Fowler v. Lassiter, No. 13-4 (4th Cir. 2014)
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Petitioner, a death row inmate, appealed the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. 2254. Petitioner claimed that an eyewitness's in-court identification violated his due process rights under the Fourteenth Amendment. The court affirmed the district court's denial of habeas relief because the North Carolina state court's rejection of petitioner's claim was not contrary to, or an unreasonable application of, clearly established law, as determined by the Supreme Court. The court held that the procedures leading up to the eyewitness's in-court identification were not unnecessarily suggestive and that, even if they were, they did not create a substantial likelihood of irreparable misidentification. The court also denied petitioner's motion for appointment of qualified and independent counsel under Martinez v. Ryan and Juniper v. Davis.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4 ELRICO DARNELL FOWLER, Petitioner Appellant, v. CARLTON B. JOYNER, Warden, Central Prison, Raleigh, North Carolina, Respondent Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:09-cv-00051-FDW) Argued: April 11, 2014 Decided: June 2, 2014 Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS, Senior Circuit Judge. Judgment affirmed and motion denied by published opinion. Chief Judge Traxler wrote the opinion, in which Judge Duncan joined. Senior Judge Davis wrote an opinion concurring in the judgment in part and dissenting in part. ARGUED: Mark Jason Pickett, CENTER FOR DEATH PENALTY LITIGATION, Durham, North Carolina, for Appellant. Sonya M. CallowayDurham, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Shelagh Rebecca Kenney, CENTER FOR DEATH PENALTY LITIGATION, Durham, North Carolina, for Appellant. Roy Cooper, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. TRAXLER, Chief Judge: Petitioner Elrico Darnell Fowler, a North Carolina death row inmate, appeals the district court s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We granted a certificate of appealability to consider Fowler s claim that an eyewitness s in-court identification violated his due process rights under the Carolina state contrary to, established Fourteenth court s or an federal Amendment. rejection of Fowler s unreasonable law, as Because claim application determined by the North was not of, United the clearly States Supreme Court, we affirm the district court s denial of Fowler s petition for habeas relief. While this appeal was pending, Fowler filed a motion requesting that we designate his current, appointed counsel to be Martinez counsel, referencing the Supreme Court decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012), and our decision applying it in Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013), and remand the investigation petition. matter and Because to the amendments, Fowler if had district court appropriate, the benefit of for to the his further § 2254 qualified, independent counsel called for in Juniper and he failed to raise any Martinez-based claims below, we deny the motion as well. 2 I. A. Fowler was convicted in North Carolina state court of the first-degree murder of Bobby Richmond, assault with a deadly weapon with intent to kill Bharat robbery with a dangerous weapon. Shah, and two counts of All of the convictions arise out of an armed robbery that occurred at a Howard Johnson s Motel in Charlotte, North Carolina, on December 31, 1995. The circumstances surrounding the crime, as summarized by the North Carolina Supreme Court, are as follows: On 31 December 1995 at approximately 10:45 p.m., Bobby Richmond (Richmond), an employee at a Howard Johnson s Motel in Charlotte, North Carolina, entered the motel lobby looking for ice. Bharat Shah (Shah) was working as the motel night clerk. About five minutes later, two black males entered the motel and approached the check-in counter. One of the men pulled out a gun and ordered Richmond to get on the ground. The other man ordered Shah to open the register and give [him] the money. While Shah was handing over the money, the man with the gun shot both Richmond and Shah. He then ordered Shah to open the office safe. When Shah stated he did not have the combination, the man shot Shah again. Both assailants then fled the motel. The Charlotte Mecklenburg Police arrived at the scene at 11:04 p.m. and found Richmond and Shah lying near the counter. Richmond was unresponsive. Shah was struggling to speak with police. He told the police they had been robbed by two black males, one wearing a green jacket. When paramedics arrived, they found a large wound in the middle of Richmond s back. Richmond had no carotid pulse. The paramedics determined Shah s life was in danger. A hospital surgeon later found two 3 wounds in Shah s left thigh, two more wounds in Shah s back, and a wound in Shah s right forearm. A high-velocity weapon caused Shah s thigh injury. Doctors removed two .44 caliber bullet jacket fragments from his forearm during surgery. A .44 caliber bullet jacket was also found in Richmond s left lung. Police located a .44 caliber bullet core in the motel carpet beneath Richmond s chest wound. Police also found a .44 caliber bullet jacket and a large fragment from a .44 caliber bullet jacket at the scene. Both had been fired from the same weapon used to shoot Richmond. Other pieces of metal found at the scene were also consistent with .44 caliber ammunition. Richmond had an entrance wound in his back and an exit wound in his chest. His chest was against a hard surface when he was shot. The evidence showed Richmond was likely shot from a distance of no more than three feet. Officers found Richmond s wallet at the scene next to his body. The wallet contained no money. The cash register drawer and a plastic change drawer next to the register also contained no money. Approximately $300.00 was stolen from the motel during the robbery. State v. Fowler, 548 S.E.2d 684, 689-90 (N.C. 2001). At adjoining trial, the Jimmy motel Guzman, lobby, the owner testified that around 11:00 p.m. in the lobby of the motel. of the he restaurant heard gunshots He looked through the glass door of the restaurant and saw one of the robbers standing behind the check-in counter. for approximately police. five seconds before Guzman observed the man running to call the According to Guzman, the man was black, in his late twenties, and approximately six feet tall. Id. at 690. He had a pointed nose and hair on his face but not a full beard 4 and was wearing a green toboggan and a camouflage army jacket. Id. 1 Over Fowler s objection, Guzman identified Fowler in court as the man he saw behind the counter that night. In addition to Guzman s in court identification of Fowler, the prosecution presented the testimony of several witnesses to whom Fowler had made incriminating statements. Jermale Jones testified 1995 that Fowler told him on Thanksgiving planned to rob a Howard Johnson s motel. additionally admitted to Jones that that he In March 1996, Fowler he