Hurst v. Branker, 1:10CV725

CourtUnited States District Courts. 4th Circuit. Middle District of North Carolina
Writing for the CourtL. Patrick Auld
Decision Date07 September 2012
PartiesJASON WAYNE HURST, Petitioner, v. GERALD BRANKER, Warden, Central Prison, Raleigh, North Carolina, Respondent.
Docket Number1:10CV725

GERALD BRANKER, Warden, Central Prison,
Raleigh, North Carolina, Respondent.



September 7, 2012


Petitioner, a prisoner of the State of North Carolina, seeks a writ of habeas corpus via 28 U.S.C. § 2254. (Docket Entry 1.) Respondent has moved for summary judgment. (Docket Entry 17.)1 For the reasons that follow, Claims I, II, V, VII, VIII, IX, X, XII, and XIII fail under 28 U.S.C. § 2254(d), Claims III and IV are procedurally barred, Claim VI is not cognizable on federal habeas review, and Claim XI lacks merit. This Court thus should enter summary judgment for Respondent and should dismiss this action.


In March 2004, a jury in Randolph County, North Carolina found Petitioner guilty of first degree murder and recommended a sentence

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of death. (Docket Entry 4-1 at 26-32.) Upon the state superior court's entry of judgment in accordance with the jury's foregoing finding and recommendation, Petitioner took a direct appeal, but the Supreme Court of North Carolina unanimously affirmed his conviction and sentence. State v. Hurst, 360 N.C. 181, 624 S.E.2d 309 (2006). The United States Supreme Court thereafter denied certiorari review. Hurst v. North Carolina, 549 U.S. 875 (2006).

Petitioner, through counsel, filed a Motion for Appropriate Relief ("MAR") raising eight claims in the state superior court. (Docket Entries 2-1, 3-1.) He subsequently filed an Amendment to his MAR ("AMAR") regarding MAR Claim VIII. (Docket Entry 5-1.) The state superior court "denie[d] seven of the eight claims in [Petitioner's] MAR and AMAR on the pleadings, and direct[ed] that [MAR] [C]laim II [which alleged ineffective assistance of counsel in investigating mitigating sentencing factors] proceed to an evidentiary hearing." (Docket Entry 6-1 at 2.)2 After that hearing, Petitioner "filed a second amended MAR ['2AMAR'] [to amend MAR Claim II]." (Docket Entry 6-3 at 3.) The state superior court "received post evidentiary hearing briefs . . . [and] heard oral argument . . . [before] den[ying] [Petitioner's] MAR Claim II and his 2AMAR from the bench [and] making findings of fact and

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conclusions of law [in a written order]." (Id.) The Supreme Court of North Carolina denied review of the state superior court's MAR orders. State v. Hurst, 364 N.C. 244, 698 S.E.2d 664 (2010).


The Supreme Court of North Carolina summarized the evidence presented at Petitioner's trial as follows:

On 9 June 2002, Daniel Branch told his wife Barbara that he and [Petitioner] were going to travel to Asheboro. According to Barbara, [Petitioner] was an acquaintance who was supposed to help Branch sell some firearms. After loading several long guns into his 1977 blue Thunderbird, Branch left home around 11:00 or 11:30 that morning. She never saw him alive again.
The next day, Barbara filed a missing persons report and Detective Kevin Ray . . . began an investigation. On 11 June 2002, while pursuing a lead that [Petitioner] had been seen in West Virginia driving a Thunderbird matching the description of Branch's vehicle, Detective Ray discovered that [Petitioner] had been romantically involved with Kim Persinger in West Virginia and that she was pregnant with his child. Kim's brother indicated to Detective Ray that Branch had been killed in North Carolina and that his body was in a field near the Montgomery and Randolph County line.
Detective Ray . . . searched a large, cleared tract of land at the described location and found the body of Daniel Branch. The victim was lying on his back and one of his pockets had been pulled out. The investigators observed that he appeared to have suffered gunshot wounds to the torso and head. Two expended shotgun shell casings were found near his body.
The same day, state police and sheriffs in West Virginia began searching for [Petitioner] and the victim's blue Thunderbird . . . [and] located both at a convenience store near Rock Creek, where [Petitioner] was taken into custody without incident. During the arrest, [Petitioner] stated that "he was just glad it was over" and that "he had killed a guy in North Carolina." Even though he was given his Miranda warnings, [Petitioner]

