Petition for Writ of Certiorari — Lingle v. Mitchell (No. 08-438)

Supreme Court of the Gnited States

TROY ALLEN LINGLE,

Petitioner,

.

DAVID MITCHELL,

Superintendent of Mountain View

Correctional Institution,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Charles R. Brewer

Attorney at Law

Post Office Box 8938

Asheville, North Carolina 28814

(828) 251-5002

Counsel of Record for Petitioner

LANTAGNE LEGAL PRINTING

BO} Fast Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

II.

QUESTIONS PRESENTED FOR REVIEW

WHETHER THE STATE TRIAL COURT

DENIED PETITIONER THE RIGHTS OF

DUE PROCESS OF LAW SECURED BY

THE FOURTH AND FOURTEENTH

AMENDMENTS TO THE UNITED

STATES CONSTITUTION

WHETHER THE STATE TRIAL COURT

DENIED PETITIONER THE RIGHT TO

CONFRONT HIS ACCUSERS SECURED

BY THE SIXTH AMENDMENT TO THE

UNITED STATES CONSTITUTION AS

APPLIED TO THE STATES BY THE

FOURTEENTH AMENDMENT IN

DEPRIVING HIM THE RIGHT TO

CONFRONT AND CROSS EXAMINE A

WITNESS AGAINST HIM AT HIS

SENTENCING HEARING

PARTIES TO THE PROCEEDING

All parties to petitioners’ Fourth Circuit proceedings

appear in the caption of the case before this Court.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...... 1

PARTIES TO THE PROCEEDING ............ il

gps Ph i 8 er iv

ye es 8. 4 ee rr erie 1

eg tS 8 a rr iar 2

RIS bony: 6 nek Wie wks da hae he ea ea 2

CONSTITUTIONAL PROVISIONS INVOLVED .. 3

STATEMENT OF THE CASE ................. 5

REASONS FOR GRANTING THE WRIT ........ 9

This Court should grant certiorari and

decide whether the admission by a state

court in a sentencing hearing of a highly

prejudicial document containing

materially false information over

defendant’s objection and not under oath

violates the defendant’s rights of due

process and violates the confrontation

clause of the United States Constitution.

IE oh. Sed, ou ONS ee eed et be ea ew de 8 37

APPENDIX A: Unpublished Opinion of the

Court of Appeals in No. 08-6114 (4th Cir. 2008).

APPENDIX B: Judgment of the district court in

Lingle v. Mitchell, No. 5:05 CV 226-V (WDNC 2008).

APPENDIX C: Letter admitted into evidence over

objection at sentencing hearing in state court.

iil

TABLE OF AUTHORITIES

CASES:

Anderson v. Cowan, 227 F.3d 893, 898 n.3

Cer RI he CS Seog ls ar 10, 12

Arizona v. Fulminate 499, U.S. 279, 309 (1991) .. 18

Barber v. Page, 390 U.S. 719, 20 L. Ed. 2d 255,

ere Se Pe CE 8c higis kien ie Sie 4 ko os 36

Brecht v. Abrahamson, 507 U.S. 619 (1993) . passim

Brown v. Luebbers, 371 F.3d 458

PC eal dS gw a lok age 11

Bruton v. United States, 391 U.S. 123, 20 L. Ed.

2d 476, 88 S. Ct. 1620 (1968) ............ 36

Chapman v. California, 386 U.S.18 ........... 18

Crawford v. Washington, 541 U.S. 36, 124S. Ct.

1354, 158 L. Ed.2d 177 (2004) .......... 18, 33, 34

Dutton v. Evans, 400 U.S. 74, 89, 91S. Ct. 210,

orem ER Sak as) ye 23. 3S

Estelle v. McGuire, 502 U.S. 62 (1991) ..... 9, 19, 20

Gardner v. Florida, 430 U.S. 349 (1977) ...... 9, 30

Greer v. Miller, 483 U.S. 756, 769, 97 L. Ed.

2a 616. 107 F.Ce. $108 GASS7)............. 16

Grundler v. North Carolina, 283 F.2d 798,

EE soos Kb pw eane ena caves 18

Idaho v. Wright, 497 U.S. 805, 814 (1990) ....... 36

Jones v. Polk, 401 F.3d 257 (4° Cir. 2005) ....... 12

Lewis v. Jeffers, 497 U.S. 764, 780, 111

L. Ed. 2d 606, 110 S. Ct. 3092 (1990) ..... 20

Kotteakos v. United States, 328 U.S. 750,

90 L. Ed. 1557, 66 S. Ct. 1239 (1946) ... 16,17

McQueen v. Garrison, 814 F.2d 951

Se a re aed sv ae clan 14

Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct.

2531, 2539, 65 L. Ed. 2d 597 (1980) ....... 23

O'Neal v. McAninch, 513 U.S. 432 (1995) ....... 12

Skrzycki v. Lafler, 347 F. Supp. 2d 448

I ec cen 9

Spencer v. Murray, 5 F. 3d 758, 762

gk ERED ES Re sree Orns 18, 19

State v. Holmes, 355 N.C. 719, 733, 565 S.E.2d

154, 165, cert. denied, 537 U.S. 1010,

154 L. Ed. 2d 412, 123 S. Ct. 478

a Re Ts wg 36

State v. Locklear, 34 N.C. App. 37, 39 (1977),

rev'd on other grounds, 294 N.C. 210, 241

I I eo en 37

State v. McLaughlin, 341 N.C. 426, 458, 462

S.E.2d 1, 18-19 (1995), cert. denied,

gies et Ge EN 37

State v. McQueen, 295 N.C. 96, 244 S.E.2d

A Peer peer Manan wt ree yt 12, 13, 14

State v. Nobles, 357 N.C. 433, 437 (2003) ....... 36

Townsend v. Burke, 334 U.S. 736 (1948). ... 9, 22, 31

U.S. v. Ammirato, 670 f. 2d 552, 557

(5" Se, ns nc ck ween accchea 23

U.S. v. Baylin, 696 f.2d 1030, 1040

ek laralgts te wes ve ee w6 698 23

United States v. Curran, 926 F.2d 59

ee se eww eee eo ak 9

United States v. Harris, 38 F.3d 95, 98

a Ns 11

United States v. Hicks, 948 F.2d 877, 883

ets kee a 8 28

United States v. Inadi, 475 U.S. 387,

393, n.5, 89 L. Ed. 2d 390, 106 S. Ct.

SU ess a ee 36

United States v. King, 1992 U.S. App.

LEXIS 7343, 10 (4° Cir, 1992) ............ 28

United States v. Lemon, 232 U.S. App. D.C.

I re 24

United States v. Malcolm, 432 F.2d 809,

TO gk perce wd aeeesns 22

United States v. Morales, 47 Fed. Appx.

EEE SO eee 11

United States v. Orrelien, 1999 U.S.App.

LERreieese, 6 (4 Cir. 1908)... .............. 28

United States v. Pelliere, 57 F.3d 936

re a al eae a 10

U.S. v. Penn. 721 F.2d 762, &65

og RE ee 24

United States v. Petty, 982 F.2d 1365 (9 Cir.),

amended on other grounds, 992 F.2d

1015 (9" Cir. 1993), cert. denied,

ES Mc!) 10, 27, 30

vl

United States v. Ponce, 51 F.3d 820

gy, RRR a are 10, 30

United States v. Powell, 487 F.2d 325

ae ow ase ese 21

United States v. Reid, 911 F.2d 1456

(10 Cir. 1990), cert. denied,

pe | 9, 10, 30

United States v. Remy, 738 F.2d 1156

ee ha kk we kes ke etee 22

United States v. Sammons,

918 F.2d 582, 603 (6 * ie. Na ar aig cag 10

United States v. Robinson, 898 F.2d 1111

RS ti tN ce 10

United States v. Tucker, 404 U.S.

ee ET FED ae ik wade eves cowses 9, 22, 31

United States v. Weston, 448 F.2d 626,

ge tS | Oe passim

Williams v. New York, 337 U.S. 241-246,

250-51, 69 S. Ct. 1079, 1084-1085,

We ds Os OE ED Sv cee te eee eens 22

Williams v. Oklahoma, 358 US 576,

RR RRL SRS le 24

CONSTITUTIONAL PROVISIONS

Amendment V of the United States

I ST ae passim

Amendment VI of the United States

re hr ee passim

Vil

Amendment XIV, Section 1 of the United

States Constitwtiom .. 6 nic csecccevn passim

Confrontation Clause of the Sixth Amendment

to the United States Constitution .... passim

STATUTES

PRR ee a wae oy ee ek ee eee passim

MAURO Pe) 2. ee passim

Vill

IN THE

SUPREME COURT OF THE UNITED STATES

TROY ALLEN LINGLE,

PETITIONER,

¥,

DAVID MITCHELL, SUPERINTENDENT OF

MOUNTAIN CORRECTIONAL INSTITUTION,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The Petitioner respectfully prays that a writ of

certiorari issue to review the judgment of the United

States Court of Appeals for the Fourth Circuit entered

July 1, 2008, denying petitioner a certificate of

appealability from the denial of his federal habeas

corpus petition.

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Fourth Circuit in petitioner's case

which is unpublished is attached to this petition as

Appendix A. The judgment of the district court for the

Western District of North Carolina in regard to

petitioner’s case is attached hereto as Appendix B.