entered the Howard Johnson s with a handgun to attempt a robbery and that when the people working at the motel made him ask twice for the money, [he] shot them [with] a big old .44. Id. at 691. Leo McIntyre testified that he went to the Sugar Shack, a local nightclub, on December 31, 1995, and spoke with Fowler. Fowler, who was dressed in army fatigues, told McIntyre that he shot two people during a robbery at a Howard Johnson s motel. Id. Later in the week, Fowler also told McIntyre that, although he thought he had killed both people at the robbery, one of them 1 Bharat Shah survived the shooting and also described the events to the investigating officers. However, Shah told the officers that he did not get a good look at the shooter because he was primarily focused on the man taking the money and that he probably could not recognize the suspects. State v. Fowler, 548 S.E.2d 684, 691 (N.C. 2001). Shah moved to India after he recovered from his wounds and, despite assurances that he would be given police protection, refused to return for the trial. See id. 5 had lived. Id. Fowler also told McIntyre that he only got two or three hundred dollars from the robbery. Id. Waymon Fleming was living with Fowler at the time of the robbery. He testified that Fowler admitted robbing the motel and shooting the people who would not open the safe. Id. When Fowler told Fleming that he was going to flee the state, Fleming notified the authorities and Fowler was apprehended. In addition to the above evidence, Edward Adams testified that he was with Fowler at an apartment on the night of the robbery. He testified that Fowler left the apartment between 9:00 and 10:00 p.m. with two other men and returned between midnight and 1:00 a.m. Sugar Shack. Id. Fowler then left to go to the Adams testified that he purchased a .44-caliber revolver from Fowler the following evening. Later, in April 1996, Fowler asked Adams where the gun was located, and Adams told him the gun had been destroyed. [Fowler] responded, I m glad, and asked Adams not to tell people about the gun. Id. Fowler also told Adams that the prosecutor did not know who purchased the gun. See id. Shenitra Johnson told officers that Fowler arrived at her home shortly after 11:30 p.m. on December 31, 1995, and left between 12:30 and 1:00 a.m., and that Fowler had a .44-caliber gun, which he later sold. At trial, however, Johnson testified that Fowler was at her home from 10:30 p.m. on December 31, 1995, until 1:15 or 1:30 a.m. the next morning, and 6 denied seeing Fowler sell or attempt to sell a handgun at her apartment. See id. at 692. B. In November 1997, Fowler was convicted by the jury of all charges. the He was thereafter sentenced to death. North Carolina convictions should Supreme be Court, overturned Fowler On appeal to argued because Guzman s that his in-court identification deprived him of his right to due process. The North Carolina Supreme Court affirmed, see id. at 704, and the United States Supreme Court denied certiorari, see Fowler v. North Carolina, 535 U.S. 939 (2002). Fowler s motion for state postconviction relief, which added a related claim that Fowler s trial counsel was constitutionally ineffective in the handling of Guzman s identification, Fowler, 668 S.E.2d Supreme Court again 343 was (N.C. denied also 2008), denied, and certiorari, the see see State United Fowler v. v. States North Carolina, 129 S. Ct. 2392 (2009). Fowler thereafter filed this petition for federal habeas relief pursuant to 28 U.S.C. § 2254, raising sixteen separate claims. The district court denied the petition and declined to issue a certificate of appealability. granted claim a that certificate the state of At Fowler s request, we appealability court s to adjudication 7 consider of his Fowler s in-court identification claim was contrary to, application of, Supreme Court precedent. 2 or an unreasonable We now affirm. II. A. We begin principles The with the to in-court applicable clearly United States Supreme established eyewitness Court has set constitutional identifications. forth a two-part approach to determine whether an eyewitness identification must be suppressed because it has been tainted by police procedures or conduct. (2012). See Perry v. New Hampshire, 132 S. Ct. 716, 724 First, the court considers whether the identification procedure employed unnecessary. by-case Id. basis, substantial by the whether likelihood under identification was both suggestive and Second, the court must assess, on a caseimproper of quotation marks omitted). whether police the was conduct misidentification. Id. created a (internal That is, the court must determine totality reliable procedure was suggestive. police of even the though circumstances the the confrontation Neil v. Biggers, 409 U.S. 188, 199 (1972) (internal quotation marks omitted). 2 In his federal habeas petition, Fowler also reasserted his claim that his trial counsel was constitutionally ineffective in the handling of his in-court identification claim. Fowler did not seek a certificate of appealability on this issue. 8 When considering the question of whether the identification was reliable under the second prong, the Supreme Court has also identified five factors for consideration. They include: (1) the opportunity of the witness to view the criminal at the time of the crime ; (2) the witness degree of attention ; (3) the accuracy of the witness prior description of the criminal ; (4) the level of certainty demonstrated by the witness at the confrontation ; and (5) the length of time between the crime and the confrontation. factors are weighed Biggers, 409 U.S. at 199-200. against the corrupting suggestive identification itself. effect These of the Manson v. Brathwaite, 432 U.S. 98, 114 (1977). Thus, [e]ven when the police use such a procedure . . ., suppression of the resulting inevitable consequence. Perry, eyewitness identification need procedures used identification to obtain 132 be the S. Ct. suppressed is at not 724. only identification if were the The the so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law. Biggers, 409 U.S. at 196 (quoting Stovall v. Denno, 388 U.S. 293, 302 (1967). Moreover, the exclusion of such evidence is the exception to the rule that favors the admissibility identification for the jury s consideration. 9 of eyewitness Ordinarily, [t]he Constitution . . . protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit. Perry, 132 S. Ct. at 723; see also Harker v. Maryland, 800 F.2d 437, 443 (4th Cir. 1986) (noting that the drastic sanction exclusion . . . of that identification is limited testimony which is manifestly suspect ). evidence to is a identification In the absence of a very substantial likelihood of irreparable misidentification, . . . such evidence is for the jury to weigh. Brathwaite, 432 U.S. at 116 (internal quotation marks omitted). Courts should be content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature. Id. B. Prior to trial, Fowler moved to suppress Guzman s expected in-court identification of him from the Howard Johnson s motel, asserting that any such identification by Guzman would be the product of impermissibly suggestive, 10 photographic arrays presented to Guzman in the immediate aftermath of the robbery and murder. 