Opinion
1:97cv105-P, consolidating 1:97cv105-P 1:97cv106-P
October 7, 1997
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the court upon respondents' motions for summary judgment. Inasmuch as the petitions, motions, and briefs are identical (with the exception of a few nonsubstantive changes), the undersigned has consolidated the cases for disposition. See Order entered simultaneously herewith. Having considered respondents' motions carefully and reviewed the pleadings, the undersigned enters the following findings, conclusions, and recommendation.
FINDINGS AND CONCLUSIONS
I. Factual Background
The factual background of petitioners' criminal convictions is thoroughly discussed by state appellate courts in State v. Pakulski, 319 N.C. 562 (1987), and State v. Pakulski, 106 N.C. App. 444 (1992), which are incorporated by reference. The facts will be summarized herein to aid further review.
On Sunday morning, September 17, 1978, Dr. Guy Abbate visited his office on Church Street in downtown Waynesville, North Carolina. There he found the body of Willard Setzer, a private security guard, draped in an American flag and lying on the floor. The doctor's office had been ransacked, and several items, including a kitchen knife, surgical gloves, and syringes, were missing. Dr. Abbate notified law enforcement authorities; an investigation ensued.
II. Procedural Background
On January 29, 1979, a Haywood County grand jury returned true bills of indictment against Mitchell John Pakulski and Elliott Clifford Rowe, petitioners herein, charging them with the first-degree murder of Willard Setzer. Petitioners were not transported to North Carolina from Ohio until March 1984, due to extensive litigation in both state and federal courts over extradition. After their extradition, the Haywood County grand jury returned additional indictments, in which petitioners were charged with robbery of Setzer with a dangerous weapon, larceny of Setzer's automobile, felonious breaking or entering of Dr. Abbates office, felonious larceny and possession of property belonging to Dr. Abbate, conspiracy to commit murder, and conspiracy to break or enter.
The charges that issued in 1979 and 1984 were consolidated for trial. The consolidated case was first called to trial at an April 1984 special session of Superior Court, Haywood County, but a mistrial was declared in May 1984 after the jury failed to return a verdict. A second trial, held in July 1984, resulted in a second mistrial, also based upon the inability of the jury to reach a verdict. The third trial occurred during the October 1984 Criminal Session of Haywood County Superior Court.
At the third trial, the state's case hinged upon the eyewitness testimony of David Chambers, an accomplice of petitioners, who testified in return for a grant of immunity. The state also offered testimony of law enforcement personnel involved in the investigation of the murder. The State's evidence tended to show that when the petitioners went with Chambers to Dr. Abbate's office on the evening of September 16, 1978, Petitioner Rowe broke a window in order to enter the office and then let Chambers and Petitioner Pakulski in through the front door. Petitioners then ransacked the office and put things of value, including a syringe-like item, into a plastic bag. About ten minutes after petitioners and Chambers entered Abbate's office, Willard Setzer arrived. Petitioner Rowe hit Setzer on the side of the head with a paint bucket and Setzer fell to the floor, drawing his pistol from its holster. Petitioner Pakulski took the pistol, and Petitioner Rowe tripped Setzer from behind as he was getting up. Petitioner Pakulski then fired a single shot into Setzer's head behind his right ear lobe, and both petitioners picked Setzer's pockets, removing his money, gun, and wallet.
Testimony rendered at trial indicated that Setzer had died of a gunshot wound to the brain; his Smith and Wesson .22-caliber magnum handgun was missing; and law enforcement officials were unable to locate Setzer's 1975 blue Chevrolet Nova at the time of the murder. After registration information was entered on the national computer network, the vehicle was located in Dayton, Ohio. A catheter syringe-type device and Setzer's notebook were found inside the vehicle, but law enforcement officials were unable to lift latent fingerprints from the car.
At the third trial, petitioners presented alibi evidence indicating that they were in Toledo, Ohio, on the weekend of the murder. They also presented numerous witnesses who contradicted Chambers's testimony.
At the close of the state's evidence, the trial court dismissed the charge of conspiracy to commit murder; at the close of all the evidence, the trial court ruled that the evidence was insufficient to submit the charge of first-degree murder on a theory of premeditation and deliberation. The jury, therefore, was instructed by the court on felony murder based upon felonious breaking or entering and armed robbery. As to both petitioners, the jury returned verdicts of guilty as to first-degree felony murder, felonious larceny of a motor vehicle, felonious breaking or entering, armed robbery, and conspiracy to break and enter.
Petitioners received identical sentences — life imprisonment on the murder conviction, 10 years' imprisonment for larceny of a motor vehicle, and a concurrent term of 10 years' imprisonment for conspiracy to break and enter. The trial court arrested judgment on the convictions for felonious breaking or entering, felonious larceny, and armed robbery, inasmuch as they were the felonies upon which the first degree felony murder convictions were based.
On review, the North Carolina Supreme Court held that (1) double jeopardy did not bar retrial after declaration of mistrial; (2) the felonious breaking or entering convictions could not be used as predicate offenses for the felony-murder charge; and (3) because it was possible that the finding of guilt as to felony murder was based upon a predicate felony that was improperly submitted, the petitioners were entitled to a new trial. That court, however, specifically found no error in petitioners' convictions for robbery with a dangerous weapon, felonious breaking or entering, larceny of an automobile, and conspiracy to commit felonious breaking or entering.
Upon remand, a fourth trial was conducted. In February 1988, it, too, ended in a mistrial due to the jury's inability of reach a verdict. In March of that year, the state prayed judgment on the felonious breaking or entering and felonious larceny charges for which convictions had been obtained earlier, and Honorable William H. Freeman, North Carolina Superior Court Judge, sentenced petitioners to 10-year terms on each of these two convictions and ordered that those terms were to run consecutively to any sentences they were then serving. Petitioners appealed the imposition of those new sentences, and the North Carolina Supreme Court concluded the sentencing was proper, the felonies were no longer the predicate felonies for felony murder, and the trial court, therefore, was free to sentence petitioners for those convictions.
