Daughtry v. Polk

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1
JOHNNY RAY DAUGHTRY,
Petitioner - Appellant,
versus
MARVIN POLK, Warden, Central Prison, Raleigh,
North Carolina,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CA-98-787-5-F-HC)
Argued: May 17, 2006 Decided: July 17, 2006
Before WILKINS, Chief Judge, SHEDD, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Andrew O. Whiteman, HARTZELL & WHITEMAN, L.L.P., Raleigh,
North Carolina, for Appellant. Alvin William Keller, Jr.,
Assistant Attorney General, Leonard Michael Dodd, Special Deputy
Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee. ON BRIEF: Seth A. Blum, KURTZ &
BLUM, P.L.L.C., Raleigh, North Carolina, for Appellant. Roy
Cooper, Attorney General of North Carolina, Barry S. McNeill,
Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In September 1993, Johnny Ray Daughtry was convicted in
Johnston County, North Carolina Superior Court of, inter alia,
first-degree murder. Following a sentencing hearing, the jury
recommended a sentence of death for the murder conviction and, in
accordance with the jury’s verdict, the state trial court sentenced
Daughtry to death for that conviction. After exhausting his state
remedies, Daughtry filed a petition for a writ of habeas corpus in
the United States District Court for the Eastern District of North
Carolina, 28 U.S.C. § 2254, which the district court dismissed.1
On December 27, 2005, we granted Daughtry a certificate of
appealability, id. § 2253. For the reasons stated below, we affirm
the district court’s dismissal of Daughtry’s habeas petition.
I
As found by the North Carolina Supreme Court on direct appeal,
the facts of this case are as follows:
The State’s evidence tended to show that the victim was
killed on 9 April 1992. At that time she was living with
her boyfriend, Michael Hopkins, in his Smithfield
apartment. Hopkins testified that he last saw the victim
alive at about 4:00 p.m., just before he went to bed.
When he awoke around 7:30 p.m., he discovered the
victim’s body lying in a pool of blood near the front
1
Initially, Daughtry named James French, former Warden of the
Central Prison in Raleigh, North Carolina as respondent. Now,
Marvin Polk holds this position and has been substituted as
respondent, see Fed. R. Civ. P. 25(d)(1). For ease of reference,
we will refer to respondent as “the State” throughout this opinion.
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steps outside his apartment. Hopkins ran to his
landlady’s house and called the police; he waited at the
end of the driveway until the officers arrived.
The Smithfield Police Department received a call at 7:38
p.m., and officers arrived at Hopkins’ apartment a few
minutes later. They found the victim’s naked body face
down next to the apartment steps. Her head lay in a pool
of blood, and a stick protruded from her rectum. Her
left arm extended along the left side of her body, palm
up; her right index finger was in her mouth. SBI Special
Agent David McDougall examined the scene. He found
several articles of the victim’s clothing on the ground
near the body and a three-inch-thick log containing blood
and strands of hair atop a woodpile not far away. He saw
no signs of a struggle or other violence inside the
apartment.
Dr. Karen Chancellor, a forensic pathologist who
performed the autopsy, testified that she found multiple
bruises and abrasions on the victim’s head, face, and
neck. The lower jawbone was fractured in two places, and
the back of the scalp had four separate lacerations, each
exposing bone. She also found multiple skull fractures,
hemorrhaging around the brain and brain stem, and bruises
of the brain tissue. Chancellor testified that both
internal and external lacerations existed in and around
the vagina and rectum. Further, the injuries around the
rectal area were consistent with an object being rotated
in the rectum. She opined that death resulted from
blunt-force trauma to the head, the victim had been hit
at least five times, and the log McDougall found could
have been used to inflict the injuries.
SBI Special Agent Scott Worsham testified that hair taken
from the log was consistent with the victim’s. He
removed the stick from the victim’s rectum under
McDougall’s supervision. The stick had been embedded
about six and one-half inches into the rectum and
inserted at such an angle that it could have penetrated
some other part of the body, such as the vaginal area.
SBI Special Agent Mark T. Boodee, an expert in forensic
serology, testified about the results of DNA testing,
which revealed that blood samples taken from the pants
defendant wore on the night of the murder contained DNA
material that matched the victim’s. SBI Special Agent
Peter Duane Deaver, another expert forensic serologist,
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testified that blood found on the log and on defendant’s
pants was the same type as the victim’s blood but not the
same as defendant’s.
Defendant testified that he and the victim had lived
together for about three and one-half years; they broke
up in March 1992. On the day of the murder he left work
around 3:00 p.m., drank some beer on the way home, and
also drank a few beers at a local tavern. He arrived at
his grandmother’s house, where he was living, between
5:30 and 6:00 p.m. He then went to Mike Hopkins’ home at
about 6:30. He and the victim sat on the steps outside
the apartment talking for a while. The next thing he
remembered was being two or three blocks away from
Hopkins’ apartment, walking in an agitated state. He
noticed a little blood on his hand. He then met some
friends and drank with them from 8:30 until about 11:00
p.m. He did not get drunk.
Two psychiatric experts testified for defendant. Dr.
Robert Rollins testified that defendant had average
intelligence and no major disturbance of mood or
thinking. Defendant was distrustful, expected people to
mistreat him, and lacked concern about other people.
