Opinion
No. 1:97cv185-P.
January 22, 1998.
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the court upon respondent's Motion for Summary Judgment. After careful consideration of that motion, petitioner's response and exhibits, and respondent's reply, the undersigned enters the following findings, conclusions, and recommendation.
FINDINGS AND CONCLUSIONS
I. Background
Petitioner was tried by jury at the August 20, 1990, criminal session of Transylvania County Superior Court before Honorable Hollis M. Owens, Jr., judge presiding. The jury found him guilty of the first-degree, statutory rape of his six-year-old granddaughter.
Viewed in a light most favorable to respondent, the evidence presented at trial revealed the following facts. The child victim ("the child") lived with her mother from the first day to the tenth day of each month. During the remainder of each month, she lived with her paternal grandmother, Minnie Holden, and paternal grandfather, petitioner herein. In April of 1989, the Transylvania County Department of Social Services ("DSS") received a report of possible physical abuse of the child and investigated that report by way of home visits, talking with school counselors, and observing the child's behavior. Based upon its investigation, DSS referred the child for a medical evaluation by a pediatrician, and the social worker testified that his reason for that referral was the child's exhibition a classic behavior of a sexually abused child.
On June 15, 1989, Minnie Holden took the child to the office of Dr. Wells, a pediatrician with Hendersonville Pediatrics, for the medical evaluation. Dr. Wells's examination revealed abnormal findings in the child's vaginal and rectal areas. Her vaginal opening was stretched beyond what was normal for a child her age, and the doctor noted that in the vaginal area she had a healed laceration, a white scar, and scarring of the large veins. Her rectal examination indicated some relaxed anal tone, which can be an indication of ongoing sodomy, consistent with abuse, but not diagnostic. Dr. Wells testified that the vaginal laceration indicated that she had been penetrated, and it was his opinion the child had undergone an ongoing period of sexual intercourse. The injuries he observed or the child were consistent with penetration by an adult male penis.
In the presence of Minnie Holden, Dr. Wells told the child that he saw evidence of injury to her and wanted her to tell him what happened. In response, the child cried, became anxious, and refused to answer. On a follow-up visit to Dr. Wells, the child whispered that "Cricket" had done it. Cricket is the name the child called her grandfather, the petitioner.
The case was investigated by Detective Rita Smith of the Transylvania County Sheriffs Department. Detective Smith testified at trial that when she talked to the child on July 10, 1989, the child said she had been threatened that if she told, she would be taken away from her mama and daddy and grandma and grandpa. The child told Detective Smith that she was hurt many times while at her grandma's, and that the one who hurt her butt was Cricket. On another occasion Detective Smith asked the child whether anyone else had hurt her like that, and the child stated no one else had done it.
Judy Nebrig, a counselor at Trend Community Health Center for 13 years, saw the child five times in therapy at the request of DSS. Ms. Nebrig, after questioning the child to determine whether she understood the difference between telling the truth and telling a lie, concluded the child did understand the difference. The child told Ms. Nebrig that Cricket was the one who had hurt her bottom, and it was Ms. Nebrig's opinion that the child exhibited behavioral symptoms of sexual abuse
Petitioner also presented evidence at trial. He called six family members and two Head Start workers to testify that they suspected and saw evidence that the child's mother or stepfather had physically abused her. Petitioner testified that he believed someone was forcing the child to name him as the perpetrator of the sexual abuse and that the child's mother had shown ill feelings against him in 1986.
In May of 1990, DSS received a complaint that the child was physically abused by her mother or stepfather, but did not find evidence to substantiate that report.
Petitioner also attempted to present evidence at trial that in November 1986, the child, then three years old, was brought to the Holdens by her mother and that Mrs. Holden, in getting ready to bathe the child that evening, saw dried blood on the child's panties, called Hendersonville Pediatrics, and was told to bring the child in for an examination the next day. At that examination, Dr. Volk found swelling at the vaginal orifice, and an old tear and scarring in the vaginal area, but no bleeding. He also found new inflammation. It was his opinion that some injury had occurred to her vagina within the previous three or four days and that it could have occurred within the previous 16 hours. Further, he stated that all of those findings were consistent with sexual abuse. DSS investigated this incident, but the child never told them who had done that to her. Detective Smith also investigated, and the child told her in November 1986 that Josh had hurt her. Josh was nine years old at the time. The investigators interviewed Josh, but could not establish that he had access to the child or the opportunity to have done that to her. Dr. Volk found the child's vagina to be enlarged by 10 to 15 millimeters, and that the normal dilation for her age group is four millimeters. The child later told Detective Smith that she had implicated Josh because Mae Heatherly (petitioner's daughter and the child's aunt) had told her to. Josh testified on voir dire during the trial that he lived with his father about 30 miles from the child's mother and saw the child on two or three occasions in June and July of 1989 when she and her mother went camping with his family. He denied sexually abusing the child.