In May of 1989, while the murder charges were still pending, petitioners filed a motion to recuse Judge Freeman from hearings set for May 1989 based upon a remark he supposedly made a year earlier. They also filed a motion for appropriate relief based upon exculpatory evidence not being divulged to them before the earlier trials. Judge Freeman denied both motions.
In July 1990, the state elected for the second time to pray judgment on the convictions of armed robbery rather than retry petitioners on the murder charge for the fifth time. As to each petitioner, the trial court imposed a life sentence on the armed robbery convictions during the third trial and ordered that those sentences were to run consecutively to any previously imposed sentences. Petitioners again appealed, and the North Carolina Court of Appeals held in its 1992 decision that (1) testimony by defense counsel that he heard the trial judge state, "Why don't you just plead the slimy sons-of-bitches guilty?" did not require the trial judge to recuse himself; and (2) the trial court's imposition of life sentences after armed robbery convictions had been upheld by the North Carolina Supreme Court was not "resentencing" and, thereby, not violative of North Carolina's statute which provides that after a conviction has been set aside, the trial court may not impose a more severe, new sentence for the same offense or a different offense based upon the same conduct. In the alternative, the appellate court found that even if imposing sentences for armed robbery in lieu of proceeding to a fifth trial on felony murder charges were construed to be resentencing of murder convictions, the new sentences for armed robbery based upon the same conduct were not more severe than prior life sentences each defendant received for murder. See N.C. Gen. Stat. § 15A-1335.
III. Contentions Asserted By Petitioners
Petitioners contend that they are entitled to relief under 28, United States Code, Section 2254, for the following reasons:
(a) they were subjected to double jeopardy by the four trials;
(b)(1) the state failed to disclose exculpatory evidence from Officer Coleman Swanger;
(b)(2) the state failed to disclose that its immunized eyewitness, David Chambers, told officers he had seen Swanger driving by at the time of the crimes and Chambers was given financial and witness assistance by the state;
(b)(3) the state failed to disclose the criminal record of a state's witness, John Holcombe;
(c) the district attorney threatened to prosecute 19 of petitioners' alibi witnesses for perjury, and many of them refused to testify;
(d) the trial court improperly reinstated petitioners' armed robbery convictions and sentenced them for that offense five and one-half years later;
(e) the trial court improperly reinstated petitioners' breaking and entering and larceny convictions three and one-half years later;
[petitioners did not assert an "(f)" contention]
(g) petitioners received longer sentences following their appeals;
(h) because of an alleged biased remark, Judge Freeman could not and did not act impartially in conducting
(1) petitioners' March 31, 1988, reinstatement and sentencing proceeding on the breaking and entering and larceny offenses; and
(2) the June 1, 1989, evidentiary hearing on the motions for appropriate relief;
(I) the trial court gave erroneous jury instructions and verdict forms on the breaking and entering and larceny charges; and
(j) the trial court erroneously failed to instruct the jury on impeachment of David Chambers, the state's witness, in assessing his truthfulness and credibility.
For the reasons discussed below, the undersigned will recommend that petitioners' motions to hold their unexhausted claims in abeyance be denied; their petitions be dismissed as "mixed"; or, in the alternative, their unexhausted contentions be considered along with the exhausted contentions and dismissed as procedurally barred or denied on their merits under the new provisions of the Antiterrorism and Effective Death Penalty Act. Petitioners' contentions will be discussed seriatim.
IV. Standard Applicable to Motions for Summary Judgment
On a motion for summary judgment, the moving party has the burden of production to show that there are no genuine issues for trial. Upon the moving party's meeting that burden, the nonmoving party has the burden of persuasion to establish that there is a genuine issue for trial.
When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving [sic] party must come forward with "specific facts showing that there is a genuine issue for trial." Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving [sic] party, there is no "genuine issue for trial."Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted; emphasis in the original) (quoting Fed.R.Civ.P. 56). There must be more than just a factual dispute; the fact in question must be material and readily identifiable by the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The possibility, however remote, that petitioners may have alleged a constitutional violation merits more than bald denials and summary dismissals. Wooten v. Shook, 527 F.2d 976, 977-78 (4th Cir. 1975). By reviewing substantive law, the court may determine what matters constitute material facts. Anderson, supra.
Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment.Id., at 248. A dispute about a material fact is "genuine" only if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Id.
[T]he court is obliged to credit the factual asseverations contained in the material before it which favor the party resisting summary judgment and to draw inferences favorable to that party if the inferences are reasonable (however improbable they may seem).Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980). It appearing that the issues have been fully briefed by the petitioners and respondents, respondents' motions for summary judgment are ripe for consideration.
V. Discussion
A. Holding Contentions or Petitions In Abeyance
Petitioners suggest that it would be appropriate for this court to hold their petitions in abeyance pending exhaustion of their unexhausted claims in the state courts. A federal habeas court cannot hold a case on its docket pending exhaustion of state remedies. Victor v. Hopkins, 90 F.3d 276 (8th Cir. 1996), cert. denied, ____ U.S. ____, 117 S.Ct. 1091 (1997). Instead, when a federal habeas action contains some nonexhausted claims, those claims must be relinquished voluntarily by the petitioner or the entire federal habeas action is subject to summary dismissal.Matthews v. Evatt, 105 F.3d 907 (4th Cir. 1997). To hold otherwise would be to stay a federal action indefinitely, awaiting the decision of not just the state superior court, but consideration by the state appellate court of a petition for certiorari, as required by Rule 21(e), North Carolina Rules of Appellate Procedure. The Antiterrorism and Effective Death Penalty Act provides for the prompt resolution of Section 2254 petitions by federal courts, and to do as petitioners suggest would make this court's compliance with that requirement impossible. There are but two options — (1) dismiss the petitions in their entirety for failure to exhaust state-court remedies or (2) consider the unexhausted claims along with the exhausted claims only if denial of the unexhausted claims is appropriate. Each of those options will be discussed below. Petitioners' request to hold these petitions in abeyance, therefore, should be denied by the district court.
