Jones v. Cooper

• Decision Date: 14 November 2002
• Docket Number: No. 01-25.,01-25.
• Citation: 311 F.3d 306
• Parties: William Quentin JONES, Petitioner-Appellant, v. Roy COOPER, Attorney General, State of North Carolina; R.C. Lee, Warden, Central Prison, Raleigh, North Carolina, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

311 F.3d 306

William Quentin JONES, Petitioner-Appellant, v. Roy COOPER, Attorney General, State of North Carolina; R.C. Lee, Warden, Central Prison, Raleigh, North Carolina, Respondents-Appellees.

No. 01-25.

United States Court of Appeals, Fourth Circuit.

Argued September 25, 2002.

Decided November 14, 2002.

COPYRIGHT MATERIAL OMITTED

ARGUED: Kenneth Justin Rose, Center for Death Penalty Litigation, Inc., Durham, North Carolina, for Appellant. Edwin William Welch, Special Deputy Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellees. ON BRIEF: Gretchen Marie Engel, Center for Death Penalty Litigation, Inc., Durham, North Carolina, for Appellant. Roy Cooper, North Carolina Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellees.

Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.

Dismissed by published opinion. Judge LUTTIG wrote the opinion, in which Judge WIDENER and Judge WILLIAMS joined.

OPINION

LUTTIG, Circuit Judge.

Appellant, a North Carolina state prisoner under sentence of death, requests a certificate of appealability from this court, to review an order dismissing his petition for a writ of habeas corpus. He contends that a juror lied on a jury questionnaire and during voir dire, violating his right to a fair and impartial jury, and that the State of North Carolina suppressed exculpatory information in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). As appellant has not made a substantial showing of the denial of a constitutional right, we are without authority to issue a certificate of appealability. Accordingly, we dismiss his appeal.

I.

Shortly before midnight on March 7, 1987, appellant (wearing a ski mask and carrying an Uzi 9mm pistol) entered a Raleigh area Fast Fare store and fired several times, wounding Orlando Watson and fatally wounding Ed Peebles. Appellant then demanded that Charles Taylor, the store's clerk, open the cash register. When Taylor was unable to do so, appellant grabbed the register and pulled it out the front door by its cord and dragged it for several feet before abandoning it and fleeing.

Appellant was pursued on foot by police officers and quickly apprehended. He was taken to the police station and interrogated throughout the morning of March 8, 1987, before being transferred to the Wake County Detention Center. There, a jailor observed him and, noting appellant's behavior and appearance, recorded in a jail shift log that appellant was "extremely suicidal." This jail log was never turned over to appellant, nor apparently were the jailor's observations made available to the appellant, despite appellant's discovery requests for exculpatory information.

Appellant eventually pled guilty to first-degree murder and was sentenced to death. The North Carolina Supreme Court vacated his death sentence and remanded for a new sentencing hearing in light of McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). At the re-sentencing hearing, appellant argued that several North Carolina statutory mitigating factors were present, including that he was suffering from a mental and emotional disturbance (due to being high on drugs), and that he showed remorse or sorrow for his actions. No juror found either of these mitigating factors, and the jury sentenced appellant to death. The North Carolina Supreme Court affirmed this sentence.

On August 29, 1995, appellant filed a Motion for Appropriate Relief ("MAR"), North Carolina's procedural mechanism for state post-conviction relief. In his MAR, appellant argued, among other claims, that a sentencing juror lied on a jury questionnaire and in voir dire, preventing appellant from being able to challenge her peremptorily or for cause. In support of this claim, appellant submitted an affidavit from an investigator who had interviewed the juror. The state court, relying on an unspecified state rule of evidence, quashed the affidavit and dismissed the MAR.

Some time after the filing of his first MAR, appellant's post-conviction counsel discovered the location of the jail log and obtained it, thereby learning the jailor's identity. When interviewed, the jailor expressed the opinion that appellant, on the morning of his booking in the Wake County Detention Center, looked as if he were crashing from a drug high and seemed remorseful while speaking with his grandfather on the telephone.

