Maynard v. Dixon

• Decision Date: 19 August 1991
• Docket Number: No. 90-4000,90-4000
• Citation: 943 F.2d 407,20 Fed. R. Serv.3d 1384
• Parties: Anson Avery MAYNARD, Petitioner-Appellant, v. Gary DIXON, Warden, Central Prison, Raleigh, NC; LACY H. THORNBURG, Attorney General of North Carolina, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 407

943 F.2d 407

20 Fed.R.Serv.3d 1384

Anson Avery MAYNARD, Petitioner-Appellant, v. Gary DIXON, Warden, Central Prison, Raleigh, NC; LACY H THORNBURG, Attorney General of North Carolina Respondents-Appellees.

No. 90-4000.

United States Court of Appeals Fourth Circuit.

Argued Feb. 7, 1991.

Decided Aug. 19, 1991.

James Richard Glover, Glover & Petersen, P.A., Chapel Hill, N.C., argued (Ann B. Petersen, Chapel Hill, N.C., Marshall Dayan, North Carolina Resource Center, Raleigh, N.C., on brief), for petitioner-appellant.

Joan Herre Byers, Sp. Deputy Atty. Gen., N.C. Dept. of Justice, Raleigh, N.C., argued (Lacy H. Thornburg, Atty. Gen., Barry S. McNeill, Sp. Deputy Atty. Gen., on brief), for respondents-appellees.

Before RUSSELL, PHILLIPS and MURNAGHAN, Circuit Judges.

OPINION

PHILLIPS, Circuit Judge:

This is an appeal of the district court's denial of Anson Avery Maynard's habeas petition challenging on eleven separate grounds his 1981 conviction in North Carolina for first-degree murder. The district court granted the State's summary judgment motion on all grounds after deciding not to hold an evidentiary hearing or permit discovery. Maynard challenges the procedures followed by the district court and assigns error to the court's rejection on the merits of four of his claims. Finding no error, we affirm.

I

Maynard was convicted in North Carolina state court of killing Stephen Henry. Henry's body was found in the Cape Fear River on June 15, 1981, with cinder blocks tied to his ankles and fatal gun shot wounds to his head. The body also showed some minor head wounds that were inflicted before death, and revealed that after Henry was killed he was stabbed in the stomach (apparently to make the body sink).

Henry was last seen alive in the company of Gary Bullard, an acquaintance of Henry and Maynard, on June 13. Bullard had spent the day with Henry helping him move a relative, and in the evening they left together to get some beer, telling Henry's girlfriend that they would return shortly. Henry never returned because, as the State proved with Bullard's testimony, Bullard was in league with petitioner to kill Henry, and in fact Bullard had lured Henry away so that Maynard could kill him. ¹

The evidence offered by the prosecution at trial, taken in the light most favorable to the State, proved the following: Maynard was determined to kill Henry because Henry was providing evidence to state prosecutors about Maynard's leadership role in a burglary ring. ² Maynard had come up with various plans to kill Henry, but these efforts failed for one reason or another, until the night of June 13, 1981. On that night, Bullard and Henry, after moving furniture, took a walk to get some beer. As they went through the woods, Maynard leaped out and attacked Henry. Maynard hit Henry in the head a number of times. After taping Henry's hands behind his back, Bullard then left the scene to return to his house to get a car. Maynard then shot and killed Henry. Sometime later, Maynard went to Bullard's house and drove off on a Moped. He returned driving a blue pick-up truck. Maynard then placed Henry's body in the truck and ordered Bullard to get in the truck. Bullard and Maynard then drove to Dunn, North Carolina, and tried to bury Henry in a gravel pit, but that proved difficult. They then stopped at a building to get cinder blocks, and using them as an anchor, they dumped the body in the river. A day or so later a fisherman discovered Henry's body.

Based on this evidence, Maynard was convicted by a Cumberland County jury in December 1981 and sentenced to death. Maynard appealed, and the North Carolina Supreme Court affirmed the conviction and the death sentence. See State v. Maynard, 311 N.C. 1, 316 S.E.2d 197 (1984). The Supreme Court denied Maynard's petition for certiorari. 469 U.S. 963, 105 S.Ct. 363, 83 L.Ed.2d 299 (1984). Maynard then moved in Cumberland County Superior Court for appropriate post-conviction relief on the ground that the State had withheld exculpatory evidence. An evidentiary hearing followed in which it was revealed that the Cumberland County sheriff's department had a statement from a person unconnected with Bullard or Henry indicating that a man named Lee Hunt bragged in mid-June 1981 of placing a body in the river with cinder blocks. However, the motion for relief was denied by the state superior court in August 1987, and the North Carolina Supreme Court in February 1989 denied Maynard's petition.