B. Exhaustion
It is undisputed that petitioners have failed to exhaust their state-court remedies on contentions (b)(2), (b)(3), (c), (h)(1), and (j). The requirement of Section 2254(b)(2) — that a petitioner first exhaust available state-court remedies before filing a federal petition — has not been changed by the Antiterrorism and Effective Death Penalty Act. The requirement of exhaustion is not satisfied unless the federal claims have been "fairly presented" to the highest state court with jurisdiction to consider them. Picard v. Connor, 404 U.S. 270, 275 (1971). In order to satisfy the requirement of exhaustion, petitioners must have informed the state courts of the same factual and legal premises of the claims which they assert in federal court. Id. at 276-77. See Advisory Note, Habeas Rule 5; Rose v. Lundy, 455 U.S. 509 (1982). The doctrine of exhaustion ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions because state courts are also bound to safeguard federal rights of defendants. Preiser v. Rodriguez, 411 U.S. 475 (1973); Irvin v. Dowd, 359 U.S. 394, 404 (1959). Absent valid excuse, petitioners must first present their claims to state courts either on direct appeal or in postconviction proceedings. See 28 U.S.C. § 2254 (b) and (c). That procedure preserves the state courts' primary role in protecting federally guaranteed rights and encourages harmonious relations between state and federal judicial systems. Rose v. Lundy, supra. Although the bar of exhaustion may be overcome under certain circumstances, none exist in this case, and the State of North Carolina has not waived the exhaustion requirement. Sweezy v. Garrison, 694 F.2d 331 (4th Cir. 1982). The remedies otherwise available to petitioners are effective and may be utilized by them in order to address their concerns in a timely fashion.Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir. 1982); Gee v. Director. Patuxent Institution, 513 F.2d 814 (4th Cir. 1975). The undersigned, therefore, will recommend that these petitions be dismissed as "mixed."
C. Federal Consideration of Unexhausted Contentions Along With Exhausted Contentions
In their responses, petitioners appear to argue that they may now dismiss their unexhausted claims without prejudice. That procedure simply is not available, and any claims "voluntarily dismissed" by petitioners would be subject to summary dismissal in a subsequent petition under the abuse-of-the-writ doctrine. Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir.), cert. denied, 485 U.S. 1000 (1988); 28 U.S.C. § 2254(b)(2).
1. Standards of Review Applicable to Section 2254 Contentions
The Antiterrorism and Effective Death Penalty Act of 1996 narrowed the scope of review of state court judgments by federal courts. 28 U.S.C. § 2254 (d)(1) and (2) (1996). Review of state-court conclusions of law and mixed factual and legal conclusions is no longer plenary; federal courts may now only review state court applications of federal constitutional law only under a "reasonableness standard." This court no longer determines whether a state court erroneously applied federal constitutional law, but whether the state court's application of federal law is so egregiously wrong or arbitrary that no reasoning jurist could have reached the same result. Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996), cert. denied, ____ U.S. ____, 117 S.Ct. 1114 (1997). Legal questions are governed by the "contrary-to" language; factual findings by state courts are presumed correct; and mixed issues of law and fact are governed by the "unreasonable-application-of' language.
Petitioner has the burden of rebutting this presumption by clear and convincing evidence already contained in the state court record. 28 U.S.C. § 2254(e)(1) and (2).
Another change wrought by the Antiterrorism and Effective Death Penalty Act is that a petitioner may no longer rely upon federal circuit precedent to establish a right to federal habeas relief. Instead, a petitioner must be able to point to an authoritative decision of the Supreme Court that clearly mandates the result sought and show that no reasoning jurist could disagree based on a distinction between the circumstances in the case at hand from those in the cited opinion of the Supreme Court. Drinkard v. Johnson, supra, at 769.
Despite the tortured procedural history of these matters in state court, an evidentiary hearing is unwarranted and, in fact, prohibited under Section 2254(e)(2). Under that provision, a federal habeas petitioner is precluded from obtaining a federal evidentiary hearing to develop matters he failed to develop at a state evidentiary hearing, unless one or more of the following is applicable:
(1) the Supreme Court has announced a new rule of constitutional law and made it retroactive;
(2) the factual predicate could not have been discovered in time for the state evidentiary hearing through exercise of due diligence; or
(3) the facts underlying the claim show by clear and convincing evidence that but for the alleged constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.
Petitioners meet none of those standards. In the event the district court is inclined to consider the petitions, the undersigned would recommend that the exhausted and unexhausted claims be denied on their merits. Each contention will be discussed seriatim.
1. Contention (a): Petitioners were subjected to double jeopardy by the four trials
It is well settled that a jury's failure to reach a verdict due to deadlock is manifest necessity justifying declaration of a mistrial and that retrial is allowed without infringing the fifth amendment freedom from twice being placed in jeopardy on the same charge. United States v. Sanford, 429 U.S. 14 (1976). In the instant case, North Carolina's highest court reached a result consistent with Sanford. State v. Pakulski, 319 N.C. 562 (1987). As discussed at length above, three of the four juries that considered the underlying criminal charges failed to reach a verdict, and the convictions for which petitioners are in custody were obtained at the third trial in October 1984. Petitioners argument — that the failure of the trial judge to enter contemporaneously findings of fact to the effect that the first mistrial was the result of a hung jury and, therefore, a matter of "manifest necessity" warranting a new trial — is also unavailing, inasmuch as the trial judge later entered just such a finding even though there is no requirement that findings of fact be entered by a state trial judge to satisfy the "manifest-necessity" determination. Arizona v. Washington, 434 U.S. 497, 516-17 (1978). There is, therefore, no issue of double jeopardy.
