Donald Scanlon v. Sid Harkleroad , 467 F. App'x 164 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7510
DONALD JOHN SCANLON,
Petitioner – Appellant,
v.
SID HARKLEROAD,
Respondent – Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:07-cv-00498-TDS-WWD)
Argued: December 6, 2011 Decided: February 23, 2012
Before NIEMEYER, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Janet Moore, JANET MOORE, ATTORNEY AT LAW LLC, Wyoming,
Ohio, for Appellant. Mary Carla Hollis, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
ON BRIEF: Roy Cooper, Attorney General, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A North Carolina jury convicted Donald John Scanlon of
murdering Claudine Harris, who had employed him as a handyman.
After exhausting his state remedies, Scanlon filed this 28
U.S.C. § 2254 action, raising eight claims of error. The
district court ultimately awarded summary judgment to the State
of North Carolina and dismissed Scanlon’s petition. The
district court also granted Scanlon a certificate of
appealability (COA) on a single claim: whether his attorneys
rendered ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984), by failing to review and use
Harris’ medical records at trial. Cognizant of the Supreme
Court’s recent reminder that a habeas petitioner’s burden for
meeting Strickland is sufficiently high that “even a strong case
for relief does not mean the state court’s contrary conclusion
was unreasonable,” Harrington v. Richter, 131 S.Ct. 770, 786
(2011), we affirm the district court.
I.
The North Carolina Court of Appeals (the “Court of
Appeals”) summarized the trial evidence as follows:
[Donald Scanlon] worked for Claudine Wilson Harris as
a handyman from October 1995 through January 1996 [in
Durham, North Carolina]. [Scanlon] lived at Ms.
Harris’ residence until she discovered that he had
been misusing her credit cards and forging checks on
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her checking account. After Ms. Harris evicted
[Scanlon] from her home and sought to take out
warrants against him, [Scanlon] threatened to kill
her. Ms. Harris told her sister, Barbara Breeden,
that she feared that [Scanlon] had a key to her home
and she felt that she should have the locks changed.
Ms. Harris never changed the locks to her residence;
however, as a result of her fears for her own safety,
Ms. Harris’ nephew, Carlos Breeden, and his girlfriend
came to live with her at the end of January 1996.
At around 9:00 p.m. on 27 February 1996, Carlos
Breeden found Ms. Harris’ body in her bed with a
plastic bag wrapped around her head and tied in a
knot. Ms. Harris’ sweatshirt was pushed up, revealing
her underclothes, and her sweat pants and under pants
were partially pulled down. Near her bed was a soup
can punched with holes, described as a pipe for
smoking controlled substances, and a torn-up letter to
[Scanlon] expressing her feelings for him. A
toxicology report revealed that she had cocaine
metabolites in her blood.
On 10 March 1996, authorities arrested [Scanlon] in
Syracuse, New York (on unrelated charges) and found in
his possession several of Ms. Harris’ credit cards, as
well as a blank check from Ms. Harris’ business
checking account. The arresting officers also seized
pieces of paper containing Ms. Harris’ address, date
of birth, social security number, and her First Union
checking account number. Meanwhile, in New Orleans,
where [Scanlon] admittedly abandoned Ms. Harris’ car a
few days before, police officers found three keys in
the car, none of which fit the lock to Ms. Harris’
home.
State v. Scanlon, 626 S.E.2d 770, 775 (N.C. Ct. App. 2006)
(Wynn, J.). Based on the foregoing, a grand jury indicted
Scanlon on March 18, 1996, charging him with the first-degree
murder of Harris, felonious breaking and entering of her
residence, and felonious larceny and possession of her car and
her credit cards.
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At trial, the State introduced forensic evidence indicating
that Scanlon was in Harris’ home near the time of her death:
A cigarette butt in Harris’ house, not present two
days before her death, contained saliva that matched
Scanlon’s saliva. Scanlon’s head hairs and one pubic
hair were found on Harris’ bed. Further, on the day
of Harris’ death Scanlon pawned a gold ring similar to
one that Carlos Breeden owned and which went missing
following Harris’ death.
Scanlon v. Harkleroad, 740 F.Supp.2d 706, 709 (M.D.N.C. 2010).
The State also put forth evidence that Scanlon told his
arresting agents that he was abducted from his motel room in
Durham the weekend before Harris’ murder and, after being held
for several days, was released, given Harris’ car and credit
cards, and told to leave the area.
Scanlon’s trial counsel, Brian Aus and Lee Castle, pursued
a two-track defense by contending that Harris’ death was not a
homicide—but rather a suicide or an accidental death due to
cocaine-induced coronary blockage during attempted sexual
asphyxiation—and that Scanlon was not in Durham at the time of
Harris’ death. To support the theory of accidental death,
Scanlon’s expert, Dr. Lawrence Harris, testified that, based on
“the plastic bag, cocaine metabolites, ‘new clots’ blocking the
bypass artery in Ms. Harris’ heart, her disarranged clothing,
and the round bed where her body was discovered,” Harris died
during attempted sexual asphyxiation. State v. Scanlon, 626
S.E.2d at 776. On cross-examination, however, Dr. Harris
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admitted that he never reviewed Harris’ medical records and
conceded that it was likely someone else put the bedcovers over
her and tied the knot in the plastic bag.