With this information, appellant filed a second MAR, alleging that the State violated the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to turn over the jail log and the identity of the jailor. In the alternative, appellant argued that trial counsel was ineffective for failing to uncover this information. The state court rejected both claims, on the alternative grounds that the claims were procedurally defaulted, as they could have been brought either on direct appeal or in the first MAR, and that the information allegedly suppressed was not material and appellant did not suffer any prejudice.

Appellant then filed a habeas petition in federal court, raising the above claims as well as several others. The district court dismissed the petition as to all claims. Appellant now requests the issuance of a certificate of appealability, contending that the district court erred when, without at least holding an evidentiary hearing, it dismissed his claims.

II.

Before an appeal can be taken to the court of appeals from the final order in a habeas corpus proceeding arising out of process issued by a State court, a certificate of appealability must issue. See 28 U.S.C. § 2253(c)(1)(A). "A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right." Id. § 2253(c)(2). A habeas petitioner thus must demonstrate that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)).

A.

Turning first to appellant's juror misconduct claim, the Sixth Amendment, made applicable to the states through the Fourteenth Amendment, see Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), requires that a state provide an impartial jury in all criminal prosecutions. "[D]ue process alone has long demanded that, if a jury is to be provided the defendant, regardless of whether the Sixth Amendment requires it, the jury must stand impartial and indifferent to the extent commanded by the Sixth Amendment." Morgan v. Illinois, 504 U.S. 719, 727, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). If "even one [partial] juror is empaneled" and the death sentence is imposed, "the State is disentitled to execute the sentence." Id. at 728, 112 S.Ct. 2222.

In McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), the Supreme Court set forth a particularized test for determining whether a new trial is required in the context of juror deceit during voir dire or on jury questionnaires. That two-part test states that in order to obtain a new trial, the defendant "must first demonstrate that a juror failed to answer honestly a material question ... and then further show that a correct response would have provided a valid basis for a challenge for cause." Id. at 556, 104 S.Ct. 845. The Court noted that a "trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination." Id. at 555, 104 S.Ct. 845. Although in McDonough the juror's incorrect response in voir dire was an honest mistake, the test applies equally to deliberate concealment and to innocent non-disclosure, as our sister circuits have held. See, e.g., Zerka v. Green, 49 F.3d 1181, 1185 (6th Cir.1995); United States v. Langford, 990 F.2d 65, 68 (2d Cir.1993); Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1141-42 (7th Cir.1992); Burton v. Johnson, 948 F.2d 1150, 1158 (10th Cir. 1991); United States v. St. Clair, 855 F.2d 518, 522-23 (8th Cir.1988); United States v. Scott, 854 F.2d 697, 698 (5th Cir.1988). Although McDonough was a federal civil case on direct appeal, rather than a state criminal case on federal habeas review, we have expressly recognized its applicability also to federal habeas review. See Fitzgerald v. Greene, 150 F.3d 357, 362-63 (4th Cir.1998). The McDonough test is not the exclusive test for determining whether a new trial is warranted: a showing that a juror was actually biased, regardless of whether the juror was truthful or deceitful, can also entitle a defendant to a new trial. See Fitzgerald, 150 F.3d at 363. Appellant raises both variations of this juror misconduct claim in his briefs before this court.¹

B.

In her affidavit, appellant's investigator reported that the challenged juror stated that several of her relatives had been subjected to arrests or jury trials; that she had gone to the Fast Fare the day after the murder and robbery; that she had strong, religiously-motived views in favor of the death penalty; and that she "knew that [appellant] had previously received a death sentence." J.A. 350-51. The investigator also reported that the juror had worked with law enforcement on one occasion in 1974, and that she had a strong dislike of illegal drug use (arising out of her relatives' use and sale of illegal drugs). Id.

On the jury questionnaire, the juror stated "no" in response to questions asking...