Hooks v. Branker , 348 F. App'x 854 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-12
CERRON THOMAS HOOKS,
Petitioner - Appellant,
v.
GERALD J. BRANKER, Warden, Central Prison, Raleigh, North
Carolina,
Respondent - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:05-cv-01127-JAB-PTS)
Argued: September 25, 2009 Decided: October 23, 2009
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished opinion. Judge Niemeyer wrote the
opinion, in which Judge Michael and Judge King joined.
ARGUED: Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, North
Carolina, for Appellant. Jonathan Porter Babb, Sr., NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee. ON BRIEF: William F. W. Massengale, MASSENGALE &
OZER, Chapel Hill, North Carolina, for Appellant. Roy Cooper,
Attorney General of North Carolina, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
NIEMEYER, Circuit Judge:
Challenging his death sentence for first-degree murder,
imposed in North Carolina state court, Cerron Hooks filed this
habeas corpus petition in federal court under 28 U.S.C. § 2254.
During a quarrel at a pool party in Winston-Salem, North
Carolina on September 5, 1998, Hooks shot and killed Mike
Miller. Lisa McRae and Sabrina Porter, attendees at the party,
testified that after Hooks shot Miller, Hooks kicked him in the
face and taunted him before fleeing the scene. The state court
jury convicted Hooks of first-degree murder and, finding that
the crime was “especially heinous, atrocious, or cruel,” N.C.
Gen. Stat. § 15A-2000(e)(9), recommended that he be sentenced to
death. The state court imposed the death penalty, and, on
direct appeal, the Supreme Court of North Carolina affirmed.
State v. Hooks, 548 S.E.2d 501 (N.C. 2001). The U.S. Supreme
Court denied Hooks’ petition for a writ of certiorari. Hooks v.
North Carolina, 534 U.S. 1155 (2002).
Hooks later filed a motion for appropriate relief in state
court -– the North Carolina mechanism for post-conviction
relief -– claiming, among other things, that a newly available
affidavit from Lisa McRae rendered him ineligible for the death
penalty. He also asserted that his trial counsel was
ineffective for failing adequately to cross-examine McRae and
2
Porter. The court denied Hooks’ motion, and the North Carolina
Supreme Court denied certiorari.
Having exhausted his state remedies, Hooks filed this
petition for a writ of habeas corpus, which the district court
denied. We issued a certificate of appealability with respect
to three issues, and on those three issues we now affirm,
finding that the North Carolina courts made no decision that was
contrary to, or an unreasonable application of, clearly
established federal law, as determined by the United States
Supreme Court. See 28 U.S.C. § 2254(d)(1).
I
On the evening of September 5, 1998, Mike Miller hosted a
party at the pool of his apartment complex, and Cerron Hooks
attended, having been invited by a mutual friend. Around 9:30
p.m., Miller invited guests back to his second-floor apartment
to continue the party, and Hooks was also among those attending
at the apartment.
After he left the party, Hooks returned to look for a shirt
he had taken off earlier. Miller told him that he had not seen
the shirt but would look for it and return it to a mutual friend
if he found it. Hooks departed but again returned to search the
apartment himself. When he attempted to enter Miller’s bedroom,
Miller prevented him from doing so, and a heated argument
3
ensued. Later testimony indicated that tension had also
developed between the two over the romantic attentions of Lisa
McRae, another attendee of the party. But the argument between
Hooks and Miller mainly concerned the shirt.
Miller told Hooks that he could not disrespect his house
and that he had to leave. Although Hooks complied, the argument
continued outside of the apartment, first on the second-story
breezeway and then down the stairway onto the ground floor. As
the two argued face to face, Hooks threatened to “f--k [Miller]
up.” Hooks then pulled out a gun and pointed it at Miller’s
face, to which Miller responded, “Oh, you’re going to shoot me
now.” After a pause, Hooks shot Miller four times. Miller fell
to the ground, gravely wounded but conscious. Hooks then kicked
and pistol-whipped Miller in the face, taunting him by saying,
“You thought I was playing, you thought I was playing.” He then
fled the scene. Bystanders administered first aid to Miller,
who remained conscious for about 15 minutes. He died 12 hours
later at the hospital.
