Stephens v. Branker

• Decision Date: 30 June 2009
• Docket Number: No. 08-14.,08-14.
• Citation: 570 F.3d 198
• Parties: Davy Gene STEPHENS, Petitioner-Appellant, v. Gerald J. BRANKER, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

570 F.3d 198

Davy Gene STEPHENS, Petitioner-Appellant, v. Gerald J. BRANKER, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.

No. 08-14.

United States Court of Appeals, Fourth Circuit.

Argued: May 13, 2009.

Decided: June 30, 2009.

ARGUED: Jonathan Lee Megerian, Megerian & Wells, Asheboro, North Carolina, for Appellant. Steven Franklin Bryant, North Carolina Department of Justice, Raleigh, North Carolina, for Appellee. ON BRIEF: Paul M. Green, Durham, North Carolina, for Appellant. Roy Cooper, Attorney General of North Carolina, Raleigh, North Carolina, for Appellee.

Before KING, SHEDD, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge SHEDD and Judge AGEE joined.

OPINION

KING, Circuit Judge:

Davy Gene Stephens appeals from the district court's dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus, which challenges his three North Carolina murder convictions and death sentences, as well as three related felony convictions and sentences. Although it denied habeas corpus relief, the district court awarded a certificate of appealability (the "COA") on Stephens's claim that the conflicting interests of his trial counsel contravened his Sixth Amendment right to effective representation. As explained below, we affirm.

I.

A.

In February and March of 1995, Stephens was indicted in the Superior Court of Johnston County, North Carolina — a county of about 160,000 immediately southeast of Raleigh — on three counts of first-degree murder and three counts of felony assault, all arising from what was called the "Grill Road triple homicide." Stephens was tried capitally and found guilty of all charges in November 1995, and, following a capital sentencing proceeding, the jury recommended a death sentence for each murder conviction. On December 20, 1995, the trial court imposed sentence: for the three felony assault convictions, 88 to 124 months imprisonment; for each murder conviction, death.

On direct appeal, the Supreme Court of North Carolina summarized the underlying facts of the case as follows:

At trial, the State presented evidence tending to show that on the evening of 20 January 1995, defendant and his accomplice, William Barrow, had dinner together and shared a bottle of Everclear and some whisky. The following morning, at approximately 2:00 a.m., defendant and Barrow drove to the Johnston County Grill Road home of Lynn Wright, a reputed drug dealer. Upon arrival, defendant and Barrow went straight to Wright's bedroom and shot him six times, killing him. Defendant and Barrow then separated in the house, and Barrow walked onto the porch and shot Antwon Jenkins in the head, killing him. Barrow then attempted to kill James White, but the bullet only grazed the side of White's face. Defendant entered the living room and attempted to shoot eighty-three-year-old Kenneth Farmer in the head, but the shot only hit Farmer in the arm as he threw his hand up. Defendant next tried to shoot John Wright but apparently ran out of bullets. Defendant and Barrow then left the Grill Road home but returned shortly thereafter. At this time, defendant shot and killed Michael Kent Jones, and Barrow seriously injured June Bates with gunshot wounds to her back and arm. Bates escaped and called for help from a nearby house.

When deputies arrived at the Grill Road home on 21 January 1995, they found a black man lying on the porch, dying from gunshot wounds to his head. The officers found four fired cartridge cases, caliber 38 Special, in a water basin in the front room. In the first bedroom, the officers found another black man, Lynn Wright, lying on the floor surrounded by blood and crack cocaine. Behind the house, the officers found another victim, Kenneth Farmer, who had been shot in the left arm. Farmer was able to identify one of the shooters as defendant Davy Stephens because Stephens had been to the house on several previous occasions. Farmer later picked Stephens out of a police photographic lineup. Following a lead, officers found defendant hiding in the attic of a house occupied by his girlfriend, and he was apprehended. The officers also found a 38 Special revolver near defendant in the attic.

The State offered testimony from three medical examiners who concluded that Lynn Wright, Antwon Jenkins and Michael Kent Jones all died of gunshot wounds. Special Agent Eugene Bishop gave a ballistic report on the 38 Special revolver found with the defendant at the time of his arrest and determined that four cartridge casings found in the water basin at the Grill Road house were fired by this 38 Special. Bishop also tested a bullet found in the clothes of June Bates and concluded this bullet bore rifling characteristics similar to a 357 Magnum.

