Petition for Writ of Certiorari — Grant Ruffin Haze, Petitioner v. Katy Poole, Administrator, Scotland Correctional Institution

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FILED: October 22, 2019

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-7527

(5:17-hc-02026-BR)

GRANT RUFFIN HAZE, III

Petitioner - Appellant

v.

KATY POOLE, Administrator, Scotland Correctional Institution

Respondent - Appellee

ORDER

The court denies the petition for rehearing and rehearing en banc. No judge

requested a poll under Fed. R. App. P. 35 on the petition for rehearing en banc.

Entered at the direction of the panel: Judge Floyd, Judge Quattlebaum, and

Senior Judge Hamilton.

For the Court

/s/ Patricia S. Connor. Clerk

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-7527

GRANT RUFFIN HAZE, III,

Petitioner - Appellant,

v.

KATY POOLE, Administrator, Scotland Correctional Institution,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of North Carolina, at

Raleigh. W. Earl Britt, Senior District Judge. (5:17-hc-O2026-BR)

Submitted: August 29, 2019

Decided: September 17, 2019

Before FLOYD and QUATTLEBAUM, Circuit Judges, and HAMILTON, Senior Circuit

Judge.

Dismissed by unpublished per curiam opinion.

Grant Ruffin Haze, III, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Grant Ruffin Haze, III, seeks to appeal the district court’s orders dismissing his

28 U.S.C. § 2254 (2012) petition and denying his discovery motion. These orders are not

appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1)(A) (2012). A certificate of appealability will not issue absent “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the

district court denies relief on the merits, a prisoner satisfies this standard by demonstrating

that reasonable jurists would find that the district court’s assessment of the constitutional

claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El

v. Cockrell, 537 U.S. 322, 336-38 (2003).

When the district court denies relief on

procedural grounds, the prisoner must demonstrate both that the dispositive procedural

ruling is debatable, and that the petition states a debatable claim of the denial of a

constitutional right. Slack, 529 U.S. at 484-85.

We have independently reviewed the record and conclude that Haze has not made

the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to

proceed in forma pauperis, and dismiss the appeal. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

DISMISSED

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

GRANT RUFFIN HAZE, III, ’

Petitioner,

• v.KATY POOLE,

Respondent.

Judgment in a Civil Case '

Civil Case Number: 5:17-HC-2026-BR

Decision by Court.

This case came before the Honorable W. Earl Britt, Senior United States District Judge, for review

of respondent’s motion for summary judgment, and petitioner’s motions for an evidentiary hearing,

and to be relieved of the obligation to serve respondent with paper copies of filings.

IT IS ORDERED AND ADJUDGED that respondent’s motion for summary judgment is

granted, petitioner’s motion for an evidentiary hearing is denied, petitioner’s motion to be

relieved of service obligations is denied, and petitioner’s § 2254 petition is dismissed. A

certificate of appealability is denied.

This Judgment Filed and Entered on December 4' 2018. with service’on:

Grant Ruffin Haze, III 1113277, Scotland Correctional Institution, 22385 McGirts Bridge Rd.,

Laurinburg, NC 28353.

(via U.S. Mail)

Clarence J. DelForge , III, N. C. Dept, of Justice, P. O. Box 629, Raleigh, NC 27602-0629.

(via CM/ECF Notice of Electronic Filing)

December 4, 2018

/s/ Peter A, Moore, Jr.

Clerk of Court

By!^

deputy Clerk

Case 5:17-hc-02026-BR Document 48 Filed 12/04/18 Page 1 of 1

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:17-HC-2026-BR

GRANT RUFFIN HAZE,

)

)

)

)

)

)

)

)

)

Petitioner,

v.

KATY POOLE,

Respondent.

ORDER

This matter is before the court on respondent’s motion for summary judgment, (DE # 18),

and petitioner’s motions for an evidentiary hearing, (DE # 28), and to be relieved of the

obligation to serve respondent with paper copies of filings, (DE # 36). Petitioner filed a reply to

respondent’s answer, a memorandum in opposition to respondent’s motion, and other supporting

documents. (DE ## 39-43, 45, 46.) This matter is ripe for disposition.

I.

BACKGROUND

The North Carolina Court of Appeals summarized the facts underlying petitioner’s

conviction and sentence as follows:

Laura Jean Ackerson (the victim) and Grant Ruffin Hayes (defendant) met in

March 2007. Thereafter, the two engaged in a domestic relationship, but never

married. Two children were bom of the relationship, and once defendant and the

victim separated, a custody dispute over the children ensued. In late 2009,

defendant met Amanda Hayes (Amanda) and they began dating. Defendant and

Amanda married in April 2010 and moved into an apartment in Raleigh. The

victim lived in Kinston.

