Conaway v. Polk, 04-20.
| Decision Date | 11 July 2006 |
| Docket Number | No. 04-20.,04-20. |
| Citation | 453 F.3d 567 |
| Parties | John Lee CONAWAY, Petitioner-Appellant, v. Marvin POLK, Warden, Central Prison, Raleigh, North Carolina; North Carolina Attorney General, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Burton Craige, Patterson Harkavy, L.L.P., Raleigh, North Carolina, for Appellant. Valerie Blanche Spalding, North Carolina Department of Justice, Raleigh, North Carolina, for Appellees. ON BRIEF: F. Marsh Smith, Southern Pines, North Carolina; Matthew Stiegler, Center for Death Penalty Litigation, Durham, North Carolina, for Appellant. Roy Cooper, Attorney General of North Carolina, Raleigh, North Carolina, for Appellees.
Before WIDENER, KING, and DUNCAN, Circuit Judges.
Affirmed in part and remanded in part by published opinion. Judge KING wrote the opinion, in which Judge DUNCAN joined. Judge WIDENER wrote a concurring opinion.
John Lee Conaway appeals from the dismissal of his petition for federal habeas corpus relief with respect to his North Carolina convictions and sentences, including his two death sentences. On April 1, 2005, we granted Conaway a certificate of appealability (the "COA") on the two claims he raises on appeal: (1) that his Sixth Amendment right to an impartial jury was contravened because a trial juror concealed a close familial relationship to a co-defendant who was also a key prosecution witness (the "Juror Bias claim"); and (2) that, because Conaway is mentally retarded, his execution is precluded by the Eighth Amendment, as enunciated in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (the "Atkins claim"). After unsuccessfully pursuing these and other claims in state court, Conaway filed his federal habeas corpus petition in the Middle District of North Carolina, where he sought an evidentiary hearing to prove his underlying allegations. In January 2004, the district court denied Conaway's request for a hearing and dismissed the petition. Conaway v. French, No. 98-1117 (M.D.N.C. Jan. 23, 2004).
As explained below, the state court's rejection of the Juror Bias claim involved an unreasonable application of clearly established federal law as determined by the Supreme Court, and Conaway's allegations entitle him to an evidentiary hearing. We therefore remand to the district court for an evidentiary hearing on the Juror Bias claim, and we affirm the court's dismissal of the Atkins claim.
Conaway was convicted in the Superior Court of Richmond County, North Carolina, on October 15, 1992, of the first-degree murders of Thomas Weatherford and Paul Callahan, and of several related offenses. In its opinion denying Conaway relief in his direct appeal, State v. Conaway, 339 N.C. 487, 453 S.E.2d 824 (1995), the Supreme Court of North Carolina summarized the facts underlying Conaway's conviction, in part, as follows:
On the evening of 22 August 1991, Thomas Amos Weatherford and Paul DeWitt Callahan were in the Pantry store located on Highway 177 South in Hamlet, North Carolina. Weatherford was working as the night-shift clerk. Callahan, his roommate, had driven Weatherford to work at 11:00 p.m. and stayed at the store with him for several hours that night.
* * *
The evidence showed that [on the night of August 22, 1991, Conaway, along with Kelly Harrington, Michael McKinnon, and Kevin "Keith" Scott] began to walk around the streets of Hamlet. [Conaway] started looking for a car he could steal to drive back to Washington, D.C. . . .
Sometime between 1:30 a.m. and 1:45 a.m. on 23 August 1991, the four men went to the Pantry . . . . [Conaway] told the other men to wait outside while he went into the store to get more beer. While inside the Pantry, [Conaway] stole $78.00 from the cash register and kidnapped Weatherford and Callahan at gunpoint.
McKinnon, Harrington, and Scott all testified at trial that several minutes after [Conaway] left them to go into the Pantry, he drove up in a dark-colored car. This car was later identified as belonging to Callahan. The two victims were in the front seat of the car with [Conaway], who was pointing a gun at them. [Conaway] told McKinnon, Harrington, and Scott to get into the car. The three men got into the backseat of the car, and [Conaway] drove away from the Pantry. . . .
* * *
[According to McKinnon, Harrington, and Scott,] [a]fter [Conaway] passed the Coca-Cola plant on Highway 74, he stopped the car on the side of the road in an isolated area and . . . ordered [Weatherford and Callahan] to get out of the car. McKinnon, Harrington, and Scott remained in the car, while [Conaway] walked the victims into the woods. McKinnon, Harrington, and Scott were unable to see [Conaway] once he entered the woods, but they heard two gunshots fired several seconds apart. . . . [The four men then drove together to Washington, D.C.]