Rollins diagnosed defendant with alcohol abuse and
dependence as well as adjustment disorder, which included
depression. Dr. Billy Royal diagnosed defendant with
depression, alcohol and marijuana abuse, and personality
disorder. He considered the disorder to include
immaturity, impulsivity, and dependence in the
relationship with the victim. Both doctors opined that
defendant’s ability to form a specific intent to kill and
to premeditate and deliberate was impaired on 9 April
1992. Both also noted defendant’s history of violence
toward the victim.
At sentencing the State relied on its guilt phase
evidence and also introduced an eight-by-ten-inch
photograph that depicted the stick protruding from the
victim’s rectum. This photograph had been excluded from
the guilt phase.
Defendant’s sister testified at sentencing that defendant
supported the victim as best he could and always helped
his two deaf brothers. She also stated that their
father, who was not at home much due to his work, hit
defendant and assaulted their mother. Further, defendant
used various drugs, including marijuana and cocaine.
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Psychiatric testimony offered at sentencing showed that
defendant grew up in a dysfunctional family environment
that included abuse of his mother and severe punishment
of defendant for his transgressions. He became dependent
upon alcohol early in his teenage years; this dependence
exacerbated the difficulty he experienced in dealing with
the end of his relationship with the victim. According
to the expert testimony, defendant suffered from
depression, substance dependence, and personality
disorder at the time of trial.
State v. Daughtry, 459 S.E.2d 747, 752-54 (N.C. 1995).
On May 11, 1992, Daughtry was indicted by a state grand jury
sitting in Johnston County, North Carolina on charges of first-
degree murder and first-degree sexual offense. On September 30,
1993, a jury convicted Daughtry of both offenses. The murder
conviction rested on both premeditation and the felony murder rule,
with the underlying felony being the first-degree sexual offense.
At the sentencing phase of the bifurcated proceeding, the
State submitted, and the jury found the existence of, two
aggravating circumstances: (1) the capital felony was committed
while Daughtry was engaged in a sexual offense; and (2) the capital
felony was especially heinous, atrocious, or cruel. The jury found
one statutory mitigating circumstance (the capital felony was
committed while Daughtry was under the influence of mental or
emotional disturbance) and fourteen of the nineteen nonstatutory
mitigating circumstances submitted. After finding that the
aggravating circumstances outweighed the mitigating circumstances,
the jury unanimously recommended a sentence of death, which the
state trial court accordingly imposed.
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On direct appeal, the Supreme Court of North Carolina
affirmed, finding no error in either phase of Daughtry’s trial.
See id. at 754-70. On January 16, 1996, the United States Supreme
Court denied Daughtry’s petition for a writ of certiorari. See
Daughtry v. North Carolina, 516 U.S. 1079 (1996).
On April 29, 1996, the Superior Court for Johnston County set
an execution date for Daughtry. The court also appointed two
attorneys to assist Daughtry in the preparation of a motion for
appropriate relief (MAR). On June 24, 1996, Daughtry moved for a
stay of execution, which was denied. Daughtry appealed the denial
of his motion for stay of execution to the North Carolina Supreme
Court. The North Carolina Supreme Court granted relief in the form
of allowing Daughtry time to prepare and file a MAR on or before
October 28, 1996.
On August 19, 1996, Daughtry filed a pro se “Motion to Cancel
Appeal,” wherein he requested that his stay of execution be lifted
and his sentence of death carried out. Upon inquiry by the
Superior Court of Johnston County, Daughtry, through counsel,
indicated that he did not wish to withdraw his motion to withdraw
his appeal. The court then ordered that Daughtry be evaluated to
determine his competency to decide to forego his post-conviction
remedies and proceed to execution.
On October 21, 1996, a hearing was held in Johnston County
Superior Court to determine Daughtry’s competency. At the outset
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of the hearing, the court asked Daughtry if he wished to continue
with his “Motion to Cancel Appeal,” but Daughtry declined to answer
the question. The court then asked Daughtry if he wished to have
his post-conviction counsel represent him and Daughtry indicated
that he did so wish. Among the evidence submitted at the hearing
was the mental health evaluation of Dr. Robert Rollins, a forensic
psychiatrist, and a “record of contact” between Daughtry and Dr.
M.F. Baloch, Daughtry’s treating psychiatrist.
The record of contact indicated that, on August 7, 1996, Dr.
Baloch found that Daughtry: (1) “denied any symptoms”; (2) was
“clinically stable”; (3) “denied auditory and visual
hallucinations”; (4) denied “suicidal or homicidal ideations”; (5)
denied depression; and (5) had a stable mood.
According to Dr. Rollins’ evaluation, he met Daughtry on two
occasions, once on September 24, 1996 and again on October 8, 1996.
Dr. Rollins noted that Daughtry’s speech was “clear” and that his
thinking was “organized.” He also noted that Daughtry’s
perception, concentration, orientation, memory, and intellectual
functions were “intact.” During the interviews, Daughtry stated a
desire to withdraw his appeal and proceed to execution to “escape
the stress of his present situation.” Daughtry complained that
“voices” were “driving [him] to do this.” According to Dr.
Rollins, these auditory hallucinations were affecting Daughtry’s
judgment. Ultimately, Dr. Rollins diagnosed Daughtry as having
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major depression with psychotic features, although he could not
rule out other possible diagnoses, including malingering. Based on
the available information before him, Dr. Rollins concluded that
Daughtry had a mental disorder which impaired his ability to make
reasoned and rational judgments. According to Dr. Rollins,
Daughtry understood “his position with regard to the law and the
nature and object of the proceedings against him.” However, Dr.