On 29 June 2010, the Lenoir County District Court entered a consent order giving

temporary physical custody of the children to defendant during the week and to

the victim on weekends. As part of their temporary arrangement, the parties

agreed to a psychological evaluation by Dr. Ginger Calloway, a forensic

psychologist. After evaluating the parties over a period of time, Dr. Calloway

issued a report recommending that defendant and the victim share legal and

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Case 5:17-hc-02026-BR Document 47 Filed 12/04/18 Page 1 of 18

physical custody of the children. Over defendant's objection, Dr. Calloway

testified about the contents of her report at trial.

On 12 July 2011, defendant e-mailed the victim to suggest that she see the

children for a mid-week visit. The victim drove to Raleigh on 13 July, texting

defendant at 4:12 p.m., “I'm leaving the Wilson area now. I'll call when I get past

the traffic. Where will you be in [an] hour or so?” The victim also called

defendant, with the last outgoing call occurring at 4:59 p.m. near Crabtree Valley

mall “going outbound toward [defendant's] apartment[.]” Chevon Mathes, the

victim's friend and business partner, knew that the victim was going to Raleigh

and expected a business related call from her at approximately 9:00 p.m., which

she never received.

In the early hours of 14 July, defendant bought goggles, trash bags, a

reciprocating saw, blades, plastic sheeting, tarp, gloves, bleach, tape, and a lint

roller at Wal-Mart and Target in Raleigh. Amanda called her daughter, Sha, later

that morning, and Sha took the children to Monkey Joe's, a play center, in Raleigh

for most of the day. On 16 July, defendant bought coolers and ice. He also rented

a U-Haul trailer and indicated that his destination was Texas. Amanda called Sha

and told her that she was going to Texas to see her sister, Karen Berry. Defendant,

Amanda, and the children drove to Texas in the U-Haul and arrived at Ms.

Berry's house in the late hours of 17 July or early in the morning of 18 July.

On 19 July, defendant bought gloves and bottles of acid from Home Depot.

Surveillance cameras captured Amanda dumping some of the bottles in an area

near Ms. Berry's residence. Ms. Berry’s residence was also located near a creek

that was often used for fishing. Ms. Berry testified that defendant and Amanda

took her boat into the creek on the night of 19 July. When investigators later

searched the creek, they found the victim's decomposed and dismembered body

parts. The State's expert witness pathologists testified at trial that the victim's

cause of death was “homicide by und[et]ermined means” or “undetermined

homicidal violence.”

Defendant returned the U-Haul trailer on 20 July and drove with Amanda and the

children back to Raleigh. Mathes became concerned about the victim's

disappearance and notified law enforcement. After launching an investigation,

law enforcement officers searched defendant's apartment on 20 July. In addition

to a bleach stain, missing furniture, and cleaning products, they also found lyrics

to a song entitled, “Man Killer.” The lyrics concerned the first-person killing of a

woman by making her bleed and by strangulation. Over defendant's objection at

trial, the trial court admitted the song lyrics into evidence.

The State also offered the witness testimony of Pablo Trinidad at trial. Trinidad

testified that in July 2011, he was being held in the Wake County Detention

Center on federal charges while defendant was being held in the same location for

the murder charge. Trinidad stated that he met defendant because they were

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housed in the same area. One day, inmates saw defendant's case being discussed

on television and wanted to harm him, but Trinidad diffused the situation.

Trinidad testified that at some point after this incident, defendant told him that he

called the victim and “lured” her to his apartment under the “false pretenses” of

settling the custody dispute, “subdued” her with Amanda's help, strangled her,

and drove out of state to dispose of the body.

State v. Hayes, 768 S.E.2d 636, 639-40 (N.C. Ct. App. 2015) (alterations in original).

On 16 September 2013, a jury found petitioner guilty of first degree murder, and the trial

court sentenced him to life imprisonment without parole. Li at 639. Petitioner appealed.

On appeal, petitioner argued that the trial court erred by: (1) “admitting Dr. Calloway's

report into evidence and by allowing her to testify about the report[,]” id. at 640; (2) “allowing

the State's expert witness pathologists to testify that the victim's cause of death was

“homicide[,j” id. at 643-44; (3) admitting Detective Jerry Faulk’s testimony that Trinidad’s prior

statements to federal agents were consistent with Trinidad’s prior statements to him (Faulk), id.

at 645; (4) admitting the “Man Killer” lyrics into evidence, id at 647; and (5) “manifesting a

belief that it lacked discretion to allow the jury to review exhibits in the deliberation room and

review a portion of a witness's testimony [,] id. at 648. The North Carolina Court of Appeals

rejected each argument and held petitioner “received a fair trial, free from prejudicial error.” Id.

at 639. The North Carolina Supreme Court dismissed petitioner’s appeal and denied his petition

for discretionary review. State v. Haze, 776 S.E.2d 203 (N.C. 2015).

