Cagle v. Branker

• Decision Date: 17 March 2008
• Docket Number: No. 07-6.,07-6.
• Citation: 520 F.3d 320
• Parties: Richard Eugene CAGLE, Petitioner-Appellant, v. Gerald J. BRANKER, Warden, Central Prison, Raleigh, North Carolina; Theodis Beck, Secretary, North Carolina Department of Corrections, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

520 F.3d 320

Richard Eugene CAGLE, Petitioner-Appellant, v. Gerald J. BRANKER, Warden, Central Prison, Raleigh, North Carolina; Theodis Beck, Secretary, North Carolina Department of Corrections, Respondents-Appellees.

No. 07-6.

United States Court of Appeals, Fourth Circuit.

Argued: January 29, 2008.

Decided: March 17, 2008.

ARGUED:

Milton Gordon Widenhouse, Jr., Rudolf, Widen-House & Fialko, Chapel Hill, North Carolina; Thomas Franklin Loflin, III, Loflin & Loflin, Durham, North Carolina, for Appellant. Steven Mark Arbogast, North Carolina Department of Justice, Raleigh, North Carolina, for Appellees.

ON BRIEF:

Roy Cooper, Attorney General of North Carolina, Raleigh, North Carolina, for Appellees.

Before WILKINSON, MICHAEL, and KING, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge MICHAEL and Judge KING joined.

OPINION

WILKINSON, Circuit Judge:

Richard Cagle, a North Carolina prisoner convicted of murder and sentenced to death, appeals the district court's dismissal of his petition for a writ of habeas corpus. He claims that the absence of a key witness, ineffective assistance of counsel as to a motion to sever, ineffective assistance of counsel as to mitigation, and the lack of a jury instruction as to voluntary intoxication deprived him of a fair trial and sentence. Having reviewed his claims with care, we find them to be without merit and affirm the district court.

I.

Richard Cagle was a drifter who went from town to town under various names and with various women, dancing in bars and trying to stay a step ahead of the law enforcement agencies looking for him. On the evening of November 4, 1993, he was living with his girlfriend, Jamie Kass, at a motel in Fayetteville, North Carolina when he decided to visit a gay nightclub across the street. He there encountered the victim, a man named Dennis House. Cagle and House were playing pool when Kass joined them later in the evening, bringing with her two magazine salesmen she had befriended, Michael Scott and Ryan Jones, who worked together and were also staying at the motel.

The group eventually returned to the motel. House drove. The other four walked, and on the way, Cagle told them that House had about $4,000 and a pound of marijuana in his home, and that they should rob him — which the four of them termed "rolling a fag." Back at the motel, the group drank and smoked marijuana. Whenever House left the room, the conversation about "rolling a fag" picked up again. Eventually, the four men climbed into House's truck to continue the party at his home, a trailer some distance away, while Kass stayed behind. House and Cagle got in the truck first. Scott and Jones lingered to get a knife from Kass.

The drinking, marijuana smoking, and plotting continued in House's trailer. At some point when House was in another room, Scott pulled Jones aside to tell him the plan: that Cagle would seduce House into giving him oral sex, and that Jones would stab House in the back while he was distracted. Cagle then picked up House's cat and slammed its head against the wall and against a fish tank, splitting open its skull and tossing its body behind the couch. Jones hid in the bathroom. When House started performing oral sex on Cagle, Jones emerged and stabbed House in the back.

Thus far, there is rough agreement on the facts between the parties. But here the account splits, and we proceed with the facts as accepted by the jury and affirmed by the Supreme Court of North Carolina, "based substantially on the testimony of Ryan Christopher Jones." State v. Cagle, 346 N.C. 497, 488 S.E.2d 535, 540 (1997).

After stabbing House that first time, Jones dropped the knife, and Cagle picked it up. House said, "Why are you guys doing this? I'll give you anything." Cagle then stabbed him in the chest three or four times. Scott started punching him in the head and tried to hit him with a bowling ball. Cagle dropped the knife and hit him with something that looked like a fireplace poker or pool cue. The three men then ran to the back room, where Cagle said, "Go finish him, go kill him." But instead, they left through the front door, with Jones grabbing the knife on the way out and Cagle taking a camera.

House ran to his neighbor Roger's house, where he said "Roger, they are trying to kill me" and died, the fatal wound coming from a stab in the chest. Cagle, Scott, and Jones planned an alibi and, reaching a house down the street, tried to get the woman there to let them in to call a cab. She refused and called the police. A sheriff came and, seeing the blood on Cagle's pants, arrested the three.

