McNeill v. Polk

• Decision Date: 31 January 2007
• Docket Number: No. 05-12.,05-12.
• Citation: 476 F.3d 206
• Parties: John Davis McNEILL, Petitioner-Appellant, v. Marvin POLK, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

476 F.3d 206

John Davis McNEILL, Petitioner-Appellant, v. Marvin POLK, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.

No. 05-12.

United States Court of Appeals, Fourth Circuit.

Argued: September 18, 2006.

Decided: January 31, 2007.

ARGUED:

Milton Gordon Widenhouse, Jr., Rudolf, Wide-House & Fialko, Chapel Hill, North Carolina, for Appellant. Jill Ledford Cheek, North Carolina Department of Justice, Raleigh, North Carolina, for Appellee.

ON BRIEF:

Mark E. Edwards, Edwards and Trenkle, P.L.L.C., Durham, North Carolina, for Appellant. Roy Cooper, Attorney General of North Carolina, Raleigh, North Carolina, for Appellee.

Before KING, GREGORY, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge SHEDD wrote the opinion, in which Judge KING and Judge GREGORY concurred in part. Judge KING wrote an opinion concurring in part and concurring in the judgment. Judge GREGORY wrote an opinion dissenting in part and concurring in part.

OPINION

SHEDD, Circuit Judge:

John Davis McNeill appeals the district court's dismissal of his petition for writ of habeas corpus. McNeill contends that he is entitled to habeas relief or, at a minimum, an evidentiary hearing on his claims. For the reasons set forth below, we affirm the judgment of the district court.

I

On November 8, 1995, a North Carolina state jury convicted McNeill of first-degree burglary and of the first-degree murder of Donna Lipscomb. The evidence presented at trial tended to show that McNeill had been dating Lipscomb periodically prior to her death. On November 17, 1992, after McNeill and Lipscomb's relationship encountered difficulty, McNeill went to Lipscomb's apartment armed with a knife. After cutting the apartment's telephone lines, McNeill forced his way into the apartment, where he began arguing with Lips-comb. The two then began shoving each other, and McNeill stabbed Lipscomb repeatedly in the upper torso, fatally wounding her.

After the subsequent sentencing phase, the jury found as an aggravating circumstance that McNeill committed the murder while engaged in the commission of burglary. The jury further found two statutory mitigating factors: (1) that McNeill committed the murder while under the influence of mental or emotional disturbance and (2) other circumstances arising from the evidence which are deemed to have mitigating value. In addition, the jury found seven non-statutory mitigating factors. Weighing these factors, the jury unanimously recommended a sentence of death for the murder conviction, and the trial court imposed that sentence. On the first-degree burglary conviction, the trial court sentenced McNeill to life imprisonment.

On direct appeal, the Supreme Court of North Carolina affirmed McNeill's conviction, State v. McNeill, 346 N.C. 233, 485 S.E.2d 284 (1997), and the Supreme Court denied his petition for writ of certiorari, 522 U.S. 1053, 118 S.Ct. 704, 139 L.Ed.2d 647 (1998). McNeill then filed a Motion for Appropriate Relief ("MAR") in the Cumberland County Superior Court. After various pleadings were filed, the superior court denied McNeill's MAR and his later motion for an evidentiary hearing. The state supreme court declined to review the MAR court's denial of relief. State v. McNeill, 352 N.C. 154, 544 S.E.2d 237 (2000).

McNeill thereafter filed a petition for writ of habeas corpus in federal court in which he presented 18 claims for review. Eventually, the district court granted Warden Marvin Polk's ("the State") motion for summary judgment and dismissed the petition. The district court, however, granted a certificate of appealability ("COA") on the following issues: (1) whether McNeill was denied effective assistance of counsel when trial counsel admitted without McNeill's consent that he was guilty of non-felonious breaking and entering, (2) whether McNeill was denied effective assistance of counsel when trial counsel admitted without McNeill's consent that he was guilty of second-degree murder, and (3) whether McNeill's due process rights were violated when the trial court permitted the jury to find him eligible for a death sentence if it concluded that the aggravating and mitigating circumstances were in equipoise.¹ On appeal, we expanded the COA to include three additional issues: (1) whether McNeill's due process rights were violated when a juror consulted a dictionary to determine the meaning of the term "mitigate"; (2) whether McNeill was denied effective assistance of counsel when trial counsel failed to investigate and present certain evidence concerning McNeill's behavior, character, and mental capacity; and (3) whether McNeill's due process rights were violated when a juror failed to disclose that his half-sister had been murdered by an ex-boyfriend.