Petitioners' claims of double jeopardy are also "Teague barred," for, at best, to hold as they argue would contradict the binding precedent ofSanford, thereby creating a "new rule" of constitutional law — a practice prohibited on federal habeas review. Teague v. Lane, 489 U.S. 288 (1989). Applying the rules of the Antiterrorism and Effective Death Penalty Act, the North Carolina Supreme Court, in disposing of petitioners' claims of double jeopardy, did not render a decision that was either contrary to or an unreasonable application of clearly established federal law as determine by the Supreme Court of the United States. State v. Pakulski, supra cf United States v. Sanford, supra. In addition, the decision of the state's highest court was not based upon an unreasonable determination of the facts, in light of the evidence presented at the state-court proceedings.
For all the reasons set out above, the undersigned must recommend to the district court that petitioners' contention (a) be denied summarily pursuant to Section 2254(d).
2. Contention (b)(1): the state failed to disclose exculpatory evidence from Officer Coleman Swanger
As with contention (a), petitioners raised this issue during their last appeal to the North Carolina Court of Appeals. That court specifically addressed petitioners' Brady claim and held, as follows:
The prosecution's suppression of evidence favorable to an accused violates due process where the evidence is "material" either to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In the present case, after their indictment, defendants made a general request for all exculpatory evidence in the possession of the prosecution. In evaluating whether the prosecutor has failed in his duty to disclose exculpatory evidence, the court must determine if the evidence is "material" to the question of guilt. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Undisclosed evidence "is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481, 494 (1985); State v. Coats, 100 N.C. App. 455, 464, 397 S.E.2d 512, 518 (1990). While it is doubtful that this evidence is exculpatory, even if so, it is not so material that there was a reasonable probability had it been disclosed the result of the trial would have been different. Accordingly, the trial court did not err in denying defendants' motion for appropriate relief to bar imposition of judgment on the basis of the prosecution's suppression of evidence.State v. Pakulski, 106 N.C. App. at 450-51. Petitioners have not shown that the state withheld material, exculpatory evidence. Review of the disposition of petitioners' Brady claim by North Carolina Court of Appeals reveals that the court thoroughly considered federal law and applied it in a reasonable manner. The decision was also based on a reasonable determination of the facts as those were presented at trial. Judge Freeman's factual findings reached after conducting the postconviction evidentiary hearing on petitioners' motions for appropriate relief are presumed to be correct, and petitioners have not overcome that presumption with clear and convincing evidence of record. The fact that David Chambers was not summoned for additional cross-examination during the evidentiary hearing on petitioners' motions for appropriate relief is a non-starter; Officer Swanger's testimony at that hearing was that he drove by the building at the time of the offense and only recalle seeing one vehicle — a pick-up truck covered in dew. Clearly, the trial transcript revealed David chambers testimony was that she and Petitioner Pakulski were in the truck and that Petitioner Rowe was in a burgundy Chevrolet nearby. There simply was no need to transport David Chambers from an out-of-state prison to testify on a postconviction motion, and the decision of the trial judge to that effect was clearly a reasonable one.
At most, petitioners have shown that evidence can be viewed by a reasonable fact finder in two ways. Where evidence may be interpreted in two ways, a fact finder's choice between the two cannot be clearly erroneous. Anderson v. Bessemer City, 470 U.S. 564, 574 (1985). Finally, the Townsend exceptions to which petitioners allude in support of their argument that they are entitled to relief on their Brady claims were specifically stricken from Section 2254(e)(1). The undersigned, therefore, must recommend that contention (b)(l) be denied summarily pursuant to Sections 2254(d) and (e).
3. Contention (b)(2): the state failed to disclose that its immunized eyewitness David Chambers told officers he had seen Swanger driving by at the time of the crimes and Chambers was given financial and witness assistance by the state
Petitioners have not exhausted this claim. If the district court determines that the contention should be considered, it is the recommendation of the undersigned that it be dismissed as procedurally barred and/or denied summarily on the merits.
Contention (b)(2) is procedurally barred under North Carolina's new mandatory procedural bar statute. N.C. Gen. Stat. §§ 15A-1419(a)(3), (b) and (c). Petitioners should have been aware of and could have raised this issue on direct appeal. Therefore, the contention should be deemed procedurally barred — a result which would be mandated by the state statute in the event petitioner pursued the claim in state court. The statute requires a criminal defendant to show cause and prejudice or a fundamental miscarriage of justice (actual innocence) to overcome such procedural bar (none of which petitioners have demonstrated in these petitions), and a federal court should apply thE procedural bar without requiring a petitioner to return to state court, Coleman v. Thompson, 501 U.S. 722, 735 (1991), especially where, as here, the application of such bar clearly is appropriate. Teague v. Lane, supra, at 297-99. "Cause" is also not found where the purported reason for not asserting such as a claim on direct appeal was "ineffective assistance of counsel," because that claim would also be unexhausted and procedurally barred.Justus v. Murray, 897 F.2d 709 (4th Cir. 1990).
As to the merits of the claim, petitioners' Brady claim concerning Officer Swanger's undisclosed observations does not, as discussed above in contention (b)(1), amount to a material nondisclosure, as the North Carolina Court of Appeals soundly found. It follows, therefore, that Davis Chambers's alleged statement that he saw Officer Swanger driving by on the night of the crimes also fails to establish a material nondisclosure. It is undisputed that the jury knew Chambers had received immunity for his testimony. Judge Freeman's finding that information concerning financial or other witness assistance Chambers received would have added nothing significant to petitioners' case is clearly well founded and reasonable. As implicitly found by Judge Freeman, such new information would not have created a reasonable probability of a different result — the standard required by Brady and its progeny. In accordance with Sections 2254(d) and (e), therefore, contention (b)(2) should be summarily denied as a basis for federal habeas relief.