Lisa McRae and Sabrina Porter were interviewed by police
officers at the scene, and the officers made cursory notes, but
both gave fuller recorded statements to the police on the
following day, September 6, 1998. In her recorded statement,
McRae stated that she witnessed the shooting from nearby on the
ground floor and saw Hooks kick Miller and taunt him, saying,
4
“You thought I was playing; you thought I was playing.” In her
recorded statement, Porter stated that she did not actually see
the shooting, but she heard the gunshots from Miller’s apartment
and went out to look over the balcony at the scene below. She
stated that she saw Hooks kick and pistol-whip Miller. The
cursory handwritten notes of police officers written at the
scene did not contain any references to Hooks’ kicking, pistol-
whipping, or taunting Miller.
Later, at the pretrial hearing, McRae and Porter made
statements substantially similar to those that they had given to
police in their recorded statements.
At trial, McRae’s testimony was again substantially similar
to her previous statements given to the police and at the
preliminary hearing. She testified that she witnessed the
shooting and that after Miller fell, Hooks kicked him in the
face and said, “You thought I was playing.” Defense counsel
cross-examined her as to why her initial statement to the police
on September 5 did not mention anything about kicking or
taunting, but McRae insisted, “Well, that’s what he did. . . .
I saw the kicking.”
Porter’s trial testimony was likewise consistent. She
testified that she had heard the shots but did not see the
shooting and that afterwards she saw the kicking, pistol-
whipping, and taunts from the second floor balcony. Defense
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counsel did not cross-examine Porter about whether she told
police about the kicking, pistol-whipping, and taunting on the
evening of the shooting or why references to that were not
contained in the police officer’s notes.
At trial, three other witnesses testified to seeing the
shooting but made no statements about any kicking, pistol-
whipping, or taunting.
The medical examiner testified at trial that Miller had
died approximately 12 hours after the shooting as a result of
gunshot wounds. On cross-examination, he stated that there was
no evidence of bruising or swelling on Miller’s face or scalp.
The examiner stated that given the amount of time that elapsed
between the shooting and Miller’s death, bruising or swelling
likely would have appeared if Miller had sustained a blunt force
trauma, such as kicking or pistol-whipping.
The jury found Hooks guilty of first-degree murder, and in
view of the evidence presented at trial, the judge permitted the
jury to decide whether Hooks’ crime was “especially heinous,
atrocious, or cruel” as to justify the death penalty under North
Carolina law. The trial judge also submitted for the jury’s
decision a number of possible mitigating circumstances. On the
aggravating circumstance issue, the judge instructed the jury:
Under the evidence in this case, there is one possible
aggravating circumstance which may be considered. .
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. . Was this murder especially heinous, atrocious or
cruel?
Now in this context, heinous means extremely wicked or
shockingly evil. Atrocious means outrageously wicked
and vile; and cruel means designed to inflict a high
degree of pain with utter indifference to, or even
enjoyment of, the suffering of others.
However, it is not enough that this murder be heinous,
atrocious or cruel, as these terms have just been
defined. This murder must have been especially
heinous, atrocious or cruel and not every murder is
especially so.
For this murder to have been especially heinous,
atrocious or cruel, any brutality which was involved
in it must have exceeded that which is normally
present in any killing, or this murder must have been
a conscienceless or pitiless crime which was
unnecessarily torturous to the victim.
The jury found unanimously that this aggravating circumstance
was present and was not outweighed by any mitigating factors.
It accordingly recommended that Hooks be sentenced to death, and
the trial judge imposed the death penalty.
The North Carolina Supreme Court affirmed the conviction
and sentence, rejecting Hooks’ challenges, which included claims
that the aggravating factor was unconstitutionally vague and
that Hooks’ death sentence was disproportionate relative to
other cases in which capital punishment was not imposed in North
Carolina. See Hooks, 548 S.E.2d 501, 511-13 (N.C. 2001).
