Buckner v. Polk

Decision Date26 June 2006
Docket NumberNo. 05-14.,05-14.
Citation453 F.3d 195
PartiesGeorge Cale BUCKNER, Petitioner-Appellant, v. Marvin POLK, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: E. Fitzgerald Parnell, III, Poyner & Spruill, L.L.P., Charlotte, North Carolina, for Appellant. Steven Franklin Bryant, Assistant Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellee. ON BRIEF: Joseph E. Zeszotarski, Jr., Poyner & Spruill, L.L.P., Raleigh, North Carolina, for Appellant. Roy Cooper, Attorney General of North Carolina, Raleigh, North Carolina, for Appellee.

Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge DUNCAN wrote the majority opinion, in which Judge SHEDD joined. Judge GREGORY wrote a separate opinion concurring in part and dissenting in part.

DUNCAN, Circuit Judge.

George "Cale" Buckner petitions this court for review of the district court's denial of his petition under 28 U.S.C. § 2254 for relief from his North Carolina first-degree murder conviction and death sentence. For the reasons that follow, we affirm.

I.

On February 19, 1992, in Gaston County, North Carolina, Buckner's friends Dennis Eason and Anthony Cathcart drove Buckner and another friend, Jamie Bivens, to the home of Eddie Dow and left them there to wait for Dow. Dow was subsequently robbed and murdered in front of his home, killed by three shots fired from an SKS rifle belonging to Buckner's brother.

A few days after the murder, Buckner came to the police station for questioning at the request of police. The officers left him alone in an unlocked office for several hours, during which time he fell asleep. Officers eventually returned to question Buckner, telling him that Bivens had identified Buckner as Dow's killer. Buckner responded that he had not killed anyone and requested to speak with his lawyer before making a statement. The police ceased their questions, arrested him, did not read him his Miranda rights, and did not contact the lawyer whom Buckner had requested.

Buckner was charged with, among other crimes, first-degree murder. At his trial, Buckner testified that Bivens had murdered Dow and that he had been present only to gather, in his capacity as a police informant, information about Dow's drug activities. By contrast, Bivens, Eason, and Cathcart testified that Buckner had been the shooter. In its closing argument, the state challenged Buckner's version of the events by alluding to his failure to name Bivens as the killer immediately after the crime, during his brief questioning at the police station, or during his pre-trial incarceration when he was writing to law enforcement authorities across North Carolina to offer information about other defendants and crimes about which he had knowledge.1 The jury convicted Buckner of first-degree murder under alternate theories of felony murder, lying in wait, and premeditation and deliberation. The trial court imposed the jury's recommended sentence of death.

After exhausting his direct appeal, Buckner began his state collateral post-conviction appeals, which in North Carolina are brought via a Motion for Appropriate Relief ("MAR") in the Superior Court ("MAR court"). The MAR court denied relief and the North Carolina Supreme Court affirmed that decision. Buckner then turned to the federal courts, filing a § 2254 petition for habeas relief based on several alleged points of error concerning his conviction and sentence. The district court denied the petition in its entirety but granted a certificate of appealability on Buckner's Fifth Amendment claim concerning the state's reference during its closing argument to Buckner's post-arrest, pre-Miranda silence. This court expanded the certificate to include two additional claims: 1) actual innocence based on new evidence purporting to show that Bivens, not Buckner, was the shooter, and 2) ineffective assistance of counsel at sentencing.2

II.

This court reviews de novo the district court's denial of Buckner's petition for a writ of habeas corpus. See Conner v. Polk, 407 F.3d 198, 204 (4th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1431, 164 L.Ed.2d 135 (2006). The Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254 (2000), governs this court's consideration of Buckner's challenges to his state conviction and sentence, each of which has already been adjudicated on the merits in state court.

Under the AEDPA's deferential standard of review, a state court's adjudication of questions of law warrants issuance of the writ only if such adjudication was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" or if it was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 2254(d)(1)-(2). A decision is "contrary to" clearly established federal law if it either applies a legal rule that contradicts prior Supreme Court holdings or reaches a conclusion different from that of the Supreme Court "on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision is an "unreasonable application" of clearly established federal law if it "unreasonably applies" a Supreme Court precedent to the facts of the petitioner's claim. Id. at 413, 120 S.Ct. 1495.

In deciding whether a petitioner has demonstrated the deficiency of the state court adjudication under § 2254(d), federal courts must presume state court findings of fact to be correct unless the petitioner rebuts that presumption by clear and convincing evidence. § 2254(e)(1).

III.

Buckner first requests habeas relief based upon new evidence that he claims proves his actual innocence of masterminding the robbery and shooting Dow. The MAR court summarily denied this claim on state law grounds without consideration of its possible federal constitutional dimensions. The district court denied the claim, concluding that it was not cognizable on federal habeas review. We also deny relief.

A.

At the MAR hearing, Buckner offered affidavits and testimony from jailhouse informants who claimed that Bivens, Eason, and Cathcart all named Bivens as the person who had planned the robbery and shot Dow. Buckner also offered the testimony of an eyewitness who claimed that, when she saw Bivens a few hours after the robbery and murder, Bivens looked agitated and declared that he had "got [him] a piece" of Dow. (J.A. at 86.) He claims that this new evidence demonstrates his actual innocence of facts necessary to sustain his conviction and sentence.

Habeas petitioners may use an actual innocence claim to excuse the procedural default of a separate constitutional claim upon which they request habeas relief. Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) ("[When] a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default."); see also Reid v. True, 349 F.3d 788, 806 (4th Cir.2003). These so-called "gateway" innocence claims may be based upon evidence of the petitioner's innocence of the crime for which he was convicted, see, e.g., Schlup v. Delo, 513 U.S. 298, 326-27, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), or of the sentencing factors that rendered him eligible for the death penalty, see, e.g., Sawyer v. Whitley, 505 U.S. 333, 350, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).

However, as the district court recognized, the Supreme Court has strongly suggested that claims of actual innocence standing alone do not serve as an independent basis for habeas relief: "Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Citing Herrera, in Rouse v. Lee, 339 F.3d 238, 255 (4th Cir.2003), this court noted that "claims of actual innocence are not grounds for habeas relief even in a capital case."

While acknowledging authority to the contrary, Buckner nevertheless contends that the point is subject to debate. According to Buckner, Herrera does not completely foreclose free-standing claims of actual innocence. We need not address the issue here, however. As the Supreme Court has suggested, and Buckner recognizes, if free-standing actual innocence claims were cognizable on federal habeas review, "the threshold showing for such an assumed right would necessarily be extraordinarily high." Herrera, 506 U.S. at 417, 113 S.Ct. 853. On the facts before us, Buckner has failed to meet even the presumptively less stringent standard of proof by which gateway innocence claims are measured.

B.

Buckner's new evidence does not establish his actual innocence of first-degree murder. Petitioners who wish to use a claim of actual innocence as a gateway to raising an otherwise defaulted constitutional claim must demonstrate by a preponderance of the evidence that a reasonable juror could not have convicted the petitioner in light of the new evidence. See Schlup, 513 U.S. at 327, 115 S.Ct. 851. The jury found Buckner guilty of first-degree murder under three separate theories, including felony murder.3 As the district court recognized, Buckner's "evidence speaks only to whether he or Bivens pulled the trigger; it has no bearing upon the evidence presented at trial that [he] was an active and willing participant in the robbery of Eddie Dow." (J.A. at 749.) New evidence that merely undermines the state's theory of the case but does not rebut specific jury findings of guilt is insufficient to demonstrate actual innocence. See Her...

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