Green v. French

• Decision Date: 16 July 1997
• Docket Number: No. 5:96-HC-676-BR.,5:96-HC-676-BR.
• Citation: 978 F.Supp. 242
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Harvey Lee GREEN, Jr., Petitioner, v. James B. FRENCH, Warden, Central Prison, Raleigh, North Carolina, Respondent.

978 F.Supp. 242

Harvey Lee GREEN, Jr., Petitioner, v. James B. FRENCH, Warden, Central Prison, Raleigh, North Carolina, Respondent.

No. 5:96-HC-676-BR.

United States District Court, E.D. North Carolina, Western Division.

July 16, 1997.

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Gretchen M. Engel, Center for Death Penalty Litigation, Durham, NC, Henderson Hill, Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, Charlotte, NC, for Petitioner.

William N. Farrell, Jr., Raleigh, NC, Valerie B. Spalding, N.C. Dept. of Justice, Raleigh, NC, for Respondent.

ORDER

BRITT, District Judge.

This matter is before the court on Green's petition for a writ of habeas corpus pursuant to 18 U.S.C. § 2254 (1994 & Supp. 1997).

I. Procedural Background

On 19 June 1984, Green, an African-American male, pleaded guilty to two counts of first degree murder (felony murder) and two counts of common law robbery. At the capital sentencing proceeding, the jury recommended and the court imposed two sentences of death. Green appealed and the North Carolina Supreme Court remanded for an evidentiary hearing to ascertain whether the jury selection was improperly tainted by racial discrimination in violation of the rule espoused in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). On 24 July 1987, a Batson hearing was held and the superior court found no violation. Following another Batson appeal, the North Carolina Supreme Court again remanded. After hearings were held on 8 May and 24 July 1989, Green's motion for a new trial based on Batson considerations was again denied by the superior court.

On 14 August 1991, upon another review, the North Carolina Supreme Court, at the State's request, ordered a new sentencing proceeding based on the United States Supreme Court decision in McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). At the resentencing trial, the jury again recommended two sentences of death and, on 3 September 1992, the superior court again sentenced Green to death. On 6 May 1994, the North Carolina Supreme Court affirmed both death sentences, issuing a comprehensive opinion denying all of Green's claims on the merits. State v. Green, 336 N.C. 142, 443 S.E.2d 14 (1994). The United States Supreme Court denied certiorari on 5 December 1994.

On 12 December 1995, after receiving a stay of execution, Green filed a motion for appropriate relief ("MAR") under North Carolina's postconviction review procedures. On 19 April 1995, the State responded with a motion to deny the MAR. Soon thereafter, on 25 April 1995, Green filed a motion for opportunity to be heard.

In the MAR, Green alleged some twenty grounds for relief. These grounds ranged from claims that the death penalty is applied in a racially discriminatory manner to claims of due process deprivations based on the jury instructions and other trial rulings. The superior court denied the MAR on all grounds without a hearing. The court categorized all of the claims but two as barred under N.C. Gen.Stat. § 15A-1419 (1988). At the time, § 15A-1419 provided:

(a) The following are grounds for the denial of a motion for appropriate relief:

(1) Upon a previous motion made pursuant to this Article, the defendant was in a position to adequately raise the ground or issue underlying the present motion but did not do so....

(2) The ground or issue underlying the motion was previously determined on the merits upon an appeal from the judgment or upon a previous motion or proceeding in the courts of this State or a federal court....

(3) Upon a previous appeal the defendant was in a position to adequately raise the ground or issue underlying the present motion but did not do so.

(b) Although the court may deny the motion under any of the circumstances specified in this section, in the interest of justice and for good cause shown it may in its discretion grant the motion if it is otherwise meritorious.

Id. The superior court dismissed eight of Green's claims as "procedurally barred pursuant to § 15A-1419(a)(3)" and ten claims as "procedurally barred pursuant to § 15A-1419 (a)(2)." With regard to the two grounds for relief reviewed on the merits, the superior court denied both claims. Green then filed an answer to the State's motion to deny the MAR, a motion to reconsider the denial of the MAR, and a motion to recuse the superior court judge.

On 26 June 1996, Green filed a motion for extension of time to file a petition for writ of certiorari. On 10 July 1996, the North Carolina Supreme Court denied Green's motion. Two days later, Green filed a petition for writ of certiorari. On 31 July 1996, the North Carolina Supreme Court allowed the State's motion to dismiss Green's petition.

Finally, on 2 August 1996, this court stayed Green's execution, scheduled for 9 August 1996. Green filed the current petition for a writ of habeas corpus on 3 October 1996. In the habeas petition, Green levies a barrage of attacks at all facets of the sentencing proceedings. In fact, the petition contains nineteen separate claims for relief and many sub-claims. In order to generate a comprehensible review, it is helpful to paraphrase each claim as raised by Green:

I. THE DEATH PENALTY IS APPLIED IN PITT COUNTY IN A MANNER THAT IS UNCONSTITUTIONALLY ARBITRARY AND RACIALLY DISCRIMINATORY.

II. GREEN'S GUILTY PLEAS AND SUBSEQUENT DEATH SENTENCES MUST BE VACATED BECAUSE HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL AND UPON APPEAL.

III. THE DISTRICT ATTORNEY CONDUCTED A SYSTEMATIC CAMPAIGN DESIGNED TO DEPRIVE GREEN OF HIS FEDERAL CONSTITUTIONAL RIGHTS.