4. Contention (b)(3): the state failed to disclose the criminal record of state's witness John Holcombe
This contention is also unexhausted, and the undersigned has already recommended that these actions be dismissed in their entirety as "mixed." If the district court determines that this contention should be considered, it is the undersigned's recommendation that it be dismissed as procedurally barred and/or denied summarily on the merits.
Contention (b)(3) is procedurally barred under North Carolina's new mandatory procedural bar statute. N.C. Gen. Stat. §§ 15A-1419(a)(3), (b) and (c). Inasmuch as petitioners should have been, and apparently were in fact, aware of this issue (see Affidavit of Russell McLean annexed to the respective petitions) and could have raised it on direct appeal, it should be deemed procedurally barred — a result that would be mandated by the state statute in the event petitioners pursued such claim in state court. In order to overcome the state's bar, petitioners would have to show cause and prejudice or a fundamental miscarriage of justice. Inasmuch as they have shown neither, the undersigned finds that the bar is clearly appropriate and recommends that it be applied. Teague v. Lane, supra.
As to the merits of the claim, petitioners have not shown that the alleged nondisclosure of the criminal record of Witness Holcombe is material under Brady or Kyles v. Whitley, 514 U.S.___, 115 S.Ct. 1555 (1995). Indeed, knowledge of Mr. Holcombe's larceny conviction 18 years prior to petitioners' trial would have little impact, in light of that witness' otherwise spotless record and ability to turn away from crime. Indeed, it is undisputed that less than a year later, Mr. Holcombe received a pardon from the governor for that offense. Therefore, in accordance with Sections 2254(d) and (e), contention (b)(3) should also be denied summarily as a basis for federal habeas relief.
5. Contention (c): that the district attorney threatened to prosecute 19 of Petitioners' alibi witnesses for perjury and many of them refused to testify
This contention is also unexhausted, and the undersigned has already recommended that these actions be dismissed in their entirety as "mixed." If the district court determines that such contention should be considered, it is the undersigned's further recommendation that it be dismissed as procedurally barred and/or denied summarily on the merits.
Contention © is procedurally barred under North Carolina's new mandatory procedural bar statute. N.C. Gen. Stat. §§ 15A-1419(a)(3), (b), and (c). Inasmuch as petitioners should have been, and apparently were in fact, aware of this issue (see affidavit of Russell McLean annexed to the respective petitions, in which Mr. McLean avers that he knew of such allegations as early as May 26, 1984), they could have raised it on direct appeal. This contention should be deemed procedurally barred, inasmuch as that result would be mandated by the state statute in the event petitioners pursued the claim in state court. In order to overcome the procedural bar, petitioners would have to show cause and prejudice or a fundamental miscarriage of justice. They have shown neither, and the undersigned finds that the procedural bar is clearly appropriate and will recommend that the district court apply that bar.Teague v. Lane, supra.
As to the merits of the claim, it was not the prosecutor, but Mr. McLean who, as trial counsel for one of the copetitioners, advised petitioners' alibi witnesses of the state's intent to prosecute any witness who lied on the stand. Even where the prosecutor does not directly threaten a defense witness with the possibility of a perjury charge, but informs counsel for the defendant of that possibility, the Court of Appeals for the Fourth Circuit reversed a conviction, holding that such conduct by a prosecutor in a federal criminal case was improper, reversing such conviction. United States v. MacCloskey, 682 F.2d 468 (4th Cir. 1982). After MacCloskey, the United States Supreme Court reached an inapposite decision in Bank of Nova Scotia v. United States, 487 U.S. 250 (1988), leading even a panel of the Court of Appeals for the Fourth Circuit to doubt the validity of MacCloskey. United States v. Alston, 98 F.3d 1335 (4th Cir. 1996) (up., copy found at Tab 6 of respondents' respective memoranda). That discussion is academic, however, inasmuch as the Antiterrorism and Effective Death Penalty Act prevents a petitioner from relying upon federal circuit precedent, such asMacCloskey, to establish a right to federal habeas relief. A petitioner must be able to point to an authoritative decision of the United States Supreme Court that clearly mandates the result sought, and it is a petitioner's burden to show that no reasoning jurist could disagree based on a distinction between the circumstances in the case at hand from the circumstances in the cited Supreme Court opinion. Drinkard v. Johnson, supra, at 769. The decision in Bank of Nova Scotia points the undersigned to a result contrary to that sought by these petitioners. Contention © provides no basis for relief to petitioners, and the undersigned is compelled to recommend to the district court that relief sought be denied and this contention dismissed based on nonexhaustion, the state procedural bar, and the lack of substantive merit under prevailing case law.
6. Contention (d): the trial court improperly reinstated petitioners' armed robbery convictions five and one-half years later
Petitioners raised this contention in their last appeal to the North Carolina Court of Appeals, thereby exhausting their state remedies. Presented in terms of a violation of a right secured by the United States Constitution, the state appellate court addressed the merits of the contention, as follows and set out in full to aid further review:
In their second and third assignments of error, defendants contend that the imposition of life sentences on the armed robbery charges violated due process and constituted double jeopardy. We disagree.
