Nickerson v. Lee

• Citation: 971 F.2d 1125
• Decision Date: 12 August 1992
• Docket Number: No. 91-7574,91-7574
• Parties: Frank R. NICKERSON, Petitioner-Appellant, v. T.A. LEE; Attorney General of North Carolina, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1125

971 F.2d 1125

Frank R. NICKERSON, Petitioner-Appellant, v. T.A. LEE; Attorney General of North Carolina, Respondents-Appellees.

No. 91-7574.

United States Court of Appeals Fourth Circuit.

Argued May 6, 1992.

Decided July 23, 1992.

As Amended Aug. 12, 1992.

Caryn Cherlin, Student Atty., Appellate Advocacy Clinic, Washington College of Law, The American University, Washington, D.C. (Jennifer Lyman, on the brief), for petitioner-appellant.

Richard Norwood League, Sp. Deputy Atty. Gen., North Carolina Dept. of Justice, Raleigh, N.C. (Lacy H. Thornburg, Atty. Gen., Clarence J. DelForge, III, Asst. Atty. Gen., on the brief), for respondents-appellees.

Before HALL and LUTTIG, Circuit Judges, and KELLAM, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

LUTTIG, Circuit Judge:

Appellant Frank R. Nickerson, a state prisoner, appeals from a decision of the United States District Court for the Middle District of North Carolina denying his petition for a writ of habeas corpus. We affirm.

I.

On March 30, 1985, Frank Nickerson shot and killed Willie E. Mitchell after finding Mitchell in bed with Nickerson's ex-wife. On October 25, 1985, Nickerson was convicted of first-degree murder in the Person County, North Carolina, Superior Court, and sentenced to life imprisonment. On the same day, Nickerson filed a motion for appropriate relief, alleging in conclusory terms that the trial court had made legal errors, that there was insufficient evidence to submit the case to the jury, that the verdict was contrary to the weight of the evidence, and that the trial was not fair and impartial. See N.C.Gen.Stat. § 15A-1414. This motion apparently was never acted upon. On June 27, 1986, Nickerson filed a second motion for appropriate relief in the Person County Superior Court, alleging that newly discovered evidence entitled him to an evidentiary hearing. See id. § 15A-1415(b)(6). This motion was denied on July 15, 1986. Nickerson's conviction and the denial of his second motion for appropriate relief were both affirmed by the North Carolina Supreme Court on September 3, 1987. State v. Nickerson, 320 N.C. 603, 359 S.E.2d 760 (1987).

On September 8, 1989, Nickerson filed pro se a third motion for appropriate relief in the Person County Superior Court. In this motion, Nickerson, a black man, alleged racial discrimination in the selection of the foreman of the grand jury that indicted him; racial discrimination in the selection of the petit jurors who convicted him; ineffective assistance of counsel at trial and on direct appeal; error by the trial court in failing to give a self-defense instruction; and error by the trial court in admitting the testimony of a witness whose identity had not been disclosed to Nickerson prior to trial. See N.C.Gen.Stat. § 15A-1415(b)(3). None of these claims had been advanced on direct appeal or in Nickerson's second motion for appropriate relief. On January 3, 1990, the court denied the motion without a hearing and, on May 10, 1990, the North Carolina Supreme Court denied Nickerson's petition for a writ of certiorari, State v. Nickerson, 393 S.E.2d 886 (N.C.1990).

Having exhausted his state court remedies, see 28 U.S.C. § 2254(b), Nickerson filed a petition for a writ of habeas corpus in federal district court on June 11, 1990. See id. § 2254(a). Nickerson raised the same claims in the federal habeas action that he had raised in his third motion for appropriate relief in state court. On the recommendation of a magistrate, see id. § 636(b)(1)(B), the district court denied the petition and dismissed the case without a hearing. On November 7, 1991, we granted a certificate of probable cause to appeal, see id. § 2253, granted Nickerson leave to proceed in forma pauperis, and appointed counsel. We heard oral argument on May 6, 1992. ¹

II.

The threshold question for consideration is whether Nickerson's federal claims are procedurally barred. A federal court may not address the merits of a habeas petition when the state court's denial of a petition for collateral relief rested on the independent and adequate state law ground of procedural default. As on direct appeal, see Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), there is a presumption in habeas that a state court's dismissal of a petition for collateral relief does not rest on an independent and adequate state ground and that the state court has rejected the petitioner's federal claims on the merits. The presumption in favor of federal review, however, applies "only when it fairly appears that [the] state court judgment rested primarily on federal law or was interwoven with federal law, that is, in those cases where a federal court has good reason to question whether there is an independent and adequate state ground for the decision." Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 2559, 115 L.Ed.2d 640 (1991).

