Richardson v. Kornegay

Decision Date08 July 2021
Docket NumberNo. 18-6488,18-6488
Citation3 F.4th 687
Parties James Earl RICHARDSON, Petitioner - Appellant, v. Superintendent Joyce KORNEGAY, Respondent - Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

3 F.4th 687

James Earl RICHARDSON, Petitioner - Appellant,
v.
Superintendent Joyce KORNEGAY, Respondent - Appellee.

No. 18-6488

United States Court of Appeals, Fourth Circuit.

Argued: March 9, 2021
Decided: July 8, 2021


ARGUED: Lide E. Paterno, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington, D.C., for Appellant. Nicholaos George Vlahos, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Heather L. Rattelade, RICHARDSON LAW FIRM, PLLC, Fayetteville, North Carolina; Z.W. Julius Chen, Margaret O. Rusconi, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington, D.C., for Appellant. Joshua H. Stein, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

Before GREGORY, Chief Judge, and AGEE and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Richardson wrote the opinion, in which Chief Judge Gregory and Judge Agee joined.

RICHARDSON, Circuit Judge:

In 2011, a North Carolina jury found James Richardson guilty on two counts of first-degree murder and two counts of discharging a firearm into an occupied building resulting in serious bodily injury. He was sentenced to two consecutive life sentences without the possibility of parole for the murder convictions (along with consecutive terms for the firearm convictions).

After his convictions were affirmed on appeal, Richardson unsuccessfully sought post-conviction relief in state court. So he filed a habeas petition in federal district court, see 28 U.S.C. § 2254, that raised three issues relevant here: (1) whether the trial court violated his due process right to present a defense by excluding his eyewitness-identification expert, (2) whether his trial counsel provided him with ineffective assistance by failing to secure the admissibility of that expert's testimony, and (3) whether the jury's verdict was impermissibly motivated by racial animus. Applying the deferential standard of review mandated by the Antiterrorism and Effective Death Penalty Act of 1996, the district court dismissed his petition.

Richardson now asks us to reverse the district court's decision or, in the alternative, vacate it and remand for an evidentiary hearing. But finding his ineffective-assistance claim procedurally barred and his other claims without merit, we affirm the district court's denial of his habeas petition.

I. Background

A. The trial

Richardson's convictions stem from a drive-by shooting that occurred outside a

3 F.4th 692

nightclub in Greenville, North Carolina, around 2:00 a.m. on June 30, 2009. Near closing time, Richardson scuffled with another patron and was escorted out of the club by several bouncers. Once outside, he scuffled with the club's staff, told them that he would be back, and threatened to kill them. One witness saw him mimic a gun with his hands.

Amid the commotion, Richardson broke loose from the fray and walked away from the club to a white BMW, on loan from a friend, he had parked nearby. He retrieved a gun from the trunk, cocked it, and got into the vehicle on the driver's side.

Moments later, a white BMW, coming from the direction Richardson had walked after he had been escorted out of the club, sped the wrong way down a one-way road toward the club. As the car zoomed by, witnesses saw a man in a white shirt fire multiple gunshots through the car's window in the direction of the club. Two of those bullets struck and killed a twenty-one-year-old college student and a manager of a local pizza restaurant. The white BMW was later found on the street outside Richardson's mother's house.

Richardson fled the state, but, several days later, turned himself in to the police. Richardson was charged with two counts of first-degree murder and two counts of discharging a firearm into an occupied building and was ultimately tried on those charges.

His trial focused almost exclusively on the identity of the shooter in the BMW. Various witnesses described both Richardson and the shooter as wearing a white t-shirt on the evening of the murders. And one, Vidal Thorpe, testified that he saw Richardson's face and arm as the BMW drove by. Officers also recovered an unfired bullet, Richardson's photo-identification card, receipts in Richardson's name, Richardson's latent fingerprints and palm prints, and Richardson's DNA from the BMW. Testimony established that the bullets recovered from the scene had been fired from a Hi-Point .45 caliber handgun, the same brand and caliber as a firearm that Richardson owned.

