Hayes v. Carver, 042219 FED4, 17-7441

Docket Nº:17-7441
Opinion Judge:GREGORY, CHIEF JUDGE:
Party Name:JOHN R. HAYES, III, Plaintiff - Appellant, v. MARK CARVER, Defendant-Appellee.
Attorney:Raquel A. Macgregor, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant. Peter Andrew Regulski, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. S. Mark Rabil, Associate Clinical Professor of Law, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Wi...
Judge Panel:Before GREGORY, Chief Judge, RICHARDSON, Circuit Judge, and DUNCAN, Senior Circuit Judge.
Case Date:April 22, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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JOHN R. HAYES, III, Plaintiff - Appellant,

v.

MARK CARVER, Defendant-Appellee.

No. 17-7441

United States Court of Appeals, Fourth Circuit

April 22, 2019

Argued: January 30, 2019

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, Chief District Judge. (1:16-cv-01100-TDS-LPA)

ARGUED:

Raquel A. Macgregor, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant.

Peter Andrew Regulski, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

ON BRIEF:

S. Mark Rabil, Associate Clinical Professor of Law, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant.

Joshua H. Stein, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh, North Carolina, for Appellee.

Before GREGORY, Chief Judge, RICHARDSON, Circuit Judge, and DUNCAN, Senior Circuit Judge.

GREGORY, CHIEF JUDGE:

Petitioner John R. Hayes, III, convicted of two counts of second-degree murder and sentenced to two consecutive life terms, appeals the district court's dismissal of his petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. We granted a certificate of appealability on his claim that he has made a showing of actual innocence such that the district court erred in dismissing his petition as untimely. Because Hayes has failed to meet the exacting standard for the procedural gateway claim of actual innocence, we affirm the district court's dismissal of the petition.

I.

On October 11, 1993, Hayes was arrested in Winston-Salem, North Carolina for the murders of Waddell Lynn Bitting and Stephen Joel Samuels. At trial, the State presented evidence that the shootings of Bitting and Samuels occurred on July 25, 1993, outside of an illegal "drink house" at 910 East 22nd Street in Winston-Salem. In the early morning hours, people who were in the drink house heard gunshots and ran outside to investigate. There were a large number of people outside, and numerous shots were fired. Samuels died in front of his yellow Nissan Maxima, which was parked by the driveway of 914 East 22nd Street, and Bitting's body was found on the porch of 922 East 22nd Street. Id. at 694, 730. A resident of that address called the police, and shots continued to be fired even after the police arrived.

The Winston-Salem Police Department investigated the shootings with Detective R.L. Barren as lead detective. At trial, the State presented the testimony of: Mary Geter, Anita Jeter, Cynthia Coleman, Officer C.Y. Singletary, Detective T.E. Craven, I.D. Technician Lana Perry, Dr. Patrick Lantz, Anthony Samuels, and Detective Barren. Geter and Jeter testified that they were inside the drink house with Hayes when they heard shots coming from outside. The two women waited for a minute or two while everyone else, including Hayes, ran outside. They testified that they then walked outside and stood on the front porch of the drink house. According to Geter's and Jeter's testimony, Hayes was standing behind a blue car parked on the street in front of the house and then fired a gun multiple times down the street into a crowd. Coleman, a third eyewitness, testified that she saw a black male wearing a light-colored shirt standing next to the blue car in front of the drink house and that he fired a gun in the air and then lowered his arm to fire into a crowd on 22nd street. Detective Craven testified that twelve 9-millimeter shell casings and two .32 caliber shell casings were found at the scene. Dr. Lantz, a forensic pathologist testified as an expert witness that Bitting and Samuels were killed by medium caliber bullets. The murder weapon was never recovered.

The defense did not present any evidence. Hayes pleaded not guilty and was represented at trial by court-appointed attorney Warren Sparrow. On July 19, 1994, after a two-day trial, a jury in Forsyth County, North Carolina convicted...

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