Rollins indicated that Daughtry’s “ability to cooperate with his
attorneys and conduct a defense in a rational manner” was impaired.
Consequently, Dr. Rollins concluded that Daughtry was not competent
to make the decision to withdraw his appeals, although he did add
that Daughtry was “competent to [be executed] in that he
understands that transaction.” Dr. Rollins further concluded that,
if Daughtry “were less depressed, he likely would not wish to
withdraw his appeals and overall would be more comfortable.”
Following the October 21 hearing, the Johnston County Superior
Court entered an order on October 24, 1996 finding that: (1)
Daughtry’s “decision to remain mute was a decision made” by
Daughtry and was not the result of any mental impairment; (2)
Daughtry’s “conduct, considered in light of all of the evidence,
appears to be a dilatory tactic to delay post conviction remedies
allowed by law”; and (3) Daughtry was “willfully” refusing to
assist his attorneys even though he is in fact able “to assist his
attorneys to the extent necessary in pursuing post-conviction
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remedies.” In light of these findings, the court held that
Daughtry’s “Motion to Cancel Appeal” was “null and void” because
Daughtry refused to answer the court’s question concerning his
desire to abandon post-conviction remedies and proceed with
execution. The court also held that Daughtry was competent to
assist his attorneys.2
On October 28, 1996, Daughtry filed his MAR, asserting a claim
under Brady v. Maryland, 373 U.S. 83 (1963), and twenty-three
claims of ineffective assistance of counsel. While his MAR was
pending, Daughtry filed a motion “Questioning the Capacity of the
Defendant.” The motion asserted, inter alia, that Daughtry was
unable to assist post-conviction counsel. On June 30, 1997, a
hearing was held in Johnston County Superior Court concerning
Daughtry’s competency to assist counsel. At the hearing, Daughtry
proffered the expert testimony of a psychiatrist, Dr. James
Bellard.
Dr. Bellard testified that Daughtry was suffering from major
depression with psychotic features, the same diagnosis offered by
Dr. Rollins at the October 21, 1996 competency hearing. According
to Dr. Bellard, Daughtry was able to understand the nature and the
object of the proceedings against him and was aware of his
2
Daughtry appealed the Johnston County Superior Court’s
October 1996 competency determination to the Supreme Court of North
Carolina, which denied Daughtry’s petition for a writ of certiorari
on February 7, 1997. See State v. Daughtry, 483 S.E.2d 181 (N.C.
1997).
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surroundings, the reason he was in prison, and the reason he was
sentenced to death. Dr. Bellard also found Daughtry’s memory to be
intact and that Daughtry had low to normal intelligence.
Dr. Bellard also testified as to Daughtry’s ability to consult
with counsel. Dr. Bellard testified that Daughtry was unable to
assist his defense in a rational or reasonable manner because of
his ambivalence about going forward with his appeals or ending them
and being executed. According to Dr. Bellard, Daughtry’s
ambivalence was “complicated” by his depression and auditory
hallucinations. Dr. Bellard testified that Daughtry “hasn’t
demonstrated an ability to be consistent about what is before him
and how to work with attorneys.” Dr. Bellard added that Daughtry
“is unclear about what he wishes to do, and I believe, is unclear
about the role he may or may not play in all this.” Although Dr.
Bellard testified that alleged auditory hallucinations were one
reason Daughtry wanted to end his appeals, Daughtry also gave him
clear and rational reasons to end his appeals apart from any
voices; for example, Daughtry indicated that he wanted to end his
appeals because: (1) “he didn’t see any sense in” appealing; (2)
“he wanted an end to the waiting”; and (3) the appeals were “taking
a toll on his family.” Dr. Bellard indicated that being ambivalent
about a decision which would end one’s life was normal. Like Dr.
Rollins, Dr. Bellard was unable to determine whether Daughtry was
truthful about the voices he heard. The state court asked if a
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motive for Daughtry’s malingering could be to forestall the death
penalty, to which Dr. Bellard answered in the affirmative.
At the June 30, 1997 hearing, the State introduced the
testimony of Sally Gainey, the victim’s mother. She testified that
she had known Daughtry for ten years. While he was dating the
victim, Daughtry lived in Gainey’s home. Gainey had loved Daughtry
much like she would one of her own children. As a result of a
letter from Daughtry, Gainey visited Daughtry at Central Prison in
February 1997. During her conversation with Daughtry, Gainey
detected no difference in Daughtry’s demeanor from the Daughtry she
had always known. Daughtry also told Gainey that he was not going
to help his counsel with his post-conviction proceeding.
On July 1, 1997, based upon the evidence and the testimony
proffered at the June 30 hearing, the Johnston County Superior
Court found that Daughtry’s “depression and extreme ambivalence”
towards being executed did not render him unable to assist his
post-conviction counsel. The court also found that Daughtry was
making a deliberate choice not to cooperate with his counsel. The
court found that Daughtry was able to both “understand the nature
and object of the proceedings against him” and “comprehend his own
situation in reference to the proceedings.” As a result of the
evidence before it, the court concluded that there was no
justifiable reason for the court to reconsider or vacate its
October 24, 1996 order finding Daughtry competent to proceed.