At trial, the child was found unavailable as a witness and did not testify. Dr. Wells's testimony describing the medical evidence was utilized to establish the commission of the crime and evidence of penetration. Hearsay statements the child made to Detective Smith, Ms. Nebrig, and Dr. Wells were admitted to establish the identity of the perpetrator.
During a postconviction hearing in February 1995, petitioner called the child, then 12 years old, to testify. She stated that her grandpa (petitioner) did not hurt her and she previously had said he had because she was afraid her mother would get mad at her. On cross-examination, the child testified that the only time she had been sexually abused was on a camping trip.
On redirect, the child testified that she was sexually abused two to five times only, and it was just one person who did it to her. She refused to tell what they did or where on her body she was hurt. On recross, she stated it was not her stepfather, Tommy, who had hurt her, but Josh, and that he was the only one who had.
Christina Owen testified that she and the child were exchanging information after the trial about how each had been sexually abused. She said she told the child that her uncle had gotten on top of her and the child told her that Tommy (her stepfather) and Josh had hurt her. The two promised each other to keep their conversation secret, but Christina testified she told her mother about this two weeks later. Christina knew the Holdens and Minnie and had visited in their home. Christina's mother, Margaret Clayton, testified that petitioner's daughter, Theresa, was a good friend of hers. Mrs. Clayton also testified that Christina told her on August 29, 1990 — the day after petitioner's conviction — that the child had told her petitioner did not do those things to her. Mrs. Clayton stated that she went to Mr. White, attorney for the child's father, and told him what Christina told her the child had said.
Mr. White testified that petitioner's son was his client in a dispute as to custody of the child and that he also represented petitioner at the preliminary hearing in the criminal case. He also stated that Christina's mother came to his office on August 29, 1990, and told him what Christina had told her — that the child told Christina the petitioner did not abuse her. Mr. White typed up what Mrs. Clayton relayed to him that Christina said the child told her and put it in an affidavit. He was able to get full custody of the child for his client (petitioner's son) with no visitation from the child's mother or stepfather.
Respondent presented evidence from Detective Smith that in July 1992, shortly after petitioner's conviction was affirmed on direct review, petitioner's attorney gave her the affidavit of Mrs. Clayton. She also stated that she interviewed Christina and was told that the child had confided in Christina on June 26, 1992. The detective testified Josh's date of birth was October 6, 1977, and that she investigated the 1986 case when Dr. Volk documented physical findings of sexual abuse of the child. Josh was age nine at the time and age 11 at the time of the investigation leading to petitioner's arrest for abuse of the child. Dr. Wells told Detective Smith the medical findings as to the child were consistent with having been caused by an adult male penis. The detective talked to the child a week before the postconviction evidentiary hearing and was told by the child that petitioner did not hurt her privates; someone else had done it; she would not tell who it was; she denied it was her stepfather; she said it had happened on a camping trip; and she stated that it had happened only one time.
Joy Barton, a social worker supervisor at Transylvania County DSS, talked to Christina on October 3, 1990, at the requests of Mr. Peterson, petitioner's attorney, and Mr. White, attorney for petitioner's son in the custody suit. Christina told Ms. Barton that the child told her she did not like her stepfather, Tommy, but when Ms. Barton asked Christina if the child had told her Tommy had done anything sexual to her (the child), Christina said she had not.
In November 1992, Minnie Holden called Ms. Barton and asked her to come talk to the child. Ms. Barton went to the Holden residence on November 5, 1992, and talked to the child, who was very shy and did not want to talk with her. When Ms. Barton asked the child if anyone other than her grandfather had done sexual things to her, the child victim responded, "No." Ms. Barton testified that the child talked about going camping with Josh, said she had a lot of fun with Josh and he was always nice to her, and stated that neither Josh nor her maternal grandfather had hurt her. The child described to Ms. Barton numerous acts of domestic violence perpetrated by her stepfather on her mother.