In a previous appeal, defendants asserted the trial court violated their constitutional rights when it imposed active sentences on defendants' convictions for felonious breaking or entering and felonious larceny. State v. Pakulski and Rowe, 326 N.C. 434, 390 S.E.2d 129 (1990). The Court noted these judgments were originally arrested only because these crimes were the predicate felonies underlying defendants' felony murder convictions. However, when the State elected not to seek convictions of defendants on the theory of felony murder, there was no legal impediment to imposition of sentences on these valid felony convictions. Therefore, the trial court did not err in imposing active sentences for felonious breaking or entering and felonious larceny. Id.
In the present case, the State elected to seek judgments on the convictions of armed robbery in lieu of proceeding to a fifth trial on the murder charges. Once the State elected not to pursue convictions under the felony murder theory, the imposition of sentences on the armed robbery convictions was proper.
Defendants further contend that the imposition of life sentences for armed robbery some five and one-half years after they were convicted of armed robbery constitutes inexcusable delay precluding the State from imposing such sentences. However, we note that defendants have appealed to the Supreme Court twice during this period and in addition, filed other motions requiring hearings, so clearly much of the delay in sentencing is attributable to defendants themselves. Furthermore, they have not shown any prejudice resulting from these delays and this assignment of error is overruled.Id., at 451-52.
Here, petitioners claim that the imposition of life sentences some five and one-half years after the convictions were obtained violates their fifth amendment rights to due process and to be free from double jeopardy. In this case, the North Carolina Supreme Court specifically determined that the double jeopardy doctrine did not prevent reinstatement of petitioners' arrested judgments on the predicate felonies underlying the felony murder convictions. When the same argument was asserted by petitioners as to the sentence imposed on the armed robbery offenses, the Court of Appeals adopted the reasoning of the North Carolina Supreme Court on the propriety of the earlier sentencing finding that double jeopardy was no bar to the trial court's action.
As to the alleged violation of due process, petitioners argued before the state appellate court, as they do here, that the imposition of life sentences five and one-half years after conviction is invalid under the Due Process Clause based upon inexcusable delay by the State of North Carolina. That court dismissed their claim, finding that the delay was also attributable to petitioners and that, regardless of delay, no prejudice had been shown.
While neither the North Carolina Supreme Court nor the North Carolina Court of Appeals cited federal cases in disposing of such federal claims, both cited state case law that was consistent with prevailing federal case law. In Dowling v. United States, 493 U.S. 342 (1990), the Supreme Court held that in defining due process, judges are to determine only whether the action complained of violates those fundamental conceptions of justice which are at the base of our institutions and define our communities' sense of fair play and decency. The decisions of the North Carolina courts are wholly consistent with that principle. Fair play is playing within the rules, and the State of North Carolina did just that when it (1) arrested judgment initially, (2) determined not to expend further resources on a fifth trial, and (3) asked the court to impose sentences on the judgments that were arrested. Petitioners cannot claim that they were "surprised" by the state's action, expected those convictions to be abandoned if they were successful in their appeals and subsequent trials, or expected the jailhouse doors to be opened in the event the felony murder charges were dismissed. Indeed, the whole point in "arresting judgment" rather than dismissing the predicate convictions is to allow imposition of sentence at some point in the future if the felony murder offense is dismissed.
The ability of trial courts to stay or "arrest" judgment predates our own judicial system. In Iowa v. Wright, 202 N.W.2d 72 (Iowa 1972), the Iowa Supreme Court explained that the authority to arrest judgment dated back to early British common law and had been recognized by a number of states, including North Carolina:
Even if there were no statutory authority for deferring imposition of sentence in Iowa, there would be inherent power to do so. The principle is explained in People ex rel. Forsyth v. Court of Sessions, 141 N.Y. 288, 292, 36 N.E. 386, 387 (1894):
There can, I think, be no doubt that the power to suspend sentence after conviction was inherent to all such courts at common law. The practice had its origin in the hardships resulting from peculiar rules of criminal procedure, when the court had no power to grant a new trial, either upon the same or additional evidence, and the verdict was not reviewable upon the facts by any higher court. The power, as thus exercised, is described in this language by Lord Hale: "Sometimes the judge reprieves before judgment, as where he is not satisfied with the verdict, or the evidence is uncertain, or the indictment is insufficient, or doubtful whether within clergy; Also when favorable or extenuating circumstances appear, and when youths are convicted of their first offense. And these arbitrary reprieves may be granted or taken off by the justices of gaol delivery, although their sessions be adjourned or finished; and this, by reason of common usage.'2 Hale, P.C. c. 58, p. 412. This power belonged, of common right, to every tribunal invested with authority to award execution in a criminal case. I Chit.Cr. Law, (1st Ed.) 617, 758. Without attempting to collate all the authorities on the subject, it is sufficient to say that the power to suspend sentence at common law is asserted by writers of acknowledged authority on criminal jurisprudence, by the uniform practice of the courts, and numerous adjudged cases. (Citations) (Emphasis supplied.)Id., at 81-82 (citation collecting consistent state cases omitted). The question is no longer whether a state court erroneously applied federal constitutional law, but whether the state court's application of federal law is so egregiously wrong or arbitrary that no reasoning jurist could have reached the same result. Drinkard v. Johnson, supra, at 769. It cannot be said that the decisions of the state courts on this contention are "contrary to" federal constitutional law. Rather, they are in all regards consistent with those federal decisions.
Petitioners' claims as to due process and double jeopardy would also be "Teague barred," because, at best, to hold as petitioners argue would create a "new rule" of constitutional law — a practice prohibited on federal habeas review. Teague v. Lane, supra. Applying the rules of the Antiterrorism and Effective Death Penalty Act, the North Carolina Court of Appeals' disposition of petitioners' claims as to due process and double jeopardy did not result in a decision contrary to or involve an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. State v. Pakulski, supra. For all these reasons, the undersigned must recommend to the district court that petitioners' contention (d) be denied summarily pursuant to Section 2254(d).