In his motion for appropriate relief challenging his
conviction and sentence, Hooks raised a number of claims,
including two that are presented here. First, Hooks argued that
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a recent affidavit from McRae, which he attached to his motion
for appropriate relief, constituted newly discovered evidence
that rendered him ineligible for the death penalty. In the
affidavit, McRae stated the following about the events on
September 5, 1998:
I followed Mike [Miller] out into the breezeway and
was a witness to the shooting. The shooting happened
very much as I testified at trial. After Mr. Hooks
shot Mike, he put his foot in Mike’s face; I cannot be
certain whether he kicked him or not.
In the affidavit, McRae also conceded that she had been drinking
alcoholic beverages during the party, but was “not impaired and
the alcohol did not affect my ability to recall events of the
day.” This testimony was contrary to her trial testimony, in
which she denied having been drinking at the party.
Also in his motion for appropriate relief, Hooks argued
that his trial counsel was ineffective for failure to cross-
examine and impeach McRae and Porter about certain purported
discrepancies in their testimony. The state court rejected each
of Hooks’ claims, and the North Carolina Supreme Court denied
certiorari.
Hooks then filed his petition for a writ of habeas corpus
in federal court, claiming 11 grounds for relief -– all of which
the district court rejected. Hooks sought to appeal three of
his claims, and with respect to those, we granted a certificate
of appealability.
8
II
Hooks contends first that the new McRae affidavit, stating
that she was uncertain whether she saw Hooks kick Miller after
shooting him, amounts to a recantation that renders him innocent
of the death penalty. In support of his argument, he cites
Sawyer v. Whitley, 505 U.S. 333 (1992), for the proposition that
newly discovered evidence can render a habeas petitioner
innocent of the death penalty. He reasons that the trial judge
was willing to submit the “especially heinous, atrocious, or
cruel” aggravating factor to the jury only because of the
evidence of kicking and taunting, and when evidence that he did
not kick and taunt Miller is presented, it renders him
ineligible for capital punishment. He maintains that McRae’s
affidavit, when combined with the medical examiner’s testimony
regarding the lack of swelling or bruising, casts substantial
doubt not only on McRae’s trial testimony, but also on Porter’s
similar testimony.
As the state court considered and rejected Hooks’ claim,
denying his motion for appropriate relief, we now consider the
claim under the deferential standard stated in 28 U.S.C. §
2254(d)(1) to determine only whether the state court decision
was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States.”
9
We conclude that Hooks’ claim fails as a matter of both law
and fact. First, the decisions in Sawyer and the similar cases
cited by Hooks are inapposite. Those cases stand for the
proposition that a defendant may, by a showing of actual
innocence, excuse the procedural barriers of a successive,
abusive, or defaulted habeas claim in order to reach the merits
of a constitutional claim. In Sawyer, the defendant’s new
evidence of innocence was presented to allow the court to
consider a defaulted and therefore unavailable constitutional
claim. See, e.g., Sawyer, 505 U.S. at 336 (“[T]o show ‘actual
innocence’ one must show by clear and convincing evidence that,
but for a constitutional error, no reasonable juror would have
found the petitioner eligible for the death penalty under the
applicable state law”) (emphasis added). But Hooks does not
advance evidence of innocence to reach a defaulted
constitutional claim. He seeks simply to assert, by new
evidence, that he is innocent.
Beyond Sawyer, Hooks provides no support for a claim of
actual innocence independent of any constitutional violation,
and the Supreme Court has never recognized such a claim as a
meritorious ground for habeas corpus. The Court has suggested
that such a claim could be made, but the showing required “would
necessarily be extraordinarily high.” Herrera v. Collins, 506
U.S. 390, 417 (1993). Neither the Supreme Court nor this court
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has ever found facts sufficiently compelling to grant the writ
for a claim of innocence without the claim of an underlying
constitutional violation. See Buckner v. Polk, 453 F.3d 195,
199 (4th Cir. 2006) (“[C]laims of actual innocence are not
grounds for habeas relief even in a capital case”) (quoting
Rouse v. Lee, 339 F.3d 238, 255 (4th Cir. 2003) (en banc)
(citing Herrera, 506 U.S. at 405)).