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continued to talk, repeating that he had killed a man in North Carolina with a shotgun and brought his car to West Virginia. . . . [Petitioner was] transported to the state police detachment in Beckley, where he again was advised of his Miranda rights. After waiving those rights, [he] confessed to the murder of Daniel Branch.
In his confession, [Petitioner] said that he knew Branch from having traded guns with him in the past. [Petitioner] claimed that the victim called him the day before the murder and asked him to meet to trade some guns. [Petitioner] said that "[h]e knew [he] was going to kill [Branch]" as soon as their telephone conversation ended and "began to plan." The next day, [Petitioner] met Branch at the field where the killing occurred to purchase a twelve-gauge Mossberg pump shotgun. When [Petitioner] asked Branch if he could test-fire the weapon, the victim agreed. At [Petitioner's] urging, Branch walked into the field to set up some cans and bottles. As he did, [Petitioner] opened fire, shooting the victim three times.
After the first shot, which [Petitioner] indicated struck Branch in the ribs or stomach, the victim yelled "no, no, don't shoot," and turned to run. [Petitioner] shot Branch again, hitting him in the side and causing him to fall. [Petitioner] then walked toward the victim and shot him in the head. After the final shot, [Petitioner] reached into the victim's pocket, took his keys, and left the scene in Branch's car. An autopsy confirmed that Branch had suffered shotgun wounds in his lower left chest and abdominal area, in his right side, and in his right jaw.
[Petitioner] told the officers that the Mossberg shotgun was at the house of a relative, Leon Burgess, where he had traded it for a .410 gauge shotgun. Burgess later confirmed the trade and gave the murder weapon to the investigators. A .410 gauge shotgun was recovered from the victim's Thunderbird that [Petitioner] had been driving when arrested. [Petitioner] also stated that he had sold Branch's .22 caliber rifle.
During the interview, [Petitioner] said that the victim had not provoked or threatened him and declined to give a reason for the shooting. He said he did not know the victim that well, but that he was "an okay guy." [Petitioner] stated that he was not sorry for killing

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Branch but that he felt sorry for the victim's family.
[Petitioner] did not testify at trial. During the guilt phase of the trial, he presented instead James H. Hilkey, PhD., an expert forensic psychologist, who testified that [Petitioner] suffered from borderline personality disorder ["BPD"], traits of antisocial personality disorder, and depression. Dr. Hilkey stated that, in his opinion, [Petitioner's] psychological disorders "affected his ability to weigh and consider the consequences of his actions and to form specific intent to kill." Dr. Hilkey was also of the opinion that at the time of the shooting, Petitioner "was under the influence of a mental or emotional disturbance and his capacity to conform his conduct to the requirements of the law was impaired." However, Dr. Hilkey also testified that [Petitioner's] "clearly average" I.Q. was 104 and that he knew killing the victim was wrong. Dr. Hilkey found no signs that [Petitioner] suffered from neurological damage or distortions.

Hurst, 360 N.C. at 184-86, 624 S.E.2d at 314-15.

The Supreme Court of North Carolina further reported that:

At his sentencing proceeding, [Petitioner] presented several family members as witnesses. He also relied on Dr. Hilkey's testimony . . . . [This] evidence [showed] that [Petitioner] was raised in a "tumultuous" environment[,] . . . that his relationship with his parents was "extremely chaotic," that [his] father physically abused and assaulted him and his mother, that [his] parents suffered from mental health problems, and that [his] father introduced [him] to alcohol and illegal drugs at an early age.
Dr. Hilkey testified that [Petitioner's] upbringing manifested itself as BPD when he grew older. Dr. Hilkey stated, inter alia, that [Petitioner] felt responsible for his parents' fighting; that [Petitioner's] family history was being replicated in his relationships; and that [Petitioner] felt unsure and unstable when not in a relationship, demonstrated reckless behavior and substance abuse, exhibited a "flat affect" or lack of emotional response to important events such as his role in the instant offense, and responded to events leading up to the murder by exhibiting a "transient depersonalization." Dr. Hilkey added that [Petitioner]

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still hoped against all logic that his trial might bring his family together. According to Dr. Hilkey, [Petitioner's] slaying of Daniel Branch had no purpose other than allowing [Petitioner] to take the victim's car so he could travel to West Virginia to reunite with Kim. In addition, [Petitioner presented evidence of] previous failed relationships with women that resulted in severe depression,

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