Call v. Polk, CIV 5:04MCV167.

• Decision Date: 22 September 2006
• Docket Number: No. CIV 5:04MCV167.,CIV 5:04MCV167.
• Court: U.S. District Court — Western District of North Carolina
• Parties: Eric Lawrence CALL, Petitioner, v. Marvin POLK Warden, Central Prison, Raleigh, North Carolina, Respondent.

454 F.Supp.2d 475

Eric Lawrence CALL, Petitioner, v. Marvin POLK Warden, Central Prison, Raleigh, North Carolina, Respondent.

No. CIV 5:04MCV167.

United States District Court, W.D. North Carolina, Stateville Division.

September 22, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Marilyn Gerk Ozer, William F. W. Massengale, Massengale & Ozer, Chapel Hill, NC, for Petitioner.

Sandra Wallace Smith, N.C. Department of Justice, Raleigh, NC, for Respondent.

MEMORANDUM OF OPINION

THORNBURG, District Judge.

THIS MATTER is before the Court on the Petitioner's motion pursuant to 28 U.S.C. § 2254 and various other motions, to which responses have been filed.

I. STANDARD OF REVIEW

Title 28 U.S.C. § 2254 provides in pertinent part:

(a) [A] district court shall entertain an application for a writ of habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

. . . . .

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;¹ or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.² (e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —

(A) the claim relies on —

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.

. . . . .

(i) The ineffectiveness or incompetence of counsel during ... State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.

28 U.S.C. § 2254 (footnotes added). The parties agree that the Petitioner has exhausted all available remedies in state court.

II. PROCEDURAL HISTORY

On October 9, 1995, the Petitioner was indicted and charged with first-degree murder; the indictment was superseded on March 18, 1996, to add charges of robbery with a dangerous weapon, first-degree kidnaping, and assault with a deadly weapon with intent to kill. Volume I, attached to Respondent's Answer to Petition for a Writ of Habeas Corpus, filed April 11, 2005, at Tab 1, pp. 32-33. His trial began on July 15, 1996, and on July 19, 1996, the jury found the Petitioner guilty of first degree murder on the basis of premeditation and deliberation and under the felony murder rule. Id., at 104. The jury also found him guilty of robbery with a dangerous weapon, first degree kidnaping and assault with a deadly weapon with intent to kill inflicting serious injury. Id., at 105. A separate sentencing hearing was held after which the jury recommended a sentence of death. Id., at 109-116. The trial court sentenced the Petitioner to death on July 23, 1996. Id., at 117. The Petitioner moved to by-pass a review of his case by the North Carolina Court of Appeals and on December 31, 1998, the North Carolina Supreme Court affirmed the Petitioner's convictions but vacated his sentence of death and remanded for a new sentencing hearing. State v. Call, 349 N.C. 382, 508 S.E.2d 496 (1998).

On May 17, 1999, the Petitioner's new sentencing hearing began. Volume II, attached to Respondent's Answer, at Tab 5, p. 1. On May 21, 1999, the jury again found that a sentence of death was appropriate. Id., at 54-61. On that same date, the presiding judge sentenced the Petitioner to a sentence of death. Id., at 64-65. The Petitioner appealed and the North Carolina Supreme Court affirmed his sentence of death on May 4, 2001. State v. Call, 353 N.C. 400, 545 S.E.2d 190 (2001).

The Petitioner's first motion for appropriate relief was filed on June 25, 2002. Vol. II, supra, at Tab 9. On June 17, 2003, Senior Resident Superior Court Judge Michael E. Helms denied that motion. Vol. III, attached to Respondent's Answer, at Tab 15. The Petitioner's petition to the North Carolina Supreme Court for a writ of certiorari to review that decision was denied on November 6, 2003. State v. Call, 357 N.C. 579, 589 S.E.2d 130 (2003).

On March 10, 2004, the Petitioner filed a second motion for appropriate relief based on the Supreme Court's decision of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Vol. III, supra, at Tab 19. On May 17, 2004, Judge Helms denied this motion as well. Id., at Tab 21. The Petitioner's petition for a writ of certiorari for review of that decision was denied by the North Carolina Supreme Court on October 6, 2004. State v. Call, 359 N.C. 71, 604 S.E.2d 916 (2004). On November 5, 2004, the Petitioner filed his 2254 petition in this court.