3 The first photographic array occurred on January 8, 1996. Guzman was presented with a six-person photographic array that included a photograph of Fowler that had been taken in November 1995. beard, In the photograph, Fowler had a full head of hair, a full and a mustache. As noted above, however, Guzman s initial description of the robber was of a man with a toboggan cap, some hair on his face, but not a full beard. Guzman declined to identify any of the photographs as resembling the man he saw in the motel lobby. 4 On January 14, 1996, police officers presented Guzman with another six-person photographic array that included Fowler and five additional photographs that had been selected as similar by a computer program. This array, however, contained an arrest photograph of Fowler that had been taken just two days earlier, on January 12, 1996. In this photograph, Fowler had a shaved head and light facial-hair stubble. Although Guzman would not positively identify any of the photographs as being of the man 3 Although Fowler initially moved to suppress both the pretrial photographic arrays and the in-court identification, he later withdrew the motion to suppress the arrays. 4 On January 11, 1996, the police released the November 1995 photograph of Fowler to the media. However, Guzman testified that he did not see the media coverage. 11 he saw on the night of the robbery, he selected Fowler s photograph as the one that most closely resembled the man. J.A. 138. On April 3, 1996, the police presented Guzman with another photographic array, which contained the photograph of a man whom police believed to be an accomplice of Fowler in an earlier crime but which did not include a photograph of Fowler. At the time, police had not yet identified the second robber and the purpose of suspected this array was accomplice. to Again, see if Guzman Guzman recognized would not the positively identify any of the men, but he chose two photographs that he said most closely resembled the man he saw that night. 5 Just prior to the evidentiary hearing on Fowler s motion to suppress, the prosecutor subpoenaed to testify. Fowler would be seated met with Guzman, who had been During the meeting, Guzman was told that between table during the hearing. his attorneys at the defense At the hearing, Guzman confidently identified Fowler -- who was dressed in an orange, jail jumpsuit and seated between defense counsel -- as the man Guzman observed 5 Although not raised in connection with his motion to suppress before the trial court, there was evidence presented at the state MAR proceeding that Guzman was presented with two additional arrays early on in the investigation that also did not include Fowler. In one, Guzman declined to identify anyone. In the other, he selected a photograph of Cullen Marshall, who would later become Fowler s co-defendant, as resembling one of the robbers. 12 in the motel lobby. Guzman testified that his identification was based on his having seen Fowler on the night of the robbery and not on his having seen any photograph of Fowler in the interim. Moreover, when Guzman was presented with the January 12, 1996, array at the suppression hearing, he was unable to identify the photograph that he had earlier selected as the one that most closely resembled the man he saw that night. At the conclusion of the hearing on the motion to suppress, the trial court made detailed findings of Fowler s challenge to Guzman s identification. fact regarding Of particular note, the trial court found as follows: Mr. Guzman was approximately 25 feet from the person he observed behind the counter at the time of his observations. The lobby was lighted with fluorescent lighting, and all the lights in the lobby appeared to be turned on. He was able to observe the individual from the level of the counter up, which allowed him to observe the other part of the body of that person, including his face and facial features. Mr. Guzman was able to look at the face of the person for approximately five seconds and see the face from different angles. . . . The individual was not wearing a mask or anything covering his face. He was wearing a toboggan on his head. Mr. Guzman does not wear prescription eyeglasses nor is there any indication that he is in need of corrective lenses. During the time that he observed the individual behind the counter, there was no obstruction of his view of the person s face, there was no distraction of his attention from the individual, and he was able to focus his attention on the person. J.A. 191-92. The trial court also addressed Fowler s claim that the prosecutor s pre-hearing statement to Guzman about Fowler s 13 expected location in the courtroom compounded the impermissibly suggestive procedure: Prior to his testimony in Court, Mr. Guzman met with the prosecutors concerning his testimony and was informed that the Defendant would be present in Court and would be seated between his attorneys at the defense counsel table. Mr. Guzman indicated his identification of the Defendant in open Court [was] based upon his recollection [of] the appearance on the Defendant as being the person behind the counter at Howard Johnson s Motel on December 31st, 1995 and not based upon any suggestion or inference in conferences with the police officers or with prosecuting attorneys. Mr. Guzman also indicated that he was confident that the Defendant was the person he had seen in Howard Johnson s on December 31st, 1995. J.A. 192-93. identification The trial procedures court concluded relating to the that the pretrial photographic arrays were not impermissibly suggestive and, even if they were, [t]he identification inherently of [Fowler] incredible, by given James all the Guzman . . . is not circumstances of the witness s ability to view the accused at the time of the crime. The credibility of the identification evidence is for the jury to weigh. J.A. 197. On direct appeal, the North Carolina Supreme Court rejected Fowler s challenge to the trial court s denial of his motion to suppress. In pertinent part, the North Carolina Supreme Court held as follows: In the present case, the trial court made extensive findings concerning the photographic arrays shown to Guzman and concluded that Guzman s in-court identification was based on his independent 14 recollection of defendant from the night of the crimes. . . . There is ample evidence in the present record to support the trial court s findings. Guzman testified he was confident that defendant was the man he saw in the motel lobby on 31 December 1995. Guzman stated that his identification was based on his memory of seeing defendant in person in the motel lobby on the night of the shootings and not on seeing photographs of defendant. Moreover, the record reveals prosecutors told Guzman when they met with him before the pretrial hearing that he should tell the truth if he did