Conner v. Polk

• Decision Date: 03 May 2005
• Docket Number: No. 04-23.,04-23.
• Citation: 407 F.3d 198
• Parties: Jerry Wayne CONNER, Petitioner-Appellant, v. Marvin POLK, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

407 F.3d 198

Jerry Wayne CONNER, Petitioner-Appellant, v. Marvin POLK, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.

No. 04-23.

United States Court of Appeals, Fourth Circuit.

Argued: February 1, 2005.

Decided: May 3, 2005.

ARGUED:

Kenneth Justin Rose, Center For Death Penalty Litigation, Inc., Durham, North Carolina, for Appellant. Steven Mark Arbogast, Special Deputy Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellee.

ON BRIEF:

Mark J. Kleinschmidt, Center For Death Penalty Litigation, Inc., Durham, North Carolina, for Appellant. Roy Cooper, Attorney General of North Carolina, Raleigh, North Carolina, for Appellee.

Before LUTTIG, KING, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the majority opinion, in which Judge SHEDD joined. Judge LUTTIG wrote a dissenting opinion.

OPINION

KING, Circuit Judge:

In April 1991, Jerry Wayne Conner was convicted by a jury in the Superior Court of Gates County, North Carolina, for the first-degree murders of Minh Linda Luong Rogers ("Minh") and her sixteen-year old daughter, Linda Minh Rogers ("Linda"), as well as the related crimes of first-degree rape and robbery with a firearm. The jury recommended that Conner be sentenced to death, and the presiding judge imposed two death sentences. On direct appeal, the Supreme Court of North Carolina affirmed Conner's convictions but vacated his death sentences, and awarded him a new capital sentencing proceeding. State v. Conner, 335 N.C. 618, 440 S.E.2d 826 (1994) ("Conner I"). At his second sentencing proceeding, the jury again recommended and the judge imposed two death sentences.

Conner then unsuccessfully directly appealed the death sentences imposed after his retrial, State v. Conner, 345 N.C. 319, 480 S.E.2d 626, 627 (1997) ("Conner II") cert. denied, 522 U.S. 876, 118 S.Ct. 196, 139 L.Ed.2d 134 (1997). He thereafter unsuccessfully sought state post-conviction relief. State v. Conner, No. 90-CRS-648;649 (N.C.Super.Ct. May 5, 1999) (the "MAR Opinion"); State v. Conner, 352 N.C. 358, 544 S.E.2d 550 (2000). He then turned to the federal courts and sought habeas corpus relief, pursuant to 28 U.S.C. § 2254, in the Eastern District of North Carolina. See Conner v. Lee, No. 5:00-HC-546-BO (E.D.N.C. Mar. 12, 2004) ("Opinion I").¹ The district court dismissed Conner's § 2254 petition without a hearing, see Opinion I at 46, but granted his subsequent application for a certificate of appealability ("COA") under 28 U.S.C. § 2253(c), see Conner v. Lee, No. 5:00-HC-546-BO (E.D.N.C. July 12, 2004) ("Opinion II"). The COA awarded by the district court relates to Conner's claim that his Sixth and Fourteenth Amendment rights were denied when Helene Knight, a local newspaper reporter who had extensively covered his first trial, was permitted to serve as a juror in his second sentencing proceeding. As explained below, we are obliged, pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254, to affirm the district court's denial of habeas corpus relief on the claim presented by Conner's COA.

I.

The factual underpinnings of Conner's convictions were described in some detail by the Supreme Court of North Carolina in its opinion in Conner's first direct appeal. Those facts are set forth here in haec verba:

The State's evidence at trial tended to show that on the evening of 18 August 1990, Harold Lowe, his girlfriend, Kathy Winslow, and Chris Bailey stopped at Rogers' Grocery outside Gatesville, North Carolina, at approximately 9:30 p.m. They parked in the lot under a streetlight facing the highway waiting for a friend, Will Harrell, to arrive. After a few minutes, Harold Lowe saw Minh Rogers and an unknown white male leave the store. Minh and the man talked for a few minutes and then Minh Rogers reentered the building. Chris Bailey testified that he first noticed the white male walking from the store toward a white car parked in the lot. A few moments later, that same white male was carrying a shotgun and walking toward the vehicle in which Bailey was sitting.

Not having paid further attention after Minh Rogers reentered the store, Mr. Lowe testified he was startled when that same man appeared at the passenger window of his truck holding "some kind of identification with a picture." The man stated he was an agent with DEA and that undercover officers were preparing to execute a drug bust in the immediate vicinity in an effort to seize over $1.5 million worth of cocaine. He further informed Mr. Lowe that if he did not want to be an accessory to the crime, he and his friends should leave the premises immediately. Lowe, Bailey, and Wilson each positively identified defendant at trial as the man who approached their car and warned them to leave the parking lot.