Judy Nebrig testified that after petitioner's trial, she had seen the child for counseling on six occasions during September, October, and November 1990. On September 11, 1990, during one of those sessions, the child victim told Ms. Nebrig that her grandfather was lying when he denied messing with her.
II. Standard Applicable to Motions for Summary Judgment
On a motion for summary judgment, the moving party has the burden of production to show that there are no genuine issues for trial. Upon the moving party's meeting that burden, the nonmoving party has the burden of persuasion to establish that there is a genuine issue for trial.
When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving [sic] party, there is no "genuine issue for trial."Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted; emphasis in the original) (quoting Fed.R.Civ.P. 56). There must be more than just a factual dispute; the fact in question must be material and readily identifiable by the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The possibility, however remote, that petitioner may have alleged a constitutional violation merits more than bald denials and summary dismissals. Wooten v. Shook, 527 F.2d 976, 977-78 (4th Cir. 1975). By reviewing substantive law, the court may determine what matters constitute material facts. Anderson, supra.
Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment.Id., at 248. A dispute about a material fact is "genuine" only if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Id.
[T]he court is obliged to credit the factual asseverations contained in the material before it which favor the party resisting summary judgment and to draw inferences favorable to that party if the inferences are reasonable (however improbable they may seem).Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980). It appears that the issues have been fully briefed by the petitioner and respondent and that respondent's Motion for Summary Judgment is ripe for consideration.
III. Petitioner's Contentions
Petitioner contends that he is entitled to relief under 28, United States Code, Section 2254, for the following reasons:
(a) he received ineffective assistance of counsel for seven specific reasons, discussed below as subcontentions (a)(1) through (a)(7);
(b) his rights to due process and confrontation were violated by the trial court's admission of hearsay statements of the child through the testimony of Detective Rita Smith and counselor Judy Nebrig;
(c) his rights to due process and confrontation were violated by decisions of the trial court which, in effect, prevented him from calling witnesses and presenting evidence on his behalf; and
(d) his rights to due process and confrontation were violated by the decision of the court conducting an evidentiary hearing on his postconviction Motion for Appropriate Relief that the child's testimony constituted recanted testimony rather than newly discovered evidence.
For the reasons discussed below, the undersigned will recommend that petitioner's motion to hold his unexhausted claims in abeyance be denied; the petition be dismissed as "mixed"; and, in the alternative, petitioner's unexhausted contentions be considered along with the exhausted ones and dismissed based on a procedural bar or denied on their merits under the new provisions of the Antiterrorism and Effective Death Penalty Act. Petitioner's contentions will be discussed seriatim.
IV. Discussion
A. Holding Contentions or Petitions in Abeyance
Petitioner suggests that it would be appropriate for this court to hold his petition in abeyance pending exhaustion of his unexhausted claims in state court. A federal habeas court cannot hold a case on its docket pending exhaustion of state remedies. Victor v. Hopkins, 90 F.3d 276 (8th Cir. 1996), cert. denied, 117 S.Ct. 1091 (1997). Instead, when a federal habeas action contains some nonexhausted claims, those claims must be relinquished voluntarily by the petitioner or the entire federal habeas action is subject to summary dismissal. Matthews v. Evatt, 105 F.3d 907 (4th Cir. 1997). To hold otherwise, as petitioner strongly argues, would be to stay a federal action indefinitely here, to await not only the decision of the Superior Court of Transylvania County, but also consideration by the North Carolina Court of Appeals of a petition for certiorari as required by Rule 21(e), North Carolina Rules of Appellate Procedure. The Antiterrorism and Effective Death Penalty Act provides, instead, for the prompt resolution of Section 2254 petitions by federal courts, and to do as petitioner suggests would make this court's compliance with that requirement impossible.
There are but two options — dismiss the entire petition for failure to exhaust state-court remedies, or (2) consider the unexhausted claims along with the exhausted claims only if denial of the unexhausted claims is appropriate — and each of those options will be discussed below. Inasmuch as petitioner's request to hold his federal petition in abeyance is not one of the options, the undersigned will recommend to the district court that the request be denied.
