Owens v. Stirling

• Decision Date: 22 July 2020
• Docket Number: No. 18-8,18-8
• Citation: 967 F.3d 396
• Parties: Freddie OWENS, Petitioner - Appellant, v. Bryan P. STIRLING, Commissioner, South Carolina Department of Corrections; Willie D. Davis, Warden of Kirkland Correctional Institution, Respondents – Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

967 F.3d 396

Freddie OWENS, Petitioner - Appellant,

v.Bryan P. STIRLING, Commissioner, South Carolina Department of Corrections; Willie D. Davis, Warden of Kirkland Correctional Institution, Respondents – Appellees.

No. 18-8

United States Court of Appeals, Fourth Circuit.

Argued: December 11, 2019

Decided: July 22, 2020

ARGUED: Michael Francis Williams, KIRKLAND & ELLIS, LLP, Washington, D.C., for Appellant. Melody Jane Brown, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellees. ON BRIEF: Robert Lee, VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Charlottesville, Virginia, for Appellant. Alan Wilson, Attorney General, Donald J. Zelenka, Deputy Attorney General, J. Anthony Mabry, Senior Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellees.

Before WILKINSON, KEENAN and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Wilkinson and Judge Keenan joined.

DIAZ, Circuit Judge:

Freddie Eugene Owens was sentenced to death three times by a South Carolina jury for the 1997 murder of Irene Graves during an armed robbery of the Speedway convenience store where she worked. He appeals the district court's grant of summary judgment in favor of the respondent state officials Bryan P. Stirling and Willie D. Davis (collectively "the State") on his petition for writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254.

Owens argues that counsel in his third capital sentencing trial provided ineffective assistance by failing to thoroughly investigate and present available mitigating evidence and to object on Confrontation Clause grounds to the trial court's admission of state records summarizing a number of his disciplinary infractions while incarcerated. He also contends that counsel in both his third capital sentencing trial and his initial postconviction proceeding were ineffective by failing to develop evidence of frontal lobe abnormalities in his brain through comprehensive neuroimaging

.

The state court rejected Owens's first two claims on the merits in 2013 and his third claim, which Owens didn't raise in his initial petition, as procedurally defaulted in 2017. The district court thereafter dismissed Owens's § 2254 petition, holding that the state court reasonably applied clearly established Supreme Court law in rejecting Owens's two exhausted claims under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that Owens failed to demonstrate cause under Martinez v. Ryan , 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), to excuse the procedural default of his third Strickland claim.

We agree with the district court on all fronts. Emphasizing our deferential standard of review in regard to the exhausted claims, we decline to disturb the state court's holdings that counsel thoroughly investigated and presented Owens's mitigating evidence and that the Confrontation Clause didn't apply to a business record not prepared specifically for use at trial. With respect to the defaulted claim, we accentuate Martinez ’s high procedural bar, which Owens fails to meet because his underlying claim is insubstantial. In so concluding, we exercise our discretion to reconsider an issue that we implicitly resolved in Owens's favor by granting his certificate of appealability. Accordingly, we affirm.

I.

We first sketch the long chain of events giving rise to this capital habeas action, which encompass a criminal trial, three sentencing trials, three rounds of direct appeal, and two rounds of state postconviction proceedings, in addition to the proceedings in the district court.

A.

Owens's conviction for murder, armed robbery, conspiracy to commit armed robbery, and use of a firearm in the commission of a violent crime traces back to October 31, 1997. Early that Halloween evening, Owens was driving around his hometown of Greenville, South Carolina with his three co-defendants—Andre Golden, Nakeo Vance, and Lester Young—when the foursome conspired to hold up a series of local businesses. After "casing" several options, two of them (sans Owens) robbed the Prestige Cleaners on Lauren's Road at around 6:45 p.m. Later in the evening, all four robbed the Conoco Hot Spot convenience store on Augusta Road.

After midnight on November 1, the four men conferred on Owens's front porch about splitting up and robbing two more businesses near the intersection of Lauren's Road and I-85. One was a Waffle House, which was assigned to Vance and Young (but which they found too crowded to carry out their plan). The other was the Speedway convenience store, which was assigned to Owens and Golden.