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Free to decide the MAR on the merits, the state habeas court
denied Daughtry’s MAR. On July 8, 1998, the Supreme Court of North
Carolina denied Daughtry’s petition for a writ of certiorari. See
State v. Daughtry, 510 S.E.2d 660 (N.C. 1998).
On October 13, 1998, Daughtry filed his federal habeas
petition in the United States District Court for the Eastern
District of North Carolina. On August 27, 2003, the district court
held that Daughtry was not entitled to federal habeas corpus relief
and dismissed the petition. Thereafter, Daughtry filed a timely
notice of appeal.
While his appeal in this court was pending, a “Petition for
Adjudication of Incompetence and Application for Appointment of
Guardian” was filed in Wake County Superior Court by one of
Daughtry’s counsel. In the petition, Daughtry’s counsel sought to
have Daughtry declared incompetent based on, among other things,
Daughtry’s refusal to meet with and communicate with his counsel.
Daughtry’s counsel also indicated that, in a letter authored by
Daughtry in November 2003, Daughtry stated a desire to “cancel all
appeals.”
As a result of Daughtry’s stated desire to withdraw his appeal
to this court, on March 25, 2004, the State filed in this court a
motion for remand. In its motion, the State argued that Daughtry’s
appeal should be remanded to the district court for a hearing on
and determination of Daughtry’s desire to pursue his appeal to this
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court. On April 21, 2004, we granted the State’s motion and
remanded the case to the district court for the limited purpose of
making factual findings concerning whether Daughtry desired to
appeal the denial of his federal habeas petition and any related
competency questions.
In preparation for the proceeding before the district court,
the State had Dr. Robert Brown, a forensic psychiatrist, evaluate
Daughtry. In his evaluation, Dr. Brown noted that Daughtry’s
“speech was clear and well articulated.” He also noted that
Daughtry’s thoughts were “logical and linear.” He noted that
Daughtry’s “concentration was good” and he “followed along
appropriately during the evaluation.” Dr. Brown noted that
Daughtry wanted to “cease his appeals” because it “was his choice,
his life, and that [he] would pay for his crime.” Daughtry
indicated that his decision to withdraw his appeal was not due to
“hearing voices.” He also indicated that his attorneys instructed
him “not to work on the case.” During his meeting with Dr. Brown,
Daughtry was able to list the books that he had read recently and
to describe in detail his religious views.
Dr. Brown also described several letters Daughtry wrote Sally
Gainey, the victim’s mother. In the letters, Daughtry expressed
extreme remorse and an intention to ignore his counsels’ advice not
to meet Gainey and her family alone. According to Dr. Brown,
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nothing in the letters suggested that mental illness was driving
Daughtry’s decision to withdraw his appeal.
Dr. Brown diagnosed Daughtry as suffering from “Personality
Disorder, NOS (Cluster B), . . . with episodes of depression and
auditory hallucinations flowing from the Personality Disorder
diagnosis during times of intense stress.” On the subject of
Daughtry’s competency, Dr. Brown concluded:
It is clear that [Daughtry] understands the legal
processes that he has faced and that he has the ability
to function within the legal process if he chooses to do
so. There is not present a mental disease or defect that
would cause him to be unable to meaningfully consult with
attorneys if he chose to do so. Mr. Daughtry has the
necessary transactional abilities to proceed with post
conviction appeals if he chose to do so. . . . Mr.
Daughtry is not mentally retarded and his diagnosed
mental disorders and the medications he takes for them
would not impair his ability to understand the appeals
process in a factual and rational manner. In short, his
cognitive functioning is good.
Mr. Daughtry understands the adversarial process. He has
the ability to disclose pertinent facts and to voice
choices he has made, and his behavior at this time is not
inappropriate or disorganized. His decision to
discontinue the appeals at this time, in my professional
opinion to a reasonable degree of medical certainty, is
not coerced by mental illness. Therefore, with all
relevant facts considered I am of the professional
opinion to a reasonable degree of medical certainty, that
Mr. Daughtry is seeking to waive his appeals in a
knowingly and intelligent manner that is also voluntary
in that it is free of coercion from mental illness. He
is not ambivalent about his choice to cease his appeals.
Mr. Daughtry believes that his [trial] was fair, and he
seems to concur with the sentence given to him. He has
expressed remorse. Mr. Daughtry is weary of life on
death row, but he is not suicidal. If by miracle the
governor should pardon him, he would not seek to die.
Mr. Daughtry knows why the state is seeking to execute
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him, and he understands the concept of death and the
method of lethal injection.
On May 9, 2005, while the case was pending in the district
court, Daughtry’s counsel filed a motion in the district court
requesting the court to declare moot all issues on remand based
upon a letter written by Daughtry indicating that he wished to
continue his appeal and was willing to assist his counsel in the
appellate process. On June 3, 2005, the district court found that
Daughtry was competent and wished to pursue his appeal. In
reaching its decision, the court relied on Dr. Brown’s evaluation
and Daughtry’s letter indicating that he did not wish to withdraw
his appeal. After the case returned to this court, we granted
Daughtry a certificate of appealability.
II
Daughtry first argues that the State withheld or suppressed
critical crime scene evidence such that he was prejudiced during
the guilt and sentencing phases of his trial in violation of Brady.