On 10 August 2016, petitioner, through counsel, filed motions to allow examination of

Amanda’s cell phone and to compel a television station to produce the video and audio of any

stories aired during the last two weeks of July 2011 regarding the victim’s disappearance. (DE #

1-7, at 1-15.) Several days later, petitioner, through counsel, filed a motion for appropriate relief

(“MAR”) seeking to set aside his conviction and a new trial, claiming (1) prosecutorial

misconduct based on the interception of his legal mail and the presentation of unreliable witness

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testimony at trial and (2) ineffective assistance of trial counsel based on the failure to (a) counter

the State’s “narrative,” (b) establish the victim’s character for dishonesty, (c) establish witness

Heidi Schumacher’s lack of credibility, (d) obtain the presence of Shane Heist to testify, and (e)

show that petitioner wrote and recorded “Man Killer” years prior to meeting the victim. (Id at

16-39.) In January 2017, without holding an evidentiary hearing, the trial court denied these

motions. (Id. at 49-53.) Petitioner, through counsel, then sought a writ of certiorari from the

North Carolina Court of Appeals. (Id at 54-61.) On 3 February 2017, the appellate court denied

the petition. (Id. at 62.)

On 8 February 2017, petitioner, proceeding pro se, filed the instant 28 U.S.C. § 2254

petition. (DE ##1,1-1, 1-4.) Petitioner challenges his murder conviction based on prosecutorial

misconduct and ineffective assistance of counsel. He requests an evidentiary hearing on his

ineffective assistance of counsel claims, (DE # 28), and, based on a supplemental filing, appears

to also seek an evidentiary hearing on his prosecutorial misconduct claims, (see DE # 33-1, at 358). Finally, petitioner requests to be relieved of the obligation to provide respondent with paper

copies of future filings, instead allowing service by the court’s electronic case filing system, and

requests to receive the last page of his docket sheet monthly to confirm that the court receives

any future filings. (DE # 36.)

Respondent seeks summary judgment on all of petitioner’s claims.

II.

A.

DISCUSSION

Standard of Review

Summary judgment is appropriate when there exists no genuine issue of material fact,

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson

v. Liberty Lobby. 477 U.S. 242,247 (1986); Brandt v. Gooding. 636 F.3d 124, 132 (4th Cir.

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2011) (“Federal Rule of Civil Procedure 56 applies to habeas proceedings.” (citation and internal

quotation marks omitted)). The party seeking summary judgment bears the burden of initially

coming forward and demonstrating an absence of a genuine issue of material fact. Celotex Com.

v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmoving

party then must affirmatively demonstrate that there exists a genuine issue of material fact

requiring trial. Matsushita Elec. Indus. Co. Ltd, v. Zenith Radio Coro.. 475 U.S. 574, 587

(1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving

party for a jury to return a verdict for that party. Anderson. 477 U.S. at 250.

The standard of review for habeas petitions brought by state inmates, where the claims

have been adjudicated on the merits in the state court, is set forth in 28 U.S.C. § 2254(d). That

statute provides that habeas relief cannot be granted where a state court considered a claim on its

merits unless the decision was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,” or the

decision was “based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceedings.” 28 U.S.C. § 2254(d). A state court decision is

“contrary to” Supreme Court clearly established precedent if it either “arrives at a conclusion

opposite to that reached by [the Supreme] Court on a question of law” or “decides a case

differently than [the Supreme] Court has on a set of materially indistinguishable facts.”

Williams v. Taylor. 529 U.S. 362, 413 (2000). A state court decision “involves an unreasonable

application” of Supreme Court precedent “if the state court identifies the correct governing legal

principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the

facts of the prisoner’s case.” Id; see also White v. Woodall. 134 S. Ct. 1697, 1702-07 (2014).

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Section 2254(d)

does not require that a state court cite to federal law in order for a federal court to

determine whether the state court’s decision is an objectively reasonable one, nor

does it require a federal habeas court to offer an independent opinion as to

whether it believes, based upon its own reading of the controlling Supreme Court

precedents, that the [petitioner’s] constitutional rights were violated during the

state court proceedings.

Bell v. Jarvis, 236 F.3d 149, 160 (4th Cir. 2000). Moreover, a determination of a factual issue

made by a state court is presumed correct, unless rebutted by clear and convincing evidence. 28

U.S.C. § 2254(e)(1).

Congress intended the standard in the Antiterrorism and Effective Death Penalty Act of

1996 to be difficult to meet. See White. 134 S. Ct. at 1702; Harrington v. Richter. 562 U.S. 86,

102 (2011). “Section 2254(d) is part of the basic structure of federal habeas jurisdiction,

designed to confirm that state courts are the principal forum for asserting constitutional

challenges to state convictions.” Harrington, 562 U.S. at 103.

B.

Prosecutorial Misconduct Claims

Petitioner claims that state prosecutors engaged in misconduct in two respects: first, they

presented the testimony of unreliable witnesses, and second, they intercepted his legal mail. The

court examines these claims in turn.