JURISDICTION

The unpublished opinion of the Court of Appeals

denying petitioner’s request for issuance of a certificate

of appealability was entered July 1, 2008. This

petition is being filed within 90 days following the

decision of the Court of Appeals. This Court has

jurisdiction under 28 U.S.C. §1254(1). The jurisdiction

in the federal court of first instance was by virtue of

28 USC §2254.

CONSTITUTIONAL PROVISIONS

I LVED

Amendment V of the United States Constitution.

No person shall be held to answer for a capital or

otherwise infamous crime, unless on a presentment or

indictment of a grand jury, except in cases arising in

the land or naval forces, or in the militia, when an

actual service in time of war or public danger; nor shall

any person be subject for the same offense to be twice

put in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor

be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for

public use without just compensation.

Amendment VI of the United States Constitution.

In all criminal prosecutions the accused shall enjoy the

right to a speedy and public trial, by an impartial jury

of the state and district wherein the crime shall have

been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be

confronted with tiie witnesses against him; to have

compulsory process fer obtaining witnesses in his

favor, and to have the assistance of counsel for his

defense.

Amendment XIV, Section 1 of the United States

Constitution

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the state wherein they reside.

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE

A. Proceedings Below

Petitioner was indicted in May 1989 for two

counts of First Degree Kidnapping and seven counts of

Second Degree Kidnapping. He entered pleas of guilty

and was sentenced to twelve years incarceration for

each of the two First Degree Kidnapping charges and

nine years for each of the Second Degree Kidnapping

charges with all such sentences running consecutively

for a total sentence of 87 years. Thereafter, petitioner

filed a motion for appropriate relief based, inter alia,

on ineffective assistance of counsel. The Honorable

Beverly Beal, Senior Resident Superior Court Judge,

ruled that the Office of the District Attorney had a

conflict of interest and appointed the North Carolina

Attorney General's Office to represent the State of

North Carolina in connection with the motion for

appropriate relief. Subsequently, he recused himself

from hearing the motion for appropriate relief. (He,

however, ultimately decided the motion for appropriate

relief which forms the basis for this petition.) On

October 8,2003, that motion for appropriate relief came

on for consideration before the Honorable Richard

Doughton, who entered an order granting the motion

for appropriate relief and striking petitioner's pleas of

guilty, thereby vacating the judgments entered based

on such pleas. On October 8, 2003, petitioner again

entered guilty pleas to the same offenses (as to the

First Degree Kidnapping counts, the pleas were under

Alford); and a sentencing hearing was held before the

Honorable Richard Doughton who imposed the same

sentences despite hearing substantial evidence of

petitioner's rehabilitation. At the sentencing hearing,

the trial court admitted over objection a highly

prejudicial document (quoted verbatim hereinafter)

which form the basis of the petition for writ of habeas

corpus. On October 20, 2003, petitioner filed a motion

for appropriate reliefin connection with the sentencing

hearing. On November 18, 2003, petitioner filed a

supplement to his motion for appropriate relief. The

motion was grounded, in part, on the contention that

the trial court's ruling violated petitioner's rights

secured by the Constitution of the United States. It

was denied by the trial court, and the North Carolina

Court of Appeals did not grant certiorari.

Thereafter, petitioner filed a petition for the

issuance of a writ of habeas corpus pursuant to 28

U.S.C. §2254 in the Western District of North

Carolina. The respondent was ordered to file a

response. When the response was filed it included a

summary judgment motion which was granted by the

district court. Petitioner filed an informal brief with

the Fourth Circuit Court of Appeals seeking a

certificate of appealability on February 29, 2008. The

Fourth Circuit denied petitioner’s motion for certificate

of appealability and dismissed the appeal without oral

arguments in an unpublished per curiam decision.

B. Statement of the Facts

At the hearing which is the subject of the

petition the State called a witness who testified she

had been in contact with Anna Lingle who is

petitioner’s former wife. The witness testified Anna

Lingle had faxed a letter to her. The State attempted

to offer the alleged letter from Anna Lingle into

evidence after showing the same to defense counsel in

the courtroom for the first time immediately prior to

offering it into evidence. Petitioner's counsel briefly

reviewed the letter and objected strenuously to its

admission asserting to the court that the letter was

extremely prejudicial. The trial court sustained the

objection to the letter, and it was not admitted into

evidence. See Tr. pp. 42-45. Thereafter, the petitioner

took the stand and testified under oath. On cross

examination, counsel for the State asked the petitioner

questions about some of the matters raised in the

letter.

At the conclusion of the evidence, counsel for the

State asked the tral court to revisit its ruling in

connection with the letter. The State asked the court to

allow the letter into evidence. Tr. p. 141. The court

inquired of counsel for the petitioner as to whether

petitioner objected to the request. Counsel for the

petitioner renewed petitioner's objection to the letter,

but nonetheless the court admitted the letter into

evidence. Tr. p. 142. The letter in question is attached

as Appendix C.

The letter, supposedly authored by petitioner's

ex-wife, was admitted into evidence over objection. The

letter is not signed, its alleged author was not in court,

and the contents of the letter are not under oath. There

was no adequate explanation of the inability of the

State to have Anna Lingle appear in court and be

subject to cross examination. When this letter was

initially submitted to petitioner's counsel with the

witness on the stand, he objected to its admission.

Following the conclusion of the evidence by the

State, petitioner's counsel began putting on

testimony. The last testimony was that of petitioner

himself. When the State's counsel undertook the

cross examination of petitioner, she asked him some

questions concerning some of the matters addressed

in the letter in question. He answered her questions

under oath. At the conclusion of his testimony State's

counsel asked the trial court to revisit his ruling in

connection with the letter and to admit the letter on

the basis that it allegedly showed that petitioner had

not testified truthfully in answering questions that

she posed to him during cross examination; however,

the letter also contains prejudicial materials which

were not the subject of any questioning by counsel for

the State. The trial court asked petitioner's counsel

if he objected to the letter at that time, and

petitioner's counsel renewed his objection to the

letter. Nonetheless, the trial court allowed the letter

into evidence for the purpose of impeaching what

petitioner testified to on the stand. Tr. p. 142. The

trial judge read the letter. This was the last evidence

received. After considering arguments, Judge

Doughton proceeded to enter sentences in these

cases,

REA TIN E

‘ THE STATE TRIAL COURT DENIED

PETITIONER THE RIGHTS OF DUE PROCESS OF

LAW SECURED BY THE FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION, AND THE FEDERAL

DISTRICT COURT IN GRANTING SUMMARY

J'IIDGMENT TO THE RESPONDENT FAILED TO

ADDRESS THE PETITIONER'S DUE PROCESS

ARGUMENTS WHICH FORM THE CORE OF THE

HABEAS CORPUS PETITION.

It is recognized that to the extent that a habeas

petitioner alleges a state sentencing law error his

claim is not cognizable on habeas review. See Estelle

v. McGuire, 502 U.S. 62 (1991). It is clear, however,

that the sentencing process, as well as the trial itself,

must satisfy the requirements of the Due Process

Clause. Gardner v. Florida, 430 U.S. 349 (1977). A

defendant has a due process right not to be sentenced

on the basis of materially incorrect evidence. See

United States v. Tucker, 404 U.S. 443, 447 (1972);

United States v. Reid, 911 F.2d 1456 (10" Cir. 1990),

cert. denied, 498 U.S. 1097 (1991); United States v.

Curran, 926 F.2d 59 (1" Cir. 1991). A sentence may

violate due process if it is carelessly or deliberately

pronounced on an extensive and materially false

foundation which the defendant had no opportunity to

correct. Skrzycki v. Lafler, 347 F. Supp. 2d 448 (E.D.

Mich. 2004); see Townsend v. Burke, 334 U.S. 736

(1948).

Furthermore, while hearsay statements may be

considered at sentencing, due process requires that

such statements be corroborated by extrinsic evidence.

United States v. Ponce, 51 F.3d 820 (9 Cir. 1995).

Due process requires that some minimal indicia of

reliability accompany a hearsay statement. United

States v. Petty, 982 F.2d 1365 (9" Cir.), amended on

other grounds, 992 F.2d 1015 (9" Cir. 1993), cert.

denied, 510 U.S. 1040 (1994); United States v. Reid

(hearsay statement cannot be used in sentencing

absent some minimal indication of reliability other

than mere allegation). Because the use of hearsay in

sentencing raises due process concerns, the defendant

must be given adequate notice of and an opportunity to

rebut or explain information that is used against him.

United States v. Pelliere, 57 F.3d 936 (10 Cir. 1995);

United States v. Sammons, 918 F.2d 582, 603 (6" Cir.

1990) (defendant must have meaningful opportunity to

rebut contested information at sentencing); United

States v. Robinson, 898 F.2d 1111 (6 Cir. 1990). In

this case, petitioner's due process rights were violated

in that he was not provided with adequate notice of the

letter so as to have a meaningful opportunity to refute

it and because the letter was obviously unreliable

hearsay—it was not signed or sworn to and contained

outrageous unfounded, uncorroborated, untrue, and

highly prejudicial allegations of unrelated criminal

conduct and bad character; and the letter was used by

the sentencing judge in sentencing the petitioner.

Even if it was used only to impeach the petitioner's

testimony, such use, given the content of the letter,

was sufficient to deny due process. Petitioner was

10

made aware of the letter only at the sentencing

hearing and had no meaningful opportunity to refute

it except by his own testimony, and the letter was then

used to impeach his testimony. This is the epitome of

the denial of due process. See, e.g., United States v.

