Elrico Fowler v. Carlton Joyner

re- with this conclusion Having reached FOWLER, Darnell Elrico MDPV, we need 4-MEC and

spect to Petitioner-Appellant, evi- there was sufficient whether address that me- to conclude in the record dence v. substance as a controlled thylone qualified JOYNER, Warden, B. Central Carlton charges in the su- of the analogue. Each Carolina, Prison, Raleigh, North methy- relating to indictment perseding Respondent-Appellee. conjunctive in the alleged lone also or 4-MEC MDPV McFadden distributed 13-4. No. counts. In other respect to those

with Appeals, United States Court hinged on a words, charges none of Fourth Circuit. as a con- methylone qualified finding Accordingly, analogue.12 trolled substance 11, Argued: April argu- McFadden’s agreed even if we Decided: June we neverthe- relating methylone, ments each of his convictions. less would affirm States, 396 U.S.

See Turner v. United 24 L.Ed.2d 610 if an general rule that

(reaffirming the acts in the con- charges several

indictment if the evi-

junctive, guilty verdict stands one respect is sufficient with

dence Bollin, acts);

of the United States (4th Cir.2001) (in case 412 n. 14

F.3d allegation charged

involving perjury alleged to two false

conjunctive pertaining

statements, that Court need not holding to the first arguments pertaining

reach evidence

alleged false statement because jury relating to the sec-

supported verdict statement). alleged

ond false

IV. reasons,

For these we affirm district judgment.

court’s

AFFIRMED. range, methylone a factor gov- guidelines was not 12. We further observe that because agreed methylone from ernment to remove determination of McFadden’s in the court’s purposes drug weight the calculation of sentence. advisory sentencing determining McFadden’s TRAXLER, Judge: Chief Fowler, a Elrico Darnell Petitioner inmate, appeals death row North Carolina petition for court’s denial of his district under 28 U.S.C. corpus a writ of habeas ap- granted § 2254. We certificate Fowler’s claim pealability to consider vio- eyewitness’s an in-court identification process rights due under lated his Amendment. Because Fourteenth rejection court’s North Carolina state to, contrary or an Fowler’s claim was not of, clearly application estab- unreasonable law, by the federal as determined lished Court, affirm we United States peti- court’s denial of Fowler’s district tion for relief. habeas appeal pending, Fowler While this desig requesting motion that we filed a current, appointed counsel to be nate his counsel,” Su “Martinez referencing the Ryan, in Martinez v. preme Court decision — U.S.-, 182 L.Ed.2d (2012), it in applying and our decision Pickett, Mark Jason Center ARGUED: Davis, (4th Juniper 737 F.3d 288 Cir. Durham, Penalty Litigation, for Death 2013), and remand the matter to the dis Carolina, Appellant. Sonya for M. North investigation trict further and court for Calloway-Durham, North Carolina De- amendments, appropriate, if to his Justice, Raleigh, North Car- partment Fowler had the benefit of petition. Because olina, Shelagh BRIEF: Appellee. for ON qualified, independent counsel called Penal- Kenney, Center for Death Rebecca Juniper for in and he failed raise Carolina, Durham, North for ty Litigation, below, deny claims we Martinez-based Attorney Appellant. Roy Cooper, Gener- motion as well. Justice, al, Department of North Carolina Carolina, Appellee. Raleigh, North I. A. TRAXLER, Judge,

Before Chief DAVIS, DUNCAN, Judge, and Circuit in North Fowler was convicted Carolina Judge. Senior Circuit first-degree court of the murder of state Richmond, deadly

Bobby assault with Judgment affirmed and motion denied Shah, kill Bharat weapon with intent to Judge by published opinion. Chief robbery danger- counts of and two opinion, in which TRAXLER wrote arise weapon. ous All of the convictions joined. Judge robbery DUNCAN Senior that occurred at a Judge out of an armed Charlotte, in the in opinion concurring an Motel DAVIS wrote Howard Johnson’s Carolina, on December dissenting part. judgment part and North crime, surrounding The circumstances forearm during surgery. A .44-caliber as summarized the North Carolina Su- jacket bullet was also found in Rich- Court, preme are as follows: lung. mond’s left Police located a .44- caliber bullet approximately On 31 December 1995 at core the motel carpet (Rich- p.m., Bobby 10:45 beneath Richmond Richmond’s chest wound. Po- mond), an at a lice also employee Howard John- found a jacket .44-caliber bullet Charlotte, son’s Motel in North and a large fragment Car- from a .44-caliber olina, lobby looking jacket entered the motel bullet at the scene. Both had (Shah) for ice. Bharat Shah was work- been fired from weapon the same used ing night as the motel clerk. About five to shoot Richmond. Other pieces later, minutes two black males entered metal found at the scene were also con- approached the motel and check-in sistent with .44-caliber ammunition. counter. pulled One of the men out a Richmond had an entrance wound gun and get ordered Richmond to on the his back and an exit wound his chest. ground. The other man ordered Shah against His chest was a hard surface “open register give [him] when he was shot. The evidence money.” While Shah handing over showed likely Richmond was shot from a money, gun man with the shot distance of no more than three feet. both Richmond and Shah. He then or- Officers found Richmond’s wallet at dered Shah to open the office safe. body. the scene next to his The wallet When Shah stated he did not have the money. contained no register The cash combination, again. the man shot Shah plastic drawer and a change drawer next Both assailants then fled the motel. register money. also contained no The ar- Charlotte-Mecklenburg Police Approximately was stolen from $300.00 rived at the p.m. scene 11:04 the motel robbery. found Richmond and lying Shah near Fowler, State 353 N.C. 548 S.E.2d the counter. Richmond unrespon- was (2001). 684, 689-90 struggling sive. Shah was speak to police. police they He told the had been trial, Guzman, Jimmy At the owner of by males, robbed two black one wearing the adjoining restaurant the lobby, motel green jacket. a testified that gunshots he heard around paramedics arrived, they

When found p.m. 11:00 lobby the of the motel. He large a wound the middle of Rich- looked through glass the door of the res- mond’s back. Richmond had no carotid taurant and saw one of the robbers stand- pulse. paramedics The determined ing behind the check-in counter. Guzman Shah’s life in danger. hospital was A observed the man approximately five surgeon later found two wounds in seconds before running police. to call the Shah’s left thigh, two more wounds in Guzman, According black, “the man was back, Shah’s and a wound in Shah’s twenties, in his approximately late and six right forearm. feet tall.” Id. at pointed 690. He “had a

