Blankenship v. Ishee

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

CASE NO. 5:20-cv-00101-MR

ZACHARY ALLEN BLANKENSHIP, )

)

Petitioner, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

TODD ISHEE, Secretary, North )

Carolina Department of Adult )

Correction,1 )

)

Respondent. )

________________________________ )

THIS MATTER is before the Court on the Motion to Dismiss [Doc. 7]

and Motion to Seal Documents [Doc. 10] filed by the Respondent on

September 8, 2022.

I. PROCEDURAL BACKGROUND

Zachary Allen Blankenship (the “Petitioner”) is a prisoner of the State

of North Carolina. The Petitioner was convicted on February 24, 2017 in

Catawba County Superior Court for rape of a child (one count), taking

1 Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District

Courts requires that “the petition must name as respondent the state officer who has

custody” of the petitioner. Rule 2(a), 28 U.S.C. foll. § 2254. North Carolina law mandates

that the Secretary of the North Carolina Department of Adult Correction is the custodian

of all state inmates. See N.C. Gen. Stat. § 148-4 (2023). Accordingly, Todd Ishee, the

current Secretary of the North Carolina Department of Adult Correction, is the proper

respondent in this action.

indecent liberties with a child (four counts), and sexual offense with a child

(three counts). [Doc. 1 at 1]; State v. Blankenship, 259 N.C. App. 102, 111

(April 17, 2018). The Petitioner was sentenced to two consecutive terms of

300 to 420 months of imprisonment and ordered to register as a sexual

offender for the rest of his natural life. Id.

Prior to trial, the State moved to admit several hearsay statements from

the minor victim into evidence. Id. at 104-106. The trial court granted the

motion to allow admission of the hearsay statements under multiple hearsay

exceptions, including the residual exception of N.C. R. Evid. 804(b)(5). Id.

The statements were admitted at trial. Id. at 106-110.

The Petitioner filed a direct appeal in which he argued that the trial

court erred in admitting the hearsay statements, erred in denying the

Petitioner’s motion to dismiss by failing to corroborate his confession in

violation of the corpus delicti rule, and that trial counsel was ineffective. State

v. Blankenship, 259 N.C. App. at 112. The North Carolina Court of Appeals

issued its opinion on April 17, 2018, holding as follows: 1) hearsay testimony

from victim’s grandparents concerning victim's statements to them about

how the Petitioner inappropriately touched her was admissible under

residual exception of N.C. R. Evid. 804(b)(5); 2) hearsay testimony from

victim advocate and victim relative concerning victim’s statements to them

about how the Petitioner inappropriately touched her were admissible under

residual exception of N.C. R. Evid. 804(b)(5); 3) admission of inadmissible

hearsay testimony from registered nurse concerning victim’s statement to

nurse about how the Petitioner inappropriately touched her was not

prejudicial error; and 4) the State failed to present sufficient evidence for the

sexual offense charges and the indecent liberties charges. State v.

Blankenship, 259 N.C.App. 102, 111-125.

As to the statements admitted under the residual exception of N.C. R.

Evid. 804(b)(5), the appellate court held that the hearsay statements had

sufficient guarantees of trustworthiness and that the trial court did not err in

admitting the statements under the residual exception. Id. The appellate

court vacated the convictions for sexual offense and indecent liberties with a

child, dismissed the Petitioner’s ineffective assistance claims without

prejudice to his right to file a motion for appropriate relief in state court, and

remanded the matter for resentencing. Id. at 122-125. On remand, the trial

court resentenced the Petitioner to one term of 300-420 months of

imprisonment for the remaining conviction of first-degree rape of a child.

[Doc. 8-11 at 2].

The Petitioner sought discretionary review by the North Carolina

Supreme Court, which denied his petition on May 9, 2019. State v.

Blankenship, 371 N.C. 116 (May 9, 2019). The Petitioner did not file any

motions for post-conviction relief in state court. [Doc. 1 at 3].

The Petitioner filed his § 2254 Petition for Writ of Habeas Corpus on

July 24, 2020. [Doc. 1]. This Court entered an Order on July 11, 2022

directing the Respondent to answer or otherwise respond to the § 2254

petition. [Doc. 4]. The Respondent filed its Motion to Dismiss on September

8, 2022 and moves for dismissal of the § 2254 petition on grounds that the

Petitioner fails to state a claim of relief, or in the alternative, that the

Petitioner’s claim is barred by procedural default. [Docs. 7, 8].

