Allen v. Lee

• Decision Date: 28 April 2004
• Docket Number: No. 02-5.,02-5.
• Citation: 366 F.3d 319
• Parties: Timothy Lanier ALLEN, Petitioner-Appellant, v. R.C. LEE, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 319

366 F.3d 319

Timothy Lanier ALLEN, Petitioner-Appellant, v. R.C. LEE, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.

No. 02-5.

United States Court of Appeals, Fourth Circuit.

Argued: June 4, 2003.

Decided: April 28, 2004.

ARGUED:

John Richard Rittelmeyer, Hartzell & Whiteman, L.L.P., Raleigh, North Carolina, for Appellant. Jonathan Porter Babb, Sr., Special Deputy Attorney General, Steven Franklin Bryant, Assistant Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellee.

ON BRIEF:

Gretchen M. Engel, Center for Death Penalty Litigation, Inc., Durham, North Carolina, for Appellant. Roy Cooper, Attorney General of North Carolina, North Carolina Department of Justice, Raleigh, North Carolina, for Appellee.

Before WILKINS, Chief Judge, and WIDENER, WILKINSON, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ, TRAXLER, KING, GREGORY, and SHEDD, Circuit Judges.

Affirmed in part and dismissed in part by published opinion. Judge GREGORY wrote the opinion for the court in Parts I, II, III, and IV, in which Chief Judge WILKINS and Judges WILKINSON, NIEMEYER, WILLIAMS, MICHAEL, MOTZ, TRAXLER, KING, and SHEDD joined. Judge LUTTIG wrote a separate opinion concurring in the judgment entered in those parts. Judge NIEMEYER wrote the opinion for the court in Part V, in which Chief Judge WILKINS and Judges WILKINSON, WILLIAMS, TRAXLER, and SHEDD joined. Judge LUTTIG wrote a separate opinion concurring in the judgment entered in this part. Judge GREGORY wrote a separate opinion dissenting from Part V, in which Judge MICHAEL, MOTZ, and KING joined.

Reversed on the McKoy issue by a per curiam opinion, in which Chief Judge WILKINS and Judges MICHAEL, MOTZ, TRAXLER, KING and GREGORY, and SHEDD concurred. Chief Judge WILKINS wrote a separate opinion concurring in the judgment on this issue, in which Judge MOTZ joined. Judge TRAXLER wrote a separate opinion concurring in the judgment on this issue, in which Judge Shedd joined. Judge GREGORY wrote a separate opinion concurring in the judgment on this issue, in which Chief Judge WILKINS and Judges MICHAEL, MOTZ, and KING joined. Judge NIEMEYER wrote a separate opinion dissenting from the judgment on this issue, in which Judge WILKINSON joined. Judge LUTTIG wrote a separate opinion dissenting from the judgment on this issue. Judge WILLIAMS wrote a separate opinion dissenting from the judgment on this issue.

Judge WIDENER heard oral argument in this case but later recused himself and did not participate in the decision. Judge DUNCAN did not participate in this case.

OPINION ON REHEARING EN BANC

PER CURIAM, announcing the judgment of the court:

Timothy Lanier Allen was convicted of first-degree murder in a North Carolina court and sentenced to death. Following exhaustion of his rights of review in the North Carolina courts, Allen filed a petition for a writ of habeas corpus in the district court. The district court denied all relief and certified the appealability of several issues. See 28 U.S.C. § 2253(c).

On appeal, Allen contends (1) that the short-form indictment used by the State was unconstitutional; (2) that the prosecution withheld, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), jail records that indicated Allen was receiving daily doses of anti-withdrawal medication; (3) that the error in the jury verdict form and jury instructions during the sentencing phase of Allen's trial, which the North Carolina Supreme Court had found to be error but harmless error under McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), was in fact not harmless error; and (4) that Allen made a prima facie showing that his rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (prohibiting the prosecution from using peremptory challenges in a racially discriminatory matter), were violated during jury selection in his State trial and that a Batson hearing should be held. Having heard this appeal en banc, the court decides as follows on each of these issues:

For the reasons given in Parts I-IV of the opinion written for the court by Judge Gregory, the court denies a certificate of appealability with respect to Allen's first claim and dismisses that claim, and the court affirms the district court with respect to the second claim. Chief Judge Wilkins and Judges Wilkinson, Niemeyer, Williams, Michael, Motz, Traxler, King, and Shedd join in Parts I-IV. Judge Luttig wrote a separate opinion concurring in the judgment on these two claims.