According to Daughtry, the State withheld several reports by the
investigating agents from the North Carolina State Bureau of
Investigation (SBI), including the May 6, 1992 report by SBI
Special Agent P. Duane Deaver and the April 20, 1992 and April 16,
1993 reports by SBI Special Agent W. Scott Worsham. In a nutshell,
Daughtry claims that these reports would have provided the
following materially exculpatory evidence: (1) the victim’s shorts
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and panties were soaked with urine; (2) additional logs containing
blood were found at the crime scene; and (3) bicycle tire tracks
were found near the victim’s body.3
The prosecution’s failure to disclose evidence favorable to an
accused “violates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.” Brady, 373 U.S. at 87. Moreover, the
prosecutor’s duty encompasses both impeachment and exculpatory
3
We note that the Brady claim Daughtry presses in this court
was not raised either in state court or the district court below.
In state court, Daughtry’s Brady claim alleged that the State
withheld evidence concerning Sally Gainey’s desire not to see
Daughtry executed. Here, Daughtry’s Brady claim relates to
allegedly undisclosed SBI investigative reports. Obviously,
Daughtry’s failure to raise his present Brady claim in state court
brings into play the principles of exhaustion and procedural
default. Ordinarily, we are precluded from considering the merits
of a defaulted claim absent a showing of cause and prejudice or a
fundamental miscarriage of justice. See Harris v. Reed, 489 U.S.
255, 262 (1989). Moreover, Daughtry’s failure to raise the claim
in the court below is problematic, as this court usually does not
entertain on appeal claims not raised below, see Singleton v.
Wulff, 428 U.S. 106, 121 (1976) (noting the general rule that a
federal appellate court does not consider an issue not addressed by
the court below), and, at this late stage, Daughtry needs
authorization from this court to file a successive petition to
raise the claim, see 28 U.S.C. § 2244. As a result of the
procedural posture of the case, Daughtry filed during the pendency
of this appeal a motion to amend the record to include the
allegedly undisclosed materials and a motion to remand the case to
the district court to allow the court to address Daughtry’s new
Brady claim in the first instance. We grant Daughtry’s motion to
amend. However, we deny the motion to remand because, for the
reasons stated in this opinion, Daughtry’s Brady claim fails on the
merits even if we accept his allegation that the allegedly
undisclosed evidence was willfully or inadvertently withheld by the
State. Because Daughtry’s Brady claim fails on the merits, we need
not tackle the procedural questions that arise from Daughtry’s
failure to raise this claim in state court or the court below.
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evidence, and it includes evidence that is “known only to police
investigators and not to the prosecutor.” Kyles v. Whitley, 514
U.S. 419, 438 (1995). Along these lines, “the individual
prosecutor has a duty to learn of any favorable evidence known to
the others acting on the government’s behalf.” Id. at 437.
Significantly, a Brady violation has three essential elements: (1)
the evidence must be favorable to the accused; (2) it must have
been suppressed by the government, either willfully or
inadvertently; and (3) the suppression must have been material,
i.e., it must have prejudiced the defense at trial. Strickler v.
Greene, 527 U.S. 263, 281-82 (1999). Prejudice exists when there
is a reasonable probability that, had the prosecution disclosed the
suppressed evidence, the result of the trial would have been
different. Id. at 289.4
As to the urine soaked shorts and panties, Special Agent
Deaver’s May 6, 1992 report indicates that the victim’s shorts and
panties, which were recovered near her body, were “wet[, and]
smell[ed] of urine.” According to Daughtry, had his trial counsel
known that the shorts and panties were soaked with urine, his trial
counsel would have been able to demonstrate that the victim was
dead before her vaginal injuries occurred. According to Daughtry,
if the sexual offense occurred after death, he was not only
4
For purposes of our discussion, we will assume that the
allegedly undisclosed evidence was willfully or inadvertently
withheld by the State.
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innocent of the sexual offense charge but also ineligible for the
death penalty under the murder in the commission of a sexual
offense aggravating circumstance.
With regard to this evidence, Daughtry has failed to show that
the result of either phase of his trial would have been different
had the evidence concerning the victim’s shorts and panties been
disclosed. First, we note that the North Carolina Supreme Court
has rejected the argument that a sexual offense can only occur
while the victim is alive. See State v. Thomas, 407 S.E.2d 141,
149-50 (N.C. 1991) (holding that a sexual offense can occur after
death as long as the sexual offense and the death are so connected
as to form a continuous chain of events). In Thomas, the defendant
argued that the evidence was insufficient to support his felony
murder conviction because the evidence established that the
insertion of a telephone receiver into the victim’s vagina occurred
after her death. Id. at 148-49. The North Carolina Supreme Court
rejected this claim, concluding that, “[b]ecause the sexual act was
committed during a continuous transaction that began when the
victim was alive, . . . the evidence was sufficient to support
defendant’s conviction for first-degree sexual offense.” Id. at
149; see also id. at 150 (“While the first-degree sexual offense
(the insertion of the receiver into her vagina) could have occurred
before or after the victim’s death, clearly, it occurred near the
time of the victim’s final demise during a continuous
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transaction.”). In our case, the sexual offense, like the sexual
offense in Thomas, was part of a continuous transaction. Because
the sexual offense in this case was committed as part of a
continuous transaction, Daughtry was guilty of committing a sexual
offense and eligible for the death penalty under the murder in the
commission of a sexual offense aggravating circumstance.