B. Exhaustion
It is undisputed that petitioner has failed to exhaust his remedies in the state courts as to subcontentions (a)(1) through (a)(7). The requirement of Section 2254(b)(2) — that a petitioner first exhaust his state-court remedies before filing a federal petition — has not been changed by the Antiterrorism and Effective Death Penalty Act; and the exhaustion requirement is not satisfied unless the federal claims have been "fairly presented" to the highest state court with jurisdiction to consider them. Picard v. Connor, 404 U.S. 270, 275 (1971). In order to satisfy the requirement of exhaustion, petitioner must have informed the state court of the same factual and legal premises of the claim which he asserts in federal court. Id. at 276-77. See Advisory Note, Habeas Rule 5; Rose v. Lundy, 455 U.S. 509 (1982). The doctrine of exhaustion ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions because state courts are also bound to safeguard federal rights of defendants. Preiser v. Rodriguez, 411 U.S. 475 (1973); Irvin v. Dowd, 359 U.S. 394, 404 (1959).
Absent valid excuse, a petitioner must first present his claims to state courts either on direct appeal or in postconviction proceedings.See 28 U.S.C. § 2254 (b) and (c). That procedure preserves the state courts' primary role in protecting federally guaranteed rights and encourages harmonious relations between state and federal judicial systems. Rose v. Lundy, supra. Although the bar of exhaustion may be overcome under certain circumstances, none exist in this case, and the State of North Carolina has not waived the exhaustion requirement. Sweezy v. Garrison, 694 F.2d 331 (4th Cir. 1982). The remedies otherwise available to petitioner are effective and may be utilized by him in order to address his concerns on such issues in a timely fashion. Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir. 1982); Gee v. Director, Patuxent Institution, 513 F.2d 814 (4th Cir. 1975). The undersigned, therefore, will recommend that the petition be dismissed as "mixed."
C. Federal Consideration of Unexhausted Contentions Along With Exhausted Contentions
In his response, petitioner appears to argue that he may now dismiss his unexhausted claims without prejudice. That procedure simply is not available, and any claims "voluntarily dismissed" by petitioner would be subject to summary dismissal in a subsequent petition under the abuse-of-the-writ doctrine. Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir.), cert. denied, 485 U.S. 1000 (1988): 28 U.S.C. § 2254 (b) (2).
I. Standards of Review Applicable to Section 2254 Contentions
The Antiterrorism and Effective Death Penalty Act of 1996 narrowed the scope of review of state-court judgments by federal courts. 28 U.S.C. § 2254 (d)(1) and (2) (1996). Review of state court conclusions of law and mixed factual and legal conclusions is no longer plenary, and federal courts may now only review state court applications of federal constitutional law under a "reasonableness standard." This court no longer determines whether a state court erroneously applied federal constitutional law, but whether the state court's application of federal law was so egregiously wrong or arbitrary that no reasoning jurist could have reached the same result. Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996), cert denied, ___ U.S. ___, 117 S.Ct. 1114 (1997). Legal questions are governed by the "contrary-to" language; factual findings by state courts are presumed correct; and mixed issues of law and fact are governed by the 'unreasonable-application of language.'
Petitoner has the burden of rebutting presumption by clear and convincing evidence already contained in the state record. 28 U.S.C. § 2254 (e)(1) and (2).
Another change wrought by the Antiterrorism and Effective Death Penalty Act is that a petitioner may no longer rely upon federal circuit precedent to establish a right to federal habeas relief. Instead, a petitioner must be able to point to an authoritative decision of the Supreme Court that clearly mandates the result sought and that no reasoning jurist could disagree based upon a distinction between the circumstances in the case at hand from the circumstances in the Supreme Court's opinion. Drinkard, supra, at 769.
An evidentiary hearing is unwarranted in this matter and, in fact, is prohibited under Section 2254(e)(2). That section precludes a federal habeas petitioner from obtaining a federal evidentiary hearing to develop matters he failed to develop at a state evidentiary hearing, unless one of the following applies:
(1) the Supreme Court has announced a new rule of constitutional law and made it retroactive;
(2) the factual predicate could not have been discovered in time for the state evidentiary hearing through exercise of due diligence; or
(3) the facts underlying the claim show by clear and convincing evidence that but for the alleged constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.
Petitioner meets none of those standards. In the event the district court is inclined to consider the petition, the undersigned would recommend that the exhausted and unexhausted claims be denied or their merits. Each contention will be discussed seriatim.