Morales, 47 Fed. Appx. 497 (9 Cir. 2002)

(unpublished) (sentencing court violated defendant's

due process rights by considering at sentencing

informant's uncorroborated statements that were not

supported by the requisite minimal indicia of

reliability); United States v. Weston, 448 F.2d 626, 633

(9™ Cir. 1971) (where sentencing judge considered

presentence investigation report asserting that

defendant was involved in other criminal conduct and

was large-scale heroin dealer but the factual basis for

such allegation was "almost nil," the court of appeals

remanded for resentencing), cert. denied, 404 U.S. 1061

(1972); Brown v. Luebbers, 371 F.3d 458 (8 Cir. 2004)

(upholding exclusion of letter from evidence in

sentencing hearing in state court on basis that it was

not highly relevant to a critical issue and letter's

reliability could not be assured because it was not

submitted as a sworn affidavit), cert. denied, 125S. Ct.

1397 (2005); cf. United States v. Harris, 38 F.3d 95, 98

(2d Cir. 1994) (where defendant received adequate

notice of and opportunity to respond to letters from

victims received by sentencing judge, defendant was

not denied due process), cert. denied, 513 U.S. 1198

(1995). Based on the foregoing authority, the state

court's decision upholding the admission of the letter

into evidence was contrary to, or an unreasonable

application of, clearly established federal law, as

1]

required for the grant of habeas relief under 28 U.S.C.

§ 2254(d)(1). See Jones v. Polk, 401 F.3d 257 (4" Cir.

2005). Moreover, the error in considering the letter at

sentencing cannot be considered harmless, even if only

used to impeach petitioner's testimony. Given the

content of the letter, there is grave doubt whether the

error in admitting the letter into evidence had a

substantial and injurious effect or influence in

determining the sentence. See Brecht v. Abrahamson,

507 U.S. 619 (1993); O'Neal v. McAninch, 513 U.S. 432

(1995); Jones v. Polk. Therefore, habeas relief should

be granted. (It is noted that it is not clear that the

harmless error standard set forth in Brecht and O'Neal

has survived the passage of the AEDPA. See Anderson

v. Cowan, 227 F.3d 893, 898 n.3 (7 Cir. 2000).) The

petitioner's counsel was not aware of the existence of

such letter until the very moment it was offered into

evidence. The petitioner was not afforded any

opportunity to cross examine its alleged author. The

typewritten letter is not signed. There is no contention

that the letter was under oath. The alleged letter

suggests that the petitioner hogtied and blew the

brains out of his first wife and her companion. There

was no evidence before the court that petitioner had

ever been charged with such an offense, much less

convicted of it. In fact the North Carolina Supreme

Court affirmed the conviction of Roger Lee McQueen

for the murder of defendant's first wife Linda Lingle.

See State v. McQueen, 295 N.C. 96, 244 S.E.2d 414

(1978). McQueen sets forth a lengthy recital of the

evidence concerning the murder of defendant's first

wife, Linda. This evidence should remove any cloud

created by Anna Lingle's alleged letter suggesting

petitioner killed Linda Lingle; however, since

petitioner's counsel was unaware of the letter until it

was presented at the hearing, the case was not cited to

the trial court by petitioner. Fairness dictates that the

State should, nonetheless, have done so. The position

maintained by the State in regard to this resentencing

hearing in light of the State's prosecution of Roger Lee

McQueen is indefensible. Either the State believes

that Roger Lee McQueen is innocent of the killing of

Linda Lingle and has wrongfully incarcerated him for

these many years thereby justifying its thinly

disguised effort at this petitioner's sentencing hearing

to suggest this petitioner is responsible for Linda

Lingle's murder; or the State believes that Roger Lee

McQueen is guilty of Linda Lingle's murder and

therefore is improperly suggesting this petitioner is

responsible for her death. The State should be required

to choose which position it wants to maintain, and the

position must be the same in both cases.

The North Carolina Supreme Court's decision in

McQueen contains a discussion by Mr. Justice Lake

concerning the cross examination of defendant

McQueen by the prosecutor. Mr. McQueen testified in

his own behalf, and on cross examination the

prosecutor sought to inquire about McQueen's

suspected involvement in another murder in Arkansas.

The record reveals that the questions were asked in

good faith in that a detainer for McQueen had been

filed by the State of Arkansas for murder. McQueen

was asked and answered 14 questions concerning the

Arkansas murder case, culminating with the

13

questions, "Do you remember...shooting her in the

head?" He answered, "No, sir." Justice Lake then

noted that "(t)he State, being bound by the answer of

the defendant, offered no evidence of such shooting."

(Emphasis added) McQueen at p. 430. It is the

respectful contention of petitioner herein that the

State was likewise bound by the answers of this

petitioner to the questions of issues raised in Anna

Lingle's alleged letter. The effort by the Assistant

Attorney General of North Carolina to have the trial

court accept an unsigned, unsworn, and untrue

document in evidence over objection of petitioner's

counsel (following the trial court’s earlier ruling of its

inadmissibility and offer to continue the matter to

bring Anna Lingle into court to testify under oath and

be subject to cross examination) on the guise of

impeachment led the trial court to violate petitioner’s

constitutional rights in admitting the document into

evidence. In viewing the propriety of the actions of

the North Carolina Attorney General’s Office in

connection with the offering of this document into

evidence, the Court’s attention is invited to the

decision of the Fourth Circuit Court of Appeals in the

case of McQueen v. Garrison, 814 F.2d 951 (4 Cir.

1987). McQueen is an appeal by the State of North

Carolina from the judgment of the United States

District Court for the Eastern District of North

Carolina (CA 82-675-HC) granting a writ of habeas

corpus to Roger Lee McQueen. The significance of this

case (like the McQueen case from the North Carolina

Supreme Court) resides in the facts recited therein

showing that Roger Lee McQueen, not petitioner

14

herein, murdered Linda Lingle and in the participation

of the North Carolina Attorney General’s Office. Both

the appeal by Roger Lee McQueen to the North

Carolina Supreme Court and his habeas corpus

petition before the United States District Court from

the Eastern District of North Carolina and the appeal

therefrom to the Fourth Circuit Court of Appeals were

handled by the North Carolina Attorney General's

Office. Therefore, the Assistant North Carolina

Attorney General who represented the State in the

proceeding which is the subject of this petition either

knew or reasonably should have known that this

petitioner did not murder Linda Lingle and the letter

which she offered into evidence was not true. Yet, she

failed to advise the trial court of this critical fact. Her

failure to advise the trial court cannot be viewed as a

harmless oversight. Had the Assistant North Carolina

Attorney General provided petitioner’s counsel with a

copy of the document prior to the hearing, petitioner's

counsel would have been able to have conducted an

investigation. The Assistant North Carolina Attorney

General was either grossly negligent in failing to

investigate the allegations in the letter concerning the

murder of Linda Lingle or knowing the falsity of the

allegation acted improperly in offering the document

and in failing to disclose to the trial court that

petitioner did not murder Linda Lingle. In either case,

petitioner suffered greatly as a result.

Ina footnote in the case of Brecht v.

Abrahamson, 507 U.S. 619, 638 (1993). Brecht was

cited and relied upon in respondent's supporting brief.

Footnote 9 reads as follows:

Our holding does not foreclose the

possibility that in an unusual case, a

deliberate and especially egregious error

of the trial type, or one that is combined

with a pattern of prosecutorial

misconduct, might so infect the integrity

of the proceeding as to warrant the grant

of habeas relief, even if it did not

substantially influence the jury’s verdict.

Cf. Greer v. Miller, 483 U.S. 756, 769, 97

L. Ed. 2d 618, 107 F.Ct. 3102 (1987)

(STEVENS, J., concurring in judgment).

As heretofore noted, it is not certain that the

harmless error standard set forth in Brecht to be

applied in habeas cases has survived the passage of

AEDPA; however, even if it has the foregoing language

from footnote 9 seems relevant and applicable.

Likewise, the Court’s attention is invited to the

concurring opinion by Stevens, J., in Brecht at pp. 639-

644. Justice Stevens concurs with the majority decision

which adopted the Kotteakos standard for review of

whether an error is harmless in habeas cases. He

writes that because the Kotteakos “standard accords

with the statutory rule for reviewing other trial errors

that affect substantial rights; places the burden on

prosecutors to explain why those errors were harmless;

requires the habeas court to review the entire record

de novo in determining whether the error influenced

the jury’s deliberation; and leaves considerable

latitude for the exercise of judgment by federal courts,

I am convinced that our answer is correct. I write

16

separately only to emphasize that the standard is

appropriately demanding.” Brecht at 640-641. Justice

Stevens concurring opinion presents a well-reasoned

analysis of the Kotteakos standard. He writes that

“Kotteakos plainly stated that unless an error is merely

‘technical,’ the burden of sustaining a verdict by

demonstrating that the error was harmless rests on

the prosecution. A constitutional violation, of course,

would never fall in the ‘technical’ category.” Brecht at

641. See Kotteakos v. United States, 328 U.S. 750, 90

L. Ed. 1557, 66 S. Ct. 1239 (1946). Moreover Justice

Stevens said, “We would misread Kotteakos itself if we

endorsed only a single-minded focus on how the error

may (or may not) have affected the jury’s verdict. The

habeas court cannot ask only whether it thinks the

petitioner would have been convicted if the

constitutional error had not taken place.” Brecht at

642. Likewise, in the case before this Court, it is not

sufficient to merely conclude that petitioner would

have received the same sentence with or without the

admission of the document. The concurring opinion

points out that “(t)he purpose of reviewing the entire

record is, of course, to consider all the ways the error

can infect the course of a trial.” Brecht at 642. Justice

Stevens quotes extensively from Justice Rutledge’s

opinion in Kotteakos including the quote that Kotteakos

“requires a reviewing court to decide that ‘the error did

not influence the jury, ‘ 328 U.S. at 764, and that ‘the

judgment was not substantially swayed by the error, ‘

id., at 765. "Brecht at 642. In what the undersigned

considers to be the most meaningful line in the entire

Brecht decision, Justice Stevens writes that “(i)n the

17

end, the way we phrase the governing standard is far

less important than the quality of the judgment with

which it is applied.” Brecht at 643. While it is clear

that the standard for review of harmlessness in habeas

review is less stringent than the review for

harmlessness in direct appeal review under Chapman

v. California, 386 U.S. 18, the Brecht decision is far

from being a fatal blow to this petition. Moreover, as

discussed below, it is reasonable, in light of Crawford

v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L.