Second, even if North Carolina recognized the principle that
the sexual offense had to occur before death, the evidence
concerning the urine soaked shorts and panties would have been of
little help to Daughtry considering the evidence presented at his
trial. When asked whether a person at death is likely to “loose
control of their bowels and bladder,” Dr. Chancellor, who performed
the autopsy on the victim, did not indicate that it was likely that
a person loses control of either function. In fact, in reference
to bowel movements, Dr. Chancellor specifically stated that there
was “no particular rule about that.” Considering this testimony,
it is clear that the presence of urine on the victim’s shorts and
panties was immaterial to the question of when the victim died.
Moreover, the use of this evidence by Daughtry had an obvious
downside. It would have opened the door for the State to argue
that Daughtry’s actions on the night of the murder were so
threatening that they caused the victim to wet her shorts and
panties. Thus, the use of this evidence obviously would have
caused more harm than good. In short, a review of the record leads
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to the inescapable conclusion that Daughtry would have been
convicted of capital murder and sentenced to death even if the
evidence concerning the urine soaked shorts and panties was placed
before the jury.
We now turn to Daughtry’s claim that the State’s alleged
failure to disclose the evidence concerning the additional logs
containing blood and the evidence concerning the bicycle tire
tracks violated Brady. According to Daughtry, had this evidence
been disclosed, his trial counsel would have been in a position to
argue that the victim was either attacked by more than one person
or that another person committed the sexual offense.
We harbor no doubt that, had the evidence concerning the
additional logs and bicycle tire tracks been disclosed to the
defense, the result of Daughtry’s trial and sentencing would not
have been different. The case against Daughtry was exceedingly
strong. Daughtry’s own testimony placed him at the crime scene.
He testified that, immediately prior to the victim’s death, they
talked “a good 10, 15 minutes”; that the next thing he remembered
was being “two or three blocks away”; that he “was real hyper [and]
agitated”; that he “noticed there was a little bit of blood on
[his] hand”; and that he wanted to go back to the Hopkins’
residence to see “if she was okay, because she was the last person
[he] was with.”
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Dr. Karen Chancellor testified that the victim suffered
multiple bruises and abrasions to her head, face, and neck. The
victim’s lower jawbone was fractured in two places and the back of
her scalp had four separate lacerations, each exposing bone. Dr.
Chancellor also found multiple skull fractures, hemorrhaging around
the brain and brain stem, and bruises of the brain tissue. Dr.
Chancellor testified that both internal and external lacerations
existed in and around the vagina and rectum. Further, the injuries
around the rectal area were consistent with an object being rotated
in the rectum. Dr. Chancellor opined that death resulted from
blunt-force trauma to the head, the victim had been hit at least
five times, and a log found at the scene could have been used to
inflict the injuries.
Forensic evidence also tied Daughtry to the crime scene. Hair
removed from the log was consistent with the victim’s hair. Blood
found on the log and on Daughtry’s pants was the same type as the
victim’s blood but not the same as Daughtry’s blood. Also, the
results of DNA testing revealed that blood samples taken from the
pants Daughtry wore on the night of the murder contained DNA
material that matched the victim’s DNA.
In view of all of this overwhelming evidence, the jury would
have unhesitatingly rejected Daughtry’s speculative assertion that
somebody else (other than Daughtry and the victim) was present at
the crime scene. There is no meaningful hair or blood evidence
- 22 -
suggesting that another person was present at the crime scene.
Daughtry’s own testimony in the case does not suggest that another
person was present and, in fact, he openly acknowledged that he was
the last person with the victim. In his confession, Daughtry
indicated that he hit the victim, but did not know how many times
he had done so. After Daughtry was told by Detective Fred Dees
that he had inserted a “tree limb” into the victim’s rectum,
Daughtry cried and asked Lieutenant R.J. Cuddington “to place a
bullet between his eyes.” Given this evidence, it is
understandable why the main thrust of Daughtry’s defense centered
on the lack of premeditation and deliberation. Finally, the
additional logs and bicycle tire tracks evidence was of marginal,
if any, exculpatory value. The blood stains found on the
additional logs is not surprising considering that Detective Walter
Martin found the three-inch-thick log containing the victim’s blood
and strands of her hair atop a woodpile a short distance from the
victim’s body. The presence of bicycle tire tracks found at the
crime scene was not surprising when one considers that the location
of the tracks was near the entrance of the apartment. Thus, while
this evidence was at best of marginal exculpatory value if
introduced, the jury would not have placed reliance on such
speculative evidence to conclude that there was another person
present at the crime scene.