During the police interviews that followed, Jones stated from the first that he had stabbed House in the back once, but that Cagle had struck the fatal blows to House's chest. Cagle denied ever picking up the knife and claimed Jones was the killer. And Scott's story shifted. At first, he told the officers that Cagle alone had used the knife. When one of the officers pointed out the inconsistency between his account and Jones's, Scott amended his story, stating that Jones had struck the first blow with the knife and Cagle the rest.

Ultimately, Jones accepted a plea agreement in return for his testimony against Scott and Cagle, who were tried jointly for murder, robbery, and conspiracy at the Cumberland County Superior Court in May and June 1995. In defense, they tried to show that it was Jones, not them, who had inflicted the fatal wounds. Neither testified, but they called a number of witnesses to testify to Jones's dishonesty, and one, a cellmate of Jones's, who testified that Jones had bragged about killing House by stabbing him repeatedly. Nonetheless, the jury convicted Cagle of first-degree murder on the basis of premeditation and deliberation, and Cagle and Scott both of first-degree felony murder, robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon.

A capital sentencing proceeding followed in June 1995, see N.C. Gen.Stat. § 15A-2000 (2007), with the same jury and judge, and the two defendants again tried together. Neither testified. Cagle's attorneys presented mitigation evidence showing that Cagle had been physically and sexually abused by his mother's male friends as a child; that he came from a family with a history of alcohol abuse and violence; that he committed the crime under the influence of a mental or emotional disturbance and that he was in the borderline range of mental retardation. The jury accepted all of these mitigating factors and made findings accordingly. But it nonetheless recommended, and the judge imposed, a sentence of life imprisonment for Scott, and death for Cagle.

On direct appeal, the North Carolina Supreme Court affirmed the convictions and sentences, State v. Cagle, 346 N.C. 497, 488 S.E.2d 535 (1997), and the United States Supreme Court denied certiorari, Cagle v. North Carolina, 522 U.S. 1032, 118 S.Ct. 635, 139 L.Ed.2d 614 (1997). Seeking state post-conviction relief, Cagle filed a Motion for Appropriate Relief ("MAR") in Cumberland County Superior Court. After holding an evidentiary hearing, the court denied all of Cagle's claims, and the North Carolina Supreme Court affirmed. State v. Cagle, 356 N.C. 168, 568 S.E.2d 616 (2002). Turning to federal post-conviction relief, Cagle filed a habeas petition under 28 U.S.C. § 2254 in the United States District Court for the Eastern District of North Carolina, which the district court dismissed. Cagle appealed.

II.

Four issues remain in contention in this case. First, Cagle claims that newly available evidence — a change of heart and change of story from his co-defendant, Michael Scott — undermines the jury's capital sentence and entitles him to a new sentencing proceeding. Second, Cagle claims he received ineffective assistance of counsel during both the guilt and penalty phases of trial because his attorneys failed to sever his case from Scott's, thus discouraging Scott from testifying in Cagle's favor. Third, Cagle again claims ineffective assistance, this time because his attorneys' approach to mitigation at sentencing focused exclusively on his troubled history, and not at all on his redeeming traits of character. Fourth, Cagle claims he was entitled to a jury instruction as to voluntary intoxication during the guilt phase of trial.

The state MAR court considered and rejected the first three claims after an evidentiary hearing at which it heard testimony from Cagle's attorneys, Scott's attorneys, and Scott himself, among others. The state trial court considered and rejected the fourth claim at a charge conference during trial. The North Carolina Supreme Court affirmed its MAR and trial courts on all four claims. Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), we uphold those courts' rulings unless they are "based on an unreasonable determination of the facts" or "contrary to, or involv[ing] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d) (2000); we also presume the courts' factual findings to be correct unless the habeas petitioner proves otherwise "by clear and convincing evidence," id. at § 2254(e)(1). We review the district court, which also rejected all four claims, de novo. See Allen v. Lee, 366 F.3d 319, 323 (4th Cir.2004) (en banc).

A.

We first address the claim that Michael Scott's changed story entitles Cagle to resentencing. Just after the sentencing jury returned with its recommendations, Cagle's co-defendant, Michael Scott, said in allocution that neither he nor Cagle had ever stabbed Dennis House. At the MAR hearing, Scott repeated that claim and said that Ryan Jones, the co-conspirator turned state's witness, was the real killer. True, Scott testified, he had initially told investigators that Cagle was the killer. But that was because he and Jones, friends from their work together...