Finch v. McKoy, 17-6518

• Decision Date: 25 January 2019
• Docket Number: No. 17-6518,17-6518
• Citation: 914 F.3d 292
• Parties: Charles Ray FINCH, Petitioner–Appellant, v. Superintendent Timothy MCKOY, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

914 F.3d 292

Charles Ray FINCH, Petitioner–Appellant,

v.Superintendent Timothy MCKOY, Respondent–Appellee.

No. 17-6518

United States Court of Appeals, Fourth Circuit.

Argued: November 15, 2018

Decided: January 25, 2019

ARGUED: James Earl Coleman, Jr., DUKE UNIVERSITY SCHOOL OF LAW, Durham, North Carolina, for Appellant. Nicholaos G. Vlahos, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Nita A. Farahany, DUKE UNIVERSITY SCHOOL OF LAW, Durham, North Carolina, for Appellant. Joshua H. Stein, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh, North Carolina, for Appellee.

Before GREGORY, Chief Judge, KEENAN, and FLOYD, Circuit Judges.

Reversed and remanded by published opinion. Chief Judge Gregory authored the opinion, in which Judge Keenan and Judge Floyd joined.

GREGORY, Chief Judge:

Petitioner Charles Ray Finch appeals the denial of his federal habeas petition. In 1976, a jury in Wilson, North Carolina convicted Finch of first-degree murder. Finch originally received a death sentence, but in 1977, the North Carolina Supreme Court commuted his sentence to life imprisonment. In 2015, Finch filed a habeas petition in the United States District Court for the Eastern District of North Carolina. The district court denied Finch's petition. Because the present record meets the exacting standard for the actual innocence gateway to consideration of a constitutional claim, we reverse the district court's decision and remand the petition for adjudication on the merits.

I.

In the years after his 1976 conviction, Finch filed various pro se and counseled motions for relief with North Carolina state courts but received orders denying all of them. On December 17, 2015, Finch filed a federal habeas petition in the United States District Court for the Eastern District of North Carolina. The State moved for summary judgment on August 1, 2016 on multiple grounds, including on the basis that Finch's claims were time barred. Without reaching the merits of the habeas petition, the district court granted the State's motion for summary judgment based on untimeliness and dismissed the petition as timed barred. The district court also found that Finch did not meet the actual innocence standard required to overcome his untimeliness. Finch filed a notice of appeal on April 14, 2017. On May 1, 2018, we granted a certificate of appealability. We have jurisdiction under 28 U.S.C. § 2253(c) on the claim of actual innocence.

II.

This Court reviews de novo a district court's denial of a 28 U.S.C. § 2254 petition filed by a state prisoner. MacDonald v. Moose , 710 F.3d 154, 159 (4th Cir.2013). The district court dismissed Finch's petition as untimely because, under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a state prisoner normally has one year to file a federal petition for habeas corpus, beginning at the date that a "judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." McQuiggin v. Perkins , 569 U.S. 383, 388, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013). The record reflects that all of Finch's claims are untimely. However, Finch alleges actual innocence, which, if proven, serves as a gateway through which a habeas petitioner may pass when AEDPA's statute of limitations has expired. See McQuiggin , 569 U.S. at 386, 133 S.Ct. 1924 ; see also Schlup v. Delo , 513 U.S. 298, 329, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). "This rule, or fundamental miscarriage of justice exception, is grounded in the equitable discretion of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons." McQuiggin , 569 U.S. at 392, 133 S.Ct. 1924 (internal quotation marks omitted).

III.

In order to properly examine Finch's claims of actual innocence, we must first turn to the evidence and testimony considered at the 1976 trial. The State proffered one eyewitness, Lester Floyd Jones, as the bedrock of its case. Jones worked for the murder victim, Richard Linwood Holloman, at a grocery store and gas station Holloman owned. Jones testified that he was with Holloman at the store on February 13, 1976, the night of the murder.

Jones testified that around 9:00 p.m. he and Holloman were at the store and in the process of locking up for the night. Holloman turned off the store's interior lights, collected the cash from the register, and placed a padlock on the exterior of the front door. During this time, Jones said he heard three male voices coming from the direction of the highway and observed three black men approaching the station. Jones testified that two of them approached Holloman and Jones and one remained back, outside of the store lights' illumination.