A high-velocity weapon caused Shah’s nose and hair on his face but not a full thigh injury. Doctors removed .44- two beard” and wearing green toboggan “was a jacket caliber bullet fragments from camouflage army jacket.” his and a Id.1 Over shooting Bharat Shah survived the get good and also he did not a look at the shooter described investigating the events to the primarily offi- because he was focused on the man However, cers. taking money” Shah told the officers “that probably and that “he midnight and 1:00 a.m.” Id. Fowler then identified objection, Guzman Fowler’s Adams go Sugar the man he saw behind left to to the Shack. in court as Fowler purchased a .44-caliber night. that testified that he the counter following eve- revolver from Fowler in-court identifi- In addition to Guzman’s Later, ning. April Fowler “asked Fowler, prosecution present- cation of located, gun and Adams where witnesses to testimony of several ed the gun told him the had been de- Adams incriminating had made whom Fowler glad,’ ‘I’m stroyed. responded, [Fowler] Jones testified statements. Jermale about people and asked Adams not to tell Thanksgiving 1995 that told him on Fowler gun.” Id. Fowler also told Adams a Howard Johnson’s planned he to rob pur- did not know who prosecutor additionally In March Fowler motel. gun. chased the See id. Shenitra John- “that he entered the admitted to Jones that Fowler arrived at her son told officers handgun with a to at- Howard Johnson’s shortly p.m. after 11:30 on December home people that when the tempt robbery a 31, 1995, and and 1:00 left between 12:30 made him ask twice working at the motel a.m., and that Fowler had a .44-caliber big them ‘a money, [with] for the shot [he] ” trial, which he later sold. At howev- gun, McIntyre at 691. Leo testi- old .44.’ Id. er, Johnson testified that Fowler was at Shack, Sugar fied that he went from on p.m. her home 10:30 December December nightclub, local on 1995, until 1:15 or morn- 1:30 a.m. next Fowler, who was spoke with Fowler. ing, seeing and denied Fowler sell or at- army fatigues, McIntyre told dressed tempt handgun apartment. to sell a at her robbery people “that he shot two See id. at a Howard Johnson’s” motel. Id. Later week, McIntyre Fowler also told B.

“that, thought he had although he killed robbery, people both at the one of them In November Fowler was convict- McIntyre Id. Fowler also told had lived.” jury charges. ed of all He was only two or got “that he three hundred appeal thereafter sentenced death. On robbery. Waymon from the Id. dollars” Court, to the North Carolina living with at the Fleming was Fowler argued Fowler that his convictions should robbery. time of the He testified that be overturned because Guzman’s in-court robbing Fowler admitted the motel and him deprived right identification of his open shooting “people who would process. due The North Carolina Su- Fleming Id. Fowler the safe.” When told affirmed, 704, preme Court see id. state, going that he was to flee the Flem- Supreme denied the United States Court ing notified the authorities and Fowler was certiorari, Carolina, see Fowler v. North apprehended. 939, 1322, 122 535 U.S. S.Ct. 152 L.Ed.2d (2002). evidence, motion for In addition to the above Ed- 230 Fowler’s state relief, that he added a related postconviction ward Adams testified was with which night on the of the claim that Fowler’s trial counsel was con- apartment Fowler at an robbery. stitutionally handling that Fowler left the ineffective the of He testified identification, denied, p.m. “between 9:00 and 10:00 Guzman’s was also apartment Fowler, 511, other men and returned between see State v. 362 N.C. 668 with two and, recognize suspects.” despite State v. ered from his wounds assurances could not 599, 684, Fowler, given police protection, that he would be re- 353 N.C. 548 S.E.2d 691 (2001). id. moved to India after he fused to return for the trial. See Shah recov-

453 (1972) (internal (2008), and the States L.Ed.2d 401 quotation S.E.2d 343 United omitted). certiorari, see marks Supreme again Court denied — Carolina, U.S. -, Fowler v. North considering question When of (2009). L.Ed.2d 129 S.Ct. whether the identification was un reliable petition filed this Fowler thereafter prong, Supreme der the second Court pursuant federal habeas relief 28 U.S.C. has also identified five factors for consider 2254, raising separate sixteen claims. (1) They ation. include: “the opportunity the petition The district court denied and of the witness to view the criminal at the appealabil- declined to issue a certificate of (2) crime”; time of the “the witness’ de ity. request, granted At Fowler’s we a attention”; (3) gree accuracy “the of the appealability certificate of to consider prior description criminal”; witness’ of the adju- claim that the state Fowler’s court’s (4) certainty “the level of by demonstrated dication of his in-court identification claim confrontation”; the witness at the to, contrary or an appli- unreasonable length “the of time between the crime and of, Supreme precedent.2 cation Court We Biggers, the confrontation.” 409 U.S. at now affirm. 199-200, 93 S.Ct. 375. These factors are