IV. GREEN'S GUILTY PLEAS MUST BE VACATED AND HIS DEATH SENTENCES REVERSED BECAUSE NORTH CAROLINA'S DELEGATION OF CALENDAR CONTROL TO THE DISTRICT ATTORNEY PERMITTED THE DISTRICT ATTORNEY TO ABUSE HIS AUTHORITY AND DEPRIVE GREEN OF HIS FEDERAL CONSTITUTIONAL RIGHTS.

V. GREEN'S SENTENCES OF DEATH ARE UNCONSTITUTIONAL BECAUSE THEY WERE THE RESULT OF UNDUE COERCION ON THE PART OF THE TRIAL JUDGE.

VI. GREEN'S FEDERAL CONSTITUTIONAL RIGHTS WERE VIOLATED BY THE EXCLUSION OF WOMEN FROM SERVICE AS GRAND JURY FOREPERSONS.

VII. GREEN WAS DENIED HIS RIGHT TO A MEANINGFUL APPELLATE REVIEW OF CLAIMS THAT HIS FEDERAL CONSTITUTIONAL RIGHTS WERE VIOLATED BY ACTIONS OF THE TRIAL COURT.

VIII. GREEN WAS DENIED HIS FEDERAL CONSTITUTIONAL RIGHTS BY THE NORTH CAROLINA SUPREME COURT'S ANALYSIS OF THE TRIAL COURT'S REFUSAL TO SUBMIT NONSTATUTORY MITIGATING CIRCUMSTANCES AND ITS CONCLUSION THAT THIS REFUSAL WAS HARMLESS ERROR.

IX. GREEN WAS DENIED HIS FEDERAL CONSTITUTIONAL RIGHTS BY THE TRIAL COURT'S REFUSAL TO GIVE A PEREMPTORY INSTRUCTION ON A NONSTATUTORY MITIGATING CIRCUMSTANCE AND THE SUPREME COURT'S FAILURE TO ORDER A NEW SENTENCING HEARING FOR THIS ERROR.

X. THE TRIAL COURT'S DENIAL OF GREEN'S MOTION FOR ALLOCUTION CONSTITUTES A DENIAL OF DUE PROCESS RESULTING IN HARMFUL ERROR UNDER THE FEDERAL CONSTITUTION THAT REQUIRES A NEW SENTENCING HEARING.

XI. THE TRIAL COURT ERRED BY DENYING GREEN'S MOTION TO PERMIT QUESTIONING OF PROSPECTIVE JURORS AS TO THEIR BELIEFS ABOUT PAROLE ELIGIBILITY AND BY DENYING GREEN'S REQUEST FOR AN INSTRUCTION ON PAROLE.

XII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY SUBMITTING EVIDENCE OF A PRIOR ATTEMPTED RAPE CONVICTION AND SUBMITTING AGGRAVATING FACTOR N.C. GEN. STAT. § 15A-2000(d)(3) TO THE JURY WHEN IT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

XIII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY INSTRUCTING THE JURY THAT ATTEMPTED RAPE WAS A CRIME INVOLVING VIOLENCE AS A MATTER OF LAW.

XIV. THE TRIAL COURT ERRED IN ITS RESPONSE TO MESSAGES FROM THE JURY DURING DELIBERATIONS.

XV. THE TRIAL COURT ERRED IN REFUSING TO SUBMIT TO THE JURY NONSTATUTORY MITIGATING CIRCUMSTANCES THAT WERE SUPPORTED BY THE EVIDENCE.

XVI. THE TRIAL COURT ERRED BY PERMITTING THE DISTRICT ATTORNEY TO ASK INAPPROPRIATE AND MISLEADING QUESTIONS TO DEATH-SCRUPLED POTENTIAL JURORS AND BY ALLOWING THE DISTRICT ATTORNEY'S CHALLENGES FOR CAUSE BASED

UPON THE INAPPROPRIATE AND MISLEADING QUESTIONS WITHOUT PERMITTING GREEN TO TRY TO EXPLAIN ANY POSSIBLE MISUNDERSTANDINGS.

XVII. THE TRIAL COURT ERRED IN DENYING GREEN THE OPPORTUNITY TO ASK A POTENTIAL JUROR WHETHER HE KNEW GREEN HAD PREVIOUSLY BEEN SENTENCED TO DEATH.

XVIII. THE TRIAL COURT ERRED IN DENYING GREEN'S MOTION TO EXCUSE JUROR SAMMY PIERCE FOR CAUSE.

XIX. GREEN WAS DENIED A FAIR SENTENCING HEARING BY THE PROSECUTOR'S IMPROPER ARGUMENTS TO THE JURY.

On 7 October 1996, Green moved for leave to conduct discovery. The court has held Green's motion in abeyance pending review of the respondent's (the "State") answer and motion for summary judgment, filed on 5 December 1996. After successfully moving for leave to file a limited reply, Green submitted a reply to the S:ate's summary judgment motion. The State subsequently moved to strike Green's reply as exceeding the scope of the court's order. The court now turns to review of the issues at hand.

II. Standard

Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is appropriate where there are no genuine issues as to any material facts and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The Fourth Circuit has articulated the summary judgment standard as follows:

A genuine issue exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, the court is required to view the facts and draw reasonable inferences in a light most favorable to the nonmoving party. Id. at 255, 106 S.Ct. at 2514. The plaintiff is entitled to have the credibility of all his evidence presumed. Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir.1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991). The party seeking summary judgment has the...