For the reasons given in Part V of the opinion written for the court by Judge Niemeyer, the court affirms the district court on Allen's Batson claim. Chief Judge Wilkins and Judges Wilkinson, Williams, Traxler, and Shedd join in Part V. Judge Luttig wrote a separate opinion concurring in the judgment on this claim. Judge Gregory wrote a separate opinion, dissenting from Part V, in which Judges Michael, Motz, and King join.

With respect to Allen's claim under McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), the court concludes that the district court erred in rejecting the claim. In State v. Allen, 331 N.C. 746, 417 S.E.2d 227 (1992), the North Carolina Supreme Court held that the North Carolina trial court's instructions on unanimity given to the jury during the sentencing phase was "error pursuant to McKoy" but that the error was "harmless beyond a reasonable doubt." Id. at 228. The court holds that the North Carolina Supreme Court's conclusion that the McKoy error was harmless beyond a reasonable doubt resulted in a decision that was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court, see 28 U.S.C. § 2254(d)(1), and that the error was not harmless under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). For this reason, the court vacates Allen's death sentence and remands this case to the district court with instructions to issue a writ of habeas corpus releasing Allen from a sentence of death, unless the State of North Carolina commences proceedings to resentence him within a reasonable time. Chief Judge Wilkins and Judges Michael, Motz, Traxler, King, Gregory, and Shedd concur in this judgment on the McKoy claim, and Judges Wilkinson, Niemeyer, Luttig, and Williams dissent from the judgment. Chief Judge Wilkins wrote an opinion concurring in this judgment, in which Judge Motz joins. Judge Traxler wrote an opinion concurring in this judgment, in which Judge Shedd joins. Judge Gregory wrote an opinion concurring in this judgment, in which Chief Judge Wilkins and Judges Michael, Motz, and King join. Judge Niemeyer wrote an opinion dissenting from this judgment, in which Judge Wilkinson joins. Judge Luttig wrote an opinion dissenting from this judgment. And Judge Williams wrote an opinion dissenting from this judgment.

GREGORY, Circuit Judge, writing for the court in Parts I through IV:

I

Timothy Lanier Allen, an African American, was tried and convicted of first-degree murder for killing Raymond E. Worley, a Caucasian North Carolina State Highway Patrol officer. At trial, the State used eleven of thirteen peremptory challenges against otherwise qualified African American members of the venire. Seven African Americans were seated on the jury, one of whom was later removed for cause during the trial. Allen's fate was finally decided by a jury of six African Americans and six Caucasians.

At sentencing, the jury was instructed, in part, that they should "unanimously" find from the evidence whether one or more mitigating circumstances were present. The jury unanimously found the existence of three mitigating circumstances, but concluded that these mitigating circumstances were insufficient to outweigh the aggravating circumstances, and therefore recommended the imposition of a death sentence. After reading the verdict, the court polled each juror. The court re-read the jury instructions requiring unanimity, and subsequently asked each juror if the jury's answers were "still your answers" and if each juror "still assent[ed] thereto." The jurors affirmed their recommendation of the death sentence, which the court imposed.

Allen appealed his conviction to the Supreme Court of North Carolina, which found no error in either the guilt or sentencing phases of Allen's trial. Allen subsequently appealed that decision to the Supreme Court of the United States, which vacated Allen's death sentence and remanded the case for consideration in light of McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) (holding that North Carolina's capital murder jury instruction requiring unanimity in finding mitigating circumstances was unconstitutional). On remand, the North Carolina Supreme Court found that the McKoy error was harmless beyond a reasonable doubt and reinstated the sentence. Primarily contending that the McKoy error should not be subject to harmless error analysis, Allen again appealed to the Supreme Court of the United States, which denied certiorari.

Allen then filed a habeas petition and a motion under Fed.R.Civ.P. 59(e) in the United States District Court for the Eastern District of North Carolina. The district court granted summary judgment for the government on Allen's petition for writ of habeas corpus, denied the Rule 59(e) motion, and granted a certificate of appealability on six claims. Allen now appeals three of the claims for which a certificate was granted and one claim for which certification was denied.

II

We review a district court's decision to grant or deny habeas relief de novo. Booth-El v. Nuth, 288 F.3d 571, 575 (4th Cir.2002); Spicer v. Roxbury Corr. Inst., 194 F.3d 547, 555 (4th Cir.1999). On a claim for which the district court has not already granted a certificate of appealability, we must first determine whether "the applicant has made a...