Nicholson v. Branker, No. 5:06-HC-2148-H

CourtUnited States District Courts. 4th Circuit. Eastern District of North Carolina
Writing for the CourtMALCOLM J. HOWARD
Citation739 F.Supp.2d 839
PartiesAbner Ray NICHOLSON, Petitioner, v. Gerald BRANKER, Warden, Central Prison, Raleigh, N.C., Respondent.
Decision Date20 September 2010
Docket NumberNo. 5:06-HC-2148-H
739 F.Supp.2d 839

Abner Ray NICHOLSON, Petitioner,
v.
Gerald BRANKER, Warden, Central Prison, Raleigh, N.C., Respondent.


No. 5:06-HC-2148-H.

United States District Court,
E.D. North Carolina,
Western Division.


Sept. 20, 2010.

739 F.Supp.2d 846

James B. Maxwell, Maxwell, Freeman & Bowman, P.A., Mark James Kleinschmidt, Fair Trial Initiative, Kenneth J. Rose, Durham, NC, for Petitioner.

ORDER

MALCOLM J. HOWARD, Senior District Judge.

This matter is before the court on the petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 on behalf of Abner Ray Nicholson ("Nicholson" or "petitioner"). Nicholson was convicted of two counts of first-degree murder and sentenced to death on each count. He seeks a writ of habeas corpus vacating his convictions and alternatively, his death sentences. Respondent has answered the petition and amendment to petition, and moved for summary judgment. Petitioner has responded. In addition, the parties appeared before the court on May 5, 2010, to present oral argument on Claim I and

739 F.Supp.2d 847
for an evidentiary hearing on Claim VIII. The matter is ripe for ruling.

STATEMENT OF THE CASE

Nicholson was tried and convicted of the first-degree murders of Gloria Brown Nicholson, his wife, and Willard Wayne Hathaway, the Chief of Police for Sharpsburg, North Carolina, at the October 25, 1999, criminal session of the Superior Court of Wilson County.1 The following facts are summarized from the opinion of the Supreme Court of North Carolina. See State v. Nicholson, 355 N.C. 1, 558 S.E.2d 109 (2002).

A. Facts

Petitioner and his wife, Gloria Nicholson, lived in a trailer in Sharpsburg, North Carolina, with Gloria's two children. On July 15, 1997, Mrs. Nicholson went to a neighbor's home with her children and asked to use the telephone. She told the neighbor that petitioner had attacked her and that she was going to go to her mother's house. On July 16, 1997, petitioner retrieved his Bauer .25-caliber handgun from the pawn shop where he had pawned the gun in June. Later that day, he and Gloria went to the home of Gloria's mother and stepfather, Ella and Marvin Badger. Gloria told the Badgers she did not want to remain married to petitioner. Petitioner indicated he wanted to work things out. Gloria said petitioner had attempted to choke her in April, and Mrs. Badger said she did not want Gloria to be with petitioner anymore.

That evening, Gloria's youngest daughter had a fever, and the Badgers drove petitioner, Gloria, and the child to the hospital. Petitioner and Gloria rode in the backseat. The two were whispering and then Gloria told her stepfather that petitioner said he was carrying a gun and had threatened to kill her. Petitioner responded that he was lying and did not have a gun. At the hospital, petitioner did not go inside with the others and returned home on his own.

Upon leaving the hospital, the Badgers took Gloria back to her trailer so she could get some clothes. Mr. Badger walked inside with Gloria to use the restroom and Mrs. Badger waited in the van. Petitioner was inside the trailer. Gloria walked to the door and called her mother. As Mrs. Badger walked toward the trailer, petitioner walked outside and punched Gloria in the face with his fist causing her nose to bleed. When Mr. Badger came to see what was going on, petitioner claimed Gloria had been hit by the door.

Gloria called the police. When the police arrived petitioner ran and hid in a nearby cornfield. Gloria told the police what petitioner had done, and the officer advised her to take the Badgers as witnesses and swear out a warrant for petitioner's arrest. They did so, and then Gloria spent the night at her parents' house. The police were unable to apprehend petitioner that night.

The next morning, July 17, 1997, Gloria went to the trailer with her stepfather and brother, Jarrin Brown, so she could get some clothes. While there, she spoke on the phone with petitioner and told him to come over and get his clothes. He agreed, but said he did not want anyone at the trailer except her.

After speaking with petitioner, Gloria called the police to see if an officer would come over. Chief Hathaway said that when petitioner arrived she should call back before letting petitioner inside the

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trailer and he would come serve the warrant on petitioner. Petitioner called Gloria a few minutes later to see if she was at the trailer alone. She said she was alone and told her stepfather and brother to hide in the bedroom until the police arrived.

When petitioner arrived at the trailer, Gloria kept petitioner from entering by saying she was getting dressed. She called the police, then let petitioner inside and told him she wanted him to get his clothes and leave.

Chief Hathaway arrived at the trailer and Gloria let him inside. She then told her stepfather and brother they could come out of the bedroom. As they walked out of the bedroom and down the hallway, Chief Hathaway walked towards petitioner. Petitioner turned, pushed Chief Hathaway and shot Chief Hathaway in the face. The Chief fell against petitioner and petitioner shoved him back. Chief Hathaway's gun was in the holster when he was shot.

As Mr. Badger tried to open the rear door to get outside, petitioner chased Gloria. When Mr. Badger got the door open and went outside, he could hear shooting inside the trailer.

At the same time, Gloria's brother, Jarrin Brown, was moving toward the back bedroom. As he did so, he saw his sister lying on the floor near the front door. Petitioner walked to her, leaned down, and shot her. Mr. Brown ran to the bedroom and waited until he heard petitioner leave the trailer. He then ran outside and saw petitioner walking towards the cornfield.