With regard to his first claim, petitioner contends that prosecutors knew, or should have

known, a number of the State’s witnesses “were testifying to inflammatory lies in order to

portray [petitioner] as a violent sociopath, that [the victim] feared, and with a history of abusing

and threatening [the victim].” (Pet., DE # 1, at 9.) In further support of the claim, petitioner

points to supposedly false testimony the prosecution elicited about his winning custody of his

and the victim’s children by claiming the victim was a prostitute and drug user; petitioner and the

victim having been married; and, the victim wanting to leave petitioner. (Id. at 9-20.)

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To succeed on such a claim, under Napue v. Illinois. 360 U.S. 264 (1959), a defendant

must show “the falsity and materiality of testimony and the prosecutor's knowledge of its falsity.

Perjury offered under these circumstances is material if there is any reasonable likelihood that

the false testimony could have affected the judgment of the jury.” Basden v. Lee, 290 F.3d 602,

614 (4th Cir. 2002) (internal quotation marks omitted) (citing United States v. Agurs, 427 U.S.

97, 103 (1976)).

As noted previously, petitioner raised this prosecutorial misconduct claim in his MAR.

In reference to this claim, the trial court found that “[tjhere is no credible evidence of any

perjured or false testimony or inaccurate testimony material to the Defendant’s guilt presented in

this motion.” (DE # 1-7, at 49.) The trial court further concluded “[t]he Defendant’s flaw in this

motion is due to the fact that the evidence of his guilt was and is substantial. As set for[th] in the

Court of Appealsf’] decision, there was ‘abundant evidence of the Defendant’s guilt.’” (Id. at

50.) The court agrees.

In an attempt to show that the trial court’s decision on the claim was unreasonable,

petitioner points to purported inconsistencies between various witnesses’ testimony and other

evidence. (See, e.g., DE # 33-1, at 29 (“Even with the truth of what happened on the record,

prosecutor Holt continued to construct her false narrative with Heidi’s lies.... Heidi said that

Laura and I returned to N.C

Not only is this in conflict with [the victim’s] records, it was

also in conflict with Heidi’s previous recall of events to Det. Hall.. ..”).) Inconsistencies do not

equate with falsehoods, let alone the prosecutors’ knowledge of the falsehoods. See United

States v. Grilev, 814 F.2d 967, 971 (4th Cir. 1987) (“Mere inconsistencies in testimony by

government witnesses do not establish the government's knowing use of false testimony.”

(citation omitted)). Similarly, merely because petitioner disagrees with testimony, (see, e.g.. DE

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# 41, at 25-36 (“These unreliable witnesses not only gave jurors a false impression of [the

victim’s] mindstate [sic], but a false portrayal of me as a violent person whom [the victim] feared

and wouldn’t visit.”)), does not make that testimony false.

Even if the prosecutors knowingly presented false testimony or failed to correct any

testimony they knew was false, petitioner cannot show a.reasonable likelihood that it affected the

jury verdict. Setting aside the purportedly false testimony about which petitioner complains,

strong evidence of petitioner’s guilt remains. As the.North Carolina Court of Appeals

summarized,

On Tuesday, 12 July, defendant e-mailed the victim and offered to let her see the

children the next day. On occasion, the victim met. defendant at Monkey Joe s,

and less frequently, she went to defendant's apartment. Defendant's friend, Lauren

'Harris, was a manager at Monkey Joe's and allowed the children to play there free

of charge. Harris testified that on 13 July, defendant did not bring the children to

Monkey Joe's.

Based on phone records.and cellular data, defendant and the victim communicated

throughout the day on 13 July. The final outgoing call made by the victim on her

cell phone was to defendant while she was driving in a direction towards his

apartment. Investigators ultimately discovered the victim's car in a nearby

apartment complex, which was the location of defendant's prior residence.

At approximately 2:30 a.m. on 14 July, defendant bought an abundance of

cleaning materials and tools. Between 10:00—10:30 a.m. that morning, Sha,

defendant's .step-daughter, took the children to Monkey Joe's after receiving a call

from Amanda. Sha remained with the children at Monkey Joe's until nearly 4.00

p.m. At 5:31 p.m., another surveillance video showed defendant at Target

purchasing several containers of bleach, paper towels, two sets of gloves,

electrical tape, and a lint roller. Amanda then asked Sha to bring her vacuum to

their apartment, which she did by 6:00 p.m. Defendant also posted an ad on

Craigslist to sell various items in his apartment.

When law enforcement officers later searched defendant's apartment, they noticed

a bleach stain on the carpet near the entrance and missing furniture. A load of

trash collected from defendant's apartment dumpster also yielded a vacuum

cleaner, toilet scrub brushes, bleach containers, respirator mask packaging,

gloves, and a bleach-stained towel. DNA on a latex glove contained the victim's

RECEIVED

DNA profile.

