Hurst v. Thomas

JASON WAYNE HURST, Petitioner, v. EDWARD THOMAS, Warden, Central Prison, Raleigh, North Carolina, Respondent.¹

1:10CV725

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

September 10, 2018

MEMORANDUM OPINION AND ORDER

This case comes before the Court on Petitioner's Motion for Appointment of "Martinez Counsel" (Docket Entry 112). (See Docket Entry dated Oct. 6, 2017.) Because the relief sought would contravene the mandate rule or, in the alternative, would involve an exercise in futility, the Court will deny the instant Motion.²

BACKGROUND

Upon his conviction for first degree murder, Petitioner received a death sentence in the North Carolina Superior Court in Randolph County ("the Superior Court"), both of which the North Carolina Supreme Court affirmed. See State v. Hurst, 360 N.C. 181, 624 S.E.2d 309 (2006). The United States Supreme Court denied certiorari on October 2, 2006. Hurst v. North Carolina, 549 U.S. 875 (2006). On June 25, 2007, Petitioner (through new counsel, Robert H. Hale and Daniel J. Dolan (see Docket Entry 8 at 1)) filed a Motion for Appropriate Relief ("MAR") in the Superior Court, raising eight claims, i.e., that (1) a juror's contact with her father during the sentencing phase violated Petitioner's Sixth Amendment rights, (2) trial counsel provided ineffective assistance by failing to investigate and to present mitigating evidence at sentencing regarding Petitioner's age and mental state, (3) the Superior Court's acceptance of the verdict despite ambiguity as to unanimity violated Petitioner's federal constitutional rights, (4) the Superior Court's acceptance of the verdict without properly polling the jury violated Petitioner's federal constitutional rights, (5) trial counsel provided ineffective assistance by failing to challenge the acceptance of the verdict in the face of the ambiguity as to unanimity and the improper polling of the jury, (6) the Superior Court lacked jurisdiction, (7) trial counsel provided ineffective assistance by failing to contest the Superior Court's jurisdiction, and (8) inadequate advice by trial counsel denied Petitioner the right to testify. (See Docket Entries 2-1, 3-1; see also Docket Entry 5-1 (amending claim for denial of right to testify due to inadequate advice by trial counsel).)

After the Superior Court denied seven of the claims in the MAR (as amended) (see Docket Entry 6-1), Petitioner (again through Hale and Dolan) further amended his MAR, adding a (ninth) claim that trial counsel acted ineffectively by failing to investigate and to present mitigating evidence at sentencing about Petitioner's fetal alcohol exposure (see Docket Entry 6-2). The Superior Court subsequently denied that claim and the remaining claim from the MAR. (See Docket Entry 6-3.) Petitioner then sought review in the North Carolina Supreme Court, which that court denied on June 16, 2010. State v. Hurst, 364 N.C. 244, 698 S.E.2d 664 (2010).

On September 20, 2010, Petitioner (through Hale and Dolan) commenced this case by filing a Petition under 28 U.S.C. § 2254 attacking his conviction and sentence on 13 grounds, i.e., (1) the MAR's improper juror contact claim, (2) a combination of the MAR's and the second amendment to the MAR's ineffective assistance claims for failure to investigate and to present mitigating evidence at sentencing, (3) the MAR's ambiguous verdict claim, (4) the MAR's improper jury polling claim, (5) the MAR's ineffective assistance claim for failure to challenge the unanimity of the verdict and the polling of the jury, (6) the MAR's lack of jurisdiction claim, (7) the MAR's ineffective assistance claim for failure to contest the Superior Court's jurisdiction, (8) the MAR's denial of right to testify claim, (9) a claim for juror exposure to a newspaper in the jury room, (10) a claim for improper jury instructions during the sentencing phase, (11) a claim for improper closing argument by the prosecution, (12) a claim for defective indictment as to first degree murder, and (13) a claim for defective indictment as to death-eligibility. (See Docket Entries 1, 1-1.)³ On December 8, 2010, Respondent answered and moved for summary judgment. (Docket Entries 16, 17.) Petitioner opposed that motion (Docket Entries 22-24) and Respondent replied (Docket Entry 36).