The defense called several witnesses who testified that Richardson was not the person who fled the altercation outside the club; the shooter used a gun unlike the one Richardson had owned; the shooter's appearance was quite different from Richardson's; there were at least two people in the car; the shooter was not Richardson; and Richardson had not been driving a BMW that night.

Richardson also sought to admit the expert testimony of Dr. Lori Van Wallendael, a professor with expertise in "applied memory issues," "eyewitness face recognition, voice recognition, [and] testimony in a forensic setting." J.A. 1988. To prepare for her testimony, Dr. Van Wallendael had reviewed witness statements, police reports, lineup identifications, and some transcripts from testimony given at a suppression hearing. She also visited the crime scene at night to "get a feel for what the lighting might have been like and what the distances were involved from where the various witnesses had said they were standing and walking." J.A. 1990. She interviewed no witnesses but observed the in-court testimony of at least eight government witnesses. She did not observe the testimony of Thorpe, the only witness to positively identify Richardson as the shooter in the BMW, or the testimony of any of the defense's eyewitnesses who presented conflicting accounts of what happened that night.

In support of Dr. Van Wallendael's testimony, defense counsel submitted a written memorandum along with copies of two cases from North Carolina and one from Utah. While largely relying on that written submission, defense counsel explained that

3 F.4th 693

the testimony was important because the case was "particularly eyewitness identification heavy." J.A. 2009. He agreed that the admission of this type of witness was "in the discretion of the Court." Id. But Dr. Van Wallendael, counsel stressed, had reviewed all the statements and gone to the crime scene. Even so, counsel acknowledged that some courts found it important for an eyewitness-identification expert to speak to the witnesses, something that counsel said was impossible given timing and the presence of State witnesses under subpoena. And defense counsel acknowledged that the expert had not seen all the trial testimony of the eyewitnesses but stressed that should only limit what could be asked of the expert. Taken together, defense counsel argued that the expert's preparation and background justified permitting her testimony.

The prosecution opposed admitting Dr. Van Wallendael's testimony. The decision, the government agreed, was within the court's discretion but the government explained that Dr. Van Wallendael had not interviewed each witness and had not heard every eyewitness’ trial testimony. So the prosecution argued that the testimony would be prejudicial and confusing to the jury.

After taking a break to review the written materials provided by defense counsel, the court excluded the testimony. The court found that the expert had visited the scene and reviewed the statements and lineup materials but had neither interviewed all the witnesses nor observed all the eyewitness testimony. The trial court then concluded that the probative value "of her testimony considered in the light most favorable to the Defendant, is outweighed by the danger that the testimony ... would confuse the jury, that it would be unduly prejudicial in the Defendant's favor and that it would not be of significant assistance to the jury." J.A. 2012–13.

Proceeding without Dr. Van Wallendael's testimony, the jury convicted Richardson on two counts of murder and two counts of discharging a firearm into an occupied building inflicting serious bodily injury. The court sentenced Richardson to consecutive life sentences plus a consecutive 98 to 136 months in prison.

B. Direct appeal

On direct appeal, Richardson argued, among other things, that the trial court violated his constitutional right to present a defense by excluding Dr. Van Wallendael's testimony. State v. Richardson , 738 S.E.2d 830, at *2–3 (N.C. Ct. App. 2013) (unpublished table decision). The appeals court rejected that argument, holding that the trial court did not abuse its discretion in finding Dr. Van Wallendael's testimony unfairly prejudicial because "she did not interview the witnesses and did not hear all of the in-court testimony, particularly the testimony of the defense witnesses and Thorpe[,]" and, as such, "she would have only testified about the reliability of the State's witnesses’ identification." Id. at *3. The Supreme Court of North Carolina declined discretionary review. State v. Richardson , 366 N.C. 593, 743 S.E.2d 198 (2013).

C. State...

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