2. Contentions (a)(1) through (a)(7):
a. Procedurally Barred
In these contentions, petitioner alleges that his trial counsel, who was also his appellate counsel, provided ineffective assistance for various reasons. These subcontentions are procedurally barred under North Carolina's new mandatory procedural bar statute. N.C. Gen. Stat. §§ 15A-1419(a)(3), (b) and (c). Inasmuch as petitioner should have been aware of these issues and could have raised them on direct appeal, they should be deemed procedurally barred, for that result would be mandated by the state statute in the event petitioner pursued these claims in state court. To overcome that bar, the statute requires a criminal defendant! petitioner to show cause and prejudice or a fundamental miscarriage of justice (actual innocence), none of which petitioner has demonstrate in this case.
A federal court should apply the procedural bar without requiring a petitioner to return to state court, Coleman v. Thompson, 501 U.S. 722, 735 (1991); especially where, as here, the application of the bar clearly is appropriate, Teague v. Lane, supra, at 297-99. "Cause" is also not found where the purported reason for the failure to assert a claim on direct appeal was "ineffective assistance of counsel," for such a claim would also be unexhausted and procedurally barred. Justus v. Murray, 897 F.2d 709 (4th Cir. 1990). These contentions, therefore, are procedurally barred.
b. Subcontentions (a)(1) through (a)(8) Lack Merit
(i).
In subcontention (a)(1), petitioner contends that he received ineffective assistance of counsel, as demonstrated by the fact that his trial attorney failed to interview witnesses, including the child. Petitioner, however, has not shown how that conduct of his counsel amounted to a professional dereliction or resulted in prejudice, i.e., that there was a reasonable probability of a different outcome absent counsel's alleged dereliction. No evidence supports this conclusory contention.
The sixth-amendment right to counsel "is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970). See Strickland v. Washington, 466 U.S. 668 (1984); Marzullo v. Maryland, 561 F.2d 540 (4th Cir. 1977), cert. denied, 435 U.S. 1011 (1978). In Strickland, the Supreme Court adopted a two-pronged test for determining whether a petitioner received adequate assistance of counsel.
The first prong is competence. A petitioner must show that counsel's representation fell below the objective standard of reasonableness.Strickland v. Washington, supra, at 687-91; Marzullo v. Maryland, supra; Tolliver v. United States, 563 F.2d 1117 (4th Cir. 1977). A strong presumption exists that counsel's conduct was within the wide range of reasonable professional assistance, and a deferential view is taken by a reviewing court in scrutinizing counsel's performance, taking care to avoid the distorting effects of hindsight. Strickland v. Washington,supra, at 688-89.
The second prong of the Strickland test, if a petitioner has first been able to show incompetence of counsel, provides, as follows:
[D]efendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Id., at 694. Again, it is petitioner's burden to show prejudice. Hutchins v. Garrison, 724 F.2d 1425 (4th Cir. 1983), cert. denied, 464 U.S. 1065 (1984).
Review of subcontention (a)(1) claiming incompetence by trial counsel reveals that it is wholly without merit, for petitioner has failed to present evidence that would satisfy either prong of the Strickland test. Subcontention (a)(1) is, therefore, meritless.
(ii).
In subcontention (a)(2), petitioner contends that trial counsel was ineffective because he failed to lodge objections to improper testimony, thus waiving the issue on appeal and resulting in a decision by the state appellate court that admission of such testimony was harmless error. This subcontention may be dismissed quickly, for although the state appellate court dismissed the issue on appeal through procedural waiver, it went on to address the merits of that issue and held that "[w]e find no error in the admission of the victim's hearsay statements." Subcontention (a)(2), therefore, is without merit.
(iii).
In subcontention (a)(3), petitioner contends that his trial counsel was ineffective because he failed to make an offer of proof of excluded testimony, precluding appellate review of crucial legal issues and the trial court's exclusion of evidence of prior sexual abuse by someone other than petitioner two and one-half years before the abuse for which petitioner was convicted. As with subcontention (a)(2), the state appellate court went beyond procedural waiver and found on the merit no error in the trial court's decision to exclude that evidence. Regardless of the proffer, the appellate court's decision would have been the same, and, therefore, it cannot be said that counsel was derelict in his representation of petitioner. Petitioner has failed to satisfy either prong of Strickland, and his subcontention (a)(3) is meritless.