not recognize defendant. This evidence is sufficient to support the trial court s findings, which in turn support its ultimate legal conclusion that Guzman s identification was not the result of an impermissibly suggestive procedure. Fowler, 548 S.E.2d at 698. argument arrays that and the meeting identification to The court also rejected Fowler s cumulative with be a effect prosecutors violation of of viewing caused photographic Guzman s defendant s due in-court process rights, id., observing that: [n]othing in the trial court s findings or in the evidence suggests that the prosecutors encouraged Guzman to make a false identification. The meeting between prosecutors and Guzman appears to have been nothing more than an opportunity to go over what would happen in court. The prosecutors did not provide Guzman with any information that would not have been readily apparent to him during the proceedings. Thus, although prosecutors should avoid instructing the witness as to defendant s location in the courtroom, there is nonetheless insufficient evidence to support defendant s contention that prosecutors rigged Guzman s identification. Accordingly, although Guzman never explicitly testified that his meeting with prosecutors did not affect his in-court identification, the evidence in the record supports the trial court s conclusion that Guzman s identification was not a result of prosecutorial suggestion. 15 Id. In sum, the court held that the procedures leading up to Guzman s in-court identification were not unnecessarily suggestive and that, even if they were, they did not create a substantial likelihood id. at 698-99. of irreparable misidentification. See In addition, the court held that any violation of Fowler s due process rights was harmless beyond a reasonable doubt in light of the other evidence of Fowler s guilt. Id. at 699. III. A. Because the North Carolina state courts adjudicated Fowler s constitutional claim on the merits, we may grant habeas relief under 28 U.S.C. § 2254 only if that adjudication (1) was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, 28 U.S.C. § 2254(d)(1), or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, 28 U.S.C. § 2254(d)(2). As the cautioned, United this States review of Supreme state Court court has decisions constitutional claims is a highly constrained one. increasingly on federal We are not at liberty to substitute our judgment for that of the state court on matters of federal constitutional 16 law, even if we believe the state court decision was incorrect. The question . . . is not whether a federal court believes the state court s determination was incorrect but whether that determination was unreasonable a substantially higher threshold. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (emphasis added). A state court decision is unreasonable only if it is so erroneous that there is no possibility fairminded jurists could disagree that the state court s decision Court s precedents. conflicts with th[e] [Supreme] Nevada v. Jackson, 133 S. Ct. 1990, 1992 (2013) (per curiam) (quoting Harrington v. Richter, 131 S. Ct. 770, 786 (2011)). the state Furthermore, our deference is not limited to court s Court precedents. interpretation and application of Supreme When we review a state court s decision, we must also presume the correctness of the state court s factual findings, unless rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). B. 1. The district court held that the North Carolina Supreme Court reasonably applied the clearly established Supreme Court precedents process in in determining this case was that not agree. 17 the pre-trial impermissibly identification suggestive. We Law enforcement presented two photographic arrays to Guzman that included Fowler s photograph. Fowler does not argue that the photographic arrays, as individually composed, were unduly suggestive. Rather, Fowler complains only that the pre-trial procedures were unduly suggestive because he appeared in both arrays and because Guzman was told that Fowler would be seated between his counsel prior to the suppression hearing. However, while a photograph of Fowler appeared in both arrays, the same photograph did not appear in both, and it is undisputed that Fowler s appearance in the January 8 array was quite different from his appearance description in provided the by January Guzman 14 to immediate aftermath of the crime. array the and from authorities the in the Moreover, although Guzman selected the photograph of Fowler from the April 14 array as the one most closely resembling the man he saw, he would not positively identify anyone as being the man he saw on the night of the robbery and he was unable to select the same photograph at the suppression hearing. Nor are we persuaded by Guzman s claim that the state court unreasonably concluded that the prosecutor s pre-hearing meeting with Guzman was not so suggestive - singularly or in combination with the process photographic rights, erroneously or imposed arrays by upon his him as to argument a 18 burden violate that of the Fowler s state proving due court that the prosecutors were driven by improper motives. in the record reasonable that calls determination into that question the There is nothing the state meeting court s between the prosecutors and Guzman was simply an opportunity to go over what would happen in court, and that the challenged statement only provided Guzman with information that would readily apparent to him during the proceedings. have been Fowler, 548 S.E.2d at 698; cf. United States v. Murray, 65 F.3d 1161, 1169 (4th Cir. 1995) (noting that a witness s prior knowledge of a defendant s location at counsel table in a courtroom proceeding was not per se impermissibly suggestive). In the course of concluding that the evidence in the record supports the trial court s conclusion that Guzman s identification was not a result of prosecutorial suggestion, even in combination with the photographic arrays, the state court also appropriately observed that there was nothing in the record to suggest[] that the prosecutors encouraged Guzman to make a false identification or otherwise rigged Guzman s identification. at 698. Fowler, 548 S.E.2d And, as the state court pointed out, although the prosecutors told Guzman where Fowler would be seated in the courtroom, they also told Guzman that he should tell the truth if he did not recognize defendant. 19 Id. 2. As both the state court and district court correctly noted, the absence of an unduly suggestive procedure renders it unnecessary for us to go further. Nevertheless, even assuming arguendo that police unduly the actions suggestive, unreasonably we concluded of the cannot that say Guzman s and that prosecutor the state identification of were court Fowler was reliable under the totality of the circumstances. Guzman observed the accused through a glass door from a distance of 25 feet in fluorescent lighting for approximately five seconds. The accused wore no mask and nothing obstructed Guzman s view of him. Guzman was able to and did observe his facial different features from angles, including when the accused looked in Guzman s direction, and nothing distracted his view away from the man during the time that he observed him. addition, Guzman was aware of a previous robbery that In had occurred at the motel and, therefore, was immediately alert to the possibility Furthermore, that Guzman a robbery provided a might detailed be in description progress. of the accused immediately after the event, including a description of his facial features and of the clothing he was wearing, which turned out to match descriptions given by other witnesses who saw Fowler on the night of the crime. 