- UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION 3:18-cv-00518-FDW AVERY J. LAIL, JR., ) ) Petitioner, ) ) vs. ) ORDER ) ERIK A. HOOKS, Secretary,! ) N.C. Dep’t of Public Safety, ) ) Respondent. )

THIS MATTER is before the Court upon pro se Petitioner Avery J. Lail, Jr.’s Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254 (Doc. No. 1) and Respondent’s Motion for Summary Judgment (Doc No. 7).

was instructed only on those theories. Therefore, although the jury was not instructed to answer under what malice theory it convicted defendant of second- degree murder, it is readily apparent from the evidence presented and instructions given that the jury, by their verdict, found defendant guilty of B1 second-degree murder. Id. at 410. Whether amended § 14-17(b) always requires a jury to specify whether depraved-heart malice theory supported its conviction for second-degree murder is a question of state law, and this Court may not “reexamine state-court determination on state law questions,” McGuire, 502 US. at 67-68. Accordingly, this Court is bound by the NCCOA’s determination that “in a situation where no evidence is presented that would support a finding that an accused acted with depraved-heart malice, .. . it would be inferred from a general verdict that the jury found the accused guilty of Bl second-degree murder,” Lail, 795 S.E.2d at 408. See McGuire, 502 U.S. at 67-68. This Court, then, may only consider whether the NCCOA reasonably applied Apprendi, Ring, Blakely, et. al, when it determined that there was no evidence that would have supported a finding of depraved-heart malice or an instruction on that theory. At sentencing, the issue arose as to whether Petitioner should be sentenced as Class B1 or B2 felon. In deciding to sentence him as a Class B1 felon, the trial court reasoned: [R]eading the statute . . . there would have to be some evidence that would allow some reckless and wanton manner theory to have been addressed by the jury in this case. The jury was given malice in the form of . . . the use of a deadly weapon, which is certainly not a reckless and wanton manner-type argument. So... the Court is going to find . . . based on the evidence in this particular case that there was not any evidence to suggest that this act, while it may be based on an inherently dangerous act, was done in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty and deliberate mental mischief. So... the Court is going to conclude that based on the evidence in this case, the jury instructions that were given and the findings of the jury . . ., that this is a B-1 second-degree murder. Lail, 795 S.E.2d at 406.

Lail was indicted for first-degree murder, and the State proceeded under a deadly weapon implied malice theory, which falls into the third malice category: that “condition of mind which prompts a person to take the life of another intentionally without just cause, excuse, or justification.” Id. at 409 (citation and internal quote omitted). Under North Carolina law, “the third type of malice is established by ‘intentional infliction of a wound with a deadly weapon which results in death.’ ” Id. (quoting State v. Coble, 527 S.E.2d 45, 47 (2000) (citation omitted)). “A butcher knife is a deadly weapon.” Lail, 795 S.E.2d at 410. The NCCOA found the following facts: 1) the State introduced evidence that Petitioner repeatedly slashed Brian's neck with a butcher knife, one large cut severing Brian's right internal. jugular vein, proximately causing his death; 2) Petitioner wholly denied cutting Brian's neck with a knife and blamed Huntly; 3) Petitioner never specifically rebutted deadlyweapon implied malice nor advanced a depraved-heart malice theory argument; 4) Petitioner never requested that the judge instruct the jury on depraved-heart malice; and 5) the trial judge submitted the charge under an express malice and deadly weapon implied malice theory and elected not to instruct on a depraved-heart malice theory. See id, A state court’s factual findings are presumed to be correct absent clear and convincing evidence that they are not correct. See § 2254(e)(1). Petitioner, who bears the burden here, has not offered or identified any clear and convincing evidence that the NCCOA’s findings of fact are erroneous. Petitioner also has not produced or directed this Court to evidence in the record that may have allowed the jury to find B2 depraved-heart malice. Accordingly, he has failed to demonstrate that the NCCOA unreasonably applied Apprendi, Ring, Blakely, et al, when it concluded that the trial court did not exceed its authority under the statute when it sentenced Petitioner as a Class BI felon. See § 2254(d)(1). Respondent is entitled to summary judgment on this claim. B. Ineffective Assistance of Trial Counsel

In his second, third, and fourth grounds for relief, Petitioner claims trial counsel rendered ineffective assistance by failing during jury selection to remove jurors Petitioner believed might be biased because they had friends or family who were murdered (§ 2254 Pet. 6); failing to interview and/or call witnesses Petitioner asserts could have provided evidence to impeach Mark Huntley’s testimony (§ 2254 Pet. 6-7, 8, 10); and failing to file a motion for a change of venue (§ 2254 Pet. 10). According to Respondent, Petitioner raised all these claims in his MAR and in his certiorari petition in the NCCOA. The Superior Court summarily denied the claims on the merits.

Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts requires a petitioner to identify all the grounds for relief available to him and to state the facts that support each ground for relief. Rule 2(c), 28 U.S.C.A. foll. § 2254. Petitioner has failed to state any facts in his § 2254 to support these grounds for relief. Instead, he directs the Court to what he asserts is a copy of his original hand-written MAR, see § 2254 Pet. (Doc. No. 1) at 7, 8, 10, 146-180. Consequently, Petitioner has failed to comply with Rule 2(c) of the Rules Governing Section 2254 Cases. While pro se pleadings are held to a less stringent standard than those drafted by attorneys, see Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016), the liberal construction requirement does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court, see Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”), Petitioner has failed to allege facts in his Petition which set forth ineffective assistance of counsel claims. See Iqbal, 556 U.S. at 684. The Court notes further that Petitioner’s MAR is, for the most part, unintelligible, see “Copy of Original Hand- written MAR,” § 2254 Pet. at 146-180. In his Response to the summary judgment motion, Petitioner alleges facts that he could have alleged in his habeas Petition. Nevertheless, the Court shall consider those factual _ allegations in its adjudication of these ineffective assistance of counsel claims as Petitioner was not given an opportunity to amend his Petition before Respondent filed the Motion for Summary Judgment.

been different.’” Richardson v. Branker, 668 F.3d 128, 139 (4th Cir. 2012) (quoting Strickland, 466 U.S. at 694). “A reasonable probability is a probability sufficient to undermine confidence in the outcome, and the likelihood of a different result must be substantial, not just conceivable[.]” Id. at 139-40 (citations, alteration, and internal quotation marks omitted) (emphasis in original). On habeas review, this Court’s inquiry “is limited to whether the [state] court’s ineffective assistance determination was contrary to or an unreasonable application of Supreme Court precedent or an objectively unreasonable factual determination.” Williams v. Stirling, 914 F.3d 302, 312 (4th Cir. 2019), as amended (Feb. 5, 2019).

“numerous” classmates, friends, and co-workers who were murdered during that time. Trial Tr. Vol. I at 85:10-14, 85:24-86:2, Sept. 14, 2015 (Doc. No. 8-14). He also stated that in at least one of those cases, 15 years prior, he had to talk to police and go to court, but he was not asked what his role in the criminal proceedings was, and he did not elaborate on his own. See id. at 86:7-18. When asked whether, given those experiences, there was anything that would keep him from being fair and impartial to both sides, Mr. Robusky responded: “No. By no means; no.” Id. at . 86:19-24. He then stated that his experiences had been tempered by his 20 years as a paralegal. Id. at 87:3-7.15 When it was his turn to question Mr. Robusky, defense counsel asked whether having friends who had lost their lives had affected him, and Mr. Robusky responded that it had. See Trial Tr. Vol. 11 195:4-10, Sept. 15, 2015 (Doc. No. 8-14). Counsel then asked if he was comfortable sitting on a jury in a murder case, and Robusky responded in the affirmative. Id. at 195:11-14. According to Petitioner, when he asked why his attorney had not moved to strike Robusky for cause, his attorney responded, “TI like him.” Pet’r’s 2nd Resp. to Summ. J. Mot. at 1 (Doc. No. 13-3). “Counsel’s actions during voir dire are presumed to be matters of trial strategy,” Connor v. Polk, 407 F.3d 198, 207 n.5 (4th Cir. 2005) (internal quotations and citations omitted), and Petitioner has provided evidence that was the case at his trial — counsel had a positive impression of Robusky. Moreover, Petitioner does not allege that Robusky was dishonest during voir dire. See, e.g., McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556 (1984) (In order to obtain a new trial, a defendant “must first demonstrate that a juror failed to answer honestly a material question . . . and then further show that a correct response would have provided a valid basis for a challenge for cause.”). Nor has he alleged facts that would justify a finding of implied bias. See Connor, 407 F.3d at 206 (Situations that would justify a finding of implied bias “exist only where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.” (citation and internal quote omitted)). Finally, Petitioner has put forth no reason to believe there is a reasonable probability he would have been acquitted had Robusky been removed from his jury. As such, Petitioner has not demonstrated that the state court’s rejection of his ineffective assistance of counsel claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’” Richter, 562 U.S. at 103. In other words, he has not demonstrated that the state court applied Strickland unreasonably when it denied Petitioner’s claim. Respondent is entitled to summary judgment on this claim. .