In this case, McRae’s purported recantation falls well
short of meeting the “extraordinarily high” showing needed to
raise a colorable freestanding innocence claim. Hooks argues
that because McRae omitted facts indicating that she lied at
trial when she testified that she had not been drinking and
because she was willing to recharacterize her kicking testimony,
her trial testimony could be found to be incredible. When taken
on its face, however, the affidavit does not amount to a
recantation. It expresses some reservation about how to
characterize what happened, but the affidavit states, “The
shooting happened very much as I testified at trial.” (Emphasis
added). It then recharacterizes the kicking as putting a foot
in the victim’s face: “After Mr. Hooks shot Mike, he put his
foot in Mike’s face; I cannot be certain whether he kicked him
or not.” McRae does not explain whether Hooks’ putting his foot
in Miller’s face is materially different from kicking his face.
Regardless of the obvious difference, however, McRae’s
11
testimony, even with the affidavit, remains that Hooks’ foot
engaged Miller’s face while he was on the ground and that Hooks
taunted him. But more importantly, McRae’s affidavit does
nothing to disturb Porter’s trial testimony that she witnessed
kicking.
Hooks’ challenge amounts to an attempt to use the McRae
affidavit as an invitation to relitigate the facts of his case.
But that is not our role on habeas review. See 28 U.S.C. §
2254(e)(1) (“In a proceeding instituted by an application for
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court, a determination of a factual issue
made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence”). We conclude
that McRae’s affidavit does not carry Hooks’ heavy burden.
Finally, Hooks calls our attention to the Supreme Court’s
recent order in In re Davis, __ S. Ct. __, 2009 WL 2486475(2009) (mem.). Davis, however, has no bearing on the proper
disposition of this case. In Davis, the Supreme Court took the
extraordinary step of ordering a district court to hold an
evidentiary hearing for a determination of whether a petitioner
had made a showing that clearly established his innocence of the
crime for which he was convicted by demonstrating that seven of
the State’s witnesses against Davis recanted their trial
12
testimony, and several implicated the State’s principal witness
as the shooter. See id. at *1 (Stevens, J., concurring).
Hooks’ showing in this case pales in comparison.
In short, we conclude that Hooks has failed to satisfy the
burdens imposed on him by 28 U.S.C. §§ 2254(d)(1) and
2254(e)(1).
III
Hooks next contends that his trial counsel was
constitutionally ineffective for failing to cross-examine McRae
and Porter on specific matters. He notes that because McRae and
Porter were the only two witnesses to testify about Hooks
kicking and taunting Miller, their testimony provided the only
basis for the death penalty. Consequently, he argues, effective
impeachment of McRae and Porter would have prevented his death
sentence. The state court considered this ineffectiveness claim
on Hooks’ post-conviction motion and rejected it, finding that
counsel’s trial conduct was not deficient and that, in any
event, Hooks was not prejudiced.
To prevail on a claim of ineffective assistance of counsel,
Hooks must satisfy the two prong test in Strickland v.
Washington, 466 U.S. 668 (1984). First, he must demonstrate
that his counsel performed below an objective standard of
reasonableness. Id. at 687-89. Second, he must show that this
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poor performance prejudiced him. Id. at 687. Prejudice is a
reasonable probability that but for counsel’s errors, the result
of the proceeding would have been different -– here, that the
jury would not have found Hooks eligible for the death penalty.
Id. at 694-95.
Hooks focuses first on the inconsistency between the
statement that McRae gave to police officers at the scene on
September 5 and the statement that she gave to police the next
day on September 6 -- that she apparently denied on September 5
seeing the shooting and that in every statement thereafter she
claimed that she witnessed the shooting.