Ed.2d 177 (2004) that the error could be viewed as a

structural defect in that it violates the Confrontation

Clause of the Sixth Amendment to the United States

Constitution. If so, this would defy analysis by

harmless error standards. See Arizona v. Fulminate

499, U.S. 279, 309 (1991).

Spencer v. Murray, 5 F. 3d 758, 762 (4 Cir.

1993) quoted approvingly from Grundler v. North

Carolina, 283 F.2d 798, 802 (4" Cir. 1960):

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. It

is only in circumstances impugning

fundamental fairness or infringing

specific constitutional protections that a

federal question is presented. The role of

a federal habeas corpus petition is not to

serve as an additional appeal. Grundler v.

18

North Carolina, 283 F. 2d 798, 802 (4%

Cir. 1960).

Spencer makes it clear that “a claim about the

admissibility of evidence under state law rarely is a

claim upon which federal habeas relief can be

granted.” Spencer at 762. There is a difference between

“rarely” and “never”. It must be reviewed on a case by

case basis to determine whether the evidentiary issue

is a circumstance “impugning fundamental fairness”.

In Spencer the issue related to the admission of DNA

evidence. The court reviewed the issue and concluded

the “(t)he error Spencer argues might have occurred

with his DNA test...are not even remotely suggested by

the record in this case.” Spencer at page 762. After

reviewing the record the court concluded that not only

was there no constitutional error under the Due

Process Clause, “no error at all has come to our

attention.” Spencer at p. 763.

In Estelle v. McGuire, 502 U.S. 62, 75, 116 L. Ed.

2d 385, 401, 112 S. Ct. 475, _ (1991), cited in

respondent’s brief in the district court , this Court held

that in that case “that neither the introduction of the

challenged evidence, nor the jury instruction as to its

use, ‘so infused the trial with unfairness as to deny due

process of law.’ “ [citations deleted]. Estelle arose from

a California conviction of Second Degree Murder in the

killing of the defendant’s infant daughter. The issue

related to the admission of evidence to prove “battered

child syndrome”. The Ninth Circuit had granted

habeas relief ruling that the evidence admitted to

establish the syndrome was erroneously admitted

because no evidence connected the defendant with the

19

prior injuries to the victim and no claim was made at

the trial that the victim died accidentally. Further, the

Ninth Circuit concluded that the trial court’s

instruction in regard to evidence of prior acts

permitted the jury to convict the defendant simply on

the basis of evidence that he had committed prior bad

acts. These errors, the Ninth Circuit reasons, rendered

the trial “arbitrary and fundamentally unfair” in

violation of due process. This Court reversed. Renquist,

Chief Justice, penned the decision for the Court. The

decision reviews the evidence at some length. The

Ninth Circuit had based its decision, in part, on its

conclusion that the evidence had been admitted in

violation of California law. The court citing and

quoting Lewis v. Jeffers, 497 U.S. 764, 780, 111 L. Ed.

2d 606, 110 S. Ct. 3092 (1990) emphasized that habeas

relief does not lie for state law errors and habeas

courts should not second guess state court

determinations of state law. Federal habeas review is

limited to determining whether the United States

Constitution or its laws or treaties have been violated

during state proceedings. This Court concluded that

the prior injuries to the victim were relevant to the

case and tuerefore the assumption by the Ninth Circuit

that it is a violation of due process for irrelevant

evidence to be admitted in a criminal trial did not need

to be further addressed. Specifically, the Court held

that admission of the evidence in that case did not

violate the defendant’s due process rights. To glean

from such a ruling that no state evidentiary ruling can

be violative of due process would be a misreading of

Estelle. The issue in Estelle as in the case now before

this Court is whether the evidence infused the

proceeding with unfairness to deny due process of law.

In the matter now before this Court the whole

proceeding which must be “infected” is the sentencing

hearing itself.

The Fourth Circuit has ruled on the propriety of

a federal district court judge’s reliance on new

information brought forth at sentencing in United

States v. Powell, 487 F.2d 325 (4th Cir. 1973). The

defendant there was sentenced to five years in the

penitentiary—twice as long as his coconspirators who

had been convicted on additional counts. Jd. at 327.

The judge presiding at the sentencing hearing based

his decision on a speculative reference to the defendant

as having been the “ringleader” of the criminal

operation which had been the subject of the charge.

This accusation was found, on review, to have no basis

in the record and was not derived from testimony or

evidence adduced at trial. The Fourth Circuit deemed

it, as such, to be “misinformation” warranting that the

sentence be vacated. “Misinformation or an unfounded

assumption concerning facts of this importance is

sufficient to render the sentencing procedure invalid.”

Id. at 328. The defendant in Powell was, furthermore,

denied the opportunity to respond to the unfounded

accusation brought forth at sentencing. The reliance on

the misinformation coupled with the lack of

opportunity for the defendant to refute the new

allegation rendered that such proceeding was not

conducted in accord with constitutionally requisite due

process.

eS) Fs Ne Oe NM re eee eg ES

“While not every type of misinformation will

justify relief, a sentence cannot stand if it is based on

assumptions concerning the defendant's criminal

record that are ‘materially false, Townsend v. Burke,

334 U.S. 736, 741, 92 L. Ed. 1690, 68 S. Ct. 1252

(1948), or if it is founded ‘in part upon misinformation

of constitutional magnitude.’ United States v. Tucker,

404 U.S. 443, 447, 30 L. Ed. 2d 592, 92 S. Ct. 589

(1972).” Id. at 328. “...the primary difficulty in the

government's position is factual. The government has

been unable to point to any evidence in either the trial

of Powell's mother and his brothers or in Powell's own

trial establishing that he was the ringleader of the

group or that he was responsible for getting his

brothers in trouble.” Jd. at 329. “These two defects in

the sentencing procedure -- failure of the record to

support material factors on which the severity of the

punishment rested, and Powell's lack of an opportunity

to explain or refute the derogatory information on

which the judge relied -- denied Powell due process of

law. Townsend v Burke, 334 U.S. 736, 92 L. Ed. 1690,

68 S. Ct. 1252 (1948); United States v. Malcolm, 432

F.2d 809, 816 (2d Cir. 1970).” Id.

In United States v. Remy, 738 F.2d 1156 (Lith

Cir. 1984), it was noted that when a defendant claims

due process violation, it must be shown that

information was both materially unreliable and that

the judge based sentence upon such misinformation.

A defendant is not denied due process of law when a

judge considers out-of-court information in

determining sentence. Williams v. New York, 337

U.S. 241-246, 250-51, 69 S. Ct. 1079, 1084-1085, 93

22

L. Ed. 1337 (1949), so long as the defendant is

afforded an opportunity to refute it, and it is reliable,

U.S. v. Ammirato, 670 f. 2d 552, 557 (5" Cir. Unit B

1982). The hearsay evidence relied on at sentencing

must bear minimal indicia of reliability if the

defendant’s right to due process is to be preserved.

U.S. v. Baylin, 696 f.2d 1030, 1040 (3d Cir. 1982);

U.S. v. Weston, 448 F.2d 626, 634 (9 Cir.), cert.

denied, 404 U.S. 1061, 92S. Ct. 748, 30 L. Ed. 2d 749

(1972).

Id. at 1167.

Reliability can be inferred without more in a

case where the evidence falls within a firmly rooted

hearsay exception. Ohio v. Roberts, 448 U.S. 56, 66,

100 S. Ct. 2531, 2539, 65 L. Ed. 2d 597 (1980).

Otherwise there must be a showing of “particularized

guarantees of trustworthiness.” Jd. Where a

declarant’s statements were originally made in a

situation that encompassed trial-type protections

such as oath, defendant’s opportunity to cross-

examine, or the factfinder’s chance to observe

declarant’s demeanor, evidence including such

hearsay statements is more likely to be trustworthy

and reliable. See Id. At 69-74, 100 S. Ct. At 2540-

2543. Likewise, where the declarant’s statements

were spontaneous, or against his own penal interest,

Dutton v. Evans, 400 U.S. 74, 89, 91 S. Ct. 210, 219,

27 L.Ed. 2d 213 (1970) (plurality opinion), they bear

sufficient indicia of reliability to serve as a basis for

sentencing. Whether the hearsay statement is

corroborated or contradicted by other evidence in the

record is also relevant in determining reliability.

U.S. v. Penn. 721 F.2d 762, &65 (11 Cir. 1983).

Appellate modification of a _ statutorily

authorized sentence ... . is an entirely different

matter than the careful scrutiny of the judicial process

by which the particular punishment was determined.

Rather than an unjustified incursion into the province

of the sentencing judge, this latter responsibility is, on

the contrary, a necessary incident of what has always

been appropriate appellate review of criminal cases.”