weighed against “the corrupting effect of II. suggestive identification itself.” Man Brathwaite, 98, 114, son v. 432 U.S. A. (1977). S.Ct. 53 L.Ed.2d 140 begin clearly -with the estab We Thus, police when the use “[e]ven principles lished constitutional applicable procedure ..., such a suppression of the eyewitness to in-court identifications. The resulting identification is not the inevitable United States Court has set forth consequence.” Perry, 132 S.Ct. at 724. two-part approach determine whether eyewitness The sup identification need be eyewitness an identification sup must be pressed only if procedures used to pressed because it has been tainted “ obtain the identification were ‘so unnec police procedures or conduct. Perry See essarily suggestive irrep and conducive to — -, v. Hampshire, New U.S. arable mistaken identification that de [the (2012). S.Ct. 181 L.Ed.2d 694 ” process was denied due fendant] law.’ First, court considers whether Biggers, 409 U.S. at 93 S.Ct. 375 procedure employed by identification Denno, (quoting Stovall 388 U.S. police suggestive was “both and unneces (1967)). 1967, 18 L.Ed.2d 1199 Second, sary.” “assess, Id. the court must basis, case-by-case Moreover, on a improper whether the exclusion of such police conduct created a substantial likeli exception evidence is the to the rule that (internal hood of misidentification.” Id. admissibility eyewitness favors the iden omitted). is, quotation marks That jury’s tification for the consideration. Or court must determine “whether under dinarily, protects Constitution ... “[t]he totality of the circumstances the identifica against defendant a conviction on based though tion was reliable even the confron questionable reliability, by evidence of not procedure suggestive.” evidence, tation prohibiting Neil v. introduction of the 188, Biggers, 199, 375, 409 U.S. 93 by affording S.Ct. 34 but the defendant means petition, 2. In his federal habeas Fowler also his in-court identification claim. did Fowler reasserted his that appealability claim his trial counsel was not seek a certificate of on this constitutionally handling ineffective in the of issue. beard, a As noted a full and mustache. should jury that the evidence the persuade above, however, descrip- initial Guzman’s unworthy credit.” of as be discounted a man a of the robber was of with 723; Harker v. tion at see also S.Ct. Perry, 132 Cir.1986) face, (4th but 437, toboggan cap, some hair on his F.2d Maryland, to iden- a full beard. Guzman declined not of identification (noting that the exclusion resembling photographs of the as tify ... that is sanction is “a drastic evidence lobby.4 man he in the motel testimony is the saw which to identification limited of “a In the absence manifestly suspect”). 14, 1996, January police pre- officers On irreparable of likelihood very substantial six-person with another sented Guzman misidentification, for ... evidence is such Fowler photographic array that included Brathwaite, 432 U.S. jury weigh.” the that had photographs and five additional (internal quotation at by computer been selected as similar omitted). be “con- Courts should marks however, array, This contained program. judg- sense and rely upon good tent to of Fowler that had photograph an arrest juries, evidence with American ment of earlier, just days two on Janu- been taken untrustworthiness is cus- element of some ary photograph, 1996. In this Fowler mill. are jury for the Juries tomary grist facial-hair light had a shaved head and they cannot meas- susceptible that not so Although pos- Guzman would not stubble. of intelligently weight identifica- ure itively identify any photographs of the as testimony questionable that has some tion being night of the man he saw on the of feature.” Id. robbery, photo- he selected Fowler’s closely resem- graph as the one that “most B. bled” the man. J.A. 138. trial, to suppress Prior to Fowler moved April police presented On in-eourt identification expected Guzman’s photographic array, Guzman another motel, him from the Howard Johnson’s a man photograph which contained the that such identification asserting accomplice to be an police whom believed impermis- product would be the Guzman of Fowler in an earlier crime but which did arrays pre- sibly suggestive, photographic At photograph not include a of Fowler. in the immediate after- sented to Guzman time, yet not identified the police had robbery and murder.3 math of the of this purpose second robber and the if array recognized was to see Guzman photographic array The first occurred suspected accomplice. Again, Guzman January present- Guzman was on identify any of the array positively would not six-person photographic ed with a men, that he photographs of Fowler that but he chose two photograph included closely resembled the man he 1995. In the said most had been taken November hair, night.5 had a full head of saw photograph, Fowler 5.Although suppress with his Although initially moved to raised connection Fowler court, arrays suppress pretrial photographic and the motion to before the trial both the identification, presented evidence the state in-court he later withdrew there was arrays. presented suppress proceeding MAR that Guzman was motion to arrays early with two additional on in the investigation that did not include Fowler. also January police 4. On released one, identify anyone. Guzman declined to photograph November 1995 of Fowler other, However, photograph of In the he selected a that he media. Guzman testified Marshall, who would later become coverage. Cullen did not see the media evidentiary prior hearing Just to the on does not prescription wear eyeglasses suppress, prosecu- Fowler’s motion to nor is there indication that he is in Guzman, who tor met had been sub- need of corrective During lenses. poenaed testify. During meeting, time that he observed the individual be- Guzman was told that Fowler would be counter, hind the there was no obstruc- attorneys seated between at his the de- face, tion of person’s his view of the hearing. fense table At the there was no distraction of his attention hearing, confidently Guzman identified individual, from the and he was able to orange, Fowler—who was dressed in an focus his attention person. on the jail jumpsuit and seated between defense J.A. 191-92. The trial court also ad- counsel—as the man Guzman observed claim dressed prosecu- Fowler’s that the lobby. the motel Guzman testified that his tor’s pre-hearing statement to Guzman identification was based on his having seen about expected Fowler’s location in the on the night robbery Fowler of the and not compounded courtroom the impermissibly having on his seen photograph of suggestive procedure: Moreover, Fowler in the interim. when presented January Guzman was with the Court, testimony Prior to his Mr. 12, 1996, array suppression at the hearing, Guzman prosecutors met with the con- he was unable to identify photograph cerning testimony his and was informed that he had earlier selected as the one that that the present Defendant would be closely most resembled the man he saw Court and would be between seated his night. attorneys at the defense counsel table. At hearing the conclusion of the on the Mr. Guzman indicated his identification suppress, motion to trial court made of in open the Defendant [was] Court detailed findings regarding of fact Fowl- upon based his recollection ap- [of] the challenge er’s to Guzman’s identification. pearance on the Defendant as being note, particular Of the trial court found as person behind the counter at Howard follows: 31st, Johnson’s Motel on December Mr. Guzman approximately was 25 feet upon any suggestion and not based or from the person he observed behind the police inference in conferences with the counter at the time of his observations. officers or with prosecuting attorneys. lobby lighted The was with fluorescent Mr. Guzman also indicated that he was lighting, and all the lights lobby confident that the Defendant was the appeared to be turned on. He able person he had seen in Howard Johnson’s to observe the individual from the level 31st, on December up, of the counter which him allowed J.A. 192-93. The trial court concluded part body observe the other of the that the pretrial procedures identification person, including his face and facial relating photographic arrays were features. Mr. Guzman was able to look and, not impermissibly suggestive even if at person the face of the for approxi- were, they identification of “[t]he [Fowler] mately five seconds and see the face ... inherently James Guzman is not from different angles.... The individual incredible, all given was not the circumstances of wearing anything mask or covering ability his face. the witness’s to view the wearing He was accused toboggan on his head. Mr. crime. credibility Guzman time of the The co-defendant, resembling Fowler’s as one robbers. appears jury prosecutors tween and Guzman is for the evidence

the identification nothing op- more than an to have been weigh.” J.A. go happen over what would portunity to North Carolina appeal, the On direct prosecutors pro- in court. The did not chal- rejected Fowler’s Court Supreme that vide Guzman with information of his mo- trial court’s denial lenge to the readily apparent to would not have been pertinent part, In suppress. tion to Thus, al- proceedings. him held as Supreme Court North Carolina in- though prosecutors should avoid follows: to defendant’s structing the witness as case, the trial court present In the courtroom, in the there is none- location findings concerning made extensive support insufficient evidence to theless arrays shown to Guzman photographic that prosecutors defendant’s contention that in-court and concluded Guzman’s Accord- rigged Guzman’s identification. indepen- on his identification was based explicitly never ingly, although Guzman of defendant from the dent recollection meeting prosecu- that his testified with ample is night of the crimes.... There identifica- tors did not affect his in-court sup- present evidence in the record tion, supports the evidence in the record findings. trial Guzman port the court’s that the trial court’s conclusion Guz- confident that defendant testified he was man’s identification was not result lobby man he saw in the motel was the prosecutorial suggestion. stated on 31 December Guzman was based on his that his identification sum, proce- Id. In the court held that the seeing person memory of defendant leading up dures to Guzman’s in-court lobby night of the the motel on the unnecessarily sug- identification were not shootings seeing photographs and not on that, were, they they if gestive and even Moreover, re- of defendant. the record did not create a substantial likelihood of prosecutors told Guzman when veals irreparable misidentification. See id. they pretrial met with him before the addition, 698-99. the court held if hearing that he should tell the truth process violation of Fowler’s due recognize he did not defendant. rights beyond “was harmless a reasonable support evidence is sufficient to light This doubt” of the other evidence findings, the trial court’s which turn guilt. Fowler’s Id. at 699. legal ultimate conclusion that

support its III. not the Guzman’s identification was re- impermissibly suggestive pro- of an sult A. cedure.