II. STANDARD OF REVIEW

28 U.S.C. § 2254 applies to “a person in custody under a state-court

judgment who seeks a determination that the custody violates the

Constitution, laws, or treaties of the United States.” Rule 1(a), Rules

Governing Section 2254 Cases. Habeas relief may be granted to a state

prisoner if the state court's last adjudication of a claim on the merits “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[.]” 28 U.S.C. § 2254(d)(1). Alternatively, relief may be

granted to a state prisoner if the state court's last adjudication of a claim on

the merits “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.” 28 U.S.C. § 2254(d)(2).

Rule 2(c) of the Rules Governing Section 2254 Cases requires a

petitioner to specify all available grounds for relief and state the facts that

support each ground. The Court is directed to dismiss a petition when it

plainly appears from the petition and any exhibits that the petitioner is not

entitled to relief. See Rule 4, Rules Governing Section 2254 Cases.

III. DISCUSSION

A. Failure to State a Claim

The Petitioner raises one ground for relief in his § 2254 petition. The

Petitioner asserts that the North Carolina Supreme Court erred in its review

of the record and decision to uphold the appellate court’s conclusion that the

hearsay testimony was admissible under the residual hearsay exception of

N.C. R. Evid. 804(b)(5). [Doc. 1 at 5]. The Petitioner states that he has

evidence that proves the victim was motivated to fabricate the statements

due to the witnesses’ “non-credibleness and ill-intentions.. . . to purposely

‘frame’ and defame the [Petitioner’s] character...” and that the minor victim

did in fact recant the statement to another licensed child psychologist

(Connie Loudermelt). [Id]. The Petitioner requests this Court dismiss with

prejudice the first-degree rape of a child conviction. [Id. at 15].

The Respondent moves for dismissal of the § 2254 petition on grounds

that it fails to state a claim of habeas relief. [Docs. 7,8]. The Respondent

argues that the Petitioner’s claim is not cognizable because it challenges the

admissibility of evidence under North Carolina law and fails to raise any

federal or constitutional violations. [Doc. 8 at 8].

“Section 2254(a) permits a federal court to entertain only those

applications alleging that a person is in state custody ‘in violation of the

Constitution or laws or treaties of the United States.’” 28 U.S.C. § 2254(a);

Cullen v. Pinholster, 563 U.S. 170, 181 (2011). “Normally, the admissibility

of evidence, the sufficiency of evidence, and instructions to the jury in state

trials are matters of state law and procedure not involving federal

constitutional issues.” Grundler v. State of North Carolina, 283 F.2d 798,

802 (4th Cir. 1960). “The role of a federal habeas corpus petition is not to

serve as an additional appeal.” Id. See also Burket v. Angelone, 208 F.3d

172, 186 (4th Cir. 2000)(explaining that “we do not sit to review

the admissibility of evidence under state law unless erroneous evidentiary

rulings were so extreme as to result in a denial of a constitutionally fair

proceeding”).

The Petitioner takes issue with the North Carolina Supreme Court’s

denial of his Petition for Discretionary Review and the North Carolina Court

of Appeals’ holding that the hearsay statements had sufficient guarantees of

trustworthiness and were properly admitted under the residual hearsay

exception of N.C. R. Evid. 804(b)(5). This is solely an issue of state

evidentiary law and the Petitioner sets forth no federal or constitutional

violation.2 Because the Petitioner does not raise any constitutional issues or

federal questions in his petition, he fails to state a valid federal habeas

corpus claim. As such, the § 2254 petition shall be dismissed.

B. Failure to Exhaust/Procedural Default

The Respondent moves, in the alternative, for dismissal of the § 2254

petition on grounds that even if the petition did allege a constitutional claim,

2 In his response to the Motion to Dismiss, the Petitioner argues that testimony of

psychologist Connie Loudermelt would prove that the grandparents were the actual

perpetrators and that this information became available to the prosecution in March 2015.

[Doc. 13 at 1]. The Petitioner states that neither he nor his attorney became aware of this

until September 16, 2019 – two and a half years after the trial - even though the

prosecution knew of this fact before the trial and failed to disclose it in discovery. [Id.].

The Petitioner appears to be attempting to assert a violation under Brady v. Maryland,

373 U.S. 83 (1963) for failing to disclose evidence. However, this claim was not raised in

the § 2254 petition and the Petitioner cannot assert new claims in a response to a motion

to dismiss. See Porter v. Hamilton, 2022 WL 619959, *1 n.3 (E.D. Va. March 2,

2022)(noting that plaintiffs may not amend their claims by raising new arguments in a

response to a motion to dismiss); Hurst v. District of Columbia, 681 F. App’x 186, 194 (4th

Cir. 2017)(plaintiff may not amend complaint “via briefing”); see also Rule 2(c) of the Rules

Governing Section 2254 Cases (requiring a petitioner to specify all available grounds for

relief in the § 2254 petition). This claim would also be procedurally barred for failure to

exhaust this claim in state court.

such claim would be barred from review by this Court due to the Petitioner’s

failure to raise a constitutional claim in state court. [Doc. 8 at 11].