United States v. Lemon, 232 U.S. App. D.C. 396 (DC

Cir. 1983). “...once the guilt of the accused has been

properly established, the sentencing judge, in

determining the kind and extent of punishment to be

imposed, is not restricted to evidence derived from the

examination and cross-examination of witnesses in

open court but may, consistently with the Due Process

Clause of the Fourteenth Amendment, consider

responsible unsworn or ‘out-of-court’ information

relative to the circumstances of the crime and to the

convicted person's life and characteristics.” (emphasis

added). Williams v. Oklahoma, 358 US 576, 584 (1959).

Though due process does not require that

information brought forth at sentencing be restricted

to the same as that introduced at trial, a sentence

cannot be predicated on false information. United

States v. Weston, 448 F.2d 626, 630 (9th Cir. 1971).

The court noted, “[i]n essence, then, what we have is a

conviction at a trial providing all of the safeguards

required by the Constitution, of an offense warranting,

in the opinion of the trial judge, the minimum sentence

of five years. This is followed by a determination,

24

based on unsworn evidence detailing otherwise

unverified statements of a faceless informer that would

not even support a search warrant or an arrest, and

without any of the constitutional safeguards, that [the

defendant] is probably guilty of additional and far

more serious crimes, for which she is then given an

additional sentence of fifteen years. Specht v.

Patterson, 1967, 386 U.S. 605, 87S. Ct. 1209, 18 L. Ed.

2d 326; Kent v. United States, 1966, 383 U.S. 541, 553-

554, 86 S. Ct. 1045, 16 L. Ed. 2d 84. To us, there is

something radicaily wrong with a system of justice

that can produce such a result.” Id.

In United States v. Kole, 164 F.3d 164 (8rd Cir.

1998). the court held that “[a] sentencing judge denies

a defendant the due process of law when he or she

specifically considers ‘misinformation of a

constitutional magnitude’ in fashioning a sentence.”

Id. at 177 (quoting United States v. Spiropoulos, 976

F.2d 155, 163 (3rd Cir. 1992). In this case, the

defendant’s flight following police entry and testimony

of police was sufficient corroboration to uphold

sentencing procedure. “Factual matters considered as

a basis for sentence must have some minimal indicia

of reliability beyond mere allegation and must either

alone or in the context of other available information,

bear some rational relationship to the decision to

impose a particular sentence.” United States v.

Mathews, 773 F.2d 48, 51 (3rd Cir. 1985). In

Blackmon v. Scott, 22 F.3d 560 (5th Cir. 1994) the

court found due process was violated when no

meaningful time was given to rebut introduction of

new evidence at sentencing.

In United States v. Galloway, the Court of

Appeals for the Ninth Circuit addressed the issue of

due process standards within the setting of a

sentencing hearing where dubious information had

been submitted before the district court. United

States v. Galloway, 1996 U.S.App. LEXIS 10969, 6

(1996). The court determined that a defendant’s due

process rights were violated where the district court

judge admitted unreliable hearsay evidence at the

sentencing hearing resulting in an upward departure

from the Sentencing Guidelines. Jd. The disputed

testimony in Galloway consisted of a police officer’s

recitation of accusatory statements taken from

defendant’s children and their mother and a

probation officer's statements made solely on the

basis of a medical report. Jd. These statements were

found not to exhibit the necessary “minimum indicia

of rehability” as the children’s account of the events

in question was not consistent, the defendant “was

having domestic trouble at the time of the alleged

incidents, and [because] the medical examinations of

the children were inconclusive. Id. at 5-6.

[T]he hearsay statements admitted at

the sentencing hearing and testified to

by the police officer and probation

officer were unreliable and were the

basis for the 24-month sentence.

Admission and consideration of these

hearsay statements violated

{[defendant’s] due _ process rights,

26

rendering his sentence illegal. He must

be resentenced.

Id.

United States v. Williams displayed similar

facts to those drawn out here where the sentencing

judge relied upon incriminating statements made by

defendant’s ex-wife set in a letter sent to the judge in

an initial sentencing proceeding. United States v.

Williams, 41 F.3d 496, 500 (9" Cir. 1994). Like this

case, the author of that letter had not testified at

trial such that these statements could not have been

tested by any means of cross-examination. Jd. The

court emphasized the fact that no reason was given

by the presiding judge as to why the ex-wife’s

statements were accepted—why they were deemed to

be reliable over the protestations of the defendant.

Id. at 501. As such, the judge’s acceptance of these

statements were tagged as “arbitrary” and

inconsistent with the demands of due process. Id. “A

sentencing judge may consider hearsay evidence

without running afoul of the Confrontation Clause,

but the evidence must be reliable. United States v.

Petty, 982 F.2d 1365, 1369 (9th Cir.), amended, 992

F.2d 1015 (1992), cert. denied, 114 S. Ct. 683 (1994).

‘[A] defendant clearly has a due process right not to

be sentenced on the basis of materially incorrect

information. Due process requires that some

minimal indicia of reliability accompany a hearsay

statement.’ Jd. (citations omitted).” Id. at 500.

27

os

The Fourth Circuit has stated in United States

uv. King that within a sentencing hearing setting,

“fajny information may be considered, so long as it

has ‘sufficient indicia of reliability to support its

probable accuracy.” United States v. King, 1992 U.S.

App. LEXIS 7343, 10 (4" Cir. 1992). The decision in

King quotes the Ninth Circuit in going on to say,

“unreliable allegations shall not be considered.”

United States v. Weston, 448 F.2d 626 (9th Cir.

1971). No due process violation was found in King

where the sentencing judge relied upon testimony

elicited from a United States Customs agent at the

pertinent hearing. The substance of such testimony

was based, in part, on the agent’s own fact-finding

procedure. Id. Nevertheless, the agent was at the

sentencing hearing at which time this testimony was

given and was, as such, available for purposes of

cross examination.

Due process is satisfied when hearsay is

introduced at sentencing if the evidence has "'some

minimal indicia of reliability beyond mere

allegation.” United States v. Hicks, 948 F.2d 877,

883 (4th Cir. 1991) (citations omitted). The hearsay

evidence introduced at the sentencing hearing in

United States v. Orrelien was determined to be

reliable where the declarant’s statements were

consistent with information the DEA agent had

already received from another source. United States

uv. Orrelien, 1999 U.S.App. LEXIS 18219, 5 (4™ Cir.

1999).

In the order of the habeas court denying the

petitioner habeas relief it is stated that “... Petitioner

28

seems to be arguing that his right to confront

witnesses against him was violated by the

introduction of the letter written by ex-wife.”

(Emphasis added). The order suggests that the

petition never specifically asserted a constitutional

violation to form the basis of the habeas petition.

Further, the order implies that the habeas petition

rested alone upon the contention that the

introduction of the referenced letter amounted to a

Sixth Amendment violation. While it is true that the

petitioner made a Sixth Amendment violation part of

the basis of his habeas petition, the primary focus of

that petition was unequivocally that the admission

of this letter constituted a due process violation

offensive to the dictates of both the Fourteenth and

Fifth Amendments. Indeed, this is the ground upon

which petitioner commenced his habeas petition and

was as well thoroughly defended in his final filing

with the habeas court in defending such petition

against summary judgment. Yet, the order fails to

in any manner address the due process arguments

contained both in the petition itself and in filings by

petitioner in support of the petition.

The letter that constitutes the subject of this

proceeding has come in the categorizations of the

respondent and the resulting order of this Court to

appear innocuous as “hearsay evidence” against

which the safeguards afforded in trial proceedings

shall not be emulated in proceedings for sentencing.

However, if such an innocuous category of hearsay

can exist in any just and fair judicial proceeding, the

content of this particular letter, as is more

29

thoroughly described below, certainly takes it out of

that class of evidence. As the petitioner emphasized

in his Response to the Summary Judgment Motion,

this Court has made clear that “the sentencing

process, as well as the trial itself, must satisfy the

requirements of the Due Process Clause.” Gardner v.

Florida, 430 U.S. 349 (1977). Furthermore, while

hearsay statements may be considered at sentencing,

due process requires that such statements be

corroborated by extrinsic evidence. United States v.

Ponce, 51 F.3d 820 (9" Cir. 1995). Due process

requires that some minimum indicia of reliability

accompany a hearsay statement. United States v.

Petty, 982 F.2d 1365 (9 Cir.), amended on other

grounds, 992 F.2d 1015 (9" Cir. 1993), cert. denied,

510 U.S. 1040 (1994); United States v. Reid (hearsay

statement cannot be used in sentencing absent some

minimal indication of reliability other than mere

allegation).

Given the irrelevant and accusatory nature of

the letter here discussed, its influence upon the

sentencing hearing remains untold. The letter was

originally sent in the form of a facsimile that was, as

such, unsigned, the aileged author was not present

in court, and the contents of the letter were not

under oath. In it, detailed and bold accusations were

made against the petitioner, inculpating him not

passively but keenly for matters unrelated to the

offense addressed at the sentencing hearing. The

author of this letter—ostensibly, the petitioner’s ex-

wife— accused the petitioner flatly of, among other

crimes, a double murder, graphically asserting that

30

the petitioner “hogtied and blew the brains out” of

his former wife. “While not every type of

misinformation will justify relief, a sentence cannot

stand if it is based on assumptions concerning the

defendant’s criminal record that are ‘materially

false,’ Townsend v. Burke, 334 U.S. 736, 741, 92 L.

Ed. 1690, 68 S. Ct. 1252 (1948), or ‘if it is founded ‘in

part upon misinformation of constitutional

magnitude.’ United States v. Tucker, 404 U.S. 443,

447, 30 L. Ed. 592, 92 S. Ct. 589 (1972).” Id. at 328.

