Burr v. Jackson
| Decision Date | 26 March 2020 |
| Docket Number | 1:01CV393 |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | JOHN EDWARD BURR, Petitioner, v. DENISE JACKSON, Warden, Central Prison Raleigh, North Carolina, Respondent. |
Petitioner John Edward Burr, a prisoner of the State of North Carolina, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C § 2254, (Doc. 2), on April 12, 2001, which this court granted, (Docs. 139, 140), on May 30, 2012. The United States Court of Appeals for the Fourth Circuit reversed the judgment, (Doc. 149), on March 11, 2013, and remanded Petitioner's case to this court for further proceedings. After additional briefing and argument, the court finds that Petitioner is not entitled to relief and therefore denies the Petition.
On April 21, 1993, a jury in the Superior Court of Alamance County convicted Petitioner of first-degree murder, felonious child abuse, and assault on a female for the August 25, 1991 killing of four-month old Tarissa Sue O'Daniel (Susie).2 The jury recommended a death sentence for the murder conviction, and the judge imposed that recommendation. (Recommendation (Doc. 28) at 1.) The state supreme court affirmed the conviction and sentence on September 8, 1995, State v. Burr, 341 N.C. 263, 461 S.E.2d 602 (1995), and the Supreme Court of the United States denied a petition for certiorari, Burr v. North Carolina, 517 U.S. 1123 (1996). (Recommendation (Doc. 28) at 2)
Petitioner then filed a Motion for Appropriate Relief (MAR) in the Alamance County Superior Court on September 27, 1996. (Id. at 2.) The court granted the State's motion for summary denial on October 3, 1997. (Id.) The North Carolina Supreme Court remanded the case for reconsideration on July 29, 1998. (Id.); State v. Burr, 348 N.C. 695, 511 S.E.2d 652 (1998). The superior court again denied the MAR on June 15, 2000. (Recommendation (Doc. 28) at 2.) The state supreme courtaffirmed the denial on October 9, 2000. State v. Burr, 352 N.C. 677. 545 S.E.2d 439 (2000).
Petitioner filed his habeas petition in this court on April 12, 2001. (Recommendation (Doc. 28) at 3.) In his petition, Petitioner alleged twenty-four grounds for relief, including two claims for ineffective assistance of counsel ("IAC"), arguing that (1) trial counsel were constitutionally ineffective because they failed to develop exculpatory evidence of accidental death, and (2) trial counsel were not adequately prepared. (Id.) Petitioner also included a claim that the trial court had committed constitutional error by failing to grant Petitioner a continuance for further trial preparation. (Id.) In his original analysis of Petitioner's claims, the Magistrate Judge determined that these three contained Petitioner's "primary contentions," which alleged that Petitioner's trial counsel were not able to and did not develop a theory of the case that the cause of Susie's death was an accidental fall she suffered on the day before her death. (Id. at 5-6.)
According to the evidence presented at trial, Petitioner, while he was estranged from his wife, began dating Lisa Porter Bridges, Susie's mother, when Susie was a few weeks old. (Id. at 7.) Upon discovery of this affair, John O'Daniel, Bridges' husband, demanded a divorce, and Bridges and her four childrenmoved into a trailer located behind a trailer owned by Bridges' step-brother, Donald Wade. (Id.) Near the end of June 1991, Petitioner moved into the trailer with Bridges and her children. (Id.) The trailer was not connected to a power grid, so to get electricity, Bridges and Petitioner had run extension cords into the trailer from a nearby pole with an outlet. (Trial Tr. (Vol. 17) at 49-50, 53, Mar. 29, 1993.)3
Bridges testified that the relationship with Petitioner began well, but that after he moved into the trailer, he became physically and verbally abusive toward her. (Recommendation (Doc. 28) at 7.) Bridges and Petitioner also began to argue a great deal. (Trial Tr. (Vol. 17) at 88-89, 93, 107-10.) On August 24, 1991, Bridges and Petitioner spent most of the day arguing because Petitioner had spent the previous night at his wife's apartment. (Recommendation (Doc. 28) at 7.) While Bridges tended the baby and her older children played around the yard between the two trailers, Petitioner did general maintenance work in and around the trailer. (Trial Tr. (Vol. 17) at 119-20.)
Eventually, Bridges grew tired of arguing and decided to spend some time in her brother's trailer. (Id. at 121-22.) She asked her seven-year-old son, Scott Ingle, to carry Susie up thesmall hill to the trailer. (Recommendation (Doc. 28) at 7; Trial Tr. (Vol. 17) at 121.) On the way up, Scott tripped over the extension cord on the path and fell to the ground with Susie. (Id.; Trial Tr. (Vol. 17) at 122.) Importantly, Scott testified that Susie never actually hit the ground, but that he cradled her in his arms as he fell to his knees. (Trial Tr. (Vol. 20) at 866-68, Apr. 1, 1993.) After the fall, Bridges and Petitioner checked Susie for injuries and, finding only redness on her arm, soothed her from the shock and continued about their day. (Recommendation (Doc. 28) at 7; Trial Tr. (Vol. 17) at 123-26.)
