Tarleton v. Anderson

• Decision Date: 19 January 2012
• Docket Number: 3:08-cv-483-RJC
• Court: U.S. District Court — Western District of North Carolina
• Parties: JOSEPH BRIAN TARLETON, Petitioner, v. RICKY ANDERSON, Admin., Respondent.

JOSEPH BRIAN TARLETON, Petitioner, v. RICKY ANDERSON, Admin., Respondent.

3:08-cv-483-RJC

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION

Signed: January 19, 2012

ORDER

This matter is before the court on Petitioner's Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus, (Doc. No. 1); Respondent's Motion for Summary Judgment, (Doc. No. 11); and Petitioner's Motion for Summary Judgment, (Doc. No. 19).

I. HISTORY

A. State Court History and Proceedings

Pro se petitioner Joseph Brian Tarleton is a state court prisoner who, on February 8, 2006, in Union County Superior Court, the Honorable Susan C. Taylor presiding, was found guilty after a jury trial of nine counts of taking or attempting to take indecent liberties with a minor and one count of disseminating harmful materials. The trial court sentenced Petitioner to nine consecutive terms of twenty to twenty-six months' imprisonment for the indecent liberties convictions. For the dissemination conviction, the court sentenced Petitioner to a term of six to eight months' imprisonment, as well as a five-year term of probation, to begin after the expiration of his sentences for the indecent liberties convictions. Cynthia Brooks represented Petitioner at trial.

The North Carolina Court of Appeals summarized the facts from Petitioner's trial as follows:

Defendant was indicted on 29 November 2004 of 6 counts of taking or attempting to take indecent liberties with a minor, E.M. and 1 count of disseminating obscenity to a minor under the age of 13 years. Defendant was thereafter indicted on 26 April 2004 of 3 counts of taking indecent liberties with a minor, J.T.(1).

The State presented evidence at defendant's trial tending to show the following:

Defendant was the uncle of the minor children, E.M. and J.T.(1), who alleged that sexual incidents occurred between them and defendant for several years. Defendant lived in a camper and his shop on his mother's and the minors' grandmother's property. E.M. and J.T.(1) regularly visited their grandmother.

E.M. testified that, when she was 10 years old, defendant showed her and her cousin, J.T.(1), Playboy magazine, computer images of naked children and adults, and computer images of men having sex with children. Defendant told the girls that he wanted to engage in the actions portrayed with them. On another occasion, at E.M.'s grandmother's house, defendant asked E.M. and her cousin to perform fellatio on him. Defendant subsequently showed E.M. and her cousins computer images of naked men and women engaged in intercourse and naked men having sex with children when the children visited defendant in his shop. After viewing the pictures, defendant told E .M., "I can't wait until me and you do that." When E.M. was 11 years old, defendant attempted to take her shirt off and told E.M. that her cousin Sarah allowed him to do that. E.M. testified that when she was 12 years old defendant exposed himself twice and asked her to perform fellatio, once when she and defendant were on a four-wheeler ride and once in defendant's shop. Defendant further showed E.M. a nude photograph of a little girl whom he identified as E.M.'s cousin J.N. and told E.M. that he and J.N. had previously engaged in intercourse and that now he and E.M. could as well. E.M. did not report these incidents to anyone because defendant threatened to hurt her and her grandmother if she told anyone.

J.T.(1) testified that she first remembered being touched by defendant when she was 5 years old. Defendant rubbed her inner thighs, tried to kiss her and explained to her that this is how adults kiss. Defendant subsequently fondled J.T.(1)'s breast and vagina and showed her how to perform fellatio which she did. Defendant asked J.T.(1) to perform fellatio on him at least 10 times between 1991 and 2004. When J.T.(1) visited defendant in his camper, defendant showed her computer images of children and adults engaging in intercourse and suggested that they act this out. Defendant also took J.T.(1) out on the four-wheeler and fondled her. J.T.(1) testified that defendant would try to persuade the girls to engage in sexual activity with them by telling J.T.(1) that he had done those sexual things with E.M. and telling E.M. that he had done those things with J.T.(1). J.T.(1) did not tell anyone because defendant threatened to hurt her grandmother or someone in their family if she did.

At trial, both E.M. and J.T.(1) identified magazines recovered from defendant's shop at the time of arrest as the magazines shown to them by defendant and identified defendant as the perpetrator of the incidents described by them.

State v. Tarleton, No. COA06-760, 2007 WL 1119343, at *1-2 (N.C. Ct. App. Apr. 17, 2007).