II

We review de novo the district court's application of the standards of 28 U.S.C. § 2254(d) to the findings and conclusions of the MAR court. Robinson v. Polk, 438 F.3d 350, 354-55 (4th Cir.2006). Pursuant to this review, our inquiry is limited to an analysis of whether the MAR court's adjudication of McNeill's federal claims "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2).

The "contrary to" and "unreasonable application of" clauses of § 2254(d)(1) have meanings which may be satisfied independently of each other. Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision is contrary to clearly established federal law "if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts." Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). A state court decision is an unreasonable application of clearly established federal law "if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case." Id. Having said this, we note that a state court's decision will not be disturbed where it is premised on an erroneous or incorrect—but not unreasonable—application of federal law. Williams, 529 U.S. at 410, 120 S.Ct. 1495.

III

A.

I begin my analysis with the State's contention that the rules of procedural default bar our review of the merits of McNeill's claims that Juror Sermarini improperly consulted a dictionary and that Juror Lee failed to disclose that his half-sister had been murdered.²

1.

The doctrine of procedural default provides that "a federal habeas court may not review constitutional claims when a state court has declined to consider their merits on the basis of an adequate and independent state procedural rule." Burket v. Angelone, 208 F.3d 172, 183 (4th Cir.2000). A state procedural rule is adequate if it is regularly or consistently applied by the state courts, Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), and it is independent if it does not depend on a federal constitutional ruling, Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Where a state procedural rule is both adequate and independent, it will bar consideration of the merits of claims on habeas review unless the petitioner demonstrates cause for the default and prejudice resulting therefrom or that a failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

The MAR court rejected several of McNeill's claims, including his improper influence and biased juror claims, based on N.C. Gen.Stat. § 15A-1420(b)(1), which provides:

A motion for appropriate relief made after the entry of judgment must be supported by affidavit or other documentary evidence if based upon the existence or occurrence of facts which are not ascertainable from the records and any transcript of the case or which are not within the knowledge of the judge who hears the motion.

Specifically, the MAR court found that these claims were supported only by inadmissible evidence in the form of two affidavits which contained hearsay and one unsworn, signed statement of a juror. After excluding this inadmissible evidence, the MAR court determined that McNeill's claims were not supported by the requisite evidence under the statute, and it denied relief.³ The question now before us is whether the MAR court's rejection of an MAR supported by inadmissible evidence constitutes an adequate and independent state procedural rule.⁴ I conclude that it does.

In Richmond v. Polk, 375 F.3d 309 (4th Cir.2004), we held that § 15A-1420(b)(1) qualifies as an adequate and independent state procedural rule when it is employed by the state courts to deny, at the pleading stage, MAR claims which are supported by insufficient documentary evidence. There, the MAR court, relying on § 15A-1420(b)(1), summarily denied two ineffective assistance of counsel claims because they were presented with no affidavit or supporting evidence and one ineffective assistance claim because the proffered affidavit "did not actually support Richmond's claim." 375 F.3d at 322. On habeas review, we held that procedural default barred review of these claims. Id. In so holding, we found that § 15A-1420(b)(1) "is an adequate state procedural rule because an unambiguous court rule such as N.C. Gen.Stat. § 15A-1420(b)(1) is necessarily firmly established ... and because North Carolina courts [have] regularly and consistently applied it...." 375 F.3d at 323 (internal punctuation and citations omitted). We further held that § 15A-1420(b)(1) "is an independent state...