To counter this defense, the State elicited testimony from
Dr. Robert Thompson, a forensic pathologist who supervised
Harris’ autopsy. Dr. Thompson testified that Harris’ cause of
death was asphyxiation and that the manner of death was
homicide. Consistent with this view, Dr. Thompson testified
that Harris had bruising around her eye that could have been
caused by a fist and marks on her arms that could have been
caused by someone grabbing her.
Also at trial, Scanlon put forth evidence that Harris was
hospitalized in December 1995, had severe coronary artery
disease, had likely suffered a heart attack in the past, and had
undergone coronary bypass surgery. The State, however,
represented that Harris’ surgery had helped her regain some
functionality and corrected her heart problems.
The jury convicted Scanlon of all charges and, following a
penalty phase, he was sentenced to death. On May 5, 2000,
Scanlon filed a Motion for Appropriate Relief (MAR) arguing,
inter alia, that his counsel was ineffective under Strickland
for failing to use Harris’ medical records at trial to show that
her heart condition was extremely serious and to establish that
she had a history of clinical depression, making suicide a
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possible cause of death. The MAR court held an evidentiary
hearing, during which Scanlon’s trial attorneys both testified.
In addition, Scanlon presented testimony from multiple expert
witnesses opining on Harris’ medical records, including a
cardiologist, two forensic pathologists, a clinical
psychologist, and a psychiatrist. These experts testified,
generally, that Harris was a good candidate for “sudden death”
given her heart condition, particularly if she ingested cocaine.
Regarding her mental health records, Scanlon’s experts testified
that Harris had significant risk factors for suicide and that
her death was consistent with a successful suicide attempt.
However, only one expert would affirmatively testify that
suicide was the cause of death, but even that expert allowed
that he “[did not] have any problem with undetermined” as the
cause of death because “[t]here are features of virtually every
single manner of death in this case.” (J.A. 2445).
Dr. Thompson also testified at the MAR hearing, and he
concluded that although the medical records would have led him
to consider suicide or undetermined as the cause of death,
ultimately the records did not alter his trial testimony that
Harris’ cause of death was asphyxiation and that the manner of
death was homicide. Dr. Thompson testified that he based this
conclusion in part on the scene of the death—including the
bedcovers placed over Harris and the plastic bag around her
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head. In addition, Dr. Daniel Gianturco, Harris’ treating
psychiatrist, testified that he did not believe Harris was
suicidal and that he did not see signs of suicidal ideation.
The MAR court issued its ruling on February 25, 2004,
concluding that counsel was not constitutionally ineffective in
its representation as to the guilt phase of Scanlon’s trial, but
that counsel was ineffective regarding the sentencing phase. 1
The State declined to pursue the death penalty at the new
sentencing hearing, and Harris was sentenced to life
imprisonment without parole. Relevant here, Scanlon appealed
the MAR court’s denial of relief as to the guilt phase, and the
Court of Appeals affirmed. State v. Scanlon, 626 S.E.2d 789-91.
The Court of Appeals recognized that Scanlon’s claim arose under
Strickland, and that Scanlon had the burden of establishing that
counsel’s performance was deficient and that the deficiency
caused him prejudice. The Court of Appeals affirmed the MAR
court’s ruling denying Scanlon relief, concluding that “even if
1
The MAR court based its determination regarding the
sentencing phase on the State’s use of the aggravating factor
that the murder was “especially heinous, atrocious, or cruel.”
The MAR court concluded that the medical records could have
disputed the State’s position that the murder was cruel and
heinous because Harris suffered “air hunger” before her death.
In the MAR court’s view, the medical records could have shown
that, given Harris’ heart condition, her death would have
occurred quickly. (J.A. 4311-4317).
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trial counsel’s actions were objectively unreasonable, [Scanlon]
was not prejudiced.” Id. at 791.
The Supreme Court of North Carolina denied Scanlon’s
request for discretionary review and dismissed his appeal, and
this § 2254 petition followed. After Scanlon filed his
petition, both parties filed cross motions for summary judgment.
The petition was referred to a magistrate judge, who recommended
granting the State’s motion and dismissing Scanlon’s petition.
The magistrate judge concluded that trial counsel’s performance
was deficient within the meaning of Strickland but that Scanlon
could not establish prejudice. Scanlon timely filed objections
and, relevant here, the district court concluded that the Court
of Appeals’ decision was an unreasonable application of
Strickland as to the deficient-performance prong. Scanlon v.
