Hunt v. Nuth

Decision Date27 June 1995
Docket Number94-4010,Nos. 94-4006,s. 94-4006
Citation57 F.3d 1327
PartiesFlint Gregory HUNT, Petitioner-Appellant, v. Eugene M. NUTH, Maryland Correctional Adjustment Center and Maryland Penitentiary; J. Joseph Curran, Jr., Attorney General of the State of Maryland, Respondents-Appellees (Two Cases).
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Denise Charlotte Barrett, Asst. Federal Public Defender, Baltimore, MD, for appellant. Gwynn X. Kinsey, Jr., Asst. Atty. Gen., Office of the Atty. Gen., Baltimore, MD, for appellees. ON BRIEF: James K. Bredar, Federal Public Defender, Gary W. Christopher, Asst. Federal Public Defender, Baltimore, MD, Judith R. Catterton, Rockville, MD, and Thomas C. Morrow, Towson, MD, for appellant. J. Joseph Curran, Jr., Atty. Gen. of Maryland, Office of the Atty. Gen., Baltimore, MD, for appellees.

Before RUSSELL, MURNAGHAN, and WILLIAMS, Circuit Judges.

Affirmed by published opinion. Judge RUSSELL wrote the opinion, in which Judge MURNAGHAN and Judge WILLIAMS joined.

OPINION

DONALD RUSSELL, Circuit Judge:

Flint Gregory Hunt, a death row inmate awaiting execution in Maryland, appeals a number of issues arising from the district court's denial of his petition for writ of habeas corpus, which contested his capital conviction and sentence for murdering a Baltimore City policeman. Hunt also appeals the court's denial of his motion to vacate the judgment and to amend his habeas petition under Rule 60(b) of the Federal Rules of Civil Procedure. We affirm.

I.

In this proceeding Hunt seeks collateral federal relief from the first degree murder conviction and sentence of death he received in the Circuit Court for Baltimore City in Maryland. The facts surrounding the murder are fully set forth in opinions by the Court of Appeals of Maryland. See Hunt v. State, 312 Md. 494, 540 A.2d 1125, 1126-27 (1988) (Hunt I ); Hunt v. State, 321 Md. 387, 583 A.2d 218, 225 (1990) (Hunt II ), cert. denied, 502 U.S. 835, 112 S.Ct. 117, 116 L.Ed.2d 86 (1991). For background, we summarize the facts and procedural history pertinent to this appeal.

On November 18, 1985, Officer Vincent Adolfo, a Baltimore City policeman, noticed a Cadillac with a missing window covered with plastic. The car contained four occupants. He made a routine inquiry and learned that the car had been stolen. Two officers in separate patrol cars responded to his request for back-up and blocked the path of the on-coming Cadillac. Upon nearing the roadblock, the driver, later identified as Hunt, jumped out of the car while it was still moving and ran up a nearby alley.

Officer Adolfo pursued Hunt into the alley. The officer apprehended Hunt, positioned him against a wall, and tried to handcuff him. Hunt pushed away, knocking the officer off balance. Hunt then pulled a single-action .357 Magnum revolver from his jacket and shot Officer Adolfo in the chest at close range. Within seconds, as the officer reeled from the first shot, Hunt shot him again, this time in the back. Hunt fled the scene of the crime. Officer Adolfo was pronounced dead at the hospital.

Hunt's sister testified at trial that Hunt had seemed fine that night, although his girlfriend, Deborah Powell, said that Hunt had been taking drugs earlier that afternoon and appeared "high" when he had left her. Hunt was apprehended in a Tulsa, Oklahoma, bus station five days later.

In June 1986, a jury convicted Hunt of first degree murder, using a handgun in the commission of a crime of violence, and unlawfully carrying a handgun. In July 1986, the same jury imposed a sentence of death on Hunt for the murder conviction. The trial judge imposed consecutive punishments of twenty years imprisonment for the charge of using a handgun and three years imprisonment for the charge of carrying a handgun.

In Hunt I, the Court of Appeals of Maryland affirmed the convictions and the twenty-year sentence for the use of a handgun charge. The court, however, vacated the death sentence and ordered a new sentencing hearing because victim impact evidence admitted during the sentencing hearing violated Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). 1 The court also vacated the conviction for carrying a handgun because the charge merged with the other handgun charge.