Will Harrell testified that he stopped by Rogers' Grocery at approximately 9:50 p.m. on the evening of 18 August 1990. As he entered the store, he recognized the owner of the establishment talking to a white male he did not know. The white male was of medium build, was approximately five-feet ten inches tall, and was wearing a plaid shirt and a baseball cap. At trial, Mr. Harrell positively identified defendant as the man he saw in Rogers' Grocery on the night of 18 August 1990.

SBI [State Bureau of Investigation] Agent Eric A. Hooks testified to statements made by Daniel Oliver Croy in a series of interviews beginning on the morning of 19 August 1990. In essence, Mr. Croy told various investigating officers that he stopped by Rogers' Grocery on the evening of 18 August 1990 after dinner. He "drank some beer, sat around, and talked with Linda [sic] Rogers, [and] her daughter." During this time, a white stocky male of medium height, thirty to thirty-five years of age, entered the store, made some purchases, chatted for a while with Minh and then left. Mr. Croy noted that the individual had a moustache and was wearing a baseball cap. Mr. Croy left the grocery store around 8:45 p.m.; and as he was backing out of his parking space, the same man he had seen inside Rogers' Grocery drove up beside him on the driver's side of the car. The man told Mr. Croy that he was an "SBI agent working with DEA on a big drug deal that was going down in the area." At one point during the conversation, the man asked Mr. Croy if he would like to see his credentials. He then held up a pump shotgun and said "there's my credentials." Mr. Croy left shortly thereafter but recalls that the lights in the store were on and the store was apparently still open.

John Lambert, a part-time employee of Rogers' Grocery, testified that on the morning of 19 August 1990, he arrived at the store at 9:00 a.m. only to find he had left his key at home. After retracing his steps, he returned to the store with the key and noted that the door lock didn't make the usual clicking sound. He then realized the door had apparently been left open overnight. When he entered the store, Mr. Lambert found the bodies of Minh and Linda Rogers.

Deputy George M. Ryan of the Gates County Sheriff's Department described the crime scene. The nude body of Linda Rogers was lying on her back in a large pool of blood concentrated around her neck, shoulders, and abdomen. He noted a gaping gunshot wound in her upper chest and that the teeth in her mouth were "just shattered." Minh Rogers' body was found on a lounge chair behind the counter. Although she was fully clothed, her pullover sweater had been pulled up just below her breasts and her shorts had been unzipped and pulled down. She was covered in blood. After securing the scene, Deputy Ryan notified the SBI.

Dr. Page Hudson, former Chief Medical Examiner for the State of North Carolina, performed the autopsies on 20 August 1990. He stated that the cause of death for Minh Rogers was a gunshot wound to the head causing massive destruction of the skull and brain. He further opined that the shot was fired from a very short distance—two to four feet. Spermatozoa were present in the vaginal cavity of Linda Rogers indicating that she had been sexually active just prior to her death. The younger woman died from a "shotgun wound to the under surface of chin and neck."

On the morning of 31 August 1990, SBI Special Agent Malcolm McLeod, Gates County Deputy Sheriff George Ryan, and Hertford County Deputy Sheriff Ronnie Stallings questioned defendant concerning the murders at Rogers' Grocery on the night of 18 August. After an initial attempt to mislead the officers, defendant related the following sequence of events. On the day defendant was fired from his job as a truck driver with Rose Brothers (either the thirteenth or fourteenth of August 1990), he stopped at the Fast Fare in Murfreesboro. He engaged in an extensive conversation with a black male whom he did not know personally but had seen on numerous occasions. The man was approximately six-feet tall, weighed 240 pounds, and was in his thirties with slightly graying hair. The conversation centered upon whether defendant was interested in making some quick, "illegal money." Even after being offered $7000 to kill a "Japanese woman who ran a store in Gates County," defendant informed the man he was not interested and left. However, as financial problems began to arise, defendant drove back to Murfreesboro to locate the black male. When he was unable to find him, defendant decided to kill the woman and try to collect the money afterwards.

Defendant further informed the officers that on Saturday, 18 August, he drove to Gates County, located Rogers' Grocery, and went inside. He left shortly thereafter since there were several customers inside. On the next several times he drove by, there were vehicles in the parking lot. When he finally found the lot relatively empty, he parked his car and entered the store carrying his 12-gauge pump, sawed-off shotgun with pistol grips. When he walked in, defendant told Minh Rogers he...