State v. Stephens, 347 N.C. 352, 493 S.E.2d 435, 438-39 (1997). The state supreme court affirmed Stephens's convictions and sentences on direct appeal, see id. at 447 and the Supreme Court of the United States denied certiorari, see Stephens v. North Carolina, 525 U.S. 831, 119 S.Ct. 85, 142 L.Ed.2d 66 (1998).

B.

1.

On April 13, 1999, Stephens's state-appointed post-conviction attorneys filed a Motion for Appropriate Relief (the "First MAR") in the Superior Court of Johnston County (the "MAR court"). See N.C. Gen. Stat. § 15A-1411. In the First MAR, Stephens asserted, inter alia, that he had received ineffective assistance of counsel because one of his court-appointed trial attorneys, W.A. "Andy" Holland, Jr., was at the same time also representing the Sheriff of Johnston County. The First MAR alleged that Holland had an "obvious conflict of interest" because he was concurrently representing "the very law enforcement agency that gathered the evidence and was otherwise instrumental in prosecuting [Stephens]." J.A. 426.¹ It was asserted that this conflict of interest adversely affected Holland's trial performance because Holland "failed to cross-examine deputies about prior surveillance and did not emphasize the failure of the Johnston County Sheriff's Department to close the crack house down." Id. at 428. The First MAR faulted Holland for not putting "the entire Sheriff's Department on trial," apparently on the theory that Stephens could not have shot the victims if the Sheriff's Office had first arrested them. Id. Finally, the First MAR alleged that the trial court failed to properly investigate Holland's conflict of interest after being alerted to it by the prosecution. According to the conflict claim, the trial court neither questioned Holland about the conflict nor confirmed Stephens's understanding of the situation. Indeed, the First MAR asserted that "any waiver of the conflict of interest was not made knowingly, intelligently [or] voluntarily." Id. at 429.

On May 2, 2001, the MAR court dismissed the First MAR and declined to conduct an evidentiary hearing on any of Stephens's claims. See State v. Stephens, No. 95 CRS 787-791, 2855 (N.C.Super.Ct. May 2, 2001) (the "First MAR Order").² On Holland's alleged conflict of interest, the court concluded that Stephens was procedurally barred from raising the issue because he was previously in a position to pursue it in his direct appeal to the Supreme Court of North Carolina. See N.C. Gen.Stat. § 15A-1419(a)(3) (calling for denial of a motion for appropriate relief when "[u]pon a previous appeal the defendant was in a position to adequately raise the ground or issue underlying the present motion by did not do so").³ Further, the MAR court ruled that the conflict of interest claim was without merit because of the following:

Mr. W.A. "Andy["] Holland was appointed to represent Stephens at trial. As shown by the record and "Memorandum of Understanding", signed by Stephens and contained in the file, Mr. Holland represented the Sheriff of Johnston County in connection with an Equal Employment Opportunity Commission [("EEOC")] complaint.⁴

First, Stephens has failed to show that an actual conflict of interest existed. Mr. Holland's representation of the Sheriff of Johnston County in an EEOC complaint had no connection whatsoever with Mr. Holland's representation of Stephens in his criminal case....

Secondly, even assuming arguendo that an actual conflict of interest existed, Stephens has failed to establish that such conflict of interest adversely affected Mr. Holland's performance at any time during Stephens' trial. The record does not demonstrate that Mr. Holland's representation of the Sheriff of Johnston County in connection with an EEOC complaint induced Mr. Holland to compromise his zealous representation of Stephens in any way. In fact, a review of the record confirms that Mr. Holland zealously defended Stephens and pursued all available defenses and trial strategies which were of help to Stephens. Mr. Holland vigorously cross-examined sheriff's deputies, questioning at every turn their actions, identification techniques and investigatory methods....

Review of the record in this case shows that Mr. Holland's representation of the Sheriff of Johnston County in an EEOC complaint was brought to the trial court's attention before Stephens' trial started. This issue was discussed in court [on November 27, 1995, the first day of trial] by the trial court, counsel for the State, Stephens' trial counsel, and Stephens himself. The trial court reviewed the "Memorandum of Understanding" with counsel and Stephens. Stephens indicated that the "Memorandum of Understanding" was correct in all respects, acknowledged his signature on the "Memorandum of Understanding", indicated he was satisfied with the understanding of Mr. Holland's representation of the sheriff with regards to the EEOC complaint, and did not want to add or say anything in regard to this matter. The trial court made an adequate inquiry into the alleged conflict of interest [and concluded that Stephens waived any conflict that might be found to have existed].

First MAR Order 12-14 (citations...