* * *
On 29 August 1991, Army Sergeant Daniel Poe was flying his ultralight plane near Hamlet looking for his lost dog. He was flying at a height of approximately five hundred feet over Highway 74 when he noticed something white on the ground in the woods. Poe took a closer look and saw the victims' bodies lying on the ground in the woods about eighty-seven feet from Highway 74 . . . .
* * *
[Conaway, Harrington, McKinnon, and Scott] arrived in Washington, D.C., around 8:00 a.m. on 23 August 1991. [Conaway] visited with his brother and stepfather that afternoon. . . . Late that afternoon, [Conaway] went to Cambridge, Maryland, to visit two friends and to see his mother.
McKinnon, Harrington, and Scott stayed with [Conaway]'s brother and with Harrington's cousin Darlene for two nights and then went to Maryland to stay with Harrington's brother. The three men returned to Hamlet on or about 30 August 1991 and confessed their participation in these murders to the Hamlet police.
On 25 August 1991, while standing on the street talking to a friend from prison, [Conaway] was arrested in Cambridge, Maryland. . . . When [Conaway] was searched, a .25-caliber handgun and six .25-caliber rounds of ammunition were found in his possession.
Conaway, 453 S.E.2d at 831-33.1
On September 30, 1991, Conaway was indicted in Richmond County on two charges of first-degree murder for the deaths of Callahan and Weatherford, and he was returned to North Carolina from Maryland on February 25, 1992. In early March 1992, Conaway was further indicted for first-degree kidnapping, robbery with a dangerous weapon, and larceny, arising from the circumstances surrounding the deaths of Weatherford and Callahan. Harrington, McKinnon, and Scott (the "co-defendants") were also indicted in Richmond County on charges of first-degree murder, kidnapping, robbery, and larceny. The co-defendants each testified against Conaway, who the prosecution (the "State") tried alone. After Conaway was convicted, the State dropped the murder charges against the co-defendants, each of whom pleaded guilty to first-degree kidnapping and received a twenty-five year sentence.2
In October 1992, Conaway was tried for first-degree murder and the related offenses in the Superior Court of Richmond County. From October 6, 1992, to October 9, 1992, voir dire was conducted of the prospective jurors in the venire.3 Among the prospective jurors was a man named Rannie Waddell, Jr. ("Juror Waddell"), who Conaway alleges was a double first cousin, once removed, of co-defendant Harrington, a key prosecution witness.4
On the first day of the jury selection proceedings, and with the venire present, the prosecutor read a list of twenty-six witnesses expected to testify for the State, including co-defendant Harrington. The prosecutor then asked various potential jurors if they "kn[e]w" any of the witnesses or "recognize[d]" any of the names. See, e.g., J.A. 187.5 That day, three members of the venire were excused for cause because they knew various witnesses, including one who explained that co-defendant Scott was her cousin. See, e.g., id. at 188.
On the afternoon of October 7, 1992, the second day of the jury selection proceedings, the prosecutor asked Juror Waddell if he knew any of the individuals who had repeatedly been identified as potential State witnesses. J.A. 444. Juror Waddell acknowledged that he was familiar with the witness list and that he knew one potential witness, Sheriff Sam Jarrell. Id. Juror Waddell did not, however, acknowledge knowing or being related to co-defendant Harrington. The prosecutor asked Juror Waddell whether he, any close friend, or any family member "had any dealings with the District Attorney's Office," and Waddell responded, "No." Id. at 445. The prosecutor further inquired whether Juror Waddell had formed an opinion about the case, and he again responded in the negative. Id. at 446. When the prosecutor asked whether there was "any reason whatsoever, whether I've asked you or not that you could think of that would keep you from being fair and impartial in this case," Juror Waddell answered, "No, sir." Id. Juror Waddell acknowledged that he had read about the case in a newspaper approximately a year earlier, but when Conaway's lawyer asked if Juror Waddell had talked about the case with any family members or friends, or had heard anyone else discussing the matter, he asserted that he had not. Id. at 457-58. Later that day, while Juror Waddell was yet present, several other prospective jurors were asked whether they recognized any of the co-defendants, including Harrington. Juror Waddell remained silent, and he was ultimately selected to serve on the jury.
On Saturday, October 10, 1992, after the jury had been selected, but before it was impaneled, Conaway's lawyer received an anonymous phone call at his office. J.A. 1101f. The caller advised the lawyer's secretary that Juror Waddell was Harrington's cousin, "may be even [his] first cousin." Id.
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