The severity of the sentence imposed by Judge

Doughton at the October 8, 2003 hearing, being

effectively much more severe than the intended

effect of the sentence imposed at the 1989 sentencing

hearing, evidences the petitioner’s contention that

this letter distorted the final outcome of the

proceeding. This is so for two very significant

reasons and _ considerations. First, substantial

evidence was submitted to Judge Doughton

suggesting significant rehabilitation that was not

available to the first sentencing judge. Secondly,

and most importantly, the first sentencing judge

imposed the sentence with the understanding and

belief that the petitioner would be parole eligible.

Judge Doughton imposed the sentence with the firm

understanding that he would never become parole

eligible. Therefore, the sentence imposed by Judge

Doughton, in his mind’s eye, was nearly four times

more severe than the sentence imposed in the mind's

eye of the original sentencing judge. It is likely that

such a severe sentence resulted, at least in part,

from the untrue accusations contained in the letter

3]

in question. Judge Doughton could have and should

have permitted some or all of the sentences to run

concurrently rather than consecutively. The State of

North Carolina is charged with actual knowledge of

the falsity of the letter in light of the fact that the

State had prosecuted the actual murderer as set out

above. For the State under such circumstances to

submit such a letter containing materially false

material to the sentencing Court knowing of its

falsity cannot possibly withstand any due process

analysis.

The limits of Due Process protections can

seem at times hazy as the concept itself is broad and

enveloping, but it need not reach far to receive in its

province an infraction such as the one petitioner has

laid out.

32

II. THE STATE TRIAL COURT DENIED

PETITIONER THE RIGHT TO CONFRONT HIS

ACCUSERS SECURED BY THE SIXTH

AMENDMENT TO THE UNITED STATES

CONSTITUTION AS APPLIED TO THE STATES

BY THE FOURTEENTH AMENDMENT IN

DEPRIVING HIM THE RIGHT TO CONFRONT

AND CROSS EXAMINE A WITNESS AGAINST

HIM AT HIS SENTENCING HEARING.

While the undersigned does not conclusively

assert that the recent Supreme Court case of

Crawford v. Washington, 541 U.S. 36, 124 S. Ct.

1354, 158 L. Ed. 2d. 177 (2004) requires the granting

of habeas relief, it is, at the very least, instructive as

to how this Court now views the effect of the

Confrontation Clause on the use of testimonial

statements. Mr. Justice Scalia, writing for the Court,

said, “We once again reject the view that the

Confrontation Clause applies of its own force only to

in-court testimony, and that its application to out-of-

court statements introduced at trial depends upon

‘the law of Evidence for the time being.’ (Citation

deleted) Leaving the regulation of out-of-court

statements to the law of evidence would render the

Confrontation Clause powerless to permit even the

most flagrant inquisitorial practices.” Crawford at

50-51. The Confrontation Clause applies to witnesses

against the accused. Justice Scalia turns to the

dictionary to define testimony as “[a] solemn

declaration or affirmation made for the purpose of

establishing or proving some fact.” Crawford at 51.

33

be

Notably, Justice Scalia said that, “(w)here

testimonial statements are involved, we do not think

the Framers meant to leave the Sixth Amendment’s

protection to the vagaries of the rules of evidence,

much less to amorphous notions of ‘reliability.”...To

be sure, the Clause’s ultimate goal is to ensure

reliability of evidence, but it is a procedural rather

than a substantive guarantee. It commands, not that

evidence be reliable, but that reliability be assessed

in a particular manner: by testing in the crucible of

cross examination. The Clause thus reflects a

judgment, not only about the desirability of reliable

evidence (a point on which there could be little

dissent), but about how reliability can best be

determined.” Crawford at 61. He went on to observe

that “(d)ispensing with confrontation because

testimony is obviously reliable is akin to dispensing

with jury trial because a defendant is obviously

guilty.” Crawford at 62. Justice Scalia concluded by

noting that in that case a witness's testimonial

statement against the petitioner was admitted even

though the petitioner had no opportunity to cross

examine her. “That alone is sufficient to make out a

violation of the Sixth Amendment ...Where

testimonial statements are at issue, the only

indicium of reliability sufficient to satisfy

constitutional demands is the one the Constitution

actually prescribes: confrontation.” Crawford at 68-

69. The reasoning of Crawford applies, with equal

force, to the letter which was drafted for testimonial

purposes and admitted against this petitioner over

34

the objection of his counsel in the sentencing

hearing.

In United States v Fatico, 579 F2d 707 (2nd

Cir. 1978), it was noted that although hearsay could

be introduced at sentencing, it must not be opposed

factually by the defendant, or must, alternatively,

have a firm foundation in the record. For example, in

United States v. Napolitano, 761 F.2d 135 (2nd Cir.

1985), the Second Circuit allowed hearsay evidence

to be introduced at the defendant's sentencing

hearing to show the magnitude of his involvement in

a band of organized crime where such evidence was

corroborated by the testimony of a number of

informants whose statements were made against

their own penal interest. The nature of these

statements—that they were made against the

declarants’ penal interest—gave them _ the

appearance of reliability. Though the introduction of

hearsay evidence is not barred within a sentencing

hearing setting, such evidence must exhibit some

indicia of reliability.

This Court has declared that evidence

considered on a hearsay basis does not warrant the

same level of inquiry as that considered for purposes

of a Sixth Amendment violation. “Although we have

recognized that hearsay rules and the Confrontation

Clause are generally designed to protect similar

values, we have also been careful not to equate the

Confrontation Clause's prohibitions with the general

rule prohibiting the admission of hearsay

statements. See California v. Green, 399 U.S. 149,

155-156, 26 L. Ed. 2d 489, 90 S. Ct. 1930 (1970);

35

Pie peers, ay Eee ee ey

Dutton v. Evans, 400 U.S. 74, 86, 27 L. Ed. 2d 213,

91S. Ct. 210 (1970) (plurality opinion); United States

v. Inadi, 475 U.S. 387, 393, n.5, 89 L. Ed. 2d 390,

106 S. Ct. 1121 (1986). The Confrontation Clause, in

other words, bars the admission of some evidence

that would otherwise be admissible under an

exception to the hearsay rule. See, e. g., Green,

supra, 399 U.S. at 155-156; Bruton v. United States,

391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968);

Barber v. Page, 390 U.S. 719, 20 L. Ed. 2d 255, 88 S.

Ct. 1318 (1968).” Idaho v. Wright, 497 U.S. 805, 814

(1990).

The Supreme Court of North Carolina

undertook this analysis within the setting of a

capital sentencing hearing, concluding that

heightened procedure was necessary to avoid

offending the dictates of the Sixth Amendment. “This

Court has...recognized the constitutional ‘preference

for live testimony, which is premised upon the

fundamental ‘importance of cross-examination, the

greatest legal engine ever invented for the discovery

of truth.’...(internal cites omitted)... ‘While the

Confrontation Clause and rules of hearsay may

protect similar values, it would be an erroneous

simplification to conclude that the Confrontation

Clause is merely a codification of hearsay rules.”

State v. Nobles, 357 N.C. 433, 437 (2003). The Court

goes on to say, “It is well settled in this jurisdiction

that while the Rules of Evidence do not apply at

sentencing, the right to confront witnesses does.

State v. Holmes, 355 N.C. 719, 733, 565 S.E.2d 154,

165, cert. denied, 537 U.S. 1010, 154 L. Ed. 2d 412,

36

Be

¥

123 S. Ct. 478 (2002); State v. McLaughlin, 341 N.C.

426, 458, 462 S.E.2d 1, 18-19 (1995), cert. denied,

516 U.S. 1133, 133 L. Ed.” Id.

“(T]he sentencing hearing must be fair and

just, and the trial court must provide the defendant

with full opportunity to controvert hearsay and other

representations in aggravation of punishment.” State

v. Locklear, 34 N.C. App. 37, 39 (1977), rev’d on

other grounds, 294 N.C. 210, 241 S.E.2d 65 (1978) .

CONCLUSION

For the foregoing reasons, Petitioner

respectfully submits that the petition for writ of

certiorari should be granted.

Respectfully submitted this the 29" day of

September, 2008.

S/Charles R. Brewer

Charles R. Brewer

Attorney for Petitioner

NC Bar No. 6051

Post Office Box 8938

Asheville, NC 28814

(828) 251-5002

crboffice@aol.com

37

APPENDIX A

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-6114

TROY ALLEN LINGLE,

Petitioner - Appellant,

v.

DAVID MITCHELL, Superintendent of Mountain

View Correctional Institution,

Respondent - Appellee.

Appeal from the United States District Court for the

Western District of North Carolina, at Statesville.

Richard L. Voorhees, District Judge. (5:05-cv-00226-

RLV)

Submitted: June 26, 2008 Decided: July

1, 2008

Before KING and DUNCAN, Circuit Judges, and

WILKINS, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Charles Robinson Brewer, Asheville, North Carclina,

for Appellant. Mary Carla Hollis, Assistant Attorney

General, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this

circuit.

PER CURIAM:

Troy Allen Lingle seeks to appeal the district

court’s order denying relief on his 28 U.S.C. Section

2254 (2000) petition. The order is not appealable

unless a circuit justice or judge issues a certificate of

appealability. 28 U.S.C. Section 2253( c)(1) (2000). A

certificate of appealability will not issue absent “a

substantial showing of the denial of a constitutional

right.” 28 U.S.C. Section 2253 ( c)(2) (2000). A

prisoner satisfies this standard by demonstrating that

reasonable jurists would find that any assessment of

the constitutional claims by the district court is

debatable or wrong and that any dispositive

procedural ruling by the district court is likewise

debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38

(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);

Rose v. Lee, 252 F. 3d 676, 683-84 (4" Cir. 2001). We

have independently reviewed the record and conclude

that Lingle has not made the requisite showing.

