Argued April 11, 2014.
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Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. (3:09-cv-00051-FDW). Frank D. Whitney, District Judge.
Mark Jason Pickett, CENTER FOR DEATH PENALTY LITIGATION, Durham, North Carolina, for Appellant.
Sonya M. Calloway-Durham, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
Shelagh Rebecca Kenney, CENTER FOR DEATH PENALTY LITIGATION, Durham, North Carolina, for Appellant.
Roy Cooper, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS, Senior Circuit Judge. Chief Judge Traxler wrote the opinion, in which Judge Duncan joined. Senior Judge Davis wrote an opinion concurring in the judgment in part and dissenting in part.
TRAXLER, Chief Judge:
Petitioner Elrico Darnell Fowler, a North Carolina death row inmate, appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We granted a certificate of appealability to consider Fowler's claim that an eyewitness's in-court identification violated his due process rights under the Fourteenth Amendment. Because the North Carolina state court's rejection of Fowler's claim was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, we affirm the district court's denial of Fowler's petition for habeas relief.
While this appeal was pending, Fowler filed a motion requesting that we designate his current, appointed counsel to be " Martinez counsel," referencing the Supreme Court decision in
Martinez v. Ryan, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and our decision applying it in
Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013), and remand the matter to the district court for further investigation and amendments, if appropriate, to his § 2254 petition. Because Fowler had the benefit of the qualified, independent counsel called for in Juniper and he failed to raise any Martinez-based claims below, we deny the motion as well.
Fowler was convicted in North Carolina state court of the first-degree murder of Bobby Richmond, assault with a deadly weapon with intent to kill Bharat Shah, and two counts of robbery with a dangerous weapon. All of the convictions arise out of an armed robbery that occurred at a Howard Johnson's Motel in Charlotte, North Carolina, on December 31, 1995.
The circumstances surrounding the crime, as summarized by the North Carolina Supreme Court, are as follows:
On 31 December 1995 at approximately 10:45 p.m., Bobby Richmond (Richmond), an employee at a Howard Johnson's Motel in Charlotte, North Carolina, entered the motel lobby looking for ice. Bharat Shah (Shah) was working as the motel night clerk. About five minutes later, two black males entered the motel and approached the check-in counter. One of the men pulled out a gun and ordered Richmond to get on the ground. The other man ordered Shah to " open the register and give [him] the money." While Shah was handing over the money, the man with the gun shot both Richmond and Shah. He then ordered Shah to open the office safe. When Shah stated he did not have the combination, the man shot Shah again. Both assailants then fled the motel.
The Charlotte--Mecklenburg Police arrived at the scene at 11:04 p.m. and found Richmond and Shah lying near the counter. Richmond was unresponsive. Shah was struggling to speak with police. He told the police they had been robbed by two black males, one wearing a green jacket.
When paramedics arrived, they found a large wound in the middle of Richmond's back. Richmond had no carotid pulse. The paramedics determined Shah's life was in danger. A hospital surgeon later found two wounds in Shah's left thigh, two more wounds in Shah's back, and a wound in Shah's right forearm.
A high-velocity weapon caused Shah's thigh injury. Doctors removed two .44--caliber bullet jacket fragments from his forearm during surgery. A .44--caliber bullet jacket was also found in Richmond's left lung. Police located a .44--caliber bullet core in the motel carpet beneath Richmond's chest wound. Police also found a .44--caliber bullet jacket and a large fragment from a .44--caliber bullet jacket at the scene. Both had been fired from the same weapon used to shoot Richmond. Other pieces of metal found at the scene were also consistent with .44--caliber ammunition.
Richmond had an entrance wound in his back and an exit wound in his chest. His chest was against a hard surface when he was shot. The evidence showed Richmond was likely shot from a distance of no more than three feet.
Officers found Richmond's wallet at the scene next to his body. The wallet contained no money. The cash register drawer and a plastic change drawer next to the register also contained no money. Approximately $300.00 was stolen from the motel during the robbery.
State v. Fowler, 353 N.C. 599, 548 S.E.2d 684, 689-90 (N.C. 2001).
At trial, Jimmy Guzman, the owner of the restaurant adjoining the motel lobby, testified that he heard gunshots around 11:00 p.m. in the lobby of the motel. He looked through the glass door of the restaurant and saw one of the robbers standing behind the check-in counter. Guzman observed the man for approximately five seconds before running to call the police. According to Guzman, " the man was black, in his late twenties, and approximately six feet tall." Id. at 690. He " had a pointed nose and hair on his face but not a full beard" and " was wearing a green toboggan and a camouflage army jacket."
Fowler's objection, Guzman identified Fowler in court as the man he saw behind the counter that night.
