McCarver v. Lee

• Decision Date: 04 April 2000
• Docket Number: PETITIONER-APPELLANT,No. 99-18,RESPONDENT-APPELLEE,99-18
• Citation: 221 F.3d 583
• Parties: (4th Cir. 2000) ERNEST P. MCCARVER,, v. R. C. LEE, WARDEN, CENTRAL PRISON, RALEIGH, NORTH CAROLINA, Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 583

221 F.3d 583 (4th Cir. 2000)

ERNEST P. MCCARVER, PETITIONER-APPELLANT, v.R. C. LEE, WARDEN, CENTRAL PRISON, RALEIGH, NORTH CAROLINA, RESPONDENT-APPELLEE.

No. 99-18

U.S. Court of Appeals, Fourth Circuit

Argued: April 4, 2000

May 23, 2000

As amended August 28, 2000

Appeal from the United States District Court for the Middle District of North Carolina, at Durham.William L. Osteen, District Judge.(CA-98-835-1)[Copyrighted Material Omitted] Argued: Seth R. Cohen, Smith, James, Rowlett & Cohen, L.L.P., Greensboro, North Carolina, for Appellant.Edwin William Welch, Special Deputy Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellee.On Brief: Stanley F. Hammer, Wyatt, Early, Harris & Wheeler, L.L.P., High Point, North Carolina, for Appellant.Michael F. Easley, Attorney General of North Carolina, North Carolina Department of Justice, Raleigh, North Carolina, for Appellee.

Before Luttig, Williams, and Motz, Circuit Judges.

Dismissed by published opinion.Judge Luttig wrote the opinion, in which Judge Williams joined.Judge Motz wrote an opinion concurring in the judgment.

OPINION

Luttig, Circuit Judge.

A North Carolina jury convicted Ernest Paul McCarver of first-degree murder and robbery with a dangerous weapon, and McCarver was sentenced to death and forty years imprisonment, respectively, for those convictions.After appealing his convictions in state court on direct review and in state habeas proceedings, McCarver filed a petition for writ of habeas corpus in federal district court.See28 U.S.C. § 2254.The district court dismissed McCarver's petition, and he now appeals that dismissal.Because we conclude that McCarver has failed to make a substantial showing of the denial of a constitutional right, we deny his application for a certificate of appealability and dismiss his petition for writ of habeas corpus.

I.

On January 2, 1987, Ernest Paul McCarver stabbed Woodrow F. Hartley to death.According to the North Carolina Supreme Court:

[McCarver] and [Jimmy] Rape entered through the rear entrance of the K & W Cafeteria shortly after Hartley arrived at 5:00 a.m. [McCarver] walked up to Hartley and talked to him for a few minutes.Rape grabbed Hartley from behind in a headlock and attempted to strangle him.Rape released Hartley, who was then grabbed by [McCarver] in a headlock.When [McCarver] let him go, Hartley fell to the ground.[McCarver] took a knife from his pants pocket and stuck it into Hartley's chest several times.Hartley died within minutes.

Gene Blovsky, an employee of the cafeteria, observed [McCarver's] automobile parked near the back door of the cafeteria.He saw [McCarver] emerge from behind a wall; [McCarver] was carrying a knife, which he attempted to hide in his right hand.Next, Blovsky saw Hartley lying on the floor in the hallway with a spot of blood on his wrist.Blovsky saw another man near Hartley, realized what had happened, became frightened, and ran out the door.

....[After leaving the scene and][b]efore going to their assigned job site, [McCarver] and Rape pawned a 1902 sil ver dollar, which had been taken from the victim, for seven dollars at a Monroe pawn shop.[McCarver] and Rape were arrested by Monroe police at their assigned job site.

State v. McCarver, 462 S.E.2d 25, 30-31(N.C.1995), cert. denied, 517 U.S. 1110(1996).McCarver believed that Hartley was responsible for his probation being revoked.Seeid. at 30.After his arrest, McCarver confessed to Hartley's murder.

McCarver was indicted in North Carolina for murder and robbery with a dangerous weapon.He was convicted of first-degree murder and robbery with a dangerous weapon in the April 18, 1988 Criminal Session of Superior Court, Cabarrus County.He was sentenced to death for the murder conviction and to forty years imprisonment for the robbery conviction.On appeal, the North Carolina Supreme Court ordered a new trial on both charges.SeeState v. McCarver, 404 S.E.2d 821(N.C.1991).

A second trial was held during the September 8, 1992 Special Criminal Session of Superior Court, Cabarrus County, and a jury again convicted McCarver of first-degree murder and robbery with a dangerous weapon.It is this second trial that is the subject of McCarver's federal habeas petition.

Before the first trial, McCarver's appointed counsel requested a competency examination for McCarver at Dorothea Dix Hospital ("Dix").During Dr. Tanas' January 1987 examination of McCarver, McCarver completed fill-in-the-blank sentences as follows:

I like to kill.