Accordingly, we deny Lingle’s motion for a certificate

of appealability and dismiss the appeal. We dispense

with oral argument because the facts and legal

contentions are adequately presented in the materials

before the court and argument would not aid the

decisional process.

DI SSED

Ritts ete 0

prpelr sty

APPENDIX B

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

§:05CV226-3-V

TROY ALLEN LINGLE, )

Petitioner,

v. ) ORDER

DAVID MITCHELL, Supt.) ‘

Respondent. | )

THIS MATTER is before the Court upon

Petitioner Troy Allen Lingle’s (hereinafter “Petitioner”)

Petition for Writ of Habeas Corpus filed pursuant to 28

U.S.C. § 2254 (Document No. 1.) Also before the Court

is the State’s Motion for Summary Judgment

(Document No. 3), the Petitioner’s Response to the

State’s Motion for Summary Judgment (Document No.

8); and the State’s reply Brief (Document No. 9.) For

the reasons stated herein, Petitioner’s Petitioner for

Writ of Habeas Corpus will be denied and dismissed.

I. Factual and Procedural Background

A review of the record revealsthaton November -

30, 1989 Petitioner pled guilty to two counts of first-

degree kidnapping and seven counts of second-degree -

kidnapping and was sentenced to presumptive

sentences totaling eighty-seven years. Petitioner

noticed an appeal to the North Carolina Court of

Appeals, which was dismissed, and filed a petition for

writ of certiorari with that court, which was denied.

On November 7, 2002, Petitioner, through

counsel, filed his first motion for appropriate relief

(“MAR”). Following a hearing on October 8, 2003, at

which the State stipulated that Petitioner was entitled

to relief based upon one of the claims in his MAR,

Petitioner was granted a new trial. Petitioner entered

an Alford’ plea of guilty to two counts of first-degree

kidnapping and pled guilty to seven counts of second-

degree kidnapping pursuant to an agreement with the

State. . Petitioner agreed to leave the disposition of his

sentence to court’s discretion. During Petitioner's

sentencing hearing, the State attempted to introduce

a letter written by Petitioner’s ex-wife. (Sentencing

Transcript at 43.) Petitioner’s counsel objected and the

court sustained the objection. (Sentencing Transcript

at 43-45.) After several character witnesses testified on

his behalf, Petitioner testified and the State cross-

examined him, without objection, about some matters

referenced in his ex-wife’s letter. (Sentencing

Transcript at 125-141.) After Petitioner testified, the

‘North Carolina v. Alford, 400 U.S. 25 (1970)

(concluding that “even if [defendant] is unwilling or

unable to admit his participation in the acts constituting

the crime” he can plead guilty).

*Petitioner’s ex-wife was not present at

Petitioner's sentencing hearing. Indeed, there was

testimony that she was afraid to come to court and

testify.

State again moved to introduce the letter, arguing that

its content was contrary to Petitioner's testimony.

(Sentencing Transcript at 141.) Over objection from

Petitioner, the court noted that it would “look at [the

letter] for the purpose of impeaching what [Petitioner]

said on the stand,” and read the letter. (Sentencing

Transcript at 142.) The court sentenced Petitioner,

without comment concerning the letter, to two active,

presumptive terms of twelve years for the first-degree

and seven active, presumptive terms of nine years for

the second-degree kidnapping counts.’ Petitioner’s

sentences were to run consecutively and totaled eighty-

seven years. (Sentencing Transcript at 155-158.)

Petitioner filed, but withdrew, an appeal to the North

Carolina Court of Appeals.

On October 20, 2003, Petitioner, through

counsel, filed a second MAR in superior court in which

he alleged that the introduction of the letter, written

by his ex-wife, to impeach his own testimony at his

sentencing hearing violated his rights to due process

and confrontation as guaranteed by the United States

and North Carolina Constitutions. Petitioner’s MAR

was denied on January 26, 2005. On April 22, 2005

Although Petitioner avers in his memorandum

attached to his Section 2254 petition that Judge

Doughton read the letter and immediately sentenced

petitioner, the Court has reviewed the entire Sentencing

Transcript and notes that the transcript does not reflect

this course of events. Instead, the transcript reflects that

after Judge Doughton read the letter, he allowed counsel

to make their arguments which consisted of several

pages of text before he pronounced his sentence.

Petitioner filed a petition for writ of certiorari with the

North Carolina Court of Appeals which was denied on

May 10, 2005. Petitioner, through counsel, filed the

instant petition on July 15, 2005 alleging that he “was

denied his Constitutional rights by the admission of an

unsigned, unsworn letter, over objection, containing

highly prejudicial allegations against petitioner.”

(Petition at 6.)

II. Standard of Review

Generally speaking, the standard of review to be

applied by the Court to habeas cases is “quite

deferential to the rulings of the state court.” Burch v.

Corcoran, 273 F.3d 577, 583 (4 Cir. 2001). Indeed, as

the Burch Court noted:

{pursuant to the standards promulgated

in 28 U.S.C. § 2254, a federal court may

not grant a writ of habeas corpus with

respect to a claim adjudicated on the

merits in state court proceedings unless

the state court’s adjudication; (1)

“resulted in a decision that was contrary

to, or involved as unreasonable

application of, clearly established Federal

Laws, as determined by the Supreme

Court of the United States” .. . ; or (2)

“resulted in a decision that was based on

an unreasonable determination of the

facts in light of the evidence presented in

the State court proceeding... .”

Id. (Internal citations omitted).

The Supreme Court has explained that a state

court adjudication is “contrary” to clearly established

federal law, only if “the state court arrives at a

conclusion opposite to that reached by [the Supreme]

Court on a question of law or if the state court 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), quoted in Burch. An

unreasonable application is different from an incorrect

application of federal law, the former being the

requisite showing. Therefore, this Court may not issue

the writ even if it concludes in its own independent

review, that the relevant state court merely made an

incorrect or erroneous application of the correct federal

principles. id.

Finally, the applicable standard of review is to

be applied to “all claims ‘adjudicated on the merits,”

that is, those claims substantively reviewed and finally

determined as evidenced by the state court’s issuance

of a formal judgment or decree.” Thomas v. Davis, 192

F.2d 445, 455 (4 Cir. 1999).

III. Analysis

Petitioner claims that he was denied his

Constitutional rights by the admission of a letter

during his sentencing hearing written by his ex-wife.

“State Court trial rulings regarding the admission and

exclusion of evidence are cognizable in federal habeas

corpus review only to the extent that they violate

i

specific constitutional provisions or are so egregious as

to render the entire trial fundamentally unfair,

thereby violating the Due Process Clause of the

Fourteenth Amendment.” Howard v. Moore, 131 F.3d

399, 415 n. 18 (4m Cir. 1997); see also Estelle v.

McGuire, 502 U.S. 62, 72 (1991) (“The only question for

us is ‘whether the ailing instruction by itself so

infected the entire trial that the resulting conviction

violates due process.”) (quoting Cupp v. Naughten, 414

U.S. 141, 147 (1973)).

Here, although the State argues that Petitioner

“failfed] to assert that any specific constitutional

provision was violated by the admission of Mrs.

Lingle’s letter,” (Brief in Support of Summary

Judgment at7), Petitioner seems to be arguing that his

right to confront witnesses against him was violated by

the introduction of the letter written by his ex-wife.

The Sixth Amendment provides that, “[ijn all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted by the witnesses against him.” Crawford v.

Washington, 541 U.S. 36, 42 (2004). However, the

Supreme Court has not held that sentencing

proceedings are “criminal prosecutions” for Sixth

Amendment purposes. See United States v. Johnson,

935 F.2d 47, 50 (4 Cir. 1991). As such, there is no

clearly established federal law that the Confrontation

Clause applies in sentencing proceedings. See United

States v. Roche, 415 F.3d 614, 618 (7m Cir. 2005)

(“[W]itnesses providing information to the court after

guilt is established are not accusers within the

meaning of the confrontation clause.”); United States

v. Luciano, 414 F.3d 174, 179 (1st Cir. 2005) (“{T]here

is no Sixth Amendment Confrontation Clause right at

sentencing.”); United States v. Martinez, 413 F.3d 239,

243 (2d Cir. 2005) (reaffirming prior holdings that the

constitutional right of confrontation does not bar the

admission of hearsay testimony at sentencing

proceedings); United States v. Higgs, 353 F.3d 281, 324

(4n Cir. 2003) (“It is far from clear that the

Confrontation Clause applies to capital sentencing

proceedings.”); United States v. Silverman, 976 F.2d

1502, 1514 (6m Cir. 1992) (en banc) (discussing the

“inapplicability of the Confrontation Clause to the

sentencing procedure”). Consequently, there is no

clearly established federal law that introduction of

hearsay evidence at a sentencing hearing violates a

defendant’s rights under the Confrontation Clause.

Furthermore, the introduction of the letter

written by Petitioner’s ex-wife was not “so egregious as

to render the entire [sentencing] fundamentally unfair.

Howard v. Moore, 131 F.3d 399, 415 n. 18 (4 Cir.