Counsel did indeed fail to question McRae about this
apparent discrepancy. The September 5 statement, however, was
recorded by the police officer at the scene in three handwritten
sentences. The very next day, McRae gave a full recorded
statement in which she stated that she had witnessed the
shooting. Moreover, she maintained this position thereafter,
including in her recently submitted affidavit on which Hooks has
heavily relied, where she stated that she “was a witness to the
shooting.” Cross-examination on this discrepancy would not have
changed the fact that Hooks shot Miller, an essentially
uncontested fact. Cross-examination would only have produced
speculation to bridge the apparent inconsistency, such as the
officer did not hear correctly or he transcribed what he heard
14
incorrectly. But little else could have been obtained by cross-
examination because McRae described the shooting in terms
similar to every other eyewitness, and cross-examination would
not likely have been fruitful. Certainly the outcome of the
trial would not have been changed.
Hooks also faults trial counsel for failing to impeach
McRae with the fact that her initial statement on September 5
did not mention kicking, and her full recorded statement given
the next day did. This claim, however, is meritless because
counsel did in fact impeach McRae with this inconsistency and
did so repeatedly. For example:
Q. You said in your testimony on direct that Cerron,
after he shot him, kicked him and stomped on his
face?
A. Yes.
Q. You gave a statement to the officers and didn’t
say anything about stomping on his face. Is that
something you remembered since you gave that
statement?
A. Yes.
Q. And you gave a statement to Detective Spillman as
well and you didn’t say anything about it then?
A. Well, that’s what he did.
Q. Who saw the kicking?
A. Whatcha you mean? I saw the kicking.
* * *
Q. Who else would have been in a position to see the
kicking?
15
A. I’m not sure cause after Mike had got shot, to me
everybody was gone. I didn’t see nobody.
Q. So you were the only one that saw it?
A. As far as I know of.
Hooks also faults his trial counsel for failing to impeach
Porter with the fact that her initial statement given on
September 5 at the scene of the murder made no mention of
kicking, pistol-whipping, or taunting, even though the full
recorded statement that she gave the next day did. But the
discrepancy can hardly be momentous or material in view of the
fact that the police officer taking notes at the scene devoted
only one sentence to his interview of Porter: “A Sabrina Porter
only heard the shots and ran to give first aid to the victim.”
This single statement, which is the full report of her statement
on September 5, was not inconsistent with what Porter maintained
thereafter; it simply did not contain any further details.
Beginning with her full, recorded statement on September 6,
Porter consistently stated that she saw kicking and pistol-
whipping. Cross-examining her about her statements might only
have emphasized the consistency of her account and probably
would not have made her back down from that detail. We can
hardly conclude that the failure to attempt to exploit this
discrepancy, with its potential for mixed results, was deficient
or would have made a difference.
16
Hooks also contends that his counsel was ineffective for
failing to question Porter about the fact that shortly after the
shooting, she did not see Kenneth Hoskins, an attendee at the
party, fall over the second-floor railing and land near the
scene. Testimony was presented that Hoskins was descending the
stairs when he heard the shots. In an apparent panic, he fled
back up the stairs and fell over the railing. In her full
statement on September 6, Porter acknowledged that others had
said that Hoskins had fallen over the railing, but stated that
she did not see it. Hooks argues now that Porter’s failure to
notice this remarkable detail could well have been advanced to
cast doubt on the credibility of her other testimony. But
again, this is merely speculation. There may have been
plausible reasons why Porter did not see Hoskins. For instance,
she may not have left the apartment in time to see him fall, or
she may have been focusing entirely on Miller, while giving him
aid. Failure to ask Porter about Hoskins’ fall is not the sort
of deficiency that has been recognized as ineffective assistance
of counsel. More importantly, no prejudice could have occurred
because there was not a “reasonable probability” that the
outcome of the trial would have been different had she been
cross-examined about not seeing Hoskins fall, especially when
she acknowledged others’ testimony on the fact.