(iv).
In subcontention (a)(4), petitioner contends that it was ineffective for counsel to fail to request funds from the court for expert assistance, inasmuch as petitioner did not possess the psychological characteristics of a pedophile. This subcontention is, perhaps, the definition of an unsupported, conclusory claim under Nickerson v. Lee, 971 F.2d 1125, 1135 (4th Cir. 1992). Petitioner has neither supported the contention nor demonstrated a professional dereliction or a reasonable probability of a different result. Subcontention (a)(4) is without merit.
(v).
In subcontention (a)(5), petitioner contends that counsel was ineffective, in that he failed to object to testimony provided by a mental health and social worker, who had not been qualified as an expert, and whose testimony exceeded the bounds of lay testimony. Again, this contention is a wholly unsupported, conclusory claim underNickerson, and petitioner has not satisfied either prong of Strickland. Subcontention (a)(5) is meritless.
(vi).
In subcontention (a)(6), petitioner contends that counsel was ineffective for failing to object to petitioner's exclusion from the voir dire examination of the child in the judge's chambers. Beyond the recurring Nickerson problem, petitioner has failed to show any possible prejudice that could have resulted from his exclusion. The undersigned, therefore, will recommend that subcontention (a)(6) be denied summarily on the merits.
(vii).
In subcontention (a)(7), petitioner contends that counsel was ineffective for failing to identify or competently brief all the relevant legal issues in the criminal case, resulting in waiver of claims both under state law and the federal Constitution. Petitioner, however, has not demonstrated how his attorney's selection of appellate issues was a professional dereliction or that there was a reasonable probability that but for that alleged deficiency, a different result would have been reached in his case. Under Strickland, this subcontention must be dismissed on the merits, and the undersigned will so recommend.
3. Contention B: Violation of Due Process and the Right to Confrontation Though Admission of Hearsay Statements of Child Victim
In this contention, petitioner argues that his rights to due process and to confront a witness who testified against him were violated when the trial court admitted the testimony of the investigating detective and counsel as to incriminating statements the "unavailable" child made to them. For the reasons discussed in respondent's brief, this contention is procedurally barred.
Moving on to the merits, in cases involving admission of out-of-court statements, the Confrontation Clause protects a defendant's literal right to confront witnesses at the time of trial. Delaware v. Fensterer, 474 U.S. 15 (1985). That sixth-amendment right to confront and cross-examine witnesses is made obligatory on the states by the fourteenth amendment. Pointer v. Texas, 380 U.S. 400 (1965). In White v. Illinois, 60 U.S.L.W. 4094 (U.S. 1992), the Supreme Court limited the scope of its earlier decision in Ohio v. Roberts, 448 U.S. 56 (1980), holding, in relevant part, that the "reliability requirement" of the Confrontation Clause is satisfied where the proposed evidence is admitted pursuant to a "firmly rooted" exception to the hearsay rule.
Where the admission of a statement is not firmly rooted in a hearsay exception, the existence of particularized guarantees of trustworthiness can be shown from the totality of the circumstances surrounding the making of the statement which render the declarant particularly worthy of belief. Idaho v. Wright, 497 U.S. 805 (1990); United States v. Ellis, 951 F.2d 580 (4th Cir. 1991), cert. denied ___ U.S. ___ 60 U.S.L.W. 3878 (1992). In Gregory v. North Carolina, 900 F.2d 705 (4th Cir.), cert.denied, 498 U.S. 879 (1990), the Court of Appeals for the Fourth Circuit held that the particularized guarantees of trustworthiness must be found to be contemporaneous with the statements which are proposed to be admitted. The existence of corroborating evidence, although relevant to a determination of harmless error, is irrelevant to showing that the statement is trustworthy Idaho, supra, at 822-23. The showing of particularized guarantees must establish that the evidence is so trustworthy that adversarial testing would add little to its reliability. Id.
It is, perhaps, more appropriate to analyze the admission of such evidence under the standards applicable to the admission of hearsay pursuant to a residual exception to the hearsay rule as the trial court, in fact, did. Under such analytical scheme, this court must determine whether the trial court made adequate findings regarding the existence of particularized guarantees of trustworthiness.