20 We additionally note that Guzman was consistently hesitant to conclusively identify a suspect from any of the photographic arrays shown to him, whether or not they included a photograph of Fowler. Instead, he did exactly what was asked of him. He picked photographs only when he felt that they resembled the person he saw that night and refused to conclusively identify the culprit until he was sure. When given the first opportunity to observe Fowler in person in October 2007, Guzman, having been told that he should only identify Fowler if he was sure, was confident that Fowler was the person he saw in the lobby of the Howard Johnson s that night. Guzman further testified that his identification seeing was based on Fowler in the lobby night and not on his having seen any photograph of Fowler. that In sum, it was not unreasonable for the state court to find that Guzman based his identification on his observations on the night of the robbery and not on his prior viewing of photographs of Fowler or his knowledge of where Fowler would be located in the courtroom. To the extent that Guzman s identifications were subject to question, the state court reasonably held it was a matter for the jury to consider and weigh and not a basis for excluding the evidence altogether. 3. Finally, the North Carolina Supreme Court additionally held that, even assuming that error 21 occurred, any due process violation was harmless beyond a reasonable doubt, in light of the other evidence at trial. Fowler, 548 S.E.2d at 699. Specifically, the court observed that: Guzman s in-court identification was by no means the only evidence pointing to defendant s guilt. At trial, three witnesses testified that defendant admitted entering the Howard Johnson s to attempt a robbery and that he shot two people. One witness testified that defendant told him he had only gotten two or three hundred dollars from the robbery and that he was broke because he had paid for his friends to get into the Sugar Shack. Another person testified that defendant sold him a .44 caliber revolver on the evening of 1 January 1996, the day after the murders. Id. On federal habeas, Fowler argues that he was prejudiced by the admission of Guzman s identification because the only other evidence linking Fowler to the crime was the testimony of four informants, all of information about whom approached Fowler s case the in State the with supposed of receiving hopes favorable deals and sentencing reductions for their own criminal activity. On when Brief of Appellant at 33. direct it appears complained Mitchell (internal review, of v. [a] beyond did not Esparza, quotation a constitutional reasonable contribute 540 U.S. marks 12, to California, 386 U.S. 18, 24 (1967). doubt the 17-18 omitted); error is that verdict (2003) see also harmless the error obtained. (per curiam) Chapman v. On federal habeas review, however, we apply the more onerous, harmless error analysis set forth in Brecht v. Abrahamson, 507 U.S. 619, 631 (1993). 22 Under that standard, an error is harmless unless it had a substantial and injurious verdict. effect or influence in determining the jury s Fry v. Pliler, 551 U.S. 112, 116 (2007) (internal quotation marks omitted). We assess the prejudicial impact of constitutional error in a state-court criminal trial under the substantial and injurious effect standard set forth in Brecht . . . whether or not the state appellate court recognized the error and reviewed standard. makes no it for harmlessness under the [Chapman] Fry, 551 U.S. at 121-22 (noting that it certainly sense to require formal application of both tests (AEDPA/Chapman and Brecht) when the latter obviously subsumes the former ). And where an error is harmful under Brecht, any state decision court declaring unreasonably applied Chapman. Brecht will Bauberger also v. satisfy Haynes, 632 it harmless must have As a result, any error satisfying AEDPA s F.3d deference 100, 104 requirements. (4th Cir. 2011). Federal habeas courts must always review constitutional errors in state trials under Brecht, but they need not debate whether a state court s harmless applied Chapman. Applying error determination also unreasonably Id. the Brecht standard, we conclude that the admission of Guzman s in-court identification, even if error, was harmless. other evidence As the state court observed, there was abundant presented on the 23 issue of Fowler s guilt, including the testimony of several acquaintances that Fowler admitted that he committed the crime and provided details about the shootings and the murder weapon that were corroborated by the witnesses and forensic evidence from the motel that night. 4. For the foregoing reasons, we hold that the state court s rejection of Fowler s due process claim was not contrary to or an unreasonable precedents. application of the governing Supreme Court In the alternative, we hold that any such error was harmless under Brecht. IV. We turn now to Fowler s motion, filed for the first time on appeal, which he styles as a Motion for Appointment of Qualified and Independent Counsel. Relying upon our decision in Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013), and the Supreme Court s decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012), Fowler asks that designate remand that his this investigate we defer current case to whether resolution counsel to the district there are assistance-of-trial-counsel be his to that 24 were appeal, counsel, allow substantial presented to the North Carolina state court. reasons, we deny the motion. habeas Martinez court any claims of counsel and to ineffectivenot timely For the following A. 1. Ordinarily, a habeas petitioner is procedurally barred from obtaining federal habeas review of a claim if he failed to raise and exhaust the claim in state court. See Coleman v. Thompson, 501 U.S. 722, 750 (1991); Wainwright v. Sykes, 433 U.S. 72, 8485 (1977). Under this procedural default doctrine, habeas review of the claim will only be permitted if the petitioner can demonstrate (1) cause for the default and prejudice resulting therefrom or (2) that the failure to consider the claim will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. In some circumstances, a defendant may establish cause if he was represented by counsel whose performance was constitutionally ineffective under the standards established in Strickland v. Washington, 466 U.S. 668 (1984). See Coleman, 501 U.S. at 752; Murray v. Carrier, 477 U.S. 478, 488 (1986). In Coleman, however, the Supreme Court held that because [t]here is no constitutional conviction right proceedings, a to an federal attorney habeas in state petitioner postcannot claim constitutionally ineffective assistance of counsel in such proceedings to establish cause. 