JUN - 8 2020

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On 18 July 2011, Detective James Gwartney, who was investigating the victim's

disappearance, contacted defendant for possible leads. Despite being at Ms.

Berry's house in Texas, defendant told Detective Gwartney that he was in

Raleigh['] and provided inconsistent information about his interaction with the

victim on 13 July.

Ms. Berry testified that defendant and Amanda took her boat out into the nearby

creek on the night of 19 July and were gone for a “couple of hours.” Ultimately,

divers found a torso, portions of a leg, and a head in the creek, which were later

determined to have been the victim's body parts. Ms. Berry also testified that

Amanda told her that she was “covering for [defendant].” Just before defendant

and his family left the Berry residence, Amanda's niece, who lived at Ms. Berry's

house in Texas, observed defendant and overheard him stating, “I don't need an

alibi, I was with my family[.]”

At trial, the State's expert witness pathologists could not determine the exact

cause of death due to the decomposed remains, but concluded that the victim's

death was caused by “homicide by undetermined means.” They testified that

strangling or stab wounds to the neck area could have caused the victim's death.. .

Hayes, 768 S.E.2d at 643 (alterations in original).

Because petitioner cannot show prosecutors knowingly used (or failed to correct) false

testimony or a reasonable likelihood that any false testimony affected the jury verdict, the trial

court’s decision on petitioner’s related MAR claim was not contrary to, nor an unreasonable

application of, clearly established federal law, and respondent’s motion for summary judgment

on petitioner’s first claim of prosecutorial misconduct will be allowed.

IM

Petitioner’s second prosecutorial misconduct claim concerns the purported interception of

his legal mail. According to petitioner, while he was in pre-trial detention, the Wake County

Sheriffs Department intercepted some of his legal mail and provided it to prosecutors, thereby

violating his rights to effective assistance of counsel and due process.

1 Petitioner characterizes Detective Gwartney’s testimony about petitioner being in Raleigh as a “lie.” (Pet.’r’s

Decl., DE # 39, at 63.) However, petitioner goes on to explain what he supposedly told Gwartney and claims

Gwartney misunderstood “because he’s stupid or the reception was bad.” (See kb at 63-64.) Because petitioner

implicitly acknowledges that Gwartney misinterpreted what was supposedly said, rather than in fact lie, the court

includes this evidence in its consideration of evidence supporting petitioner’s guilt.

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“It is a violation of the Sixth Amendment for a government agent to intercept a criminal

t,

defendant's communication with his defense attorney and provide intercepted information to the

prosecutor such that it prejudices the defendant in his criminal case.” Brown v. Gulash. No. 07CV-370-JPG-PMF, 2011 WL 2516765, at *1 (S.D. Ill. June 23,2011) (citing Weatherford v.

Bursey. 429 U.S. 545, 558 (1977); Guajardo-Palma v. Martinson, 622 F.3d 801, 805-06 (7th

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Cir. 2010)). “It also violates the Sixth Amendment to prevent a criminal defendant from

speaking candidly and confidentially with his counsel free from unreasonable government

interference.” Id. (citing Geders v. United States, 425 U.S. 80, 88-89 (1976), among other

cases). Furthermore, “prosecutorial misconduct may so infec[t] the trial with unfairness as to

make the resulting conviction a denial of due process. To constitute a due process violation, the

prosecutorial misconduct must be of sufficient significance to result in the denial of the

defendant's right to a fair trial.” Greer v. Miller, 483 U.S. 756, 765 (1987) (citations and internal

quotation marks omitted) (alteration in original); see also Parker v. Matthews. 567 U.S. 37, 45

(2012).

Here, about one week prior to trial, trial counsel raised the mail interception issue at a

motions hearing. At that hearing, the prosecution acknowledged some of petitioner’s legal mail

had been intercepted by jail staff and provided to the prosecution. (DE # 20-9, at 258.) Trial

counsel expressed concern that if petitioner were to testify, the prosecution might cross-examine

him about information from the mail. (Id at 257-58.) However, the prosecutor represented to

the court that neither prosecutor had read the legal mail and immediately upon recognizing it was

legal mail, put it in a folder and gave it to trial counsel. (Id at 258-59.) Also, in response to the

trial court’s question, the prosecutor further represented that the State did not have any mail from

petitioner to his attorneys which might be a basis to impeach him and stated that the prosecution

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did not intend to ask petitioner any questions about the mail. (Id.) As such, the trial court

concluded, “If it comes up I’ll deal with it, but apparently . .. it’s not an issue.” (Id. at 259.)

Petitioner raised the issue again in his MAR. In denying that motion, the trial court

stated:

The Defendant presents no causal connection between any interception of

his legal mail and the jury verdict. That claimed violation was clearly of record

on the direct appeal in this case and was not raised. No information received in

this manner was reviewed by the Prosecutors and none was presented to the jury.

