Richardson v. Kornegay

JAMES EARL RICHARDSON, Petitioner, v. SUPERINTENDENT JOYCE KORNEGAY, Respondent.

NO. 5:16-HC-2115-FL

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

March 24, 2017

ORDER

The matter comes before the court on respondent's motion for summary judgment (DE 7) pursuant to Federal Rule of Civil Procedure 56(a), motion to exceed the page limitation (DE 11), and motion to strike (DE 22). The matter also is before the court on petitioner's motion to exceed the page limitation (DE 30). Respondent's motion for summary judgment and motion to strike were fully briefed. The parties did not respond to their respective motions to exceed the page limitation. In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants the motions to exceed the page limitation and grants in part and denies in part respondent's motion to strike. The court also grants respondent's motion for summary judgment.

STATEMENT OF CASE

On April 6, 2011, petitioner was found guilty after a jury trial in the Pitt County Superior Court of two counts each of first-degree murder and discharging a weapon into occupied property. See State v. Richardson, No. COA12-731, 2013 WL 793569, at *2 (N.C. App. March 5, 2013). The trial court then sentenced petitioner to consecutive sentences of life in prison without the possibility of parole for the two counts of first degree murder. Id. The trial court also sentenced petitioner to respective sentences of 25-39 and 73-97 months for the two counts of discharging a weapon into occupied property. Id. On March 5, 2013, the North Carolina Court of Appeals issued an unpublished opinion finding no error in petitioner's conviction and sentence. Richardson, 2013 WL 793569, at * 10.

On September 11, 2014, petitioner, acting through counsel, filed a motion for appropriate relief ("MAR") in the Pitt County Superior Court. (Resp't's Appx. Ex. 9). The superior court denied the MAR on February 19, 2016. (Pet. Ex. 3). On April 29, 2016, petitioner filed a petition for a writ of certiorari in the North Carolina Court of Appeals. (Id. Ex. 4). Certiorari was denied on May 18, 2016. (Id.)

On May 20, 2016, petitioner, acting through counsel, filed the instant petition for a writ of habeas corpus in this court pursuant to 28 U.S.C. § 2254. Petitioner raised the following claims: (1) he was denied the right to present favorable evidence when the trial court excluded testimony from his eyewitness identification expert; (2) he received ineffective assistance of counsel; (3) he was denied a fair and impartial jury in violation of the Sixth and Fourteenth Amendments to the United States Constitution; (4) he is actually innocent of his convictions based upon newly discovered evidence; and (5) he was denied due process in violation of the Fourteenth Amendment due to racial animosity in the jury's deliberations.

On July 21, 2016, respondent filed a motion for summary judgment, arguing that petitioner is not entitled to habeas relief for his claims. Respondent also filed a motion for leave to exceed the page limitation for her brief in support of her motion for summary judgment. Respondent's motion for summary judgment was fully briefed. On November 23, 2016, respondent filed a motion to strike four affidavits petitioner submitted in response to respondent's motion for summary judgment. The motion was fully briefed. On January 5, 2017, petitioner filed a motion seeking permission to exceed the page limitation for his brief in response to respondent's motion for summary judgment.

STATEMENT OF FACTS

The facts as stated by the North Carolina Court of Appeals are summarized as follows:

The State presented evidence that in June 2009, defendant borrowed a white 1993 BMW 525 ("the BMW") from a friend. On 30 June 2009, defendant drove the BMW to a bar called The Other Place ("the OP") in Greenville, North Carolina and parked in a nearby lot. Several friends accompanied defendant to the OP, including his brother, Andre Richardson ("Andre"), Cario Arrington ("Arrington"), and Latoya Boyd ("Boyd").

After engaging in an altercation at the OP, defendant was escorted from the bar. When Arrington and Andre observed defendant leaving the bar, they followed him outside. Once outside, another fight ensued between defendant and Matt Blackmon ("Blackmon"), a co-owner of the OP.

When the fight ended, several individuals observed defendant, or someone fitting his description, jogging from the OP toward a white BMW. Rachel Burke ("Burke") observed the person who approached the BMW remove a handgun from the trunk of the vehicle and cock the gun then enter the vehicle and drive away. Although Burke could not identify defendant as the driver of the BMW, Jeff Sealy ("Sealy") did. Following the altercation at the OP, Sealy followed defendant, saw him remove a gun from a white BMW he was driving, enter the vehicle and drive towards the OP.