In Coleman, the petitioner sought a writ of habeas corpus in a Virginia circuit court. After the petition was denied, an appeal petition was filed in the Virginia Supreme Court. The Commonwealth filed a motion to dismiss the appeal, on the sole ground that the notice of appeal was untimely. The Virginia Supreme Court did not immediately act upon the motion to dismiss, and the parties filed briefs addressing the merits of the petitioner's claims. A few months later, the Virginia Supreme Court issued an order dismissing the appeal, which concluded by stating that "the motion to dismiss is granted and the petition for appeal is dismissed." Id. 111 S.Ct. at 2553. The United States Supreme Court held that this order "fairly appear[ed]" to rest on state law, since it "stated plainly" that the court was granting the Commonwealth's motion to dismiss for untimely filing of the appeal notice. Id. 111 S.Ct. at 2559.

The appellees in this case contend that the state court order denying Nickerson's third motion for appropriate relief satisfied the independent and adequate state ground standard announced in Coleman. ² That order, which was issued by the Person County Superior Court, reads as follows:

This cause coming on to be heard before the undersigned Judge presiding in the Person County Courthouse on January 3, 1990, pursuant to the petitioner's Motion for Appropriate Relief which was filed in the office of the Person County Clerk of Superior Court on September 8, 1989, the Court upon review of the motion and the file in the case finds that the petitioner has set forth no grounds for which he is entitled to a motion for appropriate relief.

The Court further finds that the petitioner has previously had a motion for appropriate relief denied on July 15, 1986 by the Honorable Henry W. Hight, Jr., and that the petitioner has taken his case on appeal to the North Carolina Supreme Court. The North Carolina Supreme Court found "no error" in the petitioner's trial.

WHEREFORE, IT IS ORDERED BY THE COURT that the petitioner's Motion for Appropriate Relief is denied and dismissed.

J.A. at 265. ³ The appellees argue that the order's second paragraph "pretty clearly invokes procedural default as it has relevance only in the context of invoking North Carolina's statutory waiver rule." Appellees' Br. at 24. The statutory provision to which the appellees refer provides that a motion for appropriate relief may be denied under three circumstances, two of which are relevant to this case: where "[u]pon a previous motion [for appropriate relief] ..., the defendant was in a position to adequately raise the ground or issue underlying the present motion but did not do so," N.C.Gen.Stat. § 15A-1419(a)(1), and where "[u]pon a previous appeal the defendant was in a position to adequately raise the ground or issue underlying the present motion but did not do so," id. § 15A-1419(a)(3).

Because none of the five claims that Nickerson raised in his third motion for appropriate relief was raised in his direct appeal or in his second motion for appropriate relief, it appears that the motion could have been denied on the ground of procedural default. We do not believe, however, that it was denied on this alternative ground. Cf. Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86 L.Ed.2d 231 (1985) ("The mere existence of a basis for a state procedural bar does not deprive this Court of jurisdiction; the state court must actually have relied on the procedural bar as an independent basis for its disposition of the case."). At a minimum, there is "good reason to question whether there is an independent and adequate state ground for the decision." Coleman, 111 S.Ct. at 2559.

The first paragraph of the order states the court's conclusion, after having reviewed Nickerson's motion and the file in the case, that Nickerson "has set forth no grounds for which he is entitled to ... relief." J.A. at 265. This paragraph implies that the court reached and reviewed the merits of each of Nickerson's claims and concluded that he would not be entitled to relief on any of these claims. Thus, the only question is whether the second paragraph recites an alternative ground for the court's decision. See Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 1044 n. 10, 103 L.Ed.2d 308 (1989) ("[T]he adequate and independent state-ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.").

The appellees' argument as to the meaning of the second paragraph is not without appeal. Ultimately, however, we cannot conclude from this paragraph that the court's judgment rested on the independent and adequate state ground of procedural default. At bottom, the second paragraph is nothing more than a recitation of the procedural history of Nickerson's case. The court neither mentions procedural default (or any synonymous term) nor cites any relevant North Carolina...