Bauberger v. Haynes, No. 1:08cv15.

• Decision Date: 17 March 2010
• Docket Number: No. 1:08cv15.
• Citation: 702 F.Supp.2d 588
• Court: U.S. District Court — Middle District of North Carolina
• Parties: William Thomas BAUBERGER, Petitioner, v. Grady J. HAYNES, Supt. of Warren Correctional Inst., Respondent.

702 F.Supp.2d 588

William Thomas BAUBERGER, Petitioner,

v.Grady J. HAYNES, Supt. of Warren Correctional Inst., Respondent.

No. 1:08cv15.

United States District Court,M.D. North Carolina.

March 17, 2010.

COPYRIGHT MATERIAL OMITTED.

Kearns Davis, Brooks Pierce McLendon Humphrey & Leonard, Greensboro, NC, David Lybrook Neal, David L. Neal, Attorney at Law, Hillsboro, NC, for Petitioner.

Clarence Joe Delforge, III, N.C. Department of Justice, Raleigh, NC, for Respondent.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

On October 27, 2009, this court entered a Judgment implementing its Memorandum Opinion and Order (“Judgment”) adopting the Recommendation of the United States Magistrate Judge to grant the habeas petition of William Thomas Bauberger (“Bauberger”) and to require his release unless Respondent (the “State”) grants a retrial on the second-degree murder charge within a reasonable time. The State has appealed the Judgment and moved this court to stay, pending appeal, that portion directing the State to release or timely retry Bauberger. (Doc. 23.) At a hearing on January 27, 2010, this court ruled orally that it would grant the motion to stay pending appeal and directed Bauberger, who indicated he intended to seek his release during the appellate process, to file an appropriate motion so that the court could address both matters together. Bauberger has now filed his motion for release (Doc. 32), which has been fully briefed. For the reasons that follow, the State's motion to stay this court's Judgment is granted, and Bauberger's motion to be released pending appeal is denied.

I. BACKGROUND

Bauberger was convicted of second-degree murder and assault with a deadly weapon inflicting serious injury based on a drunk driving crash arising from his consumption of in excess of ten beers over the course of approximately five hours at a February 3, 2002, Super Bowl party. On his way to visit a friend after the party, Bauberger drove the wrong way down a freeway exit ramp (driving 55 m.p.h. and accelerating) and collided with a car driven by William Foy, killing Foy's wife.

Bauberger conceded guilt as to the involuntary manslaughter charge, a lesser-included offense to the charge of second-degree murder, and thus the principal issue for the jury was whether the state proved that he acted with malice for a second-degree murder conviction. The state presented substantial evidence of malice, including that Bauberger engaged in the following: (1) admitted to driving with a blood alcohol level of .20 on the night of the crash; (2) had at least two prior convictions for Driving While Intoxicated (“DWI”)-one of which was approximately thirty days prior to this incident-as well as other driving offenses such as reckless driving; (3) disregarded “Do Not Enter” and “Wrong Way” road signs and other warnings on the night of the crash; (4) disregarded prior court orders not to drive; (5) drove that night despite having had his license revoked; and (6) acted in a profane manner to emergency personnel and others at the scene of the crash.

During its deliberations, the jury sought guidance from the court on the definition of “malice” contained in the court's second-degree murder instruction. ¹ Over the lunch period, the foreperson checked out a copy of Webster's New Collegiate Dictionary from a local library and shared with all jurors the definition of several of the terms comprising the trial court's instruction on “malice,” including the dictionary's definition of “recklessly” as “lack of due caution.” (Doc. 7, Ex. 4 at 2.) Approximately two hours later, the jury reported it was deadlocked on one charge (presumably the more difficult charge of second-degree murder). Following encouragement by the trial judge, it subsequently reported it had moved to 10 to 2. Just over one hour later, it returned a verdict finding Bauberger guilty of second-degree murder and assault with a deadly weapon inflicting serious injury.