17
Hooks next claims that his trial counsel was ineffective
for failing to impeach McRae and Porter with the medical
examiner’s testimony that a lack of bruising and swelling was
inconsistent with blunt force trauma, such as kicking. The
North Carolina Superior Court rightly pointed out, however, that
because counsel thoroughly cross-examined the medical examiner
about the bruising, cross-examination of McRae and Porter would
have been duplicative at best. More likely, because they were
lay fact witnesses, they would not have been in a position to
comment on or give opinions about the medical examiner’s
testimony.
Finally, Hooks argues that his trial counsel was
ineffective for not confronting McRae and Porter about “what
motives they may have had for concocting the new story [about
kicking and taunting]” during their time together on September 6
before they gave their recorded statements. Again, this failure
was not unreasonable. It is well within the range of reasonable
trial strategy to avoid directly accusing adverse witnesses of
conspiring to lie and lying, especially when there is no factual
basis for the accusation. Additionally, the outcome almost
certainly would not have turned on such cross-examination. The
witnesses were unlikely to relent in response to such
questioning because, as the State points out, McRae and Porter
18
would have had no reason to believe that these details were of
any legal significance.
In sum, Hooks has failed to demonstrate that the state
court’s determination that his trial counsel was effective was
contrary to, or an unreasonable application of, Strickland and
its progeny.
IV
Finally, Hooks claims that North Carolina’s “especially
heinous, atrocious, or cruel” aggravating factor and the jury
instruction that the trial judge gave on it were
unconstitutionally vague and failed to limit the jury’s
discretion. See Maynard v. Cartwright, 486 U.S. 356, 360-63
(1988) (holding that Oklahoma’s “especially heinous, atrocious,
or cruel” aggravating circumstance was unconstitutionally
vague); Godfrey v. Georgia, 446 U.S. 420, 428-29 (1980) (holding
that Georgia’s “outrageously or wantonly vile, horrible or
inhuman” aggravating circumstance was unconstitutionally vague).
The North Carolina Supreme Court rejected this claim. Hooks,
548 S.E.2d at 511.
Hooks’ argument is directly foreclosed by our precedents,
which have concluded that although standing alone this North
Carolina aggravating factor might not pass constitutional
muster, when given along with the pattern instruction that was
19
given to the jury in this case, the jury’s discretion is
sufficiently limited. We have held that the jury instruction
provides guidance and does not create the boundless discretion
condemned in Maynard, Godfrey, and similar cases. See Fullwood
v. Lee, 290 F.3d 663, 694 (4th Cir. 2002); Frye v. Lee, 235 F.3d
897, 907-08 (4th Cir. 2001); Fisher v. Lee, 215 F.3d 438, 458-59
(4th Cir. 2000).
Hooks makes a related argument that the killing in this
case cannot be deemed “especially heinous, atrocious, or cruel”
because the aggravating factor was unconstitutionally applied in
this case, inasmuch as the murder Hooks committed was less
appalling than the eight others for which the North Carolina
Courts sentenced defendants to death during the year he was
convicted. Each of the other eight cases involved multiple
murders or murders during the course of felonies such as rape or
armed robbery. Hooks also argues that compared with other North
Carolina cases, his crime is more aptly considered second-degree
murder. In short, he invites us to engage in a comparative
proportionality review.
Although the North Carolina Supreme Court did engage in
such review on direct appeal and rejected Hooks’ claim, see
Hooks, 548 S.E.2d at 511-13, the United States Supreme Court has
held that comparative proportionality review is not required by
the Eighth Amendment. See Pulley v. Harris, 465 U.S. 37, 44-51
20
(1984). Such a claim is, accordingly, not cognizable on federal
habeas review, even as it is without merit.
* * *
In sum, the North Carolina courts made no decision that was
contrary to, or an unreasonable application of, clearly
established federal law as determined by the United States
Supreme Court. 28 U.S.C. § 2254(d)(1). Accordingly, we affirm
the judgment of the district court.
AFFIRMED
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