Fowler, court 548 S.E.2d at 698. The also courts Because the North Carolina state rejected “that the cu- argument Fowler’s adjudicated claim Fowler’s constitutional viewing photographic ar- mulative effect merits, may grant on the we habeas relief rays meeting prosecutors caused adjudi- § if only under 28 U.S.C. 2254 Guzman’s in-court identification be (1) to, contrary or involved an cation “was process of defendant’s due violation of, clearly application unreasonable estab- id., observing that: rights,” law, lished Federal as determined States,” 28 [njothing findings in the trial court’s or Court of the United 2254(d)(1), or “was based on suggests prose- in the evidence that the U.S.C. of the facts encouraged to make a an unreasonable determination cutors Guzman presented in the meeting light false identification. The be- of the evidence proceeding,” court State U.S.C. was not impermissibly suggestive. We 2254(d)(2). agree. § Law enforcement presented two Supreme As the United States photographic arrays to Guzman in that increasingly cautioned, has Court this re cluded Fowler’s photograph. Fowler does

view of state court decisions on federal argue not photographic that the arrays, as highly constitutional claims is a con individually composed, unduly were sug liberty strained We are not at to one. Rather, gestive. Fowler complains only judgment substitute our for that of the pre-trial that the procedures unduly were state court on matters of federal constitu suggestive because he appeared in both law, tional even if we believe the state arrays and because Guzman was that told court ques decision was incorrect. “The Fowler would be seated between his coun tion ... is not whether a federal court prior sel suppression hearing. believes the state court’s determination However, while a photograph of Fowler was incorrect but whether that determina in appeared arrays, both the same photo tion was unreasonable —a substantially graph both, did in appear and it is higher threshold.” Landrigan, Schriro v. undisputed that Fowler’s appearance in 465, 473, 550 U.S. 127 S.Ct. 167 the January array 8 quite was different (2007) added). L.Ed.2d (emphasis 836 A from his in appearance January 14 state court “only decision is unreasonable array and from the description provided if it is so erroneous that ‘there is possi no by Guzman to the in authorities the imme bility jurists disagree fairminded could diate Moreover, of the aftermath crime. that the state court’s decision conflicts although Guzman selected the photograph ” [Supreme] precedents.’ th[e] Court’s of Fowler 14 April array from as — Jackson, -, Nevada v. U.S. closely one most resembling the he man S.Ct. 186 L.Ed.2d 62 saw, positively he would not any identify curiam) (per (quoting Harrington Richt- v. being one as the man night he saw on the er, 562 U.S. robbery of the and he was unable to select (2011)). Furthermore, L.Ed.2d 624 our the same photograph at the suppression deference is not limited to the state court’s hearing. interpretation application and of Supreme Nor persuaded by are we Guzman’s precedents. Court When we review a claim that state court unreasonably decision, state court’s we must pre- also prosecutor’s concluded that the pre-hear- sume the correctness of the state court’s ing meeting sug- with Guzman was not so factual findings, unless by rebutted clear or in gestive singularly combination with — convincing and evidence. See 28 U.S.C. the photographic arrays to violate —as 2254(e)(1). process rights, by Fowler’s due or ar- his gument that erroneously the state court

B. imposed upon him a proving burden of prosecutors that were driven im- proper nothing There is motives. in the The court district held that the North question record that calls into the state Carolina reasonably ap- Court court’s reasonable determination that plied clearly established Supreme meeting prosecutors between the and Guz- precedents Court in determining that the man was simply opportunity go “an over pre-trial process court,” identification case what happen this would cluding when the accused looked Guz- only provided Guz-