1997). Judge Doughton expressly stated that he would

“look at’ the letter for impeachment purposes only. The

letter was not admitted at trial for consideration by a

jury, perhaps unskilled at distinguishing the

admission of evidence as proof of guilt and the

admission of evidence for the limited purposes of

impeachment. Rather, it was admitted at sentencing

for consideration by a judge, who, unlike a jury, is well

versed in the proper scope of impeachment evidence,

and who can distinguish competent evidence from

incompetent evidence. Moreover, there is no indication

that Judge Doughton discredited Petitioner's

testimony based upon the letter, much less predicated

his sentence en its contents. The State did not

reference the letter or Petitioner's credibility in its

sentencing argument. In his remarks to Petitioner,

Judge Doughton in no way indicated that Petitioner's

sentence was based, in whole or in part, on anything in

the letter. In fact, Judge Doughton never mentioned

Petitioner's credibility, the letter, or Petitioner’s ex-

wife. Rather, Judge Doughton expressly stated that

the sentence was imposed with due consideration given

to the victims. (Sentencing Transcript at 155-158.)

Judge Doughton sentenced Petitioner to the

presumptive sentencing terms for the crimes to which

he pled guilty, whereby Petitioner received the very

same sentence imposed at his 1989 sentencing hearing

at which his ex-wife’s letter was not introduced.:

Petitioner has not presented evidence establishing that

the introduction at his sentencing hearing of a letter

written by his ex-wife rendered his sentencing hearing

fundamentally unfair,

Moreover, Petitioner raised this claim in his

MAR. In adjudicating the merits of Petitioner’s claim

in his MAR, the MAR court denied relief based on the

following conclusions:

2. Formal rules of evidence do not apply at a

sentencing hearing. See N.C.G.S. 15A- 1334(b) and

N.C.G.S. 8C, Rule 1101(b)(3)).

‘Petitioner was sentenced and resentenced under

North Carolina’s Fair Sentencing Act, now repealed.

N.C.G.S. Sections 15A-1340.1 to 15A-1340.7 (repealed

1993).

3. Sworn testimony, which may include reliable

hearsay, may be included in information used to

determine a factual basis for entry of a plea of guilty.

See N.C.G.S. 15A-

1022(c)(4).

4. The evidence to which objection has made was

properly received by the sentencing court for a limited

purpose. Receipt of the evidence did not result in

aggravation of the sentences.

5. Although formal rules of evidence did not

apply, the sentencing hearing was fair and just, and

the defendant was given the opportunity to contest all

evidence presented to show aggravating factors and to

present evidence of mitigating factors.

6. Defendant has failed to show prejudicial error

amounting to a denial of some substantial right, abuse

of discretion, procedural conduct prejudicial to

defendant, or circumstances that manifest inherent

unfairness and injustice, or conduct which offended a

sense of fair play.

7. The Court concludes as law that

Constitutional rights were not violated by the

statutory provisions in 15A-1334(b), or the application

of any rule of evidence, in consideration of the “Anna

Lingle fax statement” by the sentencing judge. This

determination is based on the manner in which the

plea and sentencing hearing was conducted, and the

careful consideration given by Judge Doughton to all

presentations on behalf of both the State and

Defendant, and on the fact that no aggravation of any

sentence imposed resulted from the hearing. The

Defendant has had a full and fair consideration of the

merits of the ground asserted.

(MAR Order, January 26, 2005.)

This decision of the MAR court is correct. It is

not contrary to, nor does it involve an unreasonable

application of clearly established federal law as

determined by the United States Supreme Court, i.e

Estelle. :See Early v. Packer, 537 U.S. 3, 8 (2002)

(providing that state court need not cite or even be

aware of United States Supreme Court cases in order

to obtain deferential standards of review). Nor is the

decision based on an unreasonable determination of

facts in hght of the evidence presented in the state

court proceedings. Therefore, Petitioner’s claim that

evidence was admitted at his sentencing hearing in

violation of the Constitution is denied pursuant to the

deferential standards of review contained in 28 U.S.C.

§ 2254(d) and (e). See Williams v. Taylor, 529 U.S. 362

8 (2000). There is no requirement that the state court

specifically cite United States Supreme Court

precedent in its order, so long as its ultimate

adjudication is not contrary to, nor involves an

unreasonable application of clearly established federal

‘Because there is no clearly established Supreme

Court precedent that introduction of hearsay at

sentencing violated the confrontation Clause, the State

court MAR Order could not be contrary to Supreme Court

precedent.

law. Thomas _v. Taylor, 170 F.3d 466, 475 (4

Cir.)(“[T]he phrase ‘adjudication on the merits’ in

section 2254(d) excludes only claims that were not

raised in state court, and not claims that were decided

in state court, albeit in a summary fashion.”, cert.

denied, 119 S.Ct (1999). Petitioner’s claim is without

merit and is also denied pursuant to § 2254(d) and (e).

IV. ORDER

NOW, THEREFORE, IT IS HEREBY

ORDERED that Petitioner’s Petition under 28U.S.C.

§ 2254 for a Writ of Habeas Corpus is Denied and

Dismissed. ‘The State’s Motion for Summary Judgment

(Document No. 3) is Granted.

SO ORDERED.

Signed: December 4, 2007

Richard L. Voorhees

United States District Judge

APPENDIX C

Letter admitted in evidence

I am the reason Troy Lingle went into the Shelter

Home as Iwas married to him at that time. Once he

found out where Iwas, he would sit outside and

watch the shelter. He would shine flashlights in my

window at night. The police told us there was

nothing we could do. There was no stalking law at

that time. [could never get any help from them. Once

when [went to apply for a protection order, an officer

actually asked me "Just what are you doing that

makes that boy so mad?" Maybe if someone had

listened to me, this would not have happened.

Everyone thought he was such an upstanding citizen

and a "good old boy". Ifeel that before you even

consider reducing the Sentence for Troy Allen Lingle,

you should know the type of person he really is.

Neither his Prison record nor his "ministry" friends

can begin to shine light on the real man (I use the

term loosely) he is. Ido know the real person he is

and that is why lam writing to you. Years of

suffering from the effects of his evil ways prevent me

from being there in person. I cannot tell you the

lengths [had to go through to escape him-he even

made me go to work with him because he knew as

soon as he turned his back i would run again. Only

the time he has spent in prison has allowed me some

freedom. Iknow what he is capable of. He told me

how he had watched his mother murder a man when

he was 4 years old from the back set of a car. He said

that he could not "beat the demons", that they had

been with him since. he told me how he had gotten

tired of being a husband and father when he was

married to his first wife, Linda Hooper. He said they

had given their son up to Human Services, and he

sent Linda home on a bus. Later he changed his

mind, but Human Services would not let him have

his son back. He then went looking for Linda. He

could not find her. He finally found out where she

was staying. He said that he and his cousin went

there. He said they climbed either a wall or a fence,

went into the house and waited for her. When she

and another woman came in, he said they “hog-tied

them", and “blew their brains out". He said his

cousin's wife was their alibi. I have since found out

that these murders did in fact take place, and that

Roger McQueen is serving a life sentence for it. No

one will ever convince me that it was not Troy Lingle

who did it. He told me in such detail. he used to take

me to her grave to scare me During a road rage

incident in [988, he stabbed Clarence Calloway, and

his brother Gary later shot Clarence in self defense

because Troy was not man enough to admit he had

stabbed him. I know what happened because I was

there. He brought his knife back to the truck and

told me to "clean it off, then we went to the Rocky

Road where he buried it. Once, he arranged a

robbery with his brother and Anthony Howell. He

told DA Brown about it and made arrangements to

have himself and me arrested along with Gary and

Anthony during the robbery and we would be lot go,

and he would get a reward from Crimestoppers. He

decided to give the police the slip just to prove he

could, went with Gary, Anthony and myself and

buried the UZI. He took them home, went and met

with DA Brown, took him to where the UZI was, and

turned it in. He then went back to Anthony Howell's

house, accused him of stealing and selling the UZI,

and beat him up. Later Troy Lingle got a check from

Crimestoppers. He is the type of person that would

do drugs with someone and then turn them in for the

money. The man is a menace to society. He never

went anywhere without a rifle. He owed many people

painting that he collected on with the excuse of

needing supplies, but never did the work. He abused

his second wife for 15 years. held her and their

children at gunpoint on at least one occasion. he

spray painted the inside of their old house orange,

and shot out the garage windows when he found out

she had moved without telling him. Although they

were divorced and he was living with me, he felt he

had every right to know her every move. He abused

‘me both physically and emotionally for more than a

year. No matter what I did, I could not escape. He

would report my car stolen, tel] the police that I had

gone to the pawn shop and taken all of his gold

necklaces, anything he could do to get help finding

me. Once when he found me, he wrecked the car on

purpose in Hickory. He said, "If I can't have you, no

one can" as we went over the embankment. It still

amazes me that we walked away from it. The day

after we were married he held a.38 to my head and

kept clicking it and laughing. He had read poetry I

had written over the years and was convinced I was

sleeping with every man in the State. As iff could

have time. I couldn't even take a long time in the

bathroom without him coming in to see if I had

jumped out the window. I know that I would not be

alive today had he not gone to prison. He went into

that Shelter home to find out if I would come home,

and if not, was going to kill me and supposedly

himself. These women were there to escape men just

like him. Imagine what that did to their quality of

life. Any reduction to his sentence will be a reduction

to my quality of life and that of a lot of others. He

thinks that it is our fault that he is in prison, not his.

I am sure that this time has not changed him, and

never will. The only time he will change is when he

is dead and turned to dust. 87 years is not enough.

Please do not give him any less.

Hopefully,

Anna