In addition to evidence regarding the victims listed in Petitioner's indictments, the State presented evidence indicating that Petitioner sexually abused two other children. The Court of Appeals summarized this additional evidence as follows:

In the instant case, the trial court admitted the testimony of the victims' cousins, J.N. and J.T.(2), regarding incidents of sexual misconduct between defendant and the two minor children under Rule 404(b). J.T.(2) testified that defendant, his uncle, first made him put his mouth on defendant's penis when he was 6 or 7 years old. He further testified that defendant later performed fellatio on J.T.(2) and forced him to masturbate defendant. Defendant also showed J.T.(2) nude photographs of women and young girls in magazines and on the internet. J.T.(2) testified that these incidents occurred when he would visit his aunt's house where defendant was at that time living in a camper on her property. Defendant told J.T.(2) not to tell anyone about the incidents or else he would get in trouble.

J.N., J.T.(2)'s sister, testified that defendant, her uncle, fondled her in her vaginal area, showed her magazine photographs of naked women and forced her to engage in reciprocal fellatio when she was between the ages of 6 and 8 years old. J.N. testified that many of these acts occurred when she was at her grandmother's house visiting while her grandmother was asleep. J.N. further testified that additional sexual acts occurred between her and defendant in a house that he owned in Albemarle. J.N. stated that defendant threatened that if she ever told anyone about these incidents, he would go to jail and she would never see him again. She further testified that she was afraid of defendant.

Id. at *2-*3.

Petitioner appealed and, in an unpublished opinion, the North Carolina Court of Appeals found no error. Barbara S. Blackman represented Petitioner on appeal. On or about May 1, 2007, Petitioner filed a pro se petition for discretionary review in the North Carolina Supreme Court. On June 27, 2007, that court denied Petitioner's petition. State v. Tarleton, 361 N.C. 436, 649 S.E.2d 894 (2007).

On January 28, 2008, Petitioner filed a pro se motion for appropriate relief ("MAR") in Union County Superior Court. On February 11, 2008, Petitioner filed a motion to amend his MAR ("Amended MAR"). On April 22, 2008, the Superior Court, the Honorable W. David Lee presiding, denied Petitioner's MAR and Amended MAR. On September 9, 2008, Petitioner filed a pro se petition for writ of certiorari in the North Carolina Court of Appeals seeking that court's review of the Superior Court's order denying his MAR. On September 26, 2008, the North Carolina Court of Appeals denied Petitioner's certiorari petition.

B. Federal Habeas Allegations

On October 3, 2008, Petitioner timely filed the instant Petition, alleging the following claims: (1) that Union County Officer Joel Cody Luke fabricated statements to gain arrest warrants; (2) that Officer Luke fabricated Petitioner's statement and used it to manipulate others; (3) that Officers Luke and Jeff Outen threatened Petitioner's mother to obtain a consent to search her home, manipulated evidence during the search, and ignored exculpatory evidence; (4) that Officer Luke obtained a fabricated medical report for one of the victims and used it to manipulate others; (5) that the prosecutor knew or should have known that evidence presented to the Grand Jury was incomplete, fictitious, manipulated, and/or obtained as a result of an illegal search; (6) that Petitioner's trial attorney refused to obtain documented exculpatory evidence, interview defense witnesses, or explore serious police misconduct; (7) that the trial judge demonstrated a personal interest in his case; (8) that Petitioner's state-funded private investigator withheld exculpatory evidence; (9) that the victims' allegations against Petitioner changed between the time of his indictment and trial, and, thus, he was convicted based upon allegations for which he was not indicted and arrested; (10) that the trial judge ignored police misconduct and death threats to potential defense witnesses; (11) that a perspective juror, Bonnie Stutzman,was led by the State to poison the minds of the entire jury pool; (12) that the State compared Petitioner to recent horrific news events and declared it was the jury's duty to convict; (13) that Officer Luke was allowed by the prosecution and defense counsel to give perjured testimony; (14) that victim E.T. was manipulated to the point she did not know what her testimony was and, thus, came up with new allegations; (15) that the trial court allowed the State to present obviously untrue evidence; (16) that J.T.(1) was severely manipulated before and during trial; (17) that Officer Kevin Rogers was allowed to give known perjured testimony to conceal two illegal search and seizures; (18) that Officer Luke was allowed to give known perjured testimony concerning numerous issues; (19) that juror number three worked with and received her paycheck from an alleged victim who testified at trial; (20) that the trial court's statements were altered and/or deleted from the trial transcript; (21) that the trial court's Rule 404(b) evidence...