Following the verdict, the court was informed that the jury may have consulted a dictionary during its deliberations. Bauberger sought relief in a state court motion for appropriate relief, which was denied. The North Carolina Court of Appeals affirmed in a 2 to 1 opinion, State v. Bauberger, 176 N.C.App. 465, 626 S.E.2d 700 (2006), and the North Carolina Supreme Court split 3 to 3, effectively affirming the lower court decision, State v. Bauberger, 361 N.C. 105, 637 S.E.2d 536 (2006). Having been unsuccessful in his appeals, Bauberger sought relief in this court. On October 27, 2009, this court adopted the Magistrate Judge's Recommendation that the petition be granted. Bauberger v. Haynes, 666 F.Supp.2d 558 (M.D.N.C.2009).

The State has filed notice of appeal and seeks to stay enforcement of the court's Judgment. Bauberger opposes the stay request and moves in the alternative to be released, with or without surety, during the appeal.

II. ANALYSISA. Standard of Review

Federal Rule of Appellate Procedure 23(c) provides that, when the State appeals a decision granting habeas corpus, the habeas petitioner “must” be released from custody “unless the court or judge rendering the decision ... orders otherwise.” Fed. R.App. P. 23(c). In making the decision, the court is to be guided by the following factors:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits;

(2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). Additional factors include the defendant's risk of flight, any danger to the community if he is released, and the State's interest in continuing custody and rehabilitation pending final determination of the case on appeal where the remaining time of incarceration remains lengthy. Id. at 777-78, 107 S.Ct. 2113.

The Supreme Court has made clear that Rule 23(c) “undoubtedly creates a presumption of release,” but it can be overcome if “the traditional stay factors tip the balance against it” and thus “the judge rendering the decision, or an appellate court or judge, ‘otherwise orders.’ ” Id. at 774, 777, 107 S.Ct. 2113. “Where the State establishes that it has a strong likelihood of success on appeal or where, failing that, it can nonetheless demonstrate a substantial case on the merits, continued custody is permissible if the second and fourth factors in the stay analysis militate against release.” Id. at 778, 107 S.Ct. 2113. The same factors that govern this court's inquiry as to the custody determination also guide it as to the separate issue whether to grant a stay, id. at 777, 107 S.Ct. 2113, though they are independent determinations.

1. Likelihood of Success on the Merits

The first factor is whether the State can make a “strong showing that [it] is likely to succeed on the merits.” Id. at 776, 107 S.Ct. 2113. This factor requires that the very district court that has granted the habeas petition conduct a disinterested analysis of the appellant's arguments and candidly reassess its own ruling. To be sure, the grant of a habeas petition does not foreclose the court's finding of a strong likelihood of success, or alternatively a substantial case, on the merits.

In this case, the State argues that “there is no clearly established Supreme Court precedent requiring reversal of a state court conviction based on juror dictionary reading, any potential error was non-prejudicial or harmless, and Petitioner's juror dictionary reading claim is Teague ² barred.” (Doc. 24 at 3.) After careful review, the court continues to conclude that the State's arguments fail.

Though the State correctly observes that the Supreme Court has not specifically held that a jury's use of a dictionary is an extrinsic influence (Doc. 14 at 8), for habeas purposes “the relevant Supreme Court precedent need not be directly on point, but must provide a ‘governing legal principle’ and articulate specific considerations for the lower courts to follow when applying the precedent.” Quinn v. Haynes, 234 F.3d 837, 844 (4th Cir.2000) (citing Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)); see Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (“That the standard is stated in general terms does not mean the application was reasonable. [The statute] does not ‘require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied.’ ”); Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (“Section 2254(d)(1) permits a federal court to grant habeas relief based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced.”); see also Williams, 529 U.S. at 382, 120 S.Ct. 1495 (Stevens, J., concurring) (“[R]ules of law may be sufficiently clear for habeas purposes even when they are expressed in terms of a generalized standard rather than as a bright-line rule.”).

The Supreme Court has clearly established that an extrinsic influence on a jury's deliberations violates a defendant's Sixth and Fourteenth Amendment rights to an impartial jury, to confront witnesses against him, and to be present at all critical stages of his trial. See, e.g., Tanner v. United States, 483 U.S. 107, 117-18, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987) (noting the distinction between “external” influences, such as a juror reading a newspaper or hearing prejudicial statements from others, and “internal” influences); Rogers v. United States, 422 U.S. 35, 38-40, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975) (finding that trial judge's failure to notify and consult the defendant and counsel before responding to the jury's note effectively requesting further instructions violated ...