Jones described one of the men as wearing a long, three-quarter-length coat, a woman's light-colored stocking on his hair, dark pants, and a light shirt. Jones later identified this man as Finch. Jones described the other man that approached him and Holloman as wearing a red and white checkered shirt, dark pants, and a red toboggan. The man in the checkered shirt asked Holloman if he could buy some alka seltzer and Holloman obliged. Holloman reopened the front door as Jones and the two black males waited outside. Holloman opened the door with his left hand while holding a chrome-plated .32 revolver in his other hand in plain view. Jones testified that the interior lights were turned off but that lights from outside the store shone in through large windows and provided illumination.

Once inside, Holloman asked one of the men if he would like a cup, so he could take his alka seltzer. The man replied, "Yes, sir." Jones testified that Finch chimed in and said, "And your money, too." Holloman said, "Money hell," and Finch said, "I said your damn money, too" and removed a sawed-off shotgun from under his coat and fired at Holloman. Holloman returned fire at Finch with his chrome-plated .32 revolver. After the first shot, Jones dove under a counter and hid there but recalled that Finch faced Holloman during the shootout. Jones testified that he heard a shotgun and that he knew how to distinguish between the sound emitted from a shotgun and the sound emitted from a pistol. Jones recalled hearing three shots. Jones testified that he heard the shooting stop, the door to the shop slam shut, and Holloman calling out to him to call the police. Jones testified the entire episode lasted around five minutes. Holloman succumbed to his injuries.

Jones testified at trial that he recognized Finch as one of Holloman's customers whom he served a few days prior to Holloman's murder. When law enforcement arrived on the night of the crime, a patrolman asked Jones to provide a written statement regarding what he witnessed. Jones wrote what he observed generally and stated he saw three black males and a sawed-off shotgun and used descriptors such as "checkered shirt tobebogging[sic]." Jones did not mention any of the suspects having beards.

Chief Deputy Tony Owens, one of the lead law enforcement officers on the Holloman case, interviewed Jones the night of the murder. Deputy Owens testified that Jones described a black man in a checkered shirt, about 28-30 years old, around 5 feet 7-8 inches tall, weighing around 150-170 pounds, with a light complexion, a thin mustache, and kinky hair. He was wearing a red-and-white toboggan, a red-and-white checkered shirt with long sleeves and dark pants. According to Deputy Owens, Jones said he did not get a really good look at the second man but described the man as a black male, around 35 years old, about 5 feet 9 inches to 6 feet tall, weighing between 150 and 165 pounds, with a dark complexion and wearing a light-colored stocking as a hat, dark pants and a dark three-quarter-length coat.

In addition to the eyewitness testimony of Jones and Deputy Owens's corroboration, there was evidence of a pretrial line-up. Deputy Owens called Jones into the Wilson County Jail on February 14, 1976, and asked Jones to assist him in identifying the suspect in a line-up. Finch and another suspect, Charles Lewis, were placed into a series of three line-ups at the Wilson County Jail that same night. Finch was wearing a three-quarter-length leather coat and a hat at the time of his arrest. Police lined up seven black males around the same age wearing casual clothes and stood them against a wall. The black males held signs with numbers on them. Finch and Lewis both had beards at the time of the line-up.

Jones selected Finch three times as the murderer in separate but consecutive line-ups. Jones identified Finch as numbers 4, 5, and 2 of the line-ups respectively. Jones did not identify Lewis in any of the three line-ups despite his presence in the red-and-white checkered shirt with long sleeves that matched Jones's earlier description of a suspect. Deputy Owens alleged that he took Finch's jacket and hat and put it on another man in the line-up. The record demonstrates that in all three line-ups Finch had on the same three-quarter length jacket. Finch was the only one wearing a hat in one of the line-ups.

In addition to the line-ups, the State had a witness named Noble Harris provide testimony implicating Finch. Law enforcement interviewed Harris,^* a frequent visitor to Holloman's store who lived about a mile from the store and went to the store around twilight the night of Holloman's murder. Harris purchased a beer and a quart of wine. Harris mentioned he wanted to avoid inebriation because he had to work the next day. Holloman explained he had a party and would be closing the shop soon. As Harris left the gas station, he noticed Finch getting out of a blue Cadillac; they greeted each other from afar, and Harris went home. Harris testified he saw other people in the car, but they did not leave the vehicle. A few hours later, after receiving news of the murder, Harris returned to the store around 10:00 p.m. Harris gave a statement to Deputy Owens...