7. Contention (e): that the Trial Court Improperly Reinstated Petitioners' Arrested Breaking or Entering and Larceny Convictions Three and One-Half Years Later
For the reasons discussed above in addressing contention (d), this contention should also be dismissed by the district in accordance with Section 2254(d). The undersigned notes that the North Carolina Supreme Court found that the breaking or entering conviction and the larceny conviction constituted two separate offenses, and that the trial judge erroneously thought he also had to arrest the conviction of larceny as a predicate offense to the felony murder conviction. State v. Pakulski, 326 N.C. 434 (1990). It was appropriate, therefore, for the trial court to later reinstate the breaking or entering and larceny convictions of these petitioners.
8. Contention (g) — that Petitioners Received Longer Sentences Following their Appeal
Petitioners raised this contention in the state courts in terms of a violation of federal constitutional law. Specifically, the issue was addressed by the state courts in the context of Chapter 15A-1335 of the North Carolina General Statutes, which is simply a codification of the decision in North Carolina v. Pearce, 395 U.S. 711 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794 (1989), which prohibits on federal constitutional grounds imposition of a greater sentence or retrial after an appeal without valid intervening reasons. See "Official Commentary" to § 15A-1335. The North Carolina Court of Appeals held:
The fact that the North Carolina Court of Appeals, while conducting its analysis, cited state law rather than federal law does not remove its decisions from the "reasonableness" standard of review of Section 2254(d). Nothing in Sections 2254(d)(1) or (2) specifically requires that state courts cite and discuss federal cases in their opinions adjudicating federal constitutional claims. State courts are bound, as are federal courts, to uphold the Constitution, and so long as the state court's decision is not contrary to and does not involve an unreasonable application of United States Supreme Court precedent, it should not be disturbed on federal habeas review. 28 U.S.C. § 2254 (d)(1) and (2).
In their final assignment of error, defendants contend the trial court violated G.S. 15A-1335 by imposing a life sentence against each defendant for armed robbery to run consecutively with all previously imposed sentences, thereby causing them to receive longer sentences following their appeals. G.S. 15A-1335 provides:
When a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, which is more severe than the prior sentence less the portion of the prior sentence previously served.
Here, for the first time, the trial court imposed life sentences after the armed robbery convictions had been upheld by the Supreme Court. This does not constitute a resentencing within the meaning of G.S. 15A-1335. At the time of the commission of the crimes of armed robbery by defendants, G.S. 14-87 provided for punishment up to life imprisonment. Therefore, the trial court had the discretion to impose the maximum sentence of life imprisonment in each case.
We agree with the State that if the imposition of sentences for armed robbery is construed to be a resentencing of the murder convictions which were set aside, then the new sentences for armed robbery based on the same conduct are not more severe than the prior sentences, i.e., the life sentences of imprisonment for armed robbery are identical to the previous sentences each defendant received for murder.State v. Pakulski, 106 N.C. App. at 452-53. That decision of the state appellate court neither resulted in a decision contrary to, nor involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States
To hold as petitioners argue, this court would expand the jurisprudence surrounding Pearce to a point that a "new rule" of federal constitutional law would be created. Such a rule would prohibit trial judges from imposing an otherwise permissible sentence on a felony predicate to a felony murder conviction, if that sentence is the equivalent of the sentence imposed on the felony murder conviction and the defendant is successful on appeal and the felony murder charge is dismissed. This does not appear to be a result contemplated by federal jurisprudence. See United States v. Smith, 115 F.3d 241 (4th Cir. 1997). A careful reading of Pearce and its progeny would lead a reasonable jurist to a conclusion that the Supreme Court did not intend such a broad and sweeping rule. It is undisputed that at the time of the commission of the armed robbery, the maximum possible penalty for that offense was life imprisonment. To hold as petitioners suggest would not only expand Pearce, but penalize states for pursuing charges for which probable cause was found by diminishing their ability t impose punishment on predicate offenses, thereby "chilling" their ability to prosecute heinous crimes zealously. Petitioners' claims, therefore, are Teague barred, for, at best, to hold as they argue would create a "new rule" of constitutional law — a practice prohibited on federal habeas review. Teague v. Lane, supra. Applying the rules of the Antiterrorism and Effective Death Penalty Act, the North Carolina Court of Appeals' disposition of petitioners' claims as to due process and double jeopardy did not result in a decision contrary to or involve an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.State v. Pakulski, supra. For all these reasons, the undersigned must recommend to the district court that petitioners' contention (g) be denied summarily pursuant to Section 2254(d).
9. Contention (h) — that Because of an Alleged Biased Remark, Judge Freeman Could Not and Did Not Act Impartially
The petitioners contend that Judge Freeman was not impartial in conducting their March 1988 reinstatement and sentencing proceeding on the breaking or entering and larceny offenses and in holding the evidentiary hearing on the motions for appropriate relief in June 1989. Inasmuch as petitioners have failed to exhaust one part of this claim, each part will be discussed as a separate subcontention.
a. Subcontention (h)(1)
Petitioners' counsel, Mr. McLean, avers that just prior to the March 1988 reinstatement and sending proceeding, he heard Judge Freeman make a remark that showed bias against these petitioners. Rather than raise that issue before the March 1988 hearing through a motion seeking recusal, petitioners did not assert the argument until May 24, 1989 — after their appeal to the North Carolina Supreme Court. The assertion came only a few days before petitioners' motions for appropriate relief and sentencing on the armed robbery offense were heard on June 1, 1989, and the issue was presented to the North Carolina Court of Appeals.