25 Coleman, 501 U.S. at 752. In Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012), the Supreme Court first Coleman rule. announced a narrow exception to the Specifically, the Court held that: Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was [constitutionally] ineffective. Id. at 1320 (emphasis added). This limited qualification of the Coleman rule was based on the fact that when an initial-review collateral proceeding is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial, the collateral proceeding is in many ways the equivalent of a prisoner s claim. direct appeal Id. at 1317. as to the ineffective-assistance Thus, [W]hen a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim . . . where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984). Id. at 1318 (citation omitted). Not long thereafter, the Supreme Court held that the Martinez exception also applies to ineffective-assistance-of-trial-counsel claims that state law might, on its face, permit to be brought on direct appeal, if the structure and design of 26 the state system in actual operation . . . make it virtually impossible to Trevino v. Thaler, 133 S. Ct. 1911, 1915 (2013). state procedural framework, by reason of do so. Where the its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal, [the] holding in Martinez applies. Id. at 1921. To summarize, then, Martinez held that a federal habeas petitioner who defaulted claim before the seeks federal of to raise an otherwise procedurally ineffective-assistance-of-trial-counsel court may do ineffective-assistance-of-trial-counsel so only claim if: is (1) a the substantial one; (2) the cause for default consist[s] of there being no counsel or only ineffective counsel during the state collateral review proceeding ; (3) the state collateral review proceeding was the initial review proceeding in respect to the ineffectiveassistance-of-trial-counsel claim ; and (4) state law requires that an ineffective-assistance-of-trial-counsel claim in an initial-review collateral proceeding. be raised Trevino, 133 S. Ct. at 1918 (internal quotation marks, alterations, and emphasis omitted); see also Martinez, 132 S. Ct. at 1318. Trevino held that the Martinez exception would also apply in states that have procedures which make[] it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise 27 [the] claim on direct appeal. Id. at 1921. Absent these limited circumstances, [t]he rule of Coleman [continues] to govern[]. Martinez, 132 S. Ct. at 1320. The Martinez exception does not concern attorney errors in other kinds of proceedings, including appeals proceedings, second successive petitions courts. for or discretionary from initial-review collateral review in a collateral proceedings, State s and appellate It does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial, even though that initial-review collateral proceeding may be deficient for other reasons. Id. (emphasis added) (citations omitted). 2. In Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013), we 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 claims if his § 3599 counsel also represented him in the state postconviction proceedings. 6 6 Pursuant to 18 U.S.C. § 3599, [i]n 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 (Continued) 28 In Virginia, where Juniper was convicted, state prisoners cannot raise ineffective-assistance-of-trial-counsel claims on direct appeal and, therefore, the state fell plainly within the Martinez exception. 769, 781 (Va. See Johnson v. Commonwealth, 529 S.E.2d 2000). Upon the filing of the petition for federal habeas relief, the district court appointed Juniper s state postconviction counsel to continue representation of him in the federal habeas proceedings. However, when the Supreme Court issued its decision in Martinez, Juniper moved to have new counsel appointed under § 3599, in addition to his existing counsel, for the purpose of investigating and presenting any substantial, ineffective-assistance-of-trial-counsel claims that had been procedurally defaulted in state court. In particular, Juniper argued that he was entitled to such new counsel because his existing counsel would otherwise be required to investigate his own ineffectiveness in the state court proceedings. The district court denied the motion, but granted a certificate of appealability. On appeal, we held that if a federal habeas petitioner is represented by the same counsel as in state habeas proceedings, 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). 29 and the petitioner requests independent counsel in order to investigate and pursue claims under Martinez in a state where the petitioner may only raise ineffective assistance claims in an initial-review collateral proceeding, independent counsel is ethically required. at 290 (emphasis in original). This qualified and Juniper, 737 F.3d is because a clear conflict of interest exists in requiring [petitioner s] counsel to identify and investigate potential errors that they themselves may have made in failing to uncover ineffectiveness of trial counsel while they represented state post-conviction proceedings. [petitioner] in his Id. at 289-90 (quoting Gray v. Pearson, 526 Fed. Appx. 331, 334 (4th Cir. 2013)); see also id. at 290 (noting that it would be ethically untenable to require counsel ineffectiveness adequately counsel to in the present claims assert state defaulted under claims habeas of his or proceedings in her own order to ineffective-assistance-of-trial- Martinez in the federal habeas proceedings ). We further held that, while Martinez requires that any such claim be ultimately deemed substantial, the district court must grant the motion for appointment of counsel for purposes of investigation without regard to whether the underlying motion identifies a substantial Martinez. ineffective Id. 30 assistance claim under B. The state of North Carolina argues that the Martinez exception does not apply in North Carolina because its laws and procedures neither prohibit nor make it virtually impossible for a defendant to raise an ineffective assistance-of-trial- counsel claim on direct appeal. Fowler, on the other hand, argues that Martinez does apply in North Carolina because, as in Trevino, defendants are ordinarily required to raise claims of ineffective assistance appropriate relief. of trial counsel in a motion for We disagree with both assertions. Under North Carolina law, a motion for appropriate relief, including motions filed in capital cases, must be denied if [u]pon a previous appeal the defendant was in a position to adequately raise the ground or issue underlying the . . . motion but did not do so. N.C.G.S. § 15A-1419(a)(3), (b). However, the statute is not a general rule that any claim not brought on direct appeal is forfeited on state collateral review. Instead, the rule requires North Carolina courts to determine whether the particular review. claim at issue could have been brought on direct McCarver v. Lee, 221 F.3d 583, 589 (4th Cir. 2000). Ineffective-assistance-of-trial-counsel claims brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued 31 without such ancillary procedures as the appointment of investigators or an evidentiary hearing. State v. Fair, 557 S.E.2d 500, 524 (N.C. 2001). Otherwise, the claims should be considered through motions for appropriate relief and not on direct appeal. 