The undersigned Magistrate Judge then recommended entry of summary judgment for Respondent on all of Petitioner's claims and denial of the Petition. (See Docket Entry 53.) Petitioner objected as to eight (of his original 13) claims, including the improper juror contact claim and one of the three ineffective assistance claims (i.e., for failing to challenge the unanimity of the verdict and the polling of the jury). (See Docket Entry 55.) The Court (per now-Chief United States District Judge Thomas D. Schroeder) overruled those objections, entered summary judgment for Respondent, and denied the Petition. (See Docket Entries 67, 68.)⁴

Petitioner appealed the denial of his Petition (see Docket Entry 71), but only pursued his claim "that his Sixth Amendment rights to an impartial jury and to be confronted with the witnesses against him were violated by an extraneous communication between a juror and her father during the penalty phase of his capital murder trial," Hurst v. Joyner, 757 F.3d 389, 391 (4th Cir. 2014). The United States Court of Appeals for the Fourth Circuit resolved the appeal by "revers[ing] th[is C]ourt's judgment and remand[ing] for an evidentiary hearing to determine whether the extraneous communication had a substantial and injurious effect or influence on the jury's verdict." Id.; see also id. at 397 ("Recently, . . . [the Fourth Circuit] held that . . . ['an] entitlement to an evidentiary hearing [arises] when the defendant presents a credible allegation of communications or contact between a third party and a juror concerning the matter pending before the jury.'" (quoting Barnes v. Joyner, 751 F.3d 229, 242 (4th Cir. 2014))), 398 ("[The] holding in Barnes dictates the same result in this case."), 400 ("On remand, [Petitioner] will be given the opportunity to develop the record as it pertains to [the juror's] extraneous conversation with her father . . . . [T]he judgment of the district court is reversed and the matter remanded for an evidentiary hearing on the issue of whether the communication between [the juror] and her father about the Bible verse had a substantial and injurious effect or influence in determining the jury's verdict.").

After the United States Supreme Court denied certiorari, Joyner v. Barnes, ___ U.S. ___, 135 S. Ct. 2643 (2015), the case was referred back to the undersigned Magistrate Judge to carry out the Fourth Circuit's mandate (see Docket Entry dated Nov. 4, 2015) and an evidentiary hearing was set (see Text Order dated Nov. 4, 2015; see also Text Order dated Nov. 17, 2015 (continuing hearing date)). On December 10, 2015, Elizabeth Hambourger was appointed as a second counsel for Petitioner. (See Docket Entry 95.) The evidentiary hearing took place on January 22, 2016 (see Docket Entry 104) and post-hearing briefing followed (see Text Order dated Jan. 25, 2016; Docket Entries 105, 107, 108). On October 2, 2017, prior to the entry of a recommendation on the lone claim as to which the Fourth Circuit ordered an evidentiary hearing, Petitioner (through Hale and Hambourger) filed the instant Motion. (See Docket Entry 112.) Respondent responded in opposition (Docket Entry 113) and Petitioner replied (Docket Entry 114).

DISCUSSION

Via the instant Motion, Petitioner, "by counsel, [has] request[ed] that qualified independent counsel be allowed to investigate, pursuant to Martinez v. Ryan, (2012), potential claims not raised in prior post-conviction proceedings and raise any new claims in an Amended Petition for Writ of Habeas Corpus to be filed in this Court." (Docket Entry 112 at 1; see also id. at 3 ("Petitioner asks this Court to: 1. Provide Petitioner with qualified, independent counsel to review his case for claims that could be raised under Martinez; [and] 2. Allow appointed counsel to file an Amended Petition for Writ of Habeas Corpus containing any additional claims within 120 days of appointment." (full case name and citation for Martinez omitted)).) In the case cited by Petitioner, the United States Supreme Court held that "[i]nadequate counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Martinez, 566 U.S. at 9 (emphasis added). Subsequently, "[i]n Juniper v. Davis, 737 F.3d 288, 289 (2013), [the Fourth Circuit] held that a habeas petitioner, who has been sentenced to death and appointed counsel pursuant to 18 U.S.C. § 3599(a)(2) to pursue federal postconviction relief, is entitled to the appointment of qualified, independent legal counsel for the purpose of investigating whether he has any Martinez-based [ineffective assistance of trial counsel] claims if his § 3599 counsel also represented him in the state postconviction proceedings." Fowler v. Joyner, 753 F.3d 446, 461 (4th Cir. 2014) (emphasis in original); see also id. at 461-62 n.6 ("Pursuant to 18 U.S.C. § 3599, 'in any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate legal representation shall be entitled to the appointment of one or more attorneys' meeting the practice qualifications set forth in subsections (b) through (d)." (internal brackets and ellipsis omitted)), 463 ("Because some claims [of ineffective assistance by trial counsel] may fall within the Martinez exception to [procedural default], North Carolina [death-sentenced] petitioners are therefore entitled upon request to the appointment of qualified, independent counsel for the purposes of investigating whether any such claims exist.").

The instant Motion contends that,...