The happiest time was when I killed that man.

At bedtime I dream about killing.

J.A. 364(Report of Dr. Tanas).A second doctor at Dix, Dr. Lara, also evaluated McCarver and incorporated McCarver's fill-in-the-blank answers into her report.J.A. 367(Report of Dr. Lara).The reports were forwarded to the trial court, to defense counsel, and to the district attorney.J.A. 365, 371.Both doctors concluded that McCarver was competent to stand trial, and no competency hearing was held.

In the first trial, defense counsel hired Dr. Parasi to testify as an expert on McCarver's behalf.Trial counsel gave both Dix reports to Dr. Parasi for the doctor's evaluation of McCarver, and Dr. Parasi incorporated them into his evaluation.

In the second trial, defense counsel hired another expert, Dr. Sultan, a clinical forensic psychologist, to evaluate McCarver and to testify on her evaluation.Defense counsel provided her with copies of the Dix reports, as well as Dr. Parasi's report, which reports she used to evaluate McCarver.Dr. Sultan testified that McCarver was suffering from borderline intellectual functioning, depression, substance abuse disorder, personality disorder, and various other disorders.Defense counsel asked Dr. Sultan about the Dix fill-in-the-blank answers on direct examination, J.A. 65, and the district attorney asked about those same fill-in-the-blank responses on cross-examination, J.A. 150.

During McCarver's capital sentencing proceeding, the State submitted three aggravating circumstances to the jury: (1) that the murder was committed to avoid lawful arrest; (2) that the murder was committed while the defendant was engaged in the commission of a robbery with a dangerous weapon; and (3) that the murder was especially heinous, atrocious, or cruel.The jury found the first two aggravating circumstances to be present in McCarver's case.J.A. 307-08.

In the same proceeding, McCarver submitted seventeen mitigating circumstances to the sentencing jury.The jury found fourteen of those circumstances to be present.The jury did not find that McCarver had a history of alcohol or substance abuse which began at an early age as a consequence of emotional and sexual abuse, that McCarver expressed remorse for his actions, or that there were other unspecified mitigating circumstances.J.A. 309-12.

At the conclusion of the second trial, the jury again returned a verdict of death for the murder conviction and of forty years imprisonment for the robbery conviction.

McCarver appealed his convictions from the second trial.On September 8, 1995, the North Carolina Supreme Court affirmed McCarver's death sentence.State v. McCarver, 462 S.E.2d 25(N.C.1995), cert. denied, 517 U.S. 1110(1996).

On October 22, 1996, McCarver filed a motion for appropriate relief("MAR") in North Carolina Superior Court.The court granted the State's motion for summary denial and denied McCarver's motion for appropriate relief.J.A. 492(North Carolina Superior Court opinion).The Supreme Court of North Carolina denied McCarver's petition for certiorari to review the denial of his motion for appropriate relief.J.A. 590(North Carolina Supreme Courtorder).

On September 22, 1998, McCarver filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in federal district court.A federal magistrate judge recommended denying the petition, J.A. 691(report and recommendation), and the district court adopted the magistrate judge's report and recommendation, J.A. 746(district court opinion).This appeal followed.

II.

McCarver's sole argument on appeal is that his trial counsel rendered ineffective assistance in failing to take appropriate steps to prevent the jury from learning of McCarver's responses in the Dix fill-inthe-blank sentences.¹Specifically, McCarver argues that trial counsel erred (1) by failing to file a motion in limine before trial to prevent the district attorney from using the information contained in the two Dix reports, and (2) by providing the Dix reports to Dr. Sultan, thereby ensuring that the information would be subject to cross-examination.According to McCarver, had the jury not learned of McCarver's fill-in-the-blank responses, the jury would have found the mitigating circumstance that he was remorseful, and had the jury found that he was remorseful, there is a reasonable probability that it would have returned a sentence of life imprisonment instead of death.

The district court held that McCarver's ineffective assistance of counsel claim was procedurally barred under North Carolina law and, alternatively, that the claim lacked merit.We are satisfied that McCarver's ineffective assistance of counsel claim was procedurally barred.But, in any event, we proceed to the merits, and we, too, are confident that there is no merit to McCarver's ineffective assistance claim.²

A.

Federal habeas review of a state prisoner's claims that are procedurally defaulted under independent and adequate state procedural rules is barred unless the prisoner can show cause for the default and demonstrate actual prejudice as a result of the alleged violation of federal law, or prove that failure to consider the claims will result in a fundamental miscarriage of justice.³SeeColeman v. Thompson, 501 U.S. 722, 750(1991).A state rule is adequate if it is "firmly established,"James v. Kentucky, 466 U.S. 341, 348(1...