Harkleroad, 740 F.Supp.2d at 728-30. The district court also
found, however, that the Court of Appeals’ ruling on the
prejudice prong was not an unreasonable application of
Strickland. Id. at 730. In reaching this conclusion, the court
noted “significant evidence of Scanlon’s guilt that would not
have been controverted by the use of the Records at trial,”
including the physical evidence tending to place Scanlon in
Harris’ residence around the time of the murder, the evidence of
Scanlon’s prior threats against Harris, and the evidence that
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Harris had a “potential altercation” at or near the time of her
death. Id.The district court therefore granted the State’s motion for
summary judgment and dismissed Scanlon’s petition. The court
granted Scanlon a COA on his Strickland claim. See 28 U.S.C.
§ 2253(c)(2).
II
A.
On appeal, Scanlon agrees with the district court that the
Court of Appeals unreasonably applied Strickland’s deficient-
performance prong. Scanlon argues, however, that the district
court erred in concluding that the Court of Appeals reasonably
applied Strickland’s prejudice prong. “We review de novo the
district court’s decision to deny [Scanlon’s] § 2254 petition
based on the record before the [state court], applying the same
standards as did the district court.” Golphin v. Branker, 519
F.3d 168, 178 (4th Cir. 2008). “Pursuant to the Antiterrorism
and Effective Death Penalty Act of 1996 (‘AEDPA’), the scope of
our review in cases on collateral review from a state court
proceeding that adjudicated a claim on the merits is both
deferential and highly constrained.” Id. That is, under §
2254, federal habeas relief may not be granted unless a
petitioner shows that the earlier state court’s decision “was
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contrary to” clearly established federal law, § 2254(d)(1);
Williams v. Taylor, 529 U.S. 362, 412 (2000) 2; or that it
“involved an unreasonable application of” such law, §
2254(d)(1); or that it “was based on an unreasonable
determination of the facts” in light of the record before the
state court, § 2254(d)(2).
Recently, the Supreme Court reiterated the scope of federal
habeas review of Strickland claims. Harrington, 131 S.Ct. at
786. The Court began by explaining that a showing of error is
insufficient under § 2254, because “[f]or purposes of §
2254(d)(1), ‘an unreasonable application of federal law is
different from an incorrect application of federal law.’” Id.
at 785 (quoting Williams, 529 U.S. at 410). “[E]ven a strong
case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. at 786. As the Court
2
Scanlon also contends that the Court of Appeals’ decision
is “contrary to” “clearly established federal law” under
2254(d)(1). That prong of § 2254 applies when the state court
failed to recognize the clearly established federal law or
applied the incorrect clearly established law. See Williams v.
Taylor, 529 U.S. 362, 412-13 (2000) (noting “contrary to” clause
applied “if the state court arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of law or if
the state court decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts.”). In
this case, however, the Court of Appeals applied the correct
federal law (Strickland) and the “contrary to” clause is not
implicated.
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succinctly stated, “[i]f this standard is difficult to meet,
that is because it was meant to be.” Id.In the Strickland context, a federal habeas court “must
determine what arguments or theories supported or, [if none were
stated], could have supported, the state court’s decision; and
then it must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with
the holding in a prior decision of [the Supreme] Court.” Id.Habeas relief is appropriate only if “there is no possibility
fairminded jurists could disagree that the state court’s
decision conflicts with [the Supreme] Court’s precedents.” Id.The Court reminded lower courts that, even without § 2254’s
deference, the Strickland standard “is a most deferential one.”
Id. at 788. Moreover, “[w]hen combined with the extra layer of
deference that § 2254 provides, the result is double deference
and the question becomes whether ‘there is any reasonable
argument that counsel satisfied Strickland’s deferential
standard.’” Johnson v. Sec’y, DOC, 643 F.3d 907, 910-11 (11th
Cir. 2011) (quoting Harrington, 131 S.Ct. at 788). “Double
deference is doubly difficult for a petitioner to overcome, and
it will be a rare case in which an ineffective assistance of
counsel claim that was denied on the merits in state court is
found to merit relief in a federal habeas proceeding.” Id. at
911.
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B.
In this case, the district court properly performed the
role of a federal habeas court. It recognized the deferential
Strickland standard and applied that standard correctly and in
“tandem” with § 2254(d) to determine that the Court of Appeals’
application of Strickland was not unreasonable. Harrington, 131
S.Ct. at 788. In so doing, the district court heeded the
Harrington Court’s admonition that an “unreasonable application
. . . is different from an incorrect application of federal
law,” id. at 785 (internal quotation marks omitted) (emphasis in
original), and “guard[ed] against the danger of equating
unreasonableness under Strickland with unreasonableness under
§ 2254(d),” id. at 788. Accordingly, having reviewed the
voluminous record and the parties’ briefs, we affirm
substantially on the reasoning of the district court. See
Scanlon, 740 F.Supp.2d at 728-30. 3
3
Because we affirm the district court’s conclusion that the
Court of Appeals did not unreasonably apply Strickland’s
prejudice prong, we do not address the State’s alternate
argument that the Court of Appeals did not unreasonably apply
the deficient-performance prong.
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III.
For the foregoing reasons, the district court’s judgment
denying and dismissing Scanlon’s § 2254 petition is
AFFIRMED.
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