(DE # 1 -7, at 50.) This determination was neither contrary to, nor an unreasonable application

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of, clearly established federal law, nor a decision based on an unreasonable determination of the

facts.

Having raised the issue pre-trial, trial counsel was well aware of the interception of some

of petitioner’s legal mail. In fact, trial counsel states upon “leam[ing] that items of mail from

[petitioner] were not making it to me and that letters labeled legal mail from me to [petitioner]

were not being treated as such,” they “terminated any mail correspondence” and “I continued to

regularly meet with [petitioner].” (DE # 28.-1, at 19.) Thus, the interception of some pieces of

petitioner’s legal mail did not prevent him from communicating with his counsel. Also, it did

not interfere with the effective preparation of his defense or Otherwise prejudice him. With

reference to one such piece—a letter from petitioner to counsel instructing him to examine

Amanda’s Blackberry device to retrieve missing date/time information—this court has

recognized that the interception of that mail did not prevent counsel from effectively attempting

to rebut the State’s theory that petitioner had lured the victim to his apartment to kill her. (DE #

35, at 4-5.) Most importantly, there is no evidence in the record that the prosecution (or law

enforcement) read the intercepted legal mail and used information therein against petitioner.

Petitioner appears to rely on two cases, Black v. United States. 385 U.S. 26 (1966), and

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O'Brien v. United States. 386 U.S. 345 (1967), to support his claim that this instance of

misconduct automatically warrants a new trial, without consideration of whether the prosecutors

examined or used any inadmissible evidence. (See Pet., DE # 1, at 27-28.) Any reliance on

these cases is misplaced. The Supreme Court has rejected the notion that these cases establish a

per se violation of the defendant’s Sixth Amendment right to counsel occurs when a government

agent has intruded upon attorney-client communications. See Weatherford. 429 U.S. at 550-52.

Based on the foregoing, the court will grant respondent’s motion for summary judgment

on his other prosecutorial misconduct claim.

C.

Ineffective Assistance of Counsel Claims

Petitioner’s remaining claims are based on ineffective assistance of counsel. To succeed

on such a claim, under the familiar standard set forth in Strickland v. Washington. 466 U.S. 668,

a state prisoner seeking habeas corpus relief must

show both that his counsel provided deficient assistance and that there was

prejudice as a result.

To establish deficient performance, a person challenging a

conviction must show that “counsel's representation fell below an

objective standard of reasonableness.” A court considering a claim of

ineffective assistance must apply a “strong presumption” that counsel's

representation was within the “wide range” of reasonable professional

assistance. The challenger's burden is to show “that counsel made errors

so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.”

With respect to prejudice, a challenger must demonstrate “a

reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” It is not enough “to show that the errors had some conceivable

effect on the outcome of the proceeding.” Counsel's errors must be “so

serious as to deprive the defendant of a fair trial, a trial whose result is

reliable.”

“Surmounting Strickland's high bar is never an easy task.” An

ineffective-assistance claim can function as a way to escape rules of

waiver and forfeiture and raise issues not presented at trial, and so the

. Strickland standard must be applied with scrupulous care, lest “intrusive

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post-trial inquiry” threaten the integrity of the very adversary process the right to

counsel is meant to serve. Even under de novo review, the standard forjudging

counsel's representation is a most deferential one. Unlike a later reviewing court,

the attorney observed the relevant proceedings, knew of materials outside the

record, and interacted with the client, with opposing counsel, and with the judge.

It is “all too tempting” to “second-guess counsel's assistance after conviction or

adverse sentence.” The question is whether an attorney's representation amounted

to incompetence under “prevailing professional norms,” not whether it deviated

from best practices or most common custom.

Establishing that a state court's application of Strickland was unreasonable

under § 2254(d) is all the more difficult. The standards created by Strickland and

§ 2254(d) are both “highly deferential,” and when the two apply in tandem,

review is “doubly” so. The Strickland standard is a general one, so the range of

reasonable applications is substantial. Federal habeas courts must guard against

the danger of equating unreasonableness under Strickland with unreasonableness

under § 2254(d). When § 2254(d) applies, the question is not whether counsel's

actions were reasonable. The question is whether there is any reasonable

argument that counsel satisfied Strickland's deferential standard.

Harrington. 562 U.S. at 104-05 (citations omitted).

Petitioner asserts in his § 2254 petition that his trial counsel were ineffective by:

1. Failing to impeach prosecution witness Heidi Schumacher’s testimony in several aspects

and to establish her lack of credibility;

2. Not challenging the State’s narrative that the victim lived in fear of petitioner;

3. Not challenging the State’s narrative that petitioner feared losing custody of his children

to the victim;

4. Not countering the State’s narrative that the victim was excited about getting full custody

of the children;

5. Failing to establish the victim’s dishonest character;

6. Failing to obtain the presence of Shane Heist to testify; and,

7. Failing to show that petitioner wrote and recorded the song “Man Killer” years before he

met the victim.2

2 In his motion for an evidentiary hearing, petitioner cites two additional ineffective assistance of counsel claims,

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(DE## 1-1, at 1-27; 1-4, at 3-8.)