trial.” N.C. Gen. Stat. § 15A-957. “To obtain a change of venue, a defendant must show a specific and identifiable prejudice against him as a result of pretrial publicity.” State v. Rogers, 562 S.E.2d 859, 866 (N.C. 2002). In meeting this burden, “a defendant must show inter alia that jurors with prior knowledge decided the case, that defendant exhausted his peremptory challenges, and that a juror objectionable to defendant sat on the jury.” State v. Robinson, 561 S.E.2d 245, 250-51 (N.C. 2002) (quotation marks, citation, and alterations omitted). Further, determination of whether a defendant has carried his burden of showing that pre-trial publicity precluded him from receiving a fair trial rests within the trial court's sound discretion.” State v. Yelverton, 434 S.E.2d 183, 187 (N.C. 1993). Petitioner has alleged that one juror spoke up and acknowledged reading about his case, but he provides no other details. For example, he does not indicate whether this person was a prospective juror who subsequently was struck or whether the person sat on his jury. He does not indicate whether this happened during voir dire or during the trial, and he does not state the degree to which the court or the attorneys questioned the individual about what s/he had read and how it may have affected that person’s impartiality. Finally, Petitioner has not alleged that his attorney had exhausted all the defense’s peremptory challenges or that a juror objectionable to the defense sat on the jury. Furthermore, for a jury to be presumed partial because of pretrial publicity, the publicity must involve coverage that is almost irrefutably incriminating and proximate in time to the trial, or the publicity must disturb the trial proceedings. The publicity must rise to a level that renders court proceedings “a hollow formality.” Rideau v. Louisiana, 373 U.S. 723, 726 (1963). As an initial matter, Petitioner does not allege any facts related to the quantity or quality of pre-trial publicity. See, e.g., id. at 724-726 (presuming prejudice where defendant’s filmed confession was repeatedly broadcast two months before his trial); Irvin v. Dowd, 366 U.S. 717, 725-726 (1961) (presuming prejudice where six months before his trial, defendant was the subject of a “barrage of newspaper headlines, articles, cartoons and pictures,” characterizing him as “remorseless and without conscience” and reporting that he had confessed to six murders and had offered to plead guilty to avoid the death penalty). . While he alleges that the media was given full access to the trial and that there was daily reporting about the trial in newspapers and on the local news, Petitioner does not characterize the coverage (e.g. informational, accurate, inaccurate, sensationalized, etc.). Nor does he provide any information about the atmosphere in the courtroom when media were present. See, ¢.g., Estes v. Texas, 381 U.S. 532, 535-536 (1965) (presuming prejudice in a case of national notoriety in which the press attended and televised pretrial hearings, undermining the courtroom's atmosphere of decorum with obtrusive cables, wires, and microphones); Sheppard v. Maxwell, 384 U.S. 333 (1 966) (presuming prejudice in case of national notoriety involving pervasive pretrial publicity characterizing Sheppard as the murderer and where reporters broadcasted a staged inquest presided over by the coroner and prosecutor and attended by . hundreds of spectators; the press was a constant presence inside and outside the courtroom; jurors’ photographs were published; the jury visited the murder scene in the presence of hundreds of reporters; the jury was not sequestered and was only admonished to avoid press coverage during the trial). In short, the state court could have concluded that had defense counsel moved for a change of venue, there was not a reasonable probability the motion would have been granted. See Strickland, 466 U.S. at 694. Petitioner has not demonstrated that the state court’s rejection of his ineffective assistance of counsel claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’” Richter, 562 U.S. at 103. In other words, he has not demonstrated that the state court applied Strickland unreasonably when it denied Petitioner’s claim. Respondent is entitled to summary judgment on this claim.

Finally, Petitioner asserts that Maderkis Rollinson could have impeached Clinton Rucker’s testimony and proved that Ruckers and Huntley “had conspired together to come up with what was said in court in hopes of getting out themselves and lighter sentence in Huntley’s case.” Pet’r’s 2nd Resp. to Summ. J. Mot. at 3. According to Petitioner, Rollinson was cellmates with Huntly, Ruckers, and a man named Norris Myers. Again, Petitioner does not provide any information about Ruckers’ testimony or identify the part of Ruckers’ testimony Rollinson could have impeached. He does not provide any information about how Rollinson would have testified. Nor does Petitioner argue why there is a reasonable probability he would have been acquitted had defense counsel called Rollinson to testify. As was the case with the other potential witnesses, the Superior Court reasonably could have concluded that under Strickland, trial counsel did not render ineffective assistance by failing to call Rollinson as a witness. Petitioner has not demonstrated that the state court’s rejection of his ineffective assistance of counsel claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’” Richter, 562 U.S. at 103. In other words, he has not demonstrated that the state court applied Strickland unreasonably when it denied Petitioner’s claim. Respondent is entitled to summary judgment on this claim. IT IS, THEREFORE, ORDERED that: 1. Respondent’s Motion for Summary Judgment (Doc. No. 7) is GRANTED; 2. The Petition for Writ of Habeas Corpus (Doc. No. 1) is DENIED; 4. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the Court declines to issue a certificate of appealability as Petitioner has not made a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 USS. 322, 336-38 (2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong); Slack v. McDaniel, 529 U.S. 474, 484 (2000) (holding that when relief is denied on procedural grounds, a petitioner must establish both that the correctness of the dispositive procedural ruling is debatable, and that the petition states a debatably valid claim of the denial of a constitutional right). SO ORDERED.

Chief United States Distrig¢Court