- 23 -
In sum, when one considers the cumulative effect of all of the
allegedly undisclosed exculpatory or impeachment evidence and the
role it would have played in the trial, it simply cannot be said
that there is a reasonable probability of a different result during
either phase of Daughtry’s trial. Cf. Strickler, 527 U.S. at
291-96 (denying relief where, in light of the considerable forensic
and other physical evidence linking petitioner to the crime,
petitioner did not show a reasonable probability of a different
outcome had the suppressed evidence been disclosed).5
5
Daughtry also restates his Brady claim as a claim under North
Carolina law. According to Daughtry, the State withheld materially
exculpatory or impeachment evidence from Daughtry’s trial and post-
conviction counsel in violation of North Carolina General Statute
§ 15A-1415(f), which, among other things, requires the “State, to
the extent allowed by law, [to] make available to the capital
defendant’s counsel the complete files of all law enforcement and
prosecutorial agencies involved in the investigation of the crimes
committed or the prosecution of the defendant.” Unfortunately for
Daughtry, a federal court may grant habeas relief only on the
ground that the petitioner is in custody in violation of the
Constitution or laws or treaties of the United States. See 28
U.S.C. § 2254(a); see also Estelle v. McGuire, 502 U.S. 62, 67-68
(1991) (emphasizing that “it is not the province of a federal
habeas court to reexamine state-court determinations on state-law
questions. In conducting habeas review, a federal court is limited
to deciding whether a conviction violated the Constitution, laws,
or treaties of the United States.”). Because Daughtry’s § 15A-
1415(f) claim rests solely upon an interpretation of North Carolina
case law and statutes, it is simply not cognizable on federal
habeas review. See Wright v. Angelone, 151 F.3d 151, 157-58 (4th
Cir. 1998) (refusing to entertain under Virginia law the
petitioner’s claim that the state trial court lacked jurisdiction
over two counts of petitioner’s indictment); Smith v. Moore, 137
F.3d 808, 822 (4th Cir. 1998) (refusing to entertain claim that
jury instruction misstated South Carolina law).
- 24 -
III
Daughtry also claims that the competency determinations made
in state court (on October 24, 1996 and July 1, 1997) were
unreasonable under clearly established federal law as determined by
the Supreme Court. We disagree.
We may grant a habeas petition with respect to any claim
adjudicated on the merits in state court only if the state court
decision was either contrary to, or an unreasonable application of,
clearly established federal law as determined by the Supreme Court
or the decision was based on an unreasonable application of the
facts. Robinson v. Polk, 438 F.3d 350, 354-55 (4th Cir. 2006). “A
decision of a state court is contrary to clearly established
federal law 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.” Id. at 355(citation, internal quotation marks, and alterations omitted). “A
state court adjudication is an unreasonable application of federal
law when the state court correctly identifies the governing legal
rule from the Supreme Court’s cases but applies it unreasonably to
the facts of a particular case or applies a precedent in a context
different from the one in which the precedent was decided and one
to which extension of the legal principle of the precedent is not
reasonable or fails to apply the principle of a precedent in a
- 25 -
context where such failure is unreasonable.” Id. at 355(citations, internal quotation marks, and alterations omitted).
The Due Process Clause of the Fourteenth Amendment prohibits
states from trying and convicting mentally incompetent defendants.
Pate v. Robinson, 383 U.S. 375, 384-86 (1966).6 The test for
determining competency is whether “[a defendant] has sufficient
present ability to consult with his lawyer with a reasonable degree
of rational understanding--and whether he has a rational as well as
factual understanding of the proceedings against him.” Dusky v.
United States, 362 U.S. 402, 402 (1960). “‘Not every manifestation
of mental illness demonstrates incompetence . . . ; rather, the
evidence must indicate a present inability to assist counsel or
understand the charges.’” Burket v. Angelone, 208 F.3d 172, 192
(4th Cir. 2000) (quoting United States ex rel. Foster v.
DeRobertis, 741 F.2d 1007, 1012 (7th Cir. 1984)). Similarly,
“neither low intelligence, mental deficiency, nor bizarre,
volatile, and irrational behavior can be equated with mental
incompetence.” Burket, 208 F.3d at 192.7
6
The Constitution also prohibits the execution of the insane.
See Ford v. Wainwright, 477 U.S. 399 (1986). Daughtry does not
raise a Ford claim at this time and, therefore, we need not address
whether he is competent to be executed.
7
We note that the Supreme Court has not conclusively resolved
the question of whether a person being held under a sentence of
death has a right to be competent to pursue collateral review of a
state conviction in state court. The constitutional requirement of
competence to stand trial certainly does not imply a coordinate
requirement on collateral review, as habeas is a “secondary and
- 26 -
Whether a defendant is competent is a question of fact. See
Mackey v. Dutton, 217 F.3d 399, 412 (6th Cir. 2000) (competency to
stand trial). We also must accord the state court’s determination
that Daughtry was competent to assist counsel a presumption of
correctness under 28 U.S.C. § 2254(e)(1). See Demosthenes v. Baal,
495 U.S. 731, 735 (1990) (concluding that a state court’s
competency determination is entitled to a presumption of
correctness on federal habeas review). Thus, “we presume the
[state] court’s factual findings to be sound unless [Daughtry]
rebuts the ‘presumption of correctness by clear and convincing
evidence.’” Miller-El v. Dretke, 125 S. Ct. 2317, 2325 (2005)
(quoting 28 U.S.C. § 2254(e)(1)).
In this case, on two occasions, the Johnston County Superior
Court found Daughtry competent to assist his counsel on post-
conviction review. With regard to the October 24, 1996 competency
determination, on the one hand, there was ample evidence before the
Johnston County Superior Court indicating that Daughtry had the
ability to communicate and assist counsel. Dr. Rollins noted that
limited” component of the criminal justice process, Barefoot v.
Estelle, 463 U.S. 880, 887 (1983), where many of the defendant’s
rights no longer attach, like the right to counsel. See
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (holding that
there is no constitutional right to counsel on habeas). However,
for purposes of our discussion, we will assume that clearly
established federal law as determined by the Supreme Court requires
that a capital habeas petitioner be competent on state habeas to
assist his state habeas counsel. This assumption is of no help to
Daughtry, because, for the reasons stated in the opinion,
Daughtry’s competency claim fails on the merits.