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a

petitioner must exhaust his available state remedies before he may pursue

habeas relief in federal court. 28 U.S.C. § 2254(b)(1)(A). Exhaustion

requires the prisoner to present the federal claim in state court in order to

give the state the opportunity to review and correct alleged violations of the

prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365-366 (1995).

The state court must be “alerted to the fact that the prisoners are asserting

claims under the United States constitution.” Id.

“A distinct but related limit on the scope of federal habeas review is the

doctrine of procedural default.” Breard v. Pruett,134 F.3d 615, 619 (4th Cir.

1998). A petitioner is procedurally barred when he “fails to exhaust available

state remedies and ‘the court to which the petitioner would be required to

present his claims in order to meet the exhaustion requirement would now

find the claims procedurally barred.’” Id. (quoting Coleman v. Thompson,

501 U.S. 722, 735 n.1 (1991). A federal habeas court will not review a

procedurally defaulted claim absent a showing of cause and prejudice or a

fundamental miscarriage of justice. Fisher v. Angelone, 163 F.3d 835, 844

(4th Cir. 1998)(citing Coleman v. Thompson, 501 U.S. at 731-732).

The Petitioner’s direct appeal challenged the admission of hearsay

testimony on grounds that the trial court improperly admitted the testimony

under the North Carolina Rules of Evidence. The appeal asserted no

constitutional violation. State v. Blankenship, 259 N.C. App. 102 (April 17,

2018). The Petitioner also did not raise any constitutional violation in his

petition for discretionary review to the North Carolina Supreme Court. State

v. Blankenship, 371 N.C. 116 (May 9, 2019); [Doc. 8-12].

The Petitioner did not file a post-conviction MAR in state court raising

any constitutional violation. If he were to attempt to do so now, such claim

would be barred by procedural default due to the Petitioner’s failure to raise

the issue in his appeal proceedings. See N.C. Gen. Stat. § 15A-

1419(a)(3)(providing for dismissal if “[u]pon a previous appeal the defendant

was in a position to adequately raise the ground or issue underlying the ...

motion but did not do so”).

The only response the Petitioner makes in opposition to the

Respondent’s procedural default argument is that he could not have raised

his claim on direct appeal because he did not become aware of the State’s

Brady violation until September 16, 2019 and could not have raised the issue

at the time. [Doc. 13 at 2]. This does not provide sufficient grounds on which

to excuse procedural default, and as set forth in note 2, supra, the

Petitioner’s Brady violation argument is a new argument that was not raised

in his § 2254 petition and not before this Court.3 Therefore, even if the

Petitioner did raise a constitutional claim in his § 2254 petition, such claim

would be procedurally barred from federal habeas review.

C. Petitioner’s Request for Subpoena

The Petitioner states that on July 10, 2020, he became aware of

evidence that psychologist Connie Loudermelt worked with the victim for

approximately 18 months, wherein she made findings that were contradictory

to hearsay statements made in his case. [Doc. 1 at 16-17]. The Petitioner

requests this Court issue a subpoena to compel Loudermelt to testify and/or

submit a documented report of her findings. [Id.].

As set forth above, the Petitioner’s § 2254 is subject to dismissal for

failure to state a claim, or in the alternative, is procedurally barred from

habeas review. Moreover, such testimony is not relevant to the claim the

Petitioner has presented to this Court. The Petitioner is therefore not entitled

to an evidentiary hearing in this matter and the Petitioner cannot demonstrate

any need for this Court to subpoena the psychologist. As such, the

3 The Petitioner may have had remedies available to him based on newly discovered

evidence or a Brady violation discovered post-trial, but he has not presented such claim

to this Court by simply arguing it in his Response to a motion to dismiss an entirely

different claim.

Petitioner’s request for issuance of a subpoena is denied.

D. Motion to Seal Documents

The Respondent moves to permanently seal portions of selected

exhibits attached to its brief in support of its Motion to Dismiss, as well as a

part of the attachments to the Petitioner’s § 2254 petition in order to protect

the identity of the minor sexual abuse victim involved in the Petitioner’s

criminal proceeding. [Docs. 10, 11]. The Respondent moves this Court for

an Order as follows: (1) sealing the unredacted versions of the Respondent’s

Exhibits 1, 3, 4, and 5; (2) sealing the attachments to Petitioner’s § 2254

Petition [Doc. 1-1 at 1, 5-6]; (3) and authorizing the use of a pseudonym for

the victim rather than initials. [Doc. 11 at 2]. The Respondent states that the

victim is named and discussed in these documents, that the redaction of the

victim’s identifying information from the above-described documents is

necessary, and that the factors weigh in favor of allowing the victim to remain

anonymous in this proceeding. [Id. at 4, 7]. The Respondent points out that

the Petitioner’s filings in his direct appeal are all sealed and those filings that

are publicly available use either pseudonyms or acronyms to protect the

victim’s identity. [Id. at 9].