Review of the record reveals that the trial court made specific, enumerated findings in accordance with Idaho. As to the child, the trial court found, as follows:
(1) she assuredly had personal knowledge of how and by whom she was being sexually abused, especially in light of the corroborating medical evidence;
(2) she would have been motivated to deal truthfully with Detective Smith and Ms. Nebrig as persons in authority;
(3) she was specific as to the location at which the alleged rape and sodomy took place; and
(4) she never recanted or substantially altered her statement.
Based upon those findings, the trial court determined that the totality of the circumstances assured "a high probability of the truthfulness of the statements made by the infant to Officer Smith and Mrs. Nebrig . . . [and] the infant at all times identified her abuser as 'Cricket.'" In sum, after voir dire examination and consideration of the totality of the circumstances surrounding the child's statements, the trial court determined that they were inherently reliable and trustworthy.
The findings of the state court are presumed to be correct, absent a clear and convincing showing to the contrary, and no such showing has been made in this case. Idaho mandates a "totality-of-the-circumstances" review surrounding the making of the statement. The trial court's findings were precisely those required by the Court in Idaho, and the undersigned can assign no constitutional infirmity to the trial judge's statement that the child did not seem to understand the consequences of not telling the truth, inasmuch as that determination was not made a basis for finding the child "unavailable" to testify and a contrary, specific finding of reliability was made when he determined such hearsay statements were admissible. Finding compliance with prevailing federal law, the undersigned determines that petitioner's contention to the contrary is without merit.
The state appellate court also specifically addressed such contention on direct appeal and held, as follows:
We find no error in the admission of the victim's hearsay statements. The trial judge's findings of fact on the trustworthiness factor are supported by competent evidence. The trial judge's lone statement, found in the transcript of the in camera hearing, that the child "did not seem to understand the consequences of not telling the truth," standing alone and not made the basis for his finding that she was unavailable, is insufficient to overcome the other competent evidence which supports the admission of the hearsay statements under Rule 803 (24). As explained in Smith and Deanes, the determination as to whether the hearsay statements are trustworthy must focus on the circumstantial guarantees of reliability which surround the declarant at the time the statement was made and not on the witness' competence at the time of the hearing.State v. Holden, 106 N.C. App. 244, 251 (1992). The state court's determination did not result in an application of federal law so egregiously wrong or arbitrary that no reasoning jurist could have reached the same result. Drinkard v. Johnson, supra. The undersigned, therefore, determines that this contention should be denied summarily pursuant to Section 2254(d) and will so recommend.
4. Contention (c): Due Process and Right to Confront Violated When Trial Court Excluded Evidence of Prior Sexual Abuse of the Child Victim
In contention (c), petitioner argues that his rights to due process and confrontation were violated by decisions of the trial court which, in effect, prevented him from calling witnesses and presenting evidence on his behalf. Specifically, petitioner proposed to put on evidence of sexual abuse of the child which occurred two and one-half years before the sexual abuse he was accused of perpetrating.
During trial, the presiding judge conducted a voir dire hearing on this issue. (The evidence which petitioner proposed to present is summarized above.) At the conclusion of the hearing, the trial judge made findings of fact and conclusions of law, denying petitioner's request to present evidence of prior sexual assault of the child. This issue was also raised by petitioner on appeal and denied on its merits by the North Carolina Court of Appeals.
Inasmuch as admission of evidence in a state criminal action is not cognizable on federal review, petitioner bears a heavy burden in showing that the trial court's decision was so egregious that it rendered the entire trial fundamentally unfair or violated a specific constitutional provision. Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir 1960). In specifically addressing this issue, the North Carolina Court of Appeals held, as follows:
Defendant contends that the excluded evidence points to someone other than the defendant as being the perpetrator of the abuse which occurred in June 1989 and thus should have been admitted under Rule 412 (b)(2). We disagree.
The issue is whether the excluded testimony is relevant to show that someone other than the defendant sexually abused T.L. on 28 June 1989. We find that the evidence was properly excluded as being irrelevant and confusing to the jury. Defendant cites us to State v. Ollis, 318 N.C. 370, 348 S.E.2d 777 (1986), State v. Wright, 98 N.C. App. 658, 392 S.E.2d 125 (1990), and State v. Maxwell, 96 N.C. App. 19, 384 S.E.2d 553 (1989), disc. review denied, 326 N.C. 53, 389 S.E.2d 83 (1990).