- 27 -
Daughtry’s speech was “clear” and that his thinking was
“organized.” He also noted that Daughtry’s perception,
concentration, orientation, memory, and intellectual functions were
“intact.” Dr. Rollins also noted that Daughtry understood “his
position with regard to the law and the nature and object of the
proceedings against him.” Dr. Rollins also could not rule out
malingering as a cause for Daughtry’s auditory hallucinations. The
“record of contact,” authored by Dr. Baloch (Daughtry’s treating
psychiatrist) less than two weeks prior to the time Daughtry filed
his “Motion to Cancel Appeal,” found that Daughtry: (1) “denied any
symptoms”; (2) was “clinically stable”; (3) “denied auditory and
visual hallucinations”; (4) denied “suicidal or homicidal
ideations”; (5) denied depression; and (5) had a stable mood.
Finally, when questioned by the court at the hearing, Daughtry
expressed his verbal assent to having counsel represent him fully
in post-conviction proceedings, but, when asked if he wanted to
proceed with his “Motion to Cancel Appeal,” Daughtry refused to
answer or in any way respond to the court.
On the other hand, there was evidence before the Johnston
County Superior Court suggesting that Daughtry was unable to assist
his counsel. Dr. Rollins diagnosed Daughtry as having major
depression with psychotic features. Dr. Rollins found that
Daughtry’s alleged auditory hallucinations impaired Daughtry’s
ability to assist counsel.
- 28 -
In this case, the Johnston County Superior Court took
testimony, weighed the evidence, found that Daughtry was willfully
refusing to assist his post-conviction counsel in order to delay
his post-conviction proceeding, and concluded that Daughtry was
competent and able to assist his post-conviction counsel.
Obviously, the court was in the best position to make credibility
determinations, assess the probative value of the evidence, and
resolve conflicts in the evidence. The evidence in the record, as
credited by the court, unquestionably supports the court’s
conclusion that Daughtry was competent and able to assist his post-
conviction counsel. Thus, Daughtry has failed to rebut the court’s
October 24 1996 competency finding by clear and convincing
evidence.
With regard to the July 1, 1997 competency determination,
again, on the one hand, there was ample evidence before the
Johnston County Superior Court indicating that Daughtry had the
ability to communicate and assist counsel. At the hearing, Dr.
Bellard testified that Daughtry was able to understand the nature
and the object of the proceedings against him and was aware of his
surroundings, the reason he was in prison, and the reason he was
sentenced to death. Dr. Bellard also found Daughtry’s memory to be
intact and that Daughtry had low to normal intelligence.
Dr. Bellard also testified as to Daughtry’s ability to consult
with counsel. Although Dr. Bellard testified that alleged auditory
- 29 -
hallucinations were one reason Daughtry wanted to end his appeals,
Daughtry also gave him clear and rational reasons to end his
appeals apart from any voices; for example, Daughtry indicated that
he wanted to end his appeals because: (1) “he didn’t see any sense
in” appealing; (2) “he wanted an end to the waiting”; and (3) the
appeals were “taking a toll on his family.” Like Dr. Rollins, Dr.
Bellard was unable to determine whether Daughtry was truthful about
the voices he heard. The state court asked if a motive for
Daughtry’s malingering could be to forestall the death penalty, to
which Dr. Bellard answered in the affirmative.
At the June 30, 1997 hearing, the State introduced the
testimony of Sally Gainey, the victim’s mother. As a result of a
letter from Daughtry, Gainey visited Daughtry at Central Prison in
February 1997. During her conversation with Daughtry, Gainey
detected no difference in Daughtry’s demeanor from the Daughtry she
had always known. Daughtry also told Gainey that he was not going
to help his attorneys with his post-conviction proceeding.
On the other hand, there was evidence before the Johnston
County Superior Court suggesting that Daughtry was unable to assist
his counsel. Dr. Bellard testified that Daughtry was unable to
assist his defense in a rational or reasonable manner because of
his ambivalence about going forward with his appeals or ending them
and being executed. According to Dr. Bellard, Daughtry’s
ambivalence was “complicated” by his depression and auditory
- 30 -
hallucinations. Dr. Bellard also testified that Daughtry “hasn’t
demonstrated an ability to be consistent about what is before him
and how to work with attorneys.” He added that Daughtry “is
unclear about what he wishes to do, and I believe, is unclear about
the role he may or may not play in all this.” Finally, Dr. Bellard
indicated that he believed that Daughtry was being honest when he
indicated that he was suffering from auditory hallucinations.
Like the October 24, 1996 competency determination, we cannot
disturb the Johnston County Superior Court’s July 1, 1997
competency determination. There was evidence before the court that
allowed it to find that Daughtry was making a deliberate choice not
to cooperate with his post-conviction counsel. While the auditory
hallucinations were one explanation for Daughtry’s decision not to
assist his post-conviction counsel, there were other reasons, that
if credited, would support the court’s competency determination.
Unquestionably, the court was at liberty to conclude that the
alleged auditory hallucinations did not undermine Daughtry’s
ability to assist his counsel. Thus, it cannot be said that
Daughtry has rebutted by clear and convincing evidence the court’s
July 1, 1997 competency determination.
- 31 -
IV
For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED
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