Petitioner spent the rest of the evening mowing the lawn, while Bridges cared for her children. (Id.; Trial Tr. (Vol. 17) at 127.) At some point during the evening, after more bickering, Bridges started to walk up to her brother's trailer, and Petitioner struck her in the back. (Id.; Trial Tr. (Vol. 17) at 133.) They both went into the brother's trailer and argued. (Id.) When they returned to Bridges' trailer, they were still arguing as Bridges placed Susie in an infant swing in the front room. (Id.) Petitioner then pushed Bridges onto the couch, narrowly missing the swing. (Id.) Petitioner held Bridges down on the couch and attempted to prevent her from leaving the room. (Id. at 8.)
Eventually, Bridges went into the bedroom. (Id.) Petitioner followed her and pushed her down onto the waterbed, causing the base to break. (Id.) The couple started to repair the base of the waterbed, when Susie began to cry. (Id.) Bridges retrieved Susie, calmed her, and placed her on the waterbed. (Id.) She then helped her sons Scott and Tony prepare for bed. (Id.) After she got Susie to fall asleep, she placed her in her baby bed in the bedroom and went back to her brother's trailer so that she could wash dishes. (Id.) She testified that when she left the trailer, Petitioner was working on a plug in the living room, and Susie had no marks on her. (Id.)
Scott testified that while his mother was away, he awoke to "hammer noises" and heard Susie crying. (Id.) He also heard Petitioner mumbling. (Id.) Then Susie stopped crying. (Id.)
Bridges returned to her trailer after forty-five minutes to find Susie in the infant swing in the living room. (Id.) She also found the Petitioner pacing; he told her to look at Susie. (Id.) Petitioner explained that he had moved Susie to the swing when she awoke crying and that he had seen bruises and grease spots on her when he moved her. (Id.) When Bridges attempted to clean off the grease, she discovered that the spots were instead bruises in Susie's ears, under her neck, and on her arms andlegs. Id. She also noticed that Susie's eyes did not "look right" and that the child was unresponsive. (Id.)
Bridges was worried and suggested that they take Susie to the hospital, but Petitioner refused. (Id. at 8-9.) Bridges instead called a hospital from her brother's trailer and was advised to bring Susie in for an examination. (Id. at 9.) Bridges then convinced Petitioner to drive them to the hospital by threatening to call an ambulance. (Id.) On the way to the hospital, while Susie was "jerking," Petitioner stopped to get gas in his truck. (Id.)
At 2:55 a.m. on August 25, 1991, Susie was admitted to the Alamance County Hospital, where she was examined and treated by Dr. Will Willcockson. (Id.) Dr. Willcockson observed that Susie was unconscious, with wandering eyes, and that she appeared lethargic but suffered from occasional seizures that caused twitching. (Id.) He noted that she had multiple bruises and swelling over her head, ears, face, neck, arms, and torso. (Id.) Upon having X-rays taken, the doctor discovered that both legs, both arms, and some ribs were broken. He also observed that the soft spot on her head was bulging, which indicated that her brain was swelling. (Id.) Although Bridges told Dr. Willcockson about Scott's falling with Susie the previous day, Dr. Willcockson did not believe that a fall could have producedSusie's injuries. (Id.) He suspected that Susie had been abused and called the Alamance County sheriff's department and social services. (Id.)
Less than two and a half hours after Susie was admitted to Alamance County Hospital, doctors had her transferred by ambulance to the intensive-care unit at Memorial Hospital in Chapel Hill, where she was examined by Dr. Michael Azizkhan, chief of pediatric surgery and associate professor of surgery at the University of North Carolina. (Id. at 10.) Dr. Azizkhan observed significant bruising on Susie's neck, particularly on the left side and in a two-by-two-centimeter section under the mastoid and mandible. (Id.) He noted that the bruising on the right side of Susie's face extended onto her ear. (Id.) She also was bruised around her right arm and on her back. (Id.) Dr. Azizkhan testified that Susie had lost "half of her blood volume" and that her bones could only have broken with significant force. (Id.) He opined that her injuries were purposely inflicted. (Id.)
Professor of pediatric radiology Dr. David Merten testified regarding his analysis of Susie's X-rays. (Id.) Dr. Merten opined that the fractures in Susie's thigh bones may have been eight-to-nine days old and had to have been "produced simply by bending the knee[s] with violence, significan[t] force, forward,and hyperextending [the knees.]"...
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