These cases do not help defendant. In all of them there is a temporal connection between the dates of the alleged offense and the evidence pointing to another perpetrator. Ollis, 318 N.C. 370, 348 S.E.2d 777 (evidence that another man abused victim during same time period as alleged against defendant held admissible to explain physical evidence); Maxwell, 96 N.C. App. 19, 384 S.E.2d 553 (evidence of abuse when victim was 4 is relevant because the victim alleged defendant had been molesting her since age 4); Wright, 98 N.C. App. 658, 392 S.E.2d 125 (evidence of masturbation occurring during same time period as alleged offense relevant to explain physical findings). In the case sub judice, the abuse at issue occurred two and a half years before the incident resulting in the charge against defendant. Neither the indictment nor any evidence adduced at trial connects defendant with any incident occurring in 1986, therefore any evidence that someone else may have abused T.L. in 1986 is irrelevant to show that defendant did not abuse her in 1989. This assignment is overruled.State v. Holden, supra, at 247-48 (1992). Clearly, the state trial court's exclusion of petitioner's proposed evidence was appropriate and cannot form the basis of relief under Grundler. This contention, therefore, should be denied on the merits. In addition, the state court's determination did not result in an application of federal law so egregiously wrong or arbitrary that no reasoning jurist could have reached the same result. Drinkard v. Johnson, supra. This contention, therefore, should be denied summarily pursuant to Section 2254(d).
5. Contention (d): Due Process and Confrontation Rights Violated by Decision During post-Trial Proceeding that Child Victim's Testimony Was in the Nature of Recanted Testimony Rather Than New Evidence
In this final contention, petitioner argues that his rights to due process and confrontation were violated by decisions of the state court, made during the evidentiary hearing on his postconviction Motion for Appropriate Relief, that the child's testimony constituted recanted testimony rather than newly discovered evidence. Foremost, purported infirmities in a state postconviction proceeding cannot serve as a basis for federal habeas relief. Bryant v. Maryland, 848 F.2d 492 (4th Cir. 1988). As a matter of law, the undersigned determines that this contention should be dismissed summarily.
If, however, the court were to consider the merits of this contention, the claim would also have to be dismissed summarily as "Teague" barred. At best, to hold as petitioner argues would contradict the precedent ofBryant and thereby create a "new rule" of constitutional law — a practice prohibited on federal habeas review. Teague v. Lane, 489 U.S. 288 (1989).
Next, petitioner's claim of error by the postconviction court was invited by his own attorney. When asked whether the child's testimony was "new evidence" or "recanted testimony," petitioner's attorney replied, "Recanted testimony." See United States v. Neal, 78 F.3d 901 (4th Cir.),cert. denied, ___ U.S. ___, 117 S.Ct. 152 (1996).
Beyond those problems, the postconviction court found the child's testimony not to be credible. In accordance with Section 2254(e)(1), that finding is presumed to be correct. As discussed above, the child's testimony was inconsistent and contradictory. Assuming that the point of this contention is to allege a claim of "actual innocence," claims of newly discovered evidence of actual innocence are not cognizable on federal habeas review except as a "gateway" through which other, procedurally barred claims may be heard on their merits. Herrera v. Collins, 506 U.S. 390 (1993). In any event, for petitioner to make a persuasive showing of actual innocence, he would have to show that considering all the proffered evidence along with all the evidence heard by the convicting jury, no rational jury could have found petitioner guilty. Id. This he has not done.
Conclusion
That testimony used to convict someone is recanted poses troubling issues for any court. The large sentence received in this case only increases the court's concern; however, it is not for this court to impose its own decision for that of the state court. The principles of law discussed in detail above require the petitioner's claims be dismissed.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that based upon the foregoing reasons, petitioner's motion to hold his unexhausted claims in abeyance be DENIED; and, IN THE ALTERNATIVE, petitioner's unexhausted contentions be considered along with the exhausted ones and dismissed based on a procedural bar or denied on their merits under the new provisions of the Antiterrorism and Effective Death Penalty Act; that respondent's Motion for Summary Judgment be GRANTED, petitioner's request for relief be DENIED, and the petition be DISMISSED with prejudice.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984).
This Memorandum and Recommendation is entered in response to respondent's Motion for Summary Judgment (#6).