Maynard's petition for a writ of habeas corpus in the federal district court made four claims relevant to this appeal. One, he contended that the state trial court erred in excluding jurors who might be against the death penalty because such exclusions were not adequately based on findings of fact. Second, he alleged that the post-conviction court's determination of his claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), concerning the withholding of exculpatory evidence, was not supported by the evidence, that it failed to resolve conflicting evidence, and that it did not include findings of historical facts entitled to a presumption of correctness. Third, he alleged that he was denied his right to confront witnesses because prejudicial evidence was offered in the penalty phase concerning petitioner's criminal history without the right to cross-examine. Fourth, he claimed that the instructions to the jury in the penalty phase imposed a unanimity requirement on the finding of mitigating circumstances in violation of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988).

The district court granted the State's motion for summary judgment on all counts. This timely appeal followed, and we hereby grant Maynard's motion for a certificate of probable cause.

Maynard challenges the procedures followed by the district court in ruling on the State's summary judgment motion, and assigns error to a number of the court's rulings that Maynard's conviction and sentence to death were not infected with constitutional error. We will consider his contentions in turn.

II

Maynard raises various objections to the procedure followed by the district court in granting the State summary judgment. Principally, he objects to the district court's decision to grant summary judgment without first addressing his request for discovery, an evidentiary hearing, and a briefing schedule, and to the fact that the district court disposed of his objection on the jury voir dire before the trial court transcripts were filed.

A

In response to Maynard's habeas petition, the State submitted its answer and a brief supporting its motion for summary judgment. In that document, the State noted that its answer was not complete because all of the relevant state court records, including the transcripts from the jury voir dire, were not yet available and that those documents would be provided later to the court.

Without waiting for additional documents, the court granted the state summary judgment, rejecting Maynard's claim that jurors who had doubts about the death penalty were excused in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), which held that a venireman should only be excused where his views would " 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' " Wainwright, 469 U.S. at 424, 105 S.Ct. at 852. The district court ruled:

A review of the voir dire transcript reveals that although both jurors ... were less than certain about their beliefs concerning the death penalty when initially questioned, they later unequivocally responded that they could not impose, in good conscience, a sentence of death.

J.A. at 260-61. The court then supported its conclusion by discussing in detail the responses of the veniremen made during the voir dire. Id. at 261-62.

Maynard asserts that the court's decision must be in error because the transcripts were unavailable to the court, as the State had not yet filed them. Hence, he argues, the court's decision must be reversed since the court could not have "review[ed] ... the voir dire transcript."

The district court may have overstated its basis, but its assertion is essentially correct. Though it lacked the full transcript, the court had access to the relevant portions of the transcript, since they were included in Maynard's habeas petition. See J.A. at 50-51, 52-55 (containing relevant voir dire transcripts). Those excerpts include references to the transcript pages, which is how the district court had cites to the transcript even though it was not filed. Moreover, Maynard's habeas petition, read in light of Fed.R.Civ.P. 11, has been certified as true. See J.A. at 96. Consequently, the court could rely on the information included therein. The district court's proceeding without the formally submitted transcript was not therefore in error.

B

Maynard's second procedural claim is that the district court acted prematurely in ruling on the summary judgment motion without first considering his request for discovery, an evidentiary hearing, and briefing schedule. First the request for an evidentiary hearing and briefing schedule will be considered, and then the motion for discovery.

The district court followed the Rules Governing Section 2254 Cases in the United States District Courts ("Habeas Rules") in acting on Maynard's petition. Rule 8(a) provides that a judge shall determine, in his discretion, whether an evidentiary hearing is required. Hab.R. 8(a). If the court finds a hearing is not required, then "the judge shall make such disposition of the petition as justice shall require." Id. Included in this broad grant of authority is the power to decide whether the legal and factual issues raised in a habeas petition and response should be briefed. See generally C....