In addition to Guzman's in-court identification of Fowler, the prosecution presented the testimony of several witnesses to whom Fowler had made incriminating statements. Jermale Jones testified that Fowler told him on Thanksgiving 1995 that he planned to rob a Howard Johnson's motel. In March 1996, Fowler additionally admitted to Jones " that he entered the Howard Johnson's with a handgun to attempt a robbery and that when the people working at the motel made him ask twice for the money, [he] shot them [with] 'a big old .44.'" Id. at 691. Leo McIntyre testified that he went to the Sugar Shack, a local nightclub, on December 31, 1995, and spoke with Fowler. Fowler, who was dressed in army fatigues, told McIntyre " that he shot two people during a robbery at a Howard Johnson's" motel. Id. Later in the week, Fowler also told McIntyre " that, although he thought he had killed both people at the robbery, one of them had lived." Id. Fowler also told McIntyre " that he only got two or three hundred dollars" from the robbery. Id. Waymon Fleming was living with Fowler at the time of the robbery. He testified that Fowler admitted robbing the motel and shooting the " people who would not open the safe." Id. When Fowler told Fleming that he was going to flee the state, Fleming notified the authorities and Fowler was apprehended.
In addition to the above evidence, Edward Adams testified that he was with Fowler at an apartment on the night of the robbery. He testified that Fowler left the apartment " between 9:00 and 10:00 p.m. with two other men and returned between midnight and 1:00 a.m." Id. Fowler then left to go to the Sugar Shack. Adams testified that he purchased a .44-caliber revolver from Fowler the following evening. Later, in April 1996, Fowler " asked Adams where the gun was located, and Adams told him the gun had been destroyed. [Fowler] responded, 'I'm glad,' and asked Adams not to tell people about the gun." Id. Fowler also told Adams that the prosecutor did not know who purchased the gun. See id. Shenitra Johnson told officers that Fowler arrived at her home shortly after 11:30 p.m. on December 31, 1995, and left between 12:30 and 1:00 a.m., and that Fowler had a .44-caliber gun, which he later sold. At trial, however, Johnson testified that Fowler was at her home from 10:30 p.m. on December 31, 1995, until 1:15 or 1:30 a.m. the next morning, and denied seeing Fowler sell or attempt to sell a handgun at her apartment. See id. at 692.
In November 1997, Fowler was convicted by the jury of all charges. He was thereafter sentenced to death. On appeal to the North Carolina Supreme Court, Fowler argued that his convictions should be overturned because Guzman's in-court identification deprived him of his right to due process. The North Carolina Supreme Court affirmed, see id. at 704, and the United States Supreme Court denied certiorari, See Fowler v. North Carolina, 535 U.S. 939, 122 S.Ct. 1322, 152 L.Ed.2d 230 (2002). Fowler's motion for state postconviction relief, which added a related claim that Fowler's trial counsel was constitutionally ineffective in the handling of Guzman's identification, was also denied,
see State v. Fowler, 362 N.C. 511,
668 S.E.2d 343 (N.C. 2008), and the United States Supreme Court again denied certiorari, See Fowler v. North Carolina, 556 U.S. 1242, 129 S.Ct. 2392, 173 L.Ed.2d 1304 (2009).
Fowler thereafter filed this petition for federal habeas relief pursuant to 28 U.S.C. § 2254, raising sixteen separate claims. The district court denied the petition and declined to issue a certificate of appealability. At Fowler's request, we granted a certificate of appealability to consider Fowler's claim that the state court's adjudication of his in-court identification claim was contrary to, or an unreasonable application of, Supreme Court precedent. We now affirm.
We begin with the clearly established constitutional principles applicable to in-court eyewitness identifications. The United States Supreme Court has set forth a two-part approach to determine whether an eyewitness identification must be suppressed because it has been tainted by police procedures or conduct.
See Perry v. New Hampshire, 132 S.Ct. 716, 724, 181 L.Ed.2d 694 (2012). First, the court considers whether the identification procedure employed by the police was " both suggestive and unnecessary." Id. Second, the court must " assess, on a case-by-case basis, whether improper police conduct created a substantial likelihood of misidentification." Id. (internal quotation marks omitted). That is, the court must determine " whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive."
Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (internal quotation marks omitted).
When considering the question of whether the identification was reliable under the second prong, the Supreme Court has also identified five factors for consideration. They include: (1) " the opportunity of the witness to view the criminal at the time of the crime" ; (2) " the witness' degree of attention" ; (3) " the accuracy of the witness' prior description of the criminal" ; (4) " the level of certainty demonstrated by the witness at the confrontation" ; and (5) " the length of time between the crime and the confrontation."
Biggers, 409 U.S. at 199-200. These factors are weighed against " the corrupting effect of the suggestive identification itself."
Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).
Thus, " [e]ven when the police use such a procedure . . ., suppression of the resulting identification is not the inevitable consequence."
Perry, 132 S.Ct. at 724. The eyewitness identification need be suppressed only if the procedures used to obtain the identification were " 'so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law.'" ...