Petitioner raised these same claims in his MAR. (DE # 1-7, at 24-38.) In rejecting the

claims, the trial court found, in relevant part:

During the course of the trial Defendant expressed no

dissatisfaction with the professional representation by his Defense

attorneys. He did not put the Court on notice of any disagreement with the

Defense tactics. The Defendant elected not to testily. During the trial it

was clear to the Court that Defendant was directing his own defense.

This motion is a classic example of a Defendant, after a trial and an

adverse verdict, reading through the trial transcript and thinking of ways

he contends his lawyers could have done a better job. That is not sufficient

to show ineffective assistance of counsel in violation of the standards set

forth in Strickland vs. Washington 466 U.S. 66811984s).

Defendant has failed to show that his defense attorneys at trial

engaged in a defense that was unreasonable under the circumstances and

that Defendant was prejudiced by any inadequate performance.

The Defendant's flaw in this motion is due to the fact that the

evidence of his guilt was and is substantial. As set for[th] in the Court of

Appeals[’] decision, there was "abundant evidence of the Defendant’s

guilt." The attorney conduct in this case did not adversely affect the

outcome of this trial.

.... The Defendant received a fair trial, free of prejudicial error.

He was represented by competent Defense attorneys who provided

effective assistance of counsel. The Defendant was provided an enormous

amount of discovery prior to trial and, in the discretion of the court, was

represented by TWO well qualified lawyers who are highly regarded by

their professional peers and are well experienced in cases such as this

matter.

The speculative, unsupported claims by the Defendant in this

motion are an affront to the outstanding manner in which both defense

counsel performed their professional obligations in this case.

one based on trial counsel’s failure to examine Amanda’s cell phone due to the interception of his legal mail and the

other based on trial counsel’s failure to obtain news stories about the victim’s disappearance to use to impeach

Trinidad. (DE # 28, at 2; see also id. at 11.) As for the former claim, the court has analyzed it as a prosecutorial

misconduct claim (based on petitioner’s characterization of the claim in his §2254 petition (see DE# 1, at 21));

however, even if it is considered an independent ineffective assistance of counsel claim, the court’s analysis in this

section equally applies. As for the latter claim, petitioner did not raise that claim in his § 2254 petition. Although

he filed a post-conviction motion to compel production of the news stories in state court, he did not raise an

ineffective assistance of counsel claim based on the failure to obtain the news stories in his MAR and thus has not

exhausted this substantive claim in the state court as 28 U.S.C. § 2254(b)(1)(A) requires.

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(Id at 49-51.)

Petitioner argues that he is entitled to an evidentiary hearing in this court on his

ineffective assistance of counsel claims because 28 U.S.C. § 2254(e) does not bar a hearing and

because the trial court did not fully and fairly consider the four affidavits he submitted in support

of his MAR. (See DE # 28, at 6-9, 19-22.) Assuming § 2254(e) does not bar an evidentiary

hearing (as petitioner contends),3 petitioner is not automatically entitled to one. See Fullwood v.

Lee, 290 F.3d 663, 681 (4th Cir. 2002). Petitioner still must establish one of the factors

identified in Townsend v. Sain, 372 U.S. 293, 313 (1963):

(1) the merits of the factual dispute were not resolved in the state hearing; (2) the

state factual determination is not fairly supported by the record as a whole; (3) the

fact-finding procedure employed by the state court was not adequate to afford a

full and fair hearing; (4) there is a substantial allegation of newly discovered

evidence; (5) the material facts were not adequately developed at the state-court

hearing; or (6) for any reason it appears that the state trier of fact did not afford

the habeas applicant a full and fair fact hearing.

Id. & n.7.

Furthermore, if the state court adjudicated the merits of petitioner’s ineffective assistance

of counsel claims, this court’s review of those claims is limited to the record before the state

court. See Cullen v. Pinholseter. 563 U.S. 170, 181 (2011). As such, “any evidentiary hearing in

federal court is unwarranted, as new evidence adduced during such a hearing could not be

considered in making the determination” of whether the state court’s decision is contrary to or an

unreasonable application of clearly established law. Williams v. Stanley, 581 F. App'x 295, 296

(4th Cir. 2014) (citing Cullen, 563 U.S. at 183-84).

In claiming he is entitled to an evidentiary hearing in this court, petitioner makes much of

Section 2254(e)(2) restricts a federal court's ability to hold an evidentiary hearing, but those restrictions apply

only when the habeas petitioner ‘has failed to develop the factual basis of a claim in State court proceedings.”’

Gordon v. Braxton. 780 F.3d 196,204 (4th Cir. 2015).

