Gray v. Branker

• Decision Date: 24 June 2008
• Docket Number: No. 06-29.,06-29.
• Citation: 529 F.3d 220
• Parties: William Robert GRAY, Jr., Petitioner-Appellant, v. Gerald J. BRANKER, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

529 F.3d 220

William Robert GRAY, Jr., Petitioner-Appellant, v. Gerald J. BRANKER, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.

No. 06-29.

United States Court of Appeals, Fourth Circuit.

Argued: September 26, 2007.

Decided: June 24, 2008.

ARGUED: Milton Gordon Widenhouse, Jr., Rudolf, Widen-House & Fialko, Chapel Hill, North Carolina, for Appellant. Steven Mark Arbogast, North Carolina Department of Justice, Raleigh, North Carolina, for Appellee. ON BRIEF: Paul M. Green, Durham, North Carolina, for Appellant. Roy Cooper, Attorney General of North Carolina, Raleigh, North Carolina, for Appellee.

Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge MICHAEL wrote the opinion, in which Judge Gregory joined. Judge DUNCAN wrote a separate opinion concurring in part and dissenting in part.

OPINION

MICHAEL, Circuit Judge:

William Robert Gray, Jr., was convicted of first degree murder and sentenced to death in North Carolina state court for the 1992 murder of his estranged wife. After the North Carolina courts rejected his direct appeal and denied post-conviction relief, Gray filed a petition for a writ of habeas corpus in U.S. district court, asserting several ineffective assistance of counsel claims. The district court denied all claims. We reverse in part, concluding that Gray is entitled to a new sentencing proceeding. This result is required because the North Carolina post-conviction court's denial of Gray's claim of ineffective assistance of counsel in the sentencing phase was contrary to, and an unreasonable application of, the standards set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See 28 U.S.C. § 2254(d). Counsel rendered ineffective assistance by failing to investigate and develop, for sentencing purposes, evidence that Gray suffered from a severe mental illness, and it is reasonably probable that this failure prejudiced the outcome at sentencing. We conclude that the district court properly rejected Gray's claim that he was denied effective assistance of counsel because his lead lawyer was a potential defense witness and therefore labored under a conflict of interest. Finally, we conclude that the district court correctly held that two claims Gray asserted in an amendment to his federal habeas petition were barred by the statute of limitations.

I.

Gray was a dentist in Kinston, North Carolina. In mid-February 1992 his wife of twenty-two years, Roslyn Gray, told him that she intended to move out of their home and seek a divorce. The two separated in April of that year, and a contentious divorce proceeding ensued with bitter disputes over child custody and property distribution. Gray, who remained in the home after the separation, was granted temporary custody of the couple's two children, an eleven-year-old son and an eight-year-old daughter.

In the months after Mrs. Gray announced her intentions and sued for divorce, Gray became increasingly distraught, emotional, and disturbed, according to his friends and associates. Gray "didn't have a grasp of what was going on," J.A. 822, and "didn't appear to be in his right mind," J.A. 802. For instance, Gray made "very agitated" telephone calls and visits to the office of Mrs. Gray's gynecologist, Dr. Marshall Jay Barker, who also had training in psychology. J.A. 782. In Dr. Barker's "medical opinion" Gray suffered from a "behavioral aberration and psychological problem" that included obsessive compulsion. J.A. 784, 224. The Grays briefly sought marital counseling, but the counselor withdrew because of her alarm about Gray's challenging and confrontational conduct. Mrs. Gray's lawyer sought a court order for a mental assessment of Gray, relying on affidavits from Dr. Barker and the marital counselor. Gray's divorce lawyer withdrew from the case, citing "irreconcilable differences" with Gray and difficulty communicating with him. J.A. 232. Gray retained his second divorce lawyer, Bob Worthington, on November 13, 1992.

Mrs. Gray had visitation privileges with the children at times specified by court order. The events that led to Gray's conviction for the murder of Mrs. Gray occurred at the end of the last visitation and are described as follows by the North Carolina Supreme Court:

On [the evening of] 24 November 1992, [Mrs. Gray] went to [Gray's] house to leave their children after they had visited with her. [Gray] went outside and got into [Mrs. Gray's] Jeep. An eyewitness, who had been jogging on the street in front of [Gray's] house, testified that he observed a Jeep in the street. He heard screaming and yelling coming from the Jeep. He saw a woman break from the Jeep and run up the driveway. The man, whom the witness identified as [Gray], also ran from the vehicle. [Gray] then tackled the woman and straddled her. The two people were on the ground struggling, with [Gray] on top of [Mrs. Gray]. The witness stopped and asked what was going on, and [Gray] told him to leave. [Mrs. Gray] said, "Mister, please don't leave. If you leave, he'll kill me." The jogger then heard a shot, and [Gray] ran behind the house.