557 S.E.2d 544, 547 (N.C. Ct. App. 2001). State v. Stroud, Thus, while in some situations a defendant may be required to raise an [ineffectiveassistance-of-trial-counsel] claim on direct appeal, a defendant will not be required to do so in all situations. Long, 557 S.E.2d 89, 93 (N.C. 2001). State v. Accordingly, to avoid procedural default under N.C.G.S. § 15A-1419(a)(3), defendants should necessarily raise those [ineffective-assistance-of-trialcounsel] claims record. on appeal that are apparent from the Fair, 557 S.E.2d at 525 ( commend[ing] counsel for properly raising counsel] on determine have direct direct that been [five] claims appeal ). [of ineffective [S]hould the assistance reviewing [ineffective-assistance-of-trial-counsel] prematurely asserted on direct appeal, it of court claims shall dismiss those claims without prejudice to the defendant s right to reassert them during a subsequent MAR proceeding. Id. In sum, North Carolina does not fall neatly within Martinez or Trevino. Ineffective-assistance-of-trial-counsel claims that are apparent from the record must be brought by the prisoner on direct appeal and, as to those claims, the state collateral review proceeding [is not] the 32 initial review proceeding in respect to the (internal . . . quotation claim. marks Trevino, omitted). 133 S. Ct 1918 they Accordingly, at are subject to procedural default under N.C.G.S. § 15A-1419, and the Martinez exception relief on counsel claims to federal Coleman habeas. that are will provide the prisoner no Ineffective-assistance-of-trial- not so apparent, however, will fall within the Martinez exception. In Juniper and Gray, we held that qualified, independent counsel must be appointed in a Martinez state for the purpose of determining whether trial-counsel habeas. any claims Because additional, exist some which claims ineffective-assistance-of- were may not fall brought within on the state Martinez exception to Coleman, North Carolina petitioners are therefore entitled upon request to the appointment of qualified, independent counsel for the purposes of investigating whether any such claims exist. still be whether claim called the upon However, the federal habeas court will to particular identified, determine, on a case-by-case basis, ineffective-assistance-of-trial-counsel regardless of its merit, is nonetheless procedurally defaulted because it could have been and should have been raised on direct appeal. C. That said, Fowler is not entitled to the relief he seeks before this court. Unlike the petitioners in Juniper and Gray, 33 Fowler had the benefit of qualified, independent counsel during the pendency of his federal habeas petition below who had ample opportunity to pursue any Martinez-based arguments on his behalf. During the various stages of Fowler s trial and collateral proceedings, he has had the benefit of at least nine deathpenalty qualified attorneys. At trial, Fowler was represented by Kevin Barnett and Harold Bender. On direct appeal, he was appointed new counsel, James Glover, to review the trial court record and pursue appropriate claims, including ineffective- assistance-of-counsel claims. After his certiorari conviction review denied, and sentence Fowler was were affirmed appointed and qualified postconviction counsel, Zephyr Teachout and Stephen Greenwald, to pursue postconviction relief. Fowler s original Motion for Appropriate Relief was filed on November 12, 2002, and amended on August 12, 2004. During the pendency of his MAR proceeding, however, Fowler s postconviction counsel were relieved and he was appointed a second set of qualified postconviction counsel, Faith Bushnaq and Reita Pendry, who also reviewed the matter and filed an amendment to the MAR, which included an additional ineffective-assistance-of-trial counsel claim. After proceedings, relief Bushnaq was and denied Pendry 34 in state sought and postconviction received an appointment to proceedings. represent Fowler in his federal habeas Pendry filed an affidavit attesting to both her and Bushnaq s qualifications to represent Fowler under § 3599(c) and (d). On February 12, 2009, Pendry and Bushnaq filed a Petition for Writ of Habeas Corpus. The state filed its response in May 2009, and Fowler filed a reply to the response in August 2009. On October 11, 2011, however, Fowler s current counsel, Shelagh Kenney with the Center for Death Penalty Litigation, successfully moved on Fowler s behalf for an order appointing her to replace Pendry. also represented to In conjunction with this motion, Kenney the district court that she met the qualifications to undertake representation under § 3599(c) and (d), and additionally asserted that her entire practice is devoted to the representation of indigent defendants who have been sentenced to death. The district court also granted, at Kenney s request, a sixty (60) day abeyance of any rulings on the federal habeas petition, without prejudice to [Fowler s] requesting additional time, if necessary, Docket Entry No. 21, Fowler v. Branker, No. 3:09-cv-00051 (W.D.N.C. Oct. 19, 2013), in order to give newly appointed federal habeas counsel sufficient time to inform herself about Mr. Fowler s case, Docket Entry No. 20, Fowler v. (W.D.N.C. Oct. 11, 2011). 35 Branker, No. 3:09-cv-00051 Martinez, argument in appointment, district which the was court had been Supreme decided did not fully Court on at March issue briefed the 20, its and time 2012. decision was of pending Kenney s Moreover, denying the Fowler s federal habeas petition until March 27, 2013, a year after the decision in Martinez was issued. pendency of her federal habeas However, at no time during the representation petition to assistance-of-trial-counsel did Kenney assert claims, seek to additional or amend the ineffective- request a further abeyance of the case to allow for any additional investigation of any potential new claims. Thus, although styled as a Motion for Appointment of Qualified and Independent Counsel in Light of Juniper, it turns out that Fowler s motion, filed before this court for the first time, does pursuant to not seek Juniper appointment at all. of new, Although independent Fowler was counsel initially represented in his federal habeas proceedings by his second set of state postconviction counsel, he was appointed and had the benefit of qualified, independent counsel pursuant to § 3599 for a substantial period of time during the pendency of his federal habeas petition in the district