For the reasons discussed at length in conjunction with earlier unexhausted contentions, inasmuch as these petitions are "mixed," they, and each of their contentions, should be dismissed for failure of petitioners to exhaust their state remedies. In the alternative, subcontention (h)(1) should be dismissed as procedurally barred. Petitioners obviously could and should have raised this claim immediately after the biased remark allegedly was made prior to the March 31, 1988, reinstatement and sentencing proceeding; thereafter, they should have raised it on their direct appeal from that proceeding. Subcontention (h)(l), therefore, is procedurally barred. See NC. Gen. Stat. § 15A-34. Finally, for the reasons discussed below in subcontention (h)(2), subcontention (h)(1) should also be dismissed on its merits in accordance with Section 2254(d).
b. Subcontention (h)(2)
This subcontention relates to the June 1, 1989, hearing. In dismissing this claim, the North Carolina Court of Appeals found that petitioners had unreasonably delayed filing a recusal motion for approximately 14 months. In making that determination, the state appellate court citedUnited States v. Owens, 902 F.2d 1154 (4th Cir. 1990) (a case originating in this court), for the proposition that a recusal motion must be filed at the earliest moment after knowledge of the facts. The North Carolina Court of Appeal's disposition of petitioners' only exhausted recusal claim did not result in a decision contrary to or involve an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. That decision was not based on an unreasonable determination of the facts, in light of the evidence presented at the state-court proceedings. For the reasons set out above, contention (h)(2) should be denied summarily pursuant to Sections 2254(d)(1) and (2).
10. Contention (I) — that the Trial Court gave Erroneous Jury instructions and verdict forms on the Breaking or Entering and Larceny Charges
Where a federal habeas petitioner challenges jury instructions — a matter appropriately addressed on direct appeal in state court — this court's review of the contention is narrow. The question this court must ask is whether the lack of the proposed instructions "so infected the entire trial that the resulting conviction violates due process."Cupp v. Naughten, 414 U.S. 141, 147 (1973).
A state trial court's failure to charge a jury on the intent element of a crime is subject to the less stringent, harmless-error standard ofBrecht v. Abrahamson, 507 U.S. 619 (1993); and the error is harmless unless it had a "substantial and injurious" impact on the verdict,California v. Roy, ___ U.S.___ , 117 S.Ct. 337 (1996). Assuming error, it was not so egregious as to render petitioners' entire trial fundamentally unfair and was harmless under Roy As set forth in the above statement of facts, the evidence presented of these petitioners' guilt was overwhelming, and the instructions they assert should have been given would not have affected the outcome of the trial in any way. Contention (I) is without merit and should be denied summarily pursuant Section 2254(d) because the error, if any, was harmless.
11. Contention (j) — that the trial court erroneously failed to instruct the jury on impeachment of state's witness David Chambers in assessing his truthfulness and credibility
Petitioners raised this contention in their first appeals to the North Carolina Supreme Court, but only in terms of a violation of state law. Inasmuch as it was not presented as a violation of federal constitutional law, it has not been exhausted. Duncan v. Henry, 513 U.S. 364 (1995). Petitioners having failed to exhaust state remedies on this claim, it should be dismissed along with the other contentions of their "mixed" petitions.
If, however, the district court is inclined to consider this contention, it appears that it would also be procedurally barred in state court because petitioners could have and should have raised it in their first appeals to the North Carolina Supreme Court. The contention, therefore, is procedurally barred under Chapter 15A-1419(a)(3) — a bar which the district court can now impose under Section 2254.
Contention (j) also fails on its merit. As discussed more completely above, habeas relief for a faulty jury instruction is only available where the charge is so egregiously wrong that it rendered a petitioners entire trial fundamentally unfair. In disposing of this contention based upon state law, the North Carolina Supreme Court found that any possible error was harmless under a "reasonable- possibility" standard, which is more stringent that the standard applied on habeas review, i.e., a showing of "substantial and injurious impact." The North Carolina Supreme Court held:
[O]ur review consists of a determination of whether the court erred in failing to give the requested instruction and, if so, whether there is a reasonable possibility that had the error not been committed, a different result would have been reached. N.C.G.S. § 15A-1443 (1983).
A trial judge is to declare and explain the law arising on the evidence. N.C.G.S. § 15A-1232 (Cum.Supp. 1985). This Court has held that instructions on a witness' credibility relate to a subordinate feature on which the court need not charge absent a request from counsel. State v. Eakins, 292 N.C. 445, 233 S.E.2d 387 (1977).
At trial, David Chambers was extensively cross-examined. Defense counsel questioned Chambers about several inconsistent statements he gave to police in 1978. Defense counsel also questioned Chambers about inconsistencies between his trial testimony and testimony he gave at earlier trials. It therefore appears that an instruction on prior inconsistent statements was warranted. However, the failure to give the requested instruction did not amount to prejudicial error, inasmuch as the court instructed the jury that Chambers had been granted complete immunity, that he was an interested witness, and that the jury should, in assigning weight and credibility to Chambers' testimony, "carefully examine his testimony and scrutinize it with care." Thus, any error in omitting an instruction on prior inconsistent statements was not prejudicial.State v. Pakulski, 319 N.C., at 575. The highest state court having soundly determined that there was no reasonable possibility that a different result would have been reached but for the error, the error in the trial court's instruction could not have rendered petitioners' entire trial fundamentally unfair and, therefore, was harmless under the less stringent, harmless-error standard applicable to federal habeas claims.
Finding contention (j) to be nonexhausted, procedurally barred, and, substantively without merit, the undersigned must recommend that it be denied summarily.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that respondents' motions for summary judgment be ALLOWED, the petitions be DISMISSED as "mixed," based upon petitioners' failure to exhaust their state-court remedies as to all of their claims before bringing them to this court; or
IN THE ALTERNATIVE, it is respectfully recommended that all contentions be considered and all contentions DISMISSED for the reasons discussed above.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986): United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984).
This Memorandum and Recommendation is entered in response to respondents' motions for summary judgment.
This 7th day of October, 1997.