The state circuit court conducted a second capital sentencing hearing before another jury between November 29 and December 21, 1988. This jury also sentenced Hunt to death. The Court of Appeals of Maryland affirmed the death sentence in Hunt II, and the United States Supreme Court denied Hunt's petition for certiorari review, 502 U.S. 835, 112 S.Ct. 117, 116 L.Ed.2d 86 (1991). On June 1, 1992, Hunt filed in the state circuit court a petition for post-conviction relief, which the court denied on April 13, 1993. Hunt next applied to the Court of Appeals of Maryland for discretionary review of the circuit court's denial of post-conviction relief. The Court of Appeals denied Hunt's application and his motion for reconsideration. On February 28, 1994, the Supreme Court denied Hunt's petition for certiorari review of the denial of state post-conviction relief. Hunt v. Maryland, --- U.S. ----, 114 S.Ct. 1206, 127 L.Ed.2d 554 (1994).

On May 13, 1994, Hunt filed a federal habeas corpus petition under 28 U.S.C. Sec. 2254 in the United States District Court for the District of Maryland. The district court denied Hunt's amended habeas petition on June 27, 1994. Hunt v. Smith, 856 F.Supp. 251 (D.Md.1994) (Hunt III ). In September 1994, the Office of the Federal Public Defender for the District of Maryland, appointed by this Court on July 29, 1994 as a consultant for Hunt in the pending appeal, filed in the district court a motion to vacate judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. The State agreed, at Hunt's request, not to file a response unless the district court asked for one. The district court denied Hunt's Rule 60(b) motion on September 9, 1994. This Court consolidated Hunt's appeal from that decision with his appeal from the district court's original judgment denying habeas relief.

II.

We first address the claims that the district court denied in Hunt's habeas petition. Hunt contends that several errors by his trial and resentencing counsel deprived him of his Sixth Amendment right to effective assistance of counsel. In order to prevail, Hunt must satisfy both the performance and prejudice prongs of Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). First, he must establish that his counsel's performance fell below an objective standard of "reasonableness under prevailing professional norms." Id. at 687-88, 104 S.Ct. at 2065. Second, he must demonstrate that he was prejudiced by his counsel's deficient performance such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068.

Strickland instructs us to review counsel's representation "on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690, 104 S.Ct. at 2066. Furthermore, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. Determinations of historical facts by the state court are presumptively correct, and the district court's factual findings are reviewed for clear error, but "both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact" subject to de novo review. Id. at 698, 104 S.Ct. at 2070; Fields v. Attorney General of Md., 956 F.2d 1290, 1297 n. 18 (4th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 243, 121 L.Ed.2d 176 (1992).

A.

Hunt contends that with competent representation at trial he could have been convicted of second degree murder instead of first degree murder and thus would have been ineligible for the death penalty under Maryland law. See Md.Ann.Code art. 27, Sec. 412(b)-(c). Hunt first argues that his trial counsel erred by reserving opening statement until the close of the State's case. Hunt's experts on trial strategy testified at the post-conviction hearing that reserving opening statement is uncommon and highly criticized by experts in trial advocacy. Nonetheless, we agree with the district court that such a decision is fundamentally tactical and "within the range of reasonably competent representation." Hunt III, 856 F.Supp. at 257

Hunt next faults his trial counsel for failing to develop a single cohesive defense theory. 2 Hunt argues that because the evidence that he had shot Officer Adolfo was overwhelming, his trial counsel only confused or distracted the jury by challenging the criminal agency aspect of the State's case and, instead, should have focused on whether he was guilty of first or second degree murder. Hunt's experts testified that his trial counsel should have conceded that Hunt committed the crime and should have argued that the murder was not willful, deliberate, or premeditated and that Hunt was voluntarily intoxicated when he shot the officer. Trial counsel's decisions regarding the selection of the best defense plan, however, involved tactics well within professionally reasonable conduct that should not be second-guessed by this Court under Strickland.

More specifically, Hunt challenges the performance of his trial counsel during the cross-examination of State witnesses who had testified as to the timing of the two gun shots. Hunt argues that his trial counsel should have attempted to discredit Aaron McNair, who provided unfavorable testimony that Hunt ran behind Officer Adolfo between shots, and should not have impeached Donna McGuigan, 3 who provided favorable testimony that the shots occurred in...

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