Brown went back inside. His sister was not moving, but Chief Hathaway was breathing. He called 911 and took the Chief's gun from the holster in case petitioner returned. When the police arrived at the scene, Brown put the gun on a recliner. When it was found by the police the safety was still on and there was no evidence it had been fired.

Petitioner was apprehended later that day. The gun petitioner had retrieved from the pawn shop was found the next day in a cornfield. Subsequent forensic examination indicated all of the bullets collected at the scene had been fired from that gun.

The autopsy of Chief Hathaway indicated he died from a gunshot wound to the head. The wound appeared to have been made from a distance of two feet or more. The autopsy of Gloria Nicholson indicated she died from multiple gunshot wounds to the head.

At trial, petitioner testified. He insisted that during his marriage Gloria often hit him but he never hit her back. He said she carried a gun in her pocketbook and had threatened him with it before. He said she had cut him with a knife several times. He also said that Mr. Badger had previously threatened him with a gun.

Petitioner testified that the night they had gone to the hospital with Gloria's child he was at home when they returned from the hospital. He said that as he attempted to leave, he pushed the screen door out of his wife's hand, and she grabbed the door and started hitting him. He said the screen door sprang back and hit her causing her nose to bleed. He said he walked away and went and spent the night at the home of a woman named Delores Leach, and the next day he went to his sister's house.2

While he was at his sister's house, his wife called and told him to come get his clothes immediately. She said she had a gun. He drove to the trailer in his sister's car. When he knocked on the door of the trailer, his wife said to wait because she was dressing. When she let him in she

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went into the kitchen to get a trash bag for his clothes. As she walked to hand him the bag, she told him not to make her shoot him.

Petitioner says that he next recalls that a police officer walked into the trailer and Gloria said, "Shoot him, shoot him, if you don't I am." He said he turned in a panic and saw the officer walking towards him with his hand on his gun. The officer said he had a warrant for petitioner's arrest, hit petitioner in the face, and spit in his face. Petitioner testified that at this point he went blank and could not see.

He said he heard his wife screaming, the sounds of stumbling, and gunfire. He said he saw his wife falling and thought she was reaching for her pocketbook. He saw Mr. Badger and thought he had a gun. He was afraid and fired two shots into the floor of the trailer before running outside. He said when he fired the gun he was not aiming at anyone and did not hit anyone. He testified that Marvin Badger shot Chief Hathaway in the face as he ran out of the bedroom. He believed it was also Marvin Badger who shot Gloria.

At the guilt phase of trial the defense also called two men who had worked with petitioner at Tim's Auto Sales. Both said petitioner was not a violent person. They testified they had seen Gloria hit petitioner, but had never seen petitioner hit her. A female co-worker testified that Gloria told her that Mr. Badger had threatened petitioner with a gun and that Gloria kept a gun in her pocketbook. She also said that Gloria was frequently abusive toward petitioner at work.3

Delores Sledge testified that petitioner was the father of her daughter. She testified that petitioner had never hit her, but had grabbed her one time as she was walking away. She said she had picked petitioner up from the hospital and driven him to the trailer the night before the shooting. She said he had a cut on his neck and told her his wife had cut him with a knife. She said he seemed nervous and depressed.

Stephanie Lynch, a neighbor of the Nicholsons, testified she frequently saw Gloria and Chief Hathaway together at a local store.

B. Procedural History

After a trial by jury, petitioner was convicted of two counts of first-degree murder. At the sentencing phase, the jury found one aggravating circumstance for the murder of...

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2 practice notes
  • Williams v. Cahill, No. 2 CA–SA 2012–0070.
    • United States
    • Court of Appeals of Arizona
    • May 17, 2013
    ...deference” to trial court's resolution of conflicting psychological evidence offered by experts). ¶ 29 Quoting Nicholson v. Branker, 739 F.Supp.2d 839, 857 (E.D.N.C.2010), Williams maintains there is “no requirement that [a defendant] show he had scored [seventy] or below on a[n IQ] test gi......
  • Jeffrey Pape v. Gregg Pane, Director VDMAS , Fairfax County Circuit Court Case No. CL-2011-1627
    • United States
    • Virginia Circuit Court of Virginia
    • May 13, 2011
    ...administered well after [the defendant's] eighteenth birthday." Id. (citing Walker, 399 F.3d at 323 n.7). In Nicholson v. Branker, 739 F. Supp. 2d 839 (E.D.N.C. 2010), the court reached a similar conclusion, granted a writ of habeas corpus, and vacated the defendant's death sentence. Id. at......
2 cases
  • Williams v. Cahill, No. 2 CA–SA 2012–0070.
    • United States
    • Court of Appeals of Arizona
    • May 17, 2013
    ...deference” to trial court's resolution of conflicting psychological evidence offered by experts). ¶ 29 Quoting Nicholson v. Branker, 739 F.Supp.2d 839, 857 (E.D.N.C.2010), Williams maintains there is “no requirement that [a defendant] show he had scored [seventy] or below on a[n IQ] test gi......
  • Jeffrey Pape v. Gregg Pane, Director VDMAS , Fairfax County Circuit Court Case No. CL-2011-1627
    • United States
    • Virginia Circuit Court of Virginia
    • May 13, 2011
    ...administered well after [the defendant's] eighteenth birthday." Id. (citing Walker, 399 F.3d at 323 n.7). In Nicholson v. Branker, 739 F. Supp. 2d 839 (E.D.N.C. 2010), the court reached a similar conclusion, granted a writ of habeas corpus, and vacated the defendant's death sentence. Id. at......

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