Security footage from inside the store showed two men wearing makeshift disguises over their heads—one a ski mask and the other a pair of panty hose—entering at around 4:00 a.m. The masked men accosted Graves (a single mother of three who was working as many jobs), removed what turned out to be $37.29 from the register, and led Graves at gunpoint to the back of the store, where the safe was located. When Graves couldn't open the safe because she didn't know the combination, the man in the ski mask shot her in the right side of the head with a .32 caliber pistol, killing her instantly.

B.

Owens and his companions were indicted the following October, and the State promptly filed a notice of intent to seek the death penalty for Graves's murder. Owens was tried alone for that crime beginning on February 8, 1999. Lacking forensic evidence to connect Owens to the scene, the State's case rested largely on witness testimony. Golden (who had since pleaded guilty) testified to the events described above, including that Owens was the man in the ski mask who pulled the trigger. Vance also testified for the State, adding that Owens took credit for having "shot that bitch in the head" after hopping in Vance's getaway car. J.A. 1329. Owens's then-girlfriend testified that he had confessed to having shot the clerk to her, too. Owens also confessed to a detective and an investigator who had been assigned to the case and who likewise testified for the State. On this evidence, a jury returned a guilty verdict on all counts on February 15.

The sentencing phase of Owens's trial began two days later. This phase was separate from the guilt phase pursuant to South Carolina law, which provides that "the court shall conduct a separate sentencing proceeding ... upon [the] conviction or adjudication of guilt of a defendant of murder" in all cases where "the State seeks the death penalty." S.C. Code Ann. § 16-3-20(B). If the sentencing jury (or the judge in non-jury cases) unanimously finds at least one statutory aggravating circumstance beyond a reasonable doubt and recommends that a sentence of death be imposed, "the trial judge shall sentence the defendant to death." Id. § 16-3-20(C). The statutory aggravating circumstances include, as relevant here, that the murder was committed during an armed robbery or during an armed larceny. see id. § 16-3-20(C)(a)(1)(e), (f). The statute also sets forth a nonexclusive list of mitigating circumstances that the jury (or judge) must be allowed to consider in reaching a sentencing verdict. see id. § 16-3-20(C)(b).

On the morning of trial, defense counsel notified the court that they had been served with a Supplemental Notice of Aggravation the previous afternoon, which indicated the State's intent to introduce—as evidence of Owens's future dangerousness and inability to adapt to incarceration—a statement Owens made that morning confessing to the murder of a fellow inmate named Christopher Lee. Defense counsel moved for a brief continuance to investigate the circumstances of the confession, but the court denied the motion. The sentencing hearing began, evidence of Lee's murder was introduced, and the jury returned a unanimous verdict finding the statutory aggravating circumstance of murder while in the commission of armed robbery and recommending that Owens be sentenced to death.

On appeal, the Supreme Court of South Carolina affirmed Owens's conviction but vacated his capital sentence and remanded for resentencing, finding that the trial court had abused its discretion in refusing to grant a continuance. State v. Owens , 346 S.C. 637, 552 S.E.2d 745, 759 (2001). The high court reasoned that in light of "the capital nature of the proceeding" and "the timing of [Owens's] statement" regarding Lee's death, "due process necessitated a brief ... continuance to allow defense counsel the opportunity to interview the inmates and personnel at the detention center." Id.

C.

Owens elected a bench trial for his second capital sentencing proceeding. The trial court sentenced Owens to death anew, but South Carolina's high court again vacated the sentence and remanded for another resentencing. see State v. Owens , 362 S.C. 175, 607 S.E.2d 78, 80 (2004). This time, the Supreme Court found that Owens's waiver of his right to a jury trial wasn't voluntary under South Carolina law because the trial court had impermissibly injected its personal opinion into Owens's decision. Id. at 79–80.

D.

Owens's third capital sentencing trial forms the basis of the ineffective-assistance claims raised in his § 2254 petition. Owens was represented in that proceeding by Everett P. Godfrey, Jr. and Kenneth C. Gibson (collectively "Sentencing Counsel"), who were appointed on February 2, 2006, for a trial scheduled to begin on October 2. Godfrey took immediate responsibility for Owens's mitigating evidence, while Gibson took charge of the guilt- or crime-related evidence. Closer to trial, once they realized that there was "a whole lot more" mitigating evidence than guilt-related evidence to cover, Gibson took on secondary responsibility for presenting Owens's mitigation case. J.A. 2095.

Counsel spent much of the first six months of their appointment on preliminary tasks, such as performing legal research, reviewing the case files from...