The press and the public have, under both the First Amendment and

the common law, a qualified right of access to judicial documents and

records filed in civil and criminal proceedings. Doe v. Public Citizen, 749

F.3d 246, 265 (4th Cir. 2014). “The common-law presumptive right of access

extends to all judicial documents and records, and the presumption can be

rebutted only by showing that ‘countervailing interests heavily outweigh the

public interests in access.’” Id. at 265-66 (quoting Rushford v. New Yorker

Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988)). The First Amendment

right of access “may be restricted only if closure is ‘necessitated by a

compelling government interest’ and the denial of access is ‘narrowly tailored

to serve that interest.’” Id. at 266 (quoting In re Wash. Post Co., 807 F.2d

383, 390 (4th Cir. 1986)).

A court has the authority to seal documents before it based upon the

court’s inherent supervisory authority over its own files and records. See

Nixon v. Warner Comm. Inc., 435 U.S. 589, 598 (1978). When presented

with a motion to seal, this Court is required to: “(1) provide public notice of

the request to seal and allow interested parties a reasonable opportunity to

object, (2) consider less drastic alternatives to sealing the documents, and

(3) provide specific reasons and factual findings supporting its decision to

seal the documents and for rejecting the alternatives.” Ashcraft v. Conoco,

Inc., 218 F.3d 288, 302 (4th Cir. 2000).

In the present case, the public has been provided with adequate notice

and an opportunity to object to the Motion to Seal, as it has been publicly

available through the Court’s electronic case filing system since it was filed

on September 8, 2022. The Respondent has demonstrated that the

specified documents reference the identity of the minor victim and contain

sensitive information. The public’s right of access to such information is

substantially outweighed by the Respondent’s competing interest in

protecting the details of such information on behalf of the minor victim.

Finally, having considered less drastic alternatives to sealing the documents,

the Court concludes that sealing the documents is necessary to protect the

minor victim’s privacy interests, that there is no alternative that will

adequately protect the privacy rights of the minor victim, and that

permanently sealing the documents at issue is warranted. As such, the

Court will grant the Respondent’s Motion to Seal.

IV. CONCLUSION

For the reasons set forth above, the § 2254 Petition for Writ of Habeas

Corpus shall be dismissed. The Court denies the Petitioner’s request to

issue a subpoena. The Respondent’s Motion to Seal Documents shall be

granted.

Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases,

the Court declines to issue a certificate of appealability. See 28 U.S.C. §

2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338 (2003)(noting that, in

order to satisfy § 2253(c), a prisoner must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong); Slack v. McDaniel, 529 U.S. 474, 484 (2000)(holding

that, when relief is denied on procedural grounds, a prisoner must establish

both that the dispositive procedural ruling is debatable and that the petition

states a debatable claim of the denial of a constitutional right).

IT IS, THEREFORE, ORDERED that:

1. The Respondent’s Motion to Dismiss [Doc. 7] is GRANTED and

the § 2254 Petition for Writ of Habeas Corpus [Doc. 1] is DISMISSED.

2. The Petitioner’s request for issuance of a subpoena [Doc. 1 at

16-17] is DENIED.

3. The Respondent’s Motion to Seal [Doc. 10] is GRANTED. The

Clerk of Court is respectfully instructed to permanently SEAL the unredacted

versions of the Respondent’s Exhibit 1 3, 4, and 5, and the attachments to

Petitioner’s § 2254 Petition for Writ of Habeas Corpus at Doc. 1-1 at 1, 5-6.

The unsealed versions of these exhibits shall be redacted so as to remove

any refence to the minor victim’s name. The Court further grants the

Respondent's request to use a pseudonym to identify the minor victim in its

pleadings.

4. The Clerk of Court is respectfully directed to substitute Todd

Ishee, Secretary of the North Carolina Department of Adult Correction, as

the proper Respondent in this action.

5. | The Court declines to issue a certificate of appealability pursuant

to Rule 11(a) of the Rules Governing Section 2254 Cases.

6. | The Clerk of Court is directed to close this case.

IT IS SO ORDERED.

Signed: September 20, 2023

Martifi Reidinger ey

Chief United States District Judge AS

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