[Mrs. Gray] was shot in the head. She died from this wound. [She] also suffered injuries from a stun-gun and a beating apparently with the butt of a pistol.

State v. Gray, 347 N.C. 143, 491 S.E.2d 538, 543-44 (1997) (opinion on direct review).

The police arrested Gray later that night. At Gray's request, Worthington, his divorce lawyer hired eleven days earlier, was called to the police station. After Worthington arrived, he and Gray talked privately in an interview room, and Gray said he had been in the bathtub at the time of the shooting. Worthington and Gray were interrupted by a detective who asked whether Gray would submit to hand wipings for a gunshot residue test (a paraffin test). The detective left, and Worthington recommended that Gray submit to the test; Gray agreed and then asked for some water. Worthington went to the door and passed Gray's request to an officer, who brought Gray a soda can full of water. Gray, alone again with Worthington, used the water to wash his hands as Worthington watched. Worthington's instant reaction was, "Oh, shit," but he nevertheless allowed Gray to submit to the paraffin test. J.A. 1700. Shortly thereafter, at Worthington's urging, Gray gave a statement to the police, asserting his bathtub alibi.

In the following week Gray formally hired Worthington to represent him on the charge of first-degree murder. Worthington had never handled a capital case and had been involved in only one first-degree murder case. About fifty percent of his practice involved criminal cases.

Signs of Gray's unstable mental and emotional condition persisted after he was incarcerated in the Lenoir County Jail. He was placed on suicide watch, and the jail matron checked on him every fifteen minutes, noting in her log that he was "VERY depressed." J.A. 889-90. Gray told the matron that he had not slept for the previous two months. During his first week in jail, Gray, who seemed unable to focus, fainted during a visit by a friend. At the urging of the chief jailer, Worthington filed a motion on November 30, 1993, asking the court to commit Gray for an evaluation of his capacity to proceed in the case. Worthington noted in the motion that Gray "appears in [a] state of shock and unable to appreciate the gravity of the situation." J.A. 240. The motion was granted immediately, and the next day, December 1, 1993, Gray was transferred to Dorothea Dix Hospital, a state psychiatric facility. As Gray was about to be moved, Worthington advised him to "be careful about what he said" at Dorothea Dix, and Gray responded that he understood. J.A. 1659.

At Dorothea Dix a forensic psychiatrist, Patricio Lara, M.D., evaluated Gray with respect to his capacity to proceed on the pending charge of murder. Dr. Lara based his evaluation on interviews with Gray, observations of his behavior, psychological testing, and a physical examination. Dr. Lara also had certain information from Worthington, the arresting officer, the jail, and Gray's friend, Donald Hollowell. As Dr. Lara emphasized, the information he was provided about Gray's "condition prior to the incident in question [was] quite limited." J.A. 46. Indeed, Worthington did not even give Dr. Lara the affidavits, contained in Gray's divorce file, of Dr. Barker (noting Gray's behavioral aberration and psychological problem) and the marital counselor (noting alarm about Gray's confrontational conduct). Dr. Lara's report described Gray as uncooperative and guarded. Nonetheless, Dr. Lara noted that Gray had been under ongoing stress prior to the shooting and that the "magnitude" of the stress "may have contributed to regression in behavior and reductions in impulse control." J.A. 45. While Dr. Lara found Gray competent to stand trial, he diagnosed Gray with "adjustment disorder with mixed disturbance of emotions and conduct," DSM (Diagnostic and Statistical Manual of Mental Disorders) category 309.40. J.A. 45. There was also evidence of "narcissistic traits with some features of paranoid nature." J.A. 44. Dr. Lara strongly suggested psychiatric counseling for Gray, stating that medication might become necessary. At the end of his report, Dr. Lara offered further assistance in Gray's case. If Dr. Lara could be provided additional information about "[Gray's] functioning and condition prior to [the incident in question]," he would endeavor to "expand [his] opinions" about Gray's condition at the time of the incident. J.A. 46.

Gray was returned to the Lenoir County Jail on January 6, 1993, after spending five weeks at Dorothea Dix. Copies of Dr. Lara's report were provided to Worthington, Gray, and the court. Worthington took particular note of Dr. Lara's statement that the magnitude of stress in Gray's life prior to the shooting may have contributed to...