052. And, "[w]hen a defendant challenges a death sentence . . ., the question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id.Fisher v. Lee, 215 F.3d 438, 446-447 (4th Cir. 2000),cert. denied, 531 U.S. 1095, 121 S.Ct. 822, 148 L.Ed.2d 706 (2001).
On appeal, counsel need not raise every non-frivolous issue requested by a defendant. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); see also Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986);Smith v. State of South Carolina, 882 F.2d 895 (4th Cir. 1989), cert. denied, 493 U.S. 1046, 110 S.Ct. 843, 107 L.Ed.2d 838 (1990) (refusal of appellate counsel to raise a non-frivolous claim on direct appeal does not constitute cause for procedural default); Evans v. Thompson, 881 F.2d 117, 124 (4th Cir. 1989), cert. denied, 497 U.S. 1010, 110 S.Ct. 3255, 111 L.Ed.2d 764 (1990) (declaring that counsel pursued sound trial strategy when "he determined what he believed to be petitioner's most viable arguments and raised them on appeal");Griffin v. Aiken, 775 F.2d 1226 (4th Cir. 1985), cert. denied, 478 U.S. 1007, 106 S.Ct. 3301, 92 L.Ed.2d 715 (1986). Petitioner's appellate counsel did not pursue any of the claims now brought in the habeas petition. However, for the reasons that follow, the Court finds that this did not constitute ineffective assistance.
The first claim that petitioner believes counsel should have raised is that petitioner was convicted based on the false testimony of Officer Fish. Unfortunately for petitioner, he has produced absolutely no evidence that Fish gave false testimony. It is true that Fish's testimony was contradicted by the testimony of petitioner and the fourteen-year-old girl who he was convicted of attempting to have sex with. However, this merely raised issues of credibility which were settled by the jury in a way that was unfavorable for petitioner. Petitioner's claim consists of nothing more than mere conclusory statements and it cannot support a claim of ineffective appellate assistance.Nickerson v. Lee, 971 F.2d 1125 (4th Cir. 1992), cert. denied, 507 U.S. 923, 113 S.Ct. 1289, 122 L.Ed.2d 681 (1993) (no habeas relief for claims that are merely conclusory). Of course, this finding also spells defeat for petitioner's fifth claim, which is that the prosecutor in his case abused her discretion by trying petitioner without evidence of guilt. Fish's testimony provided such evidence and petitioner's fifth claim fails as well.
Petitioner's second claim is that the trial court erred because it used North Carolina's rape-shield law to exclude DNA evidence that showed that the fourteen-year-old had sex with someone else prior to her examination on the night that petitioner was caught in the car with her. Petitioner ignores the fact that the question of whether or not the fourteen-year-old had sex with someone other than petitioner on the night in question was simply irrelevant to his guilt or innocence. The only real issue at trial was whether it was Officer Fish, as opposed to petitioner and the fourteen-year-old, who was telling the truth about what was happening in the car when Fish approached it. The girl's possible sexual activities earlier in the evening do not call Officer Fish's credibility or any other part of the State's case into question. Therefore, the exclusion of this evidence did not affect petitioner's defense in any way.
The Court notes that, as an independent claim, this is a violation of state law. Such violations are not normally even cognizable on habeas review. See Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).
Petitioner's next claim is that the trial court erred by instructing the jury with the wrong elements, not admonishing the jury with cautionary instructions during the first two days of trial, making an improper inquiry of the jury, eavesdropping on the jury's deliberations, improperly allowing the jury foreman to communicate with the bailiff, and improperly refusing to allow the jury to review petitioner's testimony. Petitioner's contentions are mostly either unsupported, contradicted by the record, or irrelevant.
Petitioner does not even explain what was wrong with the elements in the instructions given by the trial court and does not explain or support his allegation concerning eavesdropping. He also does not explain how the eavesdropping, if it occurred, prejudiced him in any way. Likewise, petitioner provides no support for his statement that the trial judge made an "improper inquiry" of the jury.
Two of petitioner's allegations are actually contradicted by the transcript from his trial. He claims that the trial court erred by not admonishing the jury during the first two days of trial. However, on the first day, no evidence was taken so no admonishment was necessarily required. More importantly, on the second day, just before the testimony in the trial began, the trial judge told the jury to abide by the instructions "I have already given you . . . as to how we will proceed in this matter and what rules to abide by during the course of the trial." (Trial Tr. at 26) Obviously, the judge was referring to earlier, unrecorded instructions which he had given to the jury. The judge later made similar statements on at least two occasions. These statements included reminders not to talk about the case, begin deliberations, or do any independent investigation. Also, both reminders referred to earlier instructions. (Id. at 158, 180).
Petitioner also contends that the jury inappropriately spoke with the bailiff. However, the record reveals that the foreperson approached the bailiff and reported that the members of the jury were arguing with one another and that there was no order in the jury room. (Id. at 189) There is no record of any response by the bailiff or any inappropriate remark by anyone. Petitioner cannot even begin to explain how he was prejudiced.
The final part of petitioner's third claim is that the trial court improperly refused to allow the jury to review his testimony. The transcript does not show that the jury specifically asked to review petitioner's testimony. Instead, they asked the trial judge whether petitioner had admitted that a pair of adult underwear which was found in the car on the night he was arrested was his. (Id. at 176-177) The judge instructed them that they were to determine the answer based on their own recollection. There is nothing improper about this admonition. Furthermore, petitioner does not introduce any evidence to show that the jury ultimately decided their underwear question in a way that prejudiced him or that any review of the transcript would have influenced the verdict. His claim is conclusory and unsupported and fails for these reasons. There is no reason that his appellate counsel should have raised this claim.