III. STATEMENT OF FACTS

At around 9:30 p.m., on August 24, 1995, the Petitioner visited Macedonio Hernandez Gervacio (Macedonio) at the mobile home which he shared with his nephew, Gabriel Gervacio. Call, 349 N.C. at 394, 508 S.E.2d at 503. Gabriel testified during the trial that the Petitioner, whom he knew from work, came alone that night. Transcript of Pretrial Motions and Trial Proceedings, Vol. II, at 95-96. The Petitioner told Macedonio that he would pay him $25 if he helped to move some things. Call, supra. Macedonio told his nephew he would "be right back." Trial Transcript, supra, at 97; Call, 353 N.C. at 406, 545 S.E.2d at 195. Macedonio left with the Petitioner in his truck; however, instead of going to move furniture, the Petitioner drove to a cornfield for the purpose of robbing Macedonio. Call, 349 N.C. at 394, 508 S.E.2d at 503. The Petitioner beat Macedonio with a shovel handle and a tire iron, tied his right foot up around his head with a piece of yellow rope and tied his hands behind his back. Id.

At approximately 11:00 p.m., Gabriel heard a knock on the door of the mobile home and thinking it was his uncle, he opened the door. Trial Transcript, supra, at 100; Call, 353 N.C. at 406, 545 S.E.2d at 195. The Petitioner offered Gabriel $20 to help him move a refrigerator, an offer which Gabriel accepted. Id.; Trial Transcript, supra, at 101. As his uncle had done, Gabriel got into the truck with the Petitioner who took him to a cornfield. Call, supra. When the Petitioner stopped the truck, he lured Gabriel out of the truck by saying it was stuck. Id. As Gabriel began to push the bumper of the pickup, the Petitioner picked up an aluminum bat and after pretending to use it to lift the tire, struck Gabriel on the head. Id.; Trial Transcript, supra, at 101-09. Gabriel, however, was able to run away to the edge of a nearby river. Id.; Call, supra. Although the Petitioner briefly followed Gabriel, he returned to the pickup and left. Id. Gabriel then ran into the cornfield where he hid all night. Id.; Trial Transcript, supra, at 110. The next morning, Gabriel was able to swim across the river and began to seek assistance from local residents. Id. At the first house he visited, a child came out the door and Gabriel asked if they had a telephone. Id., at 111. The child answered that they did not, so he went to another house. Id. This time a woman answered the door and made a telephone call resulting in the arrival of her son who gave Gabriel a ride back home. Id., at 112. When a friend of Gabriel's who spoke English arrived at his trailer, the two of them went to the owner of the trailer park, David Shatley, and the friend translated for Gabriel and told Shatley what had happened. Id., at 113; Call, supra. Law enforcement officers were called and Gabriel led them to the cornfield where he had been attacked. Id. The authorities found the body of Macedonio in the same field. Id. Among the evidence found at the scene was Macedonio's baseball cap, his shirt, and a broken stick similar to a shovel handle. Id., at 407, 545 S.E.2d at 195.

Gabriel identified the Petitioner as his assailant and the authorities immediately began looking for him. Id. He was not found at his residence but he was located in a motel room in Monroe, North Carolina. Id. A search of his truck disclosed a bag of clothes and a steel rod which had hair and blood embedded in it. Id.

On August 28, 1995, Agent Steve Cabe of the North Carolina State Bureau of Investigation (SBI) interviewed Alan Varden, a friend of the Petitioner. Id. Varden also testified during the Petitioner's trial. Trial Transcript, supra, at 172. Varden stated that the Petitioner had discussed robbing Macedonio on numerous occasions and tried to enlist Varden in the plan. Id., 172-74; Call, supra. Varden testified the Petitioner knew that Macedonio was saving money for an automobile and carried a large amount of cash. Id. On one occasion, the Petitioner showed Varden a shovel handle which he said he could use to "whack" the victim in the head. Id.; Trial Transcript, supra, at 179. On another occasion, the Petitioner showed...