court. Our holding in Juniper was limited and explicit: To be clear, if a federal habeas petitioner is represented by the same counsel as in state habeas proceedings, and the petitioner requests independent 36 counsel in order to investigate and pursue claims under Martinez in a state where the petitioner may only raise ineffective assistance claims in an initial review collateral proceeding, qualified and independent counsel is ethically required. Juniper, 737 F.3d at 290 (third emphasis in original). However, where, as here, counsel who represents the petitioner in federal habeas proceedings undertook representation after the initialreview collateral proceeding concluded, that counsel cannot be found ineffective before or after Martinez. Ethically, this means there is no potential conflict of interest in light of Martinez because there is no chance that the attorney would have to argue his or her own ineffectiveness or forego a potentially valid ineffective assistance of counsel claim. David M. Barron, Martinez Casts Doubt on State PostConviction and Federal Habeas Representation, 27-Fall Crim. Just. 42 (2012) (emphasis added). Kenney is without death penalty matters. doubt well qualified and informed in She represented Fowler for a year and a half during the pendency of the district court proceedings, and she did not represent Fowler at any stage of the state MAR proceedings. Thus, she did not labor under any conflict of interest that would have hindered her ability to investigate whether there were any Martinez-based ineffective-assistance-oftrial-counsel claims that had not already been ferreted out by Fowler s prior trial and postconviction 37 counsel, or entitled Fowler to the appointment of new, conflict-free counsel under § 3599. 7 We are also unpersuaded by Fowler s half-hearted argument that a special designation of Martinez counsel and remand for further investigation is warranted because the Juniper decision was not decisions issued in until both after Juniper Fowler and filed Gray his appeal. addressed a The conflict-of- interest argument that was timely made before the district court immediately after the Martinez decision was handed down by the Supreme Court, and were based upon its reasoning and holding. See e.g. Juniper, 737 F.3d at 289 ( In accordance with Martinez, the Gray panel held independent counsel investigate and that in pursue his the the petitioner federal habeas ineffectiveness was entitled to proceedings to of state habeas counsel. ); Gray, 526 Fed. Appx at 332 ( [U]nder the reasoning and holding of Martinez, [petitioner] is entitled to counsel who could vigorously examine and present if available potential claims of ineffective assistance by [his] counsel in his state habeas proceedings. ). Juniper s counsel was qualified, but not 7 In Juniper, the petitioner had a second appointed counsel who had not represented him in the state postconviction proceedings, but this counsel was not qualified under 18 U.S.C. § 3599(c) to represent him independently. Here, in contrast, Kenney was qualified and, therefore, serve[d] as the independent counsel called for in Juniper. Juniper v. Davis, 737 F.3d 288, 290 n.2 (4th Cir. 2013). 38 independent, and therefore Juniper was in a position to argue that his appointed counsel operated under a conflict of interest entitling him to new counsel under § 3599. Kenney, in contrast, has at all times been independent and conflict-free. Moreover, there is no magic to the term Martinez counsel, which does not appear in reference Juniper to the or Gray. qualified, The term independent is but counsel a shorthand that Juniper held was ethically required under § 3599 in the narrow set of circumstances presented. Juniper did not grant a federal habeas petitioner and his independent counsel any right, on appeal, to return to the district court and conduct additional Martinez investigations or to otherwise vary our normal rule that arguments such as these, including a petitioner s motion for new counsel in light of Martinez, should have been made in the first instance to the district court. In sum, Martinez provided Fowler s counsel with all the authority necessary to request an additional abeyance of the district court s ruling and, if appropriate, to file an amended habeas petition. No explanation for this delay has been offered. Unlike the petitioners in Juniper and Gray, Fowler did not appointment seek Martinez criteria. in the of independent, district court. qualified Kenney counsel already met under that Nor did Fowler or Kenney, upon her appointment, seek additional time to investigate whether there were any additional 39 ineffective-assistance-of-trial-counsel claims which Martinez might allow the district court to consider, leaving us with the unmistakable impression that there was nothing of substance left to investigate. whether Fowler s Counsel two sets may of or may not qualified, have state investigated postconviction counsel were constitutionally ineffective in failing to identify and present an ineffective-assistance-of-trial-counsel claim. But even if such Martinez-based claims existed, they have been waived by Fowler s failure to raise the issue below, and any ineffectiveness on Kenney s part provides Fowler with no relief here. V. For the foregoing reasons, we affirm the judgment of the district court denying Fowler s petition for habeas relief. also deny Fowler s motion for appointment of qualified We and independent counsel under Martinez and Juniper. JUDGMENT AFFIRMED; MOTION DENIED 40 DAVIS, Senior Circuit Judge, concurring in the judgment in part and dissenting in part: I strongly disagree with the weathered notion that when it comes to eyewitness identification evidence, [c]ourts should be content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill, and that [j]uries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature. See maj. op. at 10 (quoting Manson v. Brathwaite, 432 U.S. 98, 116 (1977)). The hundreds of exonerations splashed across the headlines of popular and legal media over the last decade put the lie to the Supreme Court s outworn hope that juries can be counted on routinely to reject unreliable eyewitness identification evidence without special guidance from courts. See generally Laura Sullivan, Exonerations On The Rise, And Not Just Because Of DNA, National Public Radio (Feb. 4, 2014, 3:47 AM) (saved as ECF Opinion Attachment). Nevertheless, largely for reasons set forth in the Chief Judge s thorough opinion, I concur in the judgment that Fowler is not entitled to relief under 28 U.S.C. § 2254. As for the motion to appoint counsel pursuant to the teachings of Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013), I would remand determination of the issue to the district court 41 for its examination in the first instance. If the district court denied the motion, then Fowler would be free to seek from the district court or this Court a certificate of appealability. Accordingly, I dissent from the panel s denial of the motion. 42
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