Petitioner's fourth claim also concerns the alleged behavior of the trial judge. Petitioner claims that the trial judge engaged in a three to five minute discourse with the jury concerning a survey that he and his colleagues had conducted concerning sex in compact cars. Petitioner claims that the judge discussed prostitutes being caught in such cars and that he informed the jury that sex in compact cars was indeed possible. As with many of his other allegations, petitioner has produced no evidence supporting his claim. He does not point to any portion of the transcript reflecting the comments he describes and respondent says that no such portion exists. Having no evidence, petitioner's claim is conclusory and fails under Nickerson.
Petitioner's fifth claim for relief was dealt with along with his first claim, so the Court will now move to his sixth claim where he contends that he received ineffective assistance of counsel at trial. Many of his bases for this allegation are the allegations underlying the other claims of his petition. Those bases fail for the reasons discussed elsewhere in this Recommendation. Petitioner additionally asserts that his trial counsel was ineffective because he failed to object to the fourteen-year-old being called "the victim," failed to perform an adequate pretrial investigation to develop exculpatory evidence, and failed to object when the trial judge decided to instruct the jury on attempted statutory rape as opposed to statutory rape.
Given her actions and comments on the night petitioner was arrested and the fact that she later testified as a defense witness, petitioner's belief that the fourteen-year-old should not have been referred to as a "victim" is perhaps understandable. However, it is not so clear that the term is improper as a term of art used to describe a minor who was involved in a statutory rape case. More importantly, petitioner cannot show any prejudice. He has produced no evidence showing that the jury was swayed by any references to the fourteen-year-old as "the victim." Also, the references are not so highly prejudicial that harm must be presumed. Any possible prejudice in the form of the jury feeling sorry for the "victim" would have been strongly mitigated by Fish's testimony that the girl complained that he was ruining her fun and by the fact that she did testify in petitioner's defense. It would be obvious to the jury that the girl did not consider herself to be a victim. Petitioner cannot succeed with his ineffective assistance claim on this basis.
As for a faulty pretrial investigation, petitioner does not elaborate on or support his bald statement that his counsel did not adequately develop the case for the defense. The contention is entirely conclusory. It also borders on frivolous given that defense counsel was able to have the alleged victim in the case, as well as other witnesses, testify in petitioner's defense.
Finally, petitioner contends that his trial counsel was ineffective for failing to object to the decision to instruct the jury on the lesser included offense of attempted statutory rape. Petitioner's attorney was informed of this decision after arguing a motion to dismiss the statutory rape charge against petitioner. The basis for that motion was that penetration is an element of that crime and that no evidence of penetration existed. Petitioner and the fourteen-year-old testified that none occurred, there was no physical evidence of penetration, and even Officer Fish did not actually see penetration occurring. The trial judge then asked whether, if he agreed with the defense's argument, the jury should not instead be instructed on the lesser included offense of attempted statutory rape given that only attempted, not actual, penetration was required. Petitioner's counsel admitted his argument would not cover a charge of attempt because his argument was based on a lack of evidence of actual penetration.
Petitioner believes that, instead of conceding that the attempt charge could go to the jury, counsel should have objected. However, he gives no real grounds for an objection and none appear to exist given the nature of the evidence. Officer Fish's testimony served as both actual (petitioner's admission) and circumstantial evidence of actual penetration and, therefore, clearly suffices as evidence of attempted penetration. Petitioner's attorney had no meritorious ground on which to argue that no evidence of attempted statutory rape existed. At one point, petitioner states that the crime of "attempted statutory rape" does not exist in North Carolina. If true, this would have been a ground for objection. However, statutory rape is a felony in North Carolina and North Carolina law is clear that attempting a felony is also illegal. See N.C. Gen. Stat. § 15-170 (a person indicted for a crime may be convicted of attempting that crime); N.C. Gen. Stat. § 14-2.5 (setting out punishments for attempted crimes). In the end, petitioner has advanced no meritorious grounds in support of his claim that his trial counsel was ineffective or that his appellate counsel was ineffective for failing to raise such a claim.
Petitioner's final claim which might support his contention that his appellate counsel was ineffective is that the prosecution in his case knowingly used false evidence against him when it introduced the panties and shoes found in the back seat of the car and claimed that they belonged to the fourteen-year-old. He claims that the prosecution knew that this was not true. However, he has again produced no actual evidence to back up his assertion. Just as his and the fourteen-year-old's testimony conflicted with that of Officer Fish, there was conflicting testimony concerning the ownership of those clothing items. However, this means only that there was a credibility question for the jury to decide, not that the prosecution knew that its witness was lying and introduced the evidence anyway. This claim, like the others, fails.
In conclusion, none of the possible assignments of error that petitioner believes his appellate counsel was ineffective for failing to raise has any merit. They are all either unsupported, contradicted by the evidence, and/or frivolous. For this reason, it is also clear that his claim for ineffective assistance of appellate counsel also fails. Respondent's motion should be granted and all of his claims should be dismissed.
IT IS THEREFORE RECOMMENDED that respondent's motion for summary judgment (docket no. 6) be granted, that petitioner's motion to revisit (docket no. 13) be denied, that the petition (docket no. 1) be denied, and that Judgment be entered dismissing this action.