challenged statement direction, his nothing man’s distracted that would “have information man with away during from the man the time view him readily apparent been addition, him. Guz- that he observed 698; Fowler, 548 S.E.2d proceedings.” previous robbery of a man was aware Murray, 65 F.3d States United of. and, therefore, occurred at the motel had Cir.1995) (4th that a witness’s (noting immediately possibility alert a defendant’s location prior knowledge of Fur- robbery might progress. that a be proceeding at counsel table a courtroom thermore, de- provided Guzman a detailed suggestive). per impermissibly was not se immediately after scription of the accused concluding that “the evi- In the course event, including description a of his the supports in the trial dence the record clothing facial features and of the he was that Guzman’s identifica- court’s conclusion wearing, which turned out to match de- sug- prosecutorial not a result of tion was scriptions given by other witnesses who in with the gestion,” even combination night of the crime. saw Fowler on the court also photographic arrays, the state additionally that We note Guzman was that there was appropriately observed consistently conclusively to identi- hesitant that nothing “suggest[] in the record to fy suspect photographic a from of the prosecutors encouraged Guzman him, they arrays shown to whether or not make a false identification” or otherwise Instead, photograph included a of Fowler. Fowler, “rigged Guzman’s identification.” exactly he did what was asked of him. He And, court 548 S.E.2d at 698. as the state picked photographs only when he felt that out, told pointed although prosecutors they person he saw that resembled would be seated in Guzman where Fowler night conclusively identify and refused to courtroom, they also told Guzman culprit given until he was sure. When “that tell the truth if he did not he should opportunity the first observe Fowler recognize defendant.” Id. 2007, Guzman, person having in October only identify been told that he should 2. sure, Fowler if he was was confident that As both the state court and district person lobby was the he saw in the Fowler noted, an correctly court the absence of night. of the Howard that Guz- Johnson’s it un unduly suggestive procedure renders man that identification further testified his go further. Neverthe necessary for us to lobby in the seeing was based on Fowler less, that the ac assuming arguendo even having night that and not on his seen police prosecutor tions of the were sum, photograph of Fowler. it was not say that unduly suggestive, we cannot for the state court to find unreasonable unreasonably that state court concluded that Guzman based his identification on his of Fowler was reli Guzman’s identification robbery night observations on the of the circum totality able under of the prior viewing photo- and not on his stances. graphs knowledge of Fowler or his through the accused Guzman observed where Fowler would be located glass door from a distance of 25 feet To the courtroom. extent Guzman’s lighting approximately subject fluorescent five to question, identifications were no mask and reasonably seconds. The accused wore the state court held it was a jury weigh view of him. to consider and nothing obstructed Guzman’s matter for excluding his and not a basis for the evidence Guzman was able to and did observe angles, altogether. in- facial features from different Abrahamson, forth in Brecht v. 507 U.S. 619, 631, 113 S.Ct. 123 L.Ed.2d 353 Finally, the North Carolina (1993). standard, “Under that an error is that, additionally even assum- Court held harmless unless it had a substantial and occurred, any ing process that error due injurious effect or determining influence in beyond violation harmless a reason- “was jury’s Pliler, verdict.” Fry v. 551 U.S. doubt,” in light able of the other evidence 168 L.Ed.2d 16 Fowler, Spe- at trial. 548 S.E.2d (2007) (internal omitted). quotation marks cifically,the court that: observed prejudicial We “assess the impact of con Guzman’s in-court identification was stitutional error a state-court criminal only no means the pointing evidence trial under the ‘substantial injurious trial, At guilt. defendant’s three wit- effect’ standard set forth Brecht ... nesses testified defendant admitted whether or not the state appellate court entering the Howard Johnson’s to at- recognized the error and reviewed it for tempt robbery and that he shot two [Chapman] harmlessness under the stan people. One witness testified that de- Fry, 121-22, dard.” 551 U.S. at 127 S.Ct. him only gotten fendant told he had two (noting 2321 that certainly “it makes no or three hundred dollars from the rob- sense to require application formal of both bery and that he was broke because he (AEDPA/ Brecht) Chapman tests paid get had for his friends to into the when the obviously latter subsumes the Sugar person Shack. Another testified former”). And “where an error is harmful that defendant sold him a .44-caliber Brecht, under any state court decision de evening January revolver on the of 1 it claring harmless must have unreason 1996, day after the murders. ably applied result, Chapman. As a habeas, argues Id. On federal Fowler error satisfying satisfy Brecht will also prejudiced by he was the admission of requirements.” AEDPA’s deference Bau Guzman’s only identification because the (4th berger 100, Haynes, v. 632 F.3d 104 linking other “evidence Fowler Cir.2011). “Federal habeas must courts testimony crime was the of four infor- always review constitutional errors state mants, all of whom approached the State Brecht, they trials under but need not supposed information about Fowler’s debate whether a state court’s harmless hopes receiving ease favorable error determination unreasonably ap also sentencing deals and reductions for their plied Chapman.” Id. activity.” own criminal Brief of Appellant at 33. standard, Applying the Brecht review,

On direct constitu “[a] we conclude that the admission of Guz tional appears identification, error is harmless when it man’s in-court even if er beyond ror, a reasonable doubt that the error was harmless. As the state court complained observed, of did not contribute to the there was abundant other evi verdict Esparza, obtained.” Mitchell v. presented dence on the issue of Fowler’s 12, 17-18, 7, 540 U.S. 124 guilt, including testimony S.Ct. 157 of several curiam) (internal (per L.Ed.2d 263 acquaintances that Fowler admitted that quotation omitted); marks Chap see also he committed the crime and provided de 18, 24, California, man v. shootings 386 U.S. 87 tails about the and the murder (1967). S.Ct. 17 L.Ed.2d 705 weapon On feder that were corroborated review, however, al habeas apply we the witnesses and forensic evidence from the onerous, more analysis harmless error set motel that night.

460 justice. miscarriage of See fundamental

4. Coleman, 750, 111 501 U.S. at S.Ct. reasons, hold that we foregoing For the due rejection of Fowler’s court’s the state circumstances, a defen In some to or an contrary claim was process repre cause if he was may dant establish governing of the application unreasonable performance was by counsel whose sented In the alter- precedents. Supreme Court constitutionally ineffective under stan native, any such error was we hold that v. Wash dards established Strickland Brecht. harmless under 668, 104 S.Ct. 80 ington, 466 U.S. Coleman, (1984). 501 See L.Ed.2d 674 IV. 2546; v. Murray U.S. at S.Ct. Carrier, 477 U.S. 106 S.Ct. motion, to Fowler’s filed turn now We (1986). Coleman, In how 91 L.Ed.2d 397 which he appeal, the first time on for ever, held that because Court Appointment styles as a Motion right to an is no constitutional “[t]here Rely- Qualified Independent Counsel. proceed attorney postconviction in state Davis, Juniper v. ing upon our decision “petitioner cannot ings,” a federal habeas (4th Cir.2013), and the Su- F.3d 288 constitutionally ineffective assistance claim decision in Martinez v. preme Court’s — to estab proceedings” of counsel in such U.S.-, Ryan, Coleman, 752, 111 501 U.S. at lish cause. (2012), Fowler asks that L.Ed.2d S.Ct. appeal, defer resolution of his habeas we “Mar- designate his current counsel be —Ryan, U.S. Martinez counsel,” case to the tinez and remand this -, 1309, 1315, 182L.Ed.2d 272 132 S.Ct. to court to allow counsel investi- district (2012), first announced Supreme Court there are substantial gate whether rule. exception” a “narrow to the Coleman