As Arrington and Andre walked to their car, Arrington observed a white vehicle, later identified as a BMW, speeding by and subsequently heard shots fired. Bystanders in the OP parking lot also observed a white BMW speeding and traveling the wrong way on a one-way street. The parking lot bystanders indicated that a portion of the shooter's arm was visible, described the arm as light-skinned and stated that the shooter held a gun. However, only one observer, Vidal Thorpe ("Thorpe"), identified defendant as the shooter. Thorpe was acquainted with defendant and saw defendant's profile as he shot the gun from the vehicle. As a result of the shots that were fired, two men were injured, Edgar Landon Blackley and Charles Andrew Kirby. Both men died as a result of gunshot wounds to their chests.

Arrington and Andre rejoined defendant at a friend's house later that morning. When Arrington arrived, he noticed the BMW was parked a few houses up the street. Arrington then observed some individuals sitting in the BMW but could not identify them. Subsequently, defendant, Arrington, Andre and Boyd traveled to Raleigh and stayed in a hotel until the next afternoon.

When the officers investigated, they recovered six spent .45 casings from the area surrounding the shooting. All the casings had been fired from the same gun and were consistent with being fired from a Highpoint brand gun. Defendant owned a Highpoint .45 semi-automatic handgun.

A few days after the shooting, defendant contacted Detective Sean Moore ("Detective Moore"), a childhood friend and inquired if the situation was "f'd up" or "did [defendant] 'f up?' " Detective Moore advised defendant that the situation was "not good." Several days later, defendant contacted Detective Moore again. This time, defendant indicated he was ready to surrender to law enforcement. Detective Moore arrested defendant.

Richardson, 2013 WL 793569, at *1-2.

DISCUSSION

A. Motions to Exceed the Page Limitation

The parties each request permission to exceed the page limitation for their respective memorandums in support and in opposition to summary judgment. For good cause shown, the motions are GRANTED.

B. Motion to Strike

Respondent seeks to strike four affidavits which petitioner attached to his response to respondent's motion for summary judgment on the grounds that the affidavits were signed after petitioner's post-conviction proceedings and were not considered by the state post-conviction court. In Cullen v. Pinholster, 563 U.S. 170 (2011), the Supreme Court determined that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Id. at 181-182. Cullen states that "[p]rovisions like §[]2254(d)(1) [] ensure that federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings." Id. at 186 (internal quotations and citations omitted); see also Harrington v. Richter, 562 U.S. 86, 103 (2011) ("Section 2254(d) is part of the basic structure of federal habeas jurisdiction, designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions").

The affidavits at issue were executed by the following: Thomas J. Moore ("T. Moore"), an attorney appointed to represent petitioner at trial; Constance E. Widenhouse ("Widenhouse"), an attorney assigned to represent petitioner on appeal; Lamuel Anderson, who served as a juror during petitioner's trial; and Debbie Anderson, Lamuel Anderson's wife. ((DE 21), Exs. B-D; (DE28), Attach. 1).¹ The court begins with the affidavits of Lamuel and Debbie Anderson which petitioner provided in support of his jury-related claims. Petitioner argues that these affidavits should be considered by the court because they contain information identical to the information contained in an affidavit from law student Brian T. Ziegler ("Ziegler"), which was presented to the MAR court. (See (DE 9), Ex. 9, pp. 76-79). While the new affidavits present information which is substantially similar to the information contained in Mr. Zeigler's affidavit, Lamuel Anderson's affidavit also contains new information regarding his recollection of a white juror talking about having driven past the location where the shooting occurred during trial. (Compare (DE 9), Ex. 9, pp. 76-79, 81-84 and (DE 21), Ex. D).

Regardless of whether the affidavits contain new information or information which already was presented to the court, they pertain to petitioner's jury-related claims which were adjudicated on the merits by the MAR court. The affidavits themselves were not presented to the MAR court. Thus, consideration of the affidavits of Lamuel and Debbie Anderson is precluded pursuant to the Court's ruling in Cullen, and respondent's motion to strike is GRANTED as to these affidavits. See Cullen, 563 U.S. at 181-82; see also, Williams v. Witherspoon, No. 3:14CV598, 2015 WL 5009210, at *4 (W.D.N.C. Aug. 21, 2015) (stating that "review under §...