3 «

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Case 5:17-hc-02026-BR Document 47 Filed 12/04/18 Page 15 of 18

the fact that the trial court did not hold a hearing to examine the affidavits he filed with his MAR

or mention them in the order denying the MAR. He also quotes from isolated portions of the

trial court’s order apparently to suggest that the trial court’s resolution of his ineffective

assistance of counsel claims was not an adjudication on the merits.

In North Carolina, the court is not required to hold an evidentiary hearing on claims

raised in a MAR in all instances. See N.C. Gen. Stat. § 15A-1420(c)( 1 )-(4); State v. McHone.

499 S.E.2d 761, 763 (N.C. 1998) (“[I]t does not automatically follow that, because defendant

asserted violations of his rights under the Constitution of the United States, he was entitled to

present evidence or to a hearing on questions of fact or law.”). “When a federal claim has been

presented to a state court and the state court has denied relief, it may be presumed that the state

court adjudicated the claim on the merits in the absence of any indication or state-law procedural

principles to the contrary.” Harrington. 562 U.S. at 99.

Although the trial court did not cite to or otherwise explicitly reference the affidavits filed

in support of the MAR, the court disagrees with petitioner’s contentions that the trial court did

not consider them and that the trial court’s determination of his ineffective assistance of counsel

claims was not supported by the record, was materially incomplete, or should not be accorded

any deference. In his MAR, petitioner presented the same ineffective assistance of counsel

claims he raises in his § 2254 petition. In denying the MAR, the trial court recognized petitioner

“offer[ed] no new evidence,” i.e., evidence not available at the time of trial and to trial counsel.

(DE # 1-7, at 49.) Petitioner is correct that the affiants did not sign the subject affidavits until

August 2016, nearly three years after trial. However, the information contained in the affidavits

was available at the time of trial and, as trial counsel’s affidavit confirms, available to him, (see

DE# 28-1, at 18-25).

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As further support for his contention that the trial court’s determination of his ineffective

assistance of counsel claims is not supported by the record, petitioner points to the following

statement of the trial court when it denied the MAR: ‘“The Defendant is merely second guessing,

speculating, offering conjecture and his own opinion without additional supporting evidence.

>555

(DE # 28, at 7 (quoting DE # 1-7, at 49).) First, one could reasonably conclude that the trial

court made this statement in reference to petitioner’s prosecutorial misconduct claim, as the

court’s immediately preceding statement provides, “There is no credible evidence of any

perjured or false testimony or inaccurate testimony material to the Defendant’s guilt presented in

this motion.” (DE # 1-7, at 49.) Second, another reasonable interpretation of the trial court’s

statement is that the evidence petitioner filed with his MAR does not support his claims. This

court declines to conclude that the trial court did not consider the affidavits and therefore finds

that the state court adjudicated the merits of petitioner’s ineffective assistance of counsel claims

and an evidentiary hearing is not warranted.'

Given the underlying record in this case, it was not unreasonable for the trial court to

conclude that trial counsel did not perform deficiently or that petitioner did not suffer prejudice.5

Therefore, the court will grant respondent’s motion for summary judgment on petitioner’s

ineffective assistance of counsel claims and deny petitioner’s motion for an evidentiary hearing.

D.

Petitioner’s Motion Regarding Future Filings

Petitioner requests that he be allowed to rely on the court’s electronic case filing system

to serve respondent with future filings. (DE # 36.) A recent standing order of this court,

effective 1 December 2018 and in furtherance of soon-to-be effective amendments to Federal

4 Petitioner has not made an independent argument as to why an evidentiary hearing on his prosecutorial misconduct

claims is warranted.

5 Even if the court considers the affidavit of petitioner’s trial counsel, (DE # 28-1, at 18-25), which was not before

the trial court, the court’s conclusion does not change.

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Rule of Civil Procedure 5, permits unrepresented litigants to serve registered users of the

electronic case filing system upon the system’s generation of a notice of electronic filing. See

No. 18-SO-5 (E.D.N.C. Nov. 27, 2018). Accordingly, petitioner’s motion for relief in this regard

is moot. As for petitioner’s request to be provided monthly with the last page of his docket

sheet, the court declines to impose such a burden on the Clerk’s office, particularly in light of the

fact that this order resolves this proceeding.

III.

CONCLUSION

For the foregoing reasons, respondent’s motion for summary judgment is GRANTED,

petitioner’s motion for an evidentiary hearing is DENIED, petitioner’s motion to be relieved of

service obligations is DENIED, and petitioner’s § 2254 petition is DISMISSED. A certificate of

appealability is DENIED. See 28 U.S.C. § 2253(c); Miller-el v. Cockrell. 537 U.S. 322, 335-36

(2003); Slack v. McDaniel. 529 U.S. 473, 484 (2000). The Clerk is DIRECTED to serve

petitioner with a copy of this order and to close this case.

This 4 December 2018.

W. Earl Britt

Senior U.S. District Judge

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