ineffective-assistance-of-trial-counsel held that: Specifically, Court timely presented that were not to claims Where, law, claims of inef- under state the North Carolina court. For the state assistance of trial counsel must fective reasons, deny following we the motion. collateral be raised in an initial-review procedural a default will proceeding, A. hearing bar a federal habeas court from a claim of ineffective assis- substantial if, at trial in the initial-review col- tance Ordinarily, petitioner a habeas proceeding, lateral there was no counsel obtaining from fed procedurally is barred proceeding in that was [con- or counsel of a claim if he failed to eral habeas review stitutionally] ineffective. claim in state court. raise and exhaust the added). 722, at This limited Thompson, (emphasis v. 501 U.S. Id. See Coleman 2546, rule was qualification of the Coleman 111 S.Ct. 115 L.Ed.2d an “initial- (1991); on the fact that when Wainwright Sykes, 433 U.S. based 84-85, proceeding is the first 53 L.Ed.2d 594 review collateral S.Ct. (1977). designated proceeding prisoner for a procedural this default doc Under trine, only raise a claim of ineffective assistance habeas review of the claim will trial, many proceeding if the collateral is permitted petitioner be can demon (1) direct ways equivalent prisoner’s of a preju strate cause for the default and as to the ineffective-assistance resulting appeal dice therefrom or Thus, in a claim.” Id. at 1317. failure to consider the claim will result requires prisoner “requires a State to law that an ineffective-assis- [W]hen an ineffeetive-assistance-of-trial- raise tance-of-trial-counsel claim be raised in an proceeding, claim in a counsel collateral proceeding.” initial-review collateral Tre- prisoner may establish cause for a vino, (internal 133 S.Ct. at 1918 quotation of an ineffective-assistance claim default marks, alterations, omitted); and emphasis ... ini- appointed where counsel Martinez, see also 132 S.Ct. at 1318. Tre- proceeding, tial-review collateral where vino held that exception Martinez raised, claim have been should apply would also proce- states that have ineffective under standards of dures which it highly unlikely “make[ ] in a Washington, Strickland v. 466 U.S. typical that a case defendant will have a (1984). 104 S.Ct. 80 L.Ed.2d 674 meaningful opportunity to raise claim [the] (citation omitted). long Id. at 1318 Not on appeal.” direct Id. at 1921. Absent thereafter, Court held that circumstances,” these “limited rule “[t]he exception applies the Martinez also to in- of govern[ Coleman [continues] Mar- ].” effective-assistance-of-trial-counsel claims tinez, 132 S.Ct. at 1320. The Martinez face, might, permit that state law on its to exception “does not attorney concern er- brought appeal, be on direct if the “struc- rors in other kinds of proceedings, includ- design” “system ture and of the state in ing appeals from initial-review collateral actual ... it operation ‘virtually make im- proceedings, second or successive collater- ” — Thaler, possible’ to do so. Trevino v. al proceedings, petitions for discre- -, U.S. 185 tionary appellate review a State’s (2013). L.Ed.2d 1044 Where the “state courts. It does not attorney extend to er- framework, procedural by reason of its rors in proceeding beyond the first design operation, highly makes it un- occasion the prisoner State allows a likely typical in a that a case defendant raise a claim of ineffective assistance at have a meaningful opportunity will to raise trial, though even that initial-review collat- a claim of ineffective assistance of trial may eral proceeding be deficient for other on appeal, holding counsel direct [the] added) (citations (emphasis reasons.” Id. applies.” Martinez Id. at 1921. omitted). summarize, then,

To Martinez petitioner

held that a federal habeas who procedurally seeks to raise an otherwise Davis, (4th In Juniper v. 737 F.3d 288 defaulted claim of ineffective-assistance-of- Cir.2013), petitioner, we held that a habeas trial-counsel may before the federal court (1) who has been sentenced to death and ap- only do so if: the ineffeetive-assistance pointed pursuant counsel to 18 one; of-trial-counsel claim a U.S.C. is substantial 3599(a)(2) (2) § pursue postconvic- to federal the “cause” for default of “consistís] relief, tion is entitled to the being only appointment there no counsel or of ineffective qualified, independent legal counsel the state counsel for the collateral review (3) proceeding”; purpose investigating “the state collateral re of whether he has proceeding any § view was the initial Martinez-based if pro review claims his 3599 in ceeding respect to the represented ineffective-assis counsel also him in the state claim”; postconviction tance-of-trial-counsel and proceedings.6 state sentence, § any post Pursuant to 18 U.S.C. "[i]n to vacate or set aside a death proceeding conviction financially under section 2254 or defendant or who is becomes un- Code, seeking adequate [legal] 2255 of title United States able representation to obtain ” (quoting Gray at 289-90 ceedings.’ Id. Juniper was convict- where Virginia, (4th Pearson, Fed.Appx. Cir. ed, raise ineffective- prisoners cannot state 2013)); that it (noting on direct also id. at 290 claims see assistance-of-trial-counsel therefore, require to and, plainly “ethically the state fell untenable would be appeal exception. See John- claims of his or her own counsel to assert within the Martinez Commonwealth, 654, 529 pro 259 Va. in habeas the state son v. ineffectiveness (2000). filing of Upon the adequately present in to ceedings S.E.2d order relief, the federal habeas petition for ineffeetive-assistance-of-trial- defaulted Juniper’s state appointed court in the fed district claims under Martinez counsel repre- to continue counsel postconviction proceedings”). habeas eral pro- habeas of him in the federal sentation that, Martinez further held while We However, when the ceedings. ultimately such claim be requires Martinez, in Ju- Court issued its decision substantial, the “district court deemed appoint- have new counsel niper moved to appointment the motion for of grant must existing in to addition his ed under purposes investigation counsel” for counsel, investigating purpose regard underlying whether the “without substantial, ineffective- presenting any identifies a ineffective motion ‘substantial’ claims that had assistance-of-trial-counsel Id. assistance claim under Martinez.” in state court. procedurally defaulted been that he was Juniper argued In particular, B. his counsel because entitled to such new argues North The state of Carolina otherwise be re- existing counsel would exception apply the Martinez does not own ineffective- quired investigate his proce- North Carolina because its laws and The proceedings. in the state court ness it “virtual- prohibit dures neither nor make motion, grant- but district court denied the to raise an ly impossible” for a defendant appealability. ed a certificate claim ineffective-assistance-of-trial-counsel “if a we held that federal appeal, On Fowler, the other appeal. on direct on by the petitioner represented is habeas hand, apply in argues that Martinez does proceed- habeas same counsel as state because, Trevino, as North Carolina indepen- petitioner requests ings, and to raise ordinarily required defendants are investigate dent counsel order of ineffective of trial claims assistance in a state pursue claims under Martinez appropriate relief. counsel a motion for only petitioner may raise inef- where the both assertions. disagree We in an ‘initial-re- claims fective assistance law, “a motion for qualified and Under North Carolina proceeding,’ collateral view relief, including motions filed ethically required.” appropriate independent counsel is cases,” if “[u]pon in in must be denied (emphasis capital at 290 Juniper, 737 F.3d “ in a previous appeal a the defendant was because ‘a clear conflict original). This is ground or position adequately raise the requiring [petitioner’s] in of interest exists ... but underlying the motion did identify investigate poten- and issue counsel to 15A-1419(a)(3), § may so.” N.C.G.S. they that themselves have not do tial errors (b). However, gener- “is not a the statute failing to uncover ineffectiveness made brought not on any al rule that claim they represented [pe- while of trial counsel state collateral appeal direct is forfeited on post-conviction pro- state his titioner] (b) through appointment ifications set forth in subsections ... entitled to the of one shall be (d). attorneys” meeting practice qual- or more

463 Instead, and, claims, requires the rule North as to review. those “the state collater- Carolina courts to determine whether the proceeding al review the initial [is not] claim at have particular issue could been proceeding respect review to the ... brought on direct review.” McCarver v. Trevino, (inter- claim.” 133 at S.Ct. 1918 (4th Cir.2000). Lee, 583, 221 F.3d 589 omitted). quotation nal marks According- ly, they subject procedural are default Ineffective-assistanee-of-trial 15A-1419, § under N.C.G.S. and the Mar- brought counsel “claims on direct review exception tinez to Coleman provide will will be decided on the merits when the prisoner no relief on federal habeas. that cold record reveals no further investi Ineffective-assistance-of-trial-counsel i.e., gation required, is may claims that be however, claims that apparent, are not so developed argued without ancil such will fall within the Martinez exception. lary procedures as the in appointment of In Juniper and Gray, we held that vestigators or an evidentiary hearing.” qualified, Fair, 131, independent counsel must ap- be State 354 N.C. 557 S.E.2d (2001). pointed in a Martinez state Otherwise, pur- for the 524 the claims pose determining whether addition- through “should be considered motions for al, ineffective-assistance-of-trial-counsel appropriate relief and not on ap direct Stroud, claims exist which were not brought on peal.” N.C.App. State v. 147 (2001). state may habeas. Because some “Thus, claims 557 S.E.2d while fall within the Martinez exception to Cole- may some situations a defendant be man, North petitioners Carolina are required to raise an [ineffective-assistance- upon request therefore entitled ap- claim on direct appeal, of-trial-counsel] pointment of qualified, independent coun- defendant required will be to do so in purposes sel of investigating all Long, situations.” State v. 354 N.C. (2001). However, whether such claims exist. 557 S.E.2d According the federal habeas court will still be called ly, “to avoid procedural default under determine, upon to on a 15A-1419(a)(3), case-by-case ba- N.C.G.S. defendants sis, particular whether the ineffective-as- necessarily should raise those [ineffective identified, sistance-of-trial-counsel claim claims on direct assistanee-of-trial-counsel] merit, regardless pro- of its is nonetheless appeal apparent are from the record.” Fair, cedurally defaulted it because could have (“commend[ing]” S.E.2d been and should have been raised on di- counsel “for properly raising [five] claims appeal. rect ineffective assistance of on [of counsel] di appeal”). rect reviewing “[S]hould the C. court determine [ineffective-assis said, claims have been tance-of-trial-counsel] That Fowler is not entitled prematurely appeal, asserted on direct it to the relief he seeks before this court. shall preju dismiss those claims without petitioners Juniper Unlike the dice to the right Gray, defendant’s to reassert qualified, Fowler had the benefit of during subsequent them proceed independent MAR pendency counsel ing.” Id. of his federal petition habeas below who ample opportunity pursue any had Mar sum, North Carolina does not fall arguments on his tinez-based behalf. neatly within Martinez or Inef- Trevino. During stages fective-assistance-of-trial-counsel claims the various of Fowler’s that are apparent proceedings, from the record must be trial and collateral he has had brought by prisoner appeal death-penalty on direct the benefit of at least nine trial, representation to the of attorneys. practice At Fowler was is devoted

qualified Harold by Kevin Barnett and defendants who have been sen represented indigent appoint- he appeal, direct court also Bender. On tenced to death. The district Glover, counsel, James to review ed new Kenney’s request, sixty “a granted, at pursue appropri- trial court record and any rulings” on the feder day abeyance of claims, including ineffective-assistance- ate to petition, prejudice al habeas “without of-counsel claims. time, if requesting additional [Fowler’s] 21, necessary,” Entry Docket No. Fowler were his conviction and sentence

After (W.D.N.C. Branker, No. 3:09-cv-00051 denied, and certiorari review affirmed 19, 2013), give newly ap in Oct. order to appointed qualified postconvic- Fowler was counsel, counsel “sufficient pointed Teachout and Ste- federal habeas Zephyr tion Greenwald, pursue postconviction to inform herself about Mr. Fowler’s phen time to Ap- 20, for original case,” relief. Fowler’s Motion Entry Docket No. Fowler v. 12, (W.D.N.C. propriate Branker, Relief was filed on November No. 3:09-cv-00051 August 2004. 2011). and amended on Oct. proceed- his MAR During pendency of Martinez, fully which had been briefed however, postconviction ing, Fowler’s pending argument and was appoint- he counsel were relieved and was Kenney’s appoint- at the time of Court qualified postconviction ed a second of set ment, was on March decided counsel, Bushnaq Pendry, and Reita Faith Moreover, the court did not issue district the matter and filed an also reviewed who denying its decision Fowler’s federal habe- MAR, which included amendment to the 27, 2013, year until petition as March an ineffective-assistance-of-trial additional after the decision Martinez was issued. counsel claim. However, pendency at no time postcon- After relief was denied in state Kenney representation of her did seek to Pendry Bushnaq viction and proceedings, petition amend federal habeas to as- sought appointment and received an to additional ineffective-assistance-of-tri- sert represent Fowler in his federal habeas claims, a further request al-counsel or Pendry an affidavit at- proceedings. filed abeyance of the case to allow for addi- testing Bushnaq’s qualifi- to both her and investigation any potential tional new represent cations to Fowler under claims. 3599(c) (d). February § and On Pendry Bushnaq and filed Petition Thus, although styled as a “Motion for The filed its Corpus. Writ of Habeas state Qualified Independent Appointment of and response May and Fowler filed a it out Light Juniper,” Counsel turns reply response August motion, that Fowler’s filed before this time, court for the first does not seek 11, 2011, however, Fowler’s On October new, appointment independent counsel counsel, Kenney with the Shelagh current pursuant Juniper Although at all. Penalty Litigation, Death suc- Center for initially represented in his Fowler was cessfully moved on behalf for an Fowler’s proceedings federal habeas his second replace Pendry. order appointing her counsel, postconviction of state he was motion, set conjunction Kenney with this qualified, had the benefit of appointed and represented also to the district court that § independent pursuant counsel qualifications she met to undertake 3599(c) (d), during the period for a substantial of time representation under petition in additionally pendency entire of his federal habeas asserted her in holding Juniper already court. Our claims that had not been the district ferreted by prior postconvic- out Fowler’s trial and explicit: and was limited counsel, tion or entitled Fowler to the clear, peti- a habeas To be federal if new, appointment of “conflict-free” counsel represented by tioner is the same coun- § under 3599.7 proceedings, sel as in state habeas and petitioner requests independent We are also unpersuaded by Fowler’s argument half-hearted that a investigate pur- special desig- counsel in order to and nation of “Martinez counsel” and remand claims under Martinez in a state sue for investigation further is warranted be- petitioner may only where the raise inef- Juniper cause the decision was not issued assistance claims in an ‘initial fective until after appeal. Fowler filed his The proceeding,” qualified collateral review in Juniper decisions both and Gray ad- independent ethically and counsel is re- dressed a argument conflict-of-interest quired. that was timely made before the district (third at Juniper, emphasis 737 F.3d immediately court after the Martinez deci- However, where, here, original). in as sion was by handed down represents petitioner counsel who in Court, upon and were based reasoning its proceedings federal habeas “undertook and holding. e.g. Juniper, See F.3d representation the initial-review col- after (“In Martinez, accordance with concluded, proceeding lateral that counsel Gray petitioner held that panel was cannot be found ineffective before or after independent entitled to in counsel his fed- Ethically, Martinez. this means there is proceedings investigate eral habeas and no conflict of in potential light interest pursue the ineffectiveness of state habeas Martinez because there is no chance that counsel.”); Gray, Appx 526 Fed. at 332 attorney argue would have to his or (“[U]nder reasoning and holding forego poten- her own ineffectiveness or a Martinez, [petitioner] is entitled to counsel tially valid ineffective assistance of counsel vigorously who could present examine and Barron, claim.” David M. Martinez Casts if potential available claims of ineffective Doubt on State PostConviction and Feder- assistance counsel in [his] his state Representation, Habeas al 27-Fall Crim. proceedings.”). Juniper’s habeas counsel added). (emphasis Just. 42 qualified, independent, was but not and Kenney qualified is without doubt well Juniper position therefore was a to ar- and penalty informed death matters. gue that appointed operated his counsel represented year She Fowler for a entitling under a conflict of interest him to half pendency of the district § Kenney, new counsel under proceedings, repre- court did not she contrast, at all independent has times been any stage sent Fowler at of the state MAR Moreover, and conflict-free. there is no Thus, un- proceedings. she did not labor counsel,” magic to the term “Martinez der conflict of interest that would Gray. or appear Juniper which does ability have her investigate hindered The term is but shorthand reference to whether there qualified, independent were Martinez-based counsel Ju- niper ethically required ineffective-assistance-of-trial-eounsel held was under Here, contrast, and, Juniper, petitioner ap- Kenney qualified had a second therefore, pointed represented counsel who had not him independent as the coun- "serve[d] postconviction proceedings, in the state but Davis, Juniper. Juniper called in” sel qualified this counsel was not under 18 U.S.C. (4th Cir.2013). 737 F.3d 290 n. 2 3599(c) represent independently. him 466 under independent of and counsel qualified of circumstances

§ in narrow set Juniper. and grant a feder- Martinez Juniper did not presented. independent his petitioner al and habeas AFFIRMED; MOTION JUDGMENT to any appeal, on to return right, counsel DENIED court and conduct additional

the district otherwise investigations DAVIS, or to Judge, Martinez Senior Circuit such arguments normal rule that vary part our in in and concurring judgment these, motion for including petitioner’s as in dissenting part: Martinez, should light of new counsel strongly disagree I with the weathered instance to the have been made the first eyewitness that when it comes to notion district court. “[cjourts evidence, be should identification sum, provided rely upon good Martinez Fowler’s sense and ‘content to authority necessary juries, to for judgment counsel with all the of American evidence abeyance an additional of the dis- is request with some element of untrustworthiness ” and, mill,’ ruling appropriate, if to customary grist jury trict court’s for the and “ No ex- petition. ‘[jjuries susceptible file an amended habeas not so are delay intelligently for this has been offered. planation they cannot measure petitioners Juniper testimony and weight Unlike the of identification that has ” Gray, appointment maj. op. Fowler did not seek questionable some feature.’ See Brathwaite, counsel under Mar- independent, qualified Manson v. (quoting Kenney already in the district court. tinez 53 L.Ed.2d 140 U.S. (1977)). met that criteria. Nor did Fowler or Ken- of exonerations The hundreds additional ney, upon appointment, popular her seek the headlines of splashed across investigate there were legal put time to whether and media over the last decade additional ineffective-assistance-of-trial- outworn the lie to Court’s might juries counsel claims which Martinez allow on routine- hope that can be counted consider, leaving to us ly reject eyewitness the district court identifi- to unreliable n with the unmistakable impression that special guidance cation evidence without in- nothing there was of substance left to Laura generally from courts. See Sulli- Rise, have vestigate. may may van, or not Counsel Exonerations On The And Not DNA, two sets of investigated whether Fowler’s National Public Just Because Of AM) (saved (Feb. 4, 2014, counsel were qualified, postconviction state as Radio 3:47 Attachment). constitutionally failing Nevertheless, ineffective in to Opinion ECF identify an ineffective-assis- present for reasons set forth in the Chief largely if claim. But even I Judge’s thorough opinion, tance-of-trial-counsel concur existed, they such Martinez-based claims judgment that Fowler is entitled have waived Fowler’s failure been relief under 28 U.S.C. 2254. below, raise the issue ineffective- appoint the motion to counsel As for Kenney’s part provides Fowler ness on pursuant teachings Juniper no relief here. (4th Davis, Cir.2013), I would 737 F.3d 288

remand determination of the issue V. district court for its examination reasons, If court denied affirm the first instance. the district foregoing For the we motion, then Fowler would free to denying court be judgment of the district district court or this Court a for relief. We seek from the petition Fowler’s habeas I appealability. Accordingly, appointment certificate deny also Fowler’s motion (NYPSC); of New York State s denial of the mo- panel from the dissent Public Service Commission of the Dis- tion. Columbia;

trict of Delaware Public Commission; Jersey Service New Utilities; Jersey Public Board of New Counsel; Maryland Division of Rate Energy Administration; American Energy Association; Wind The Mid- Energy Coalition, Atlantic Renewable Supporting Appellants, Amici ENERGYPLUS, LLC; PPL Brun PPL LLC; Holtwood, Island, PPL ner Group; PJM Power Providers Electric Creek, LLC; LLC; PPL PPL Martins Supply Association; Power Edison Montour, LLC; Susquehanna, PPL Institute, Supporting Electric Amici LLC; Energy, Mount Bethel Lower Appellees. LLC; LLC; Jersey Solar, PPL New Jersey Biogas, LLC; PPL PPL New EnergyPlus, LLC; PPL PPL Brunner Energy, LLC; Renewable PSEG Pow Island, LLC; Holtwood, LLC; PPL LLC; Power, LLC, er Plain Essential Creek, LLC; PPL Martins PPL Mont tiffs-Appellees, our, LLC; Susquehanna, LLC; PPL LLC; Energy, Bethel Lower Mount v. Jersey Solar, LLC; PPL New PPL Douglas NAZARIAN; R.M. Harold Jersey Biogas, LLC; New PPL Re Williams; Brenner; Kelly Lawrence LLC; Energy, newable PSEG Power Hughes, Speakes-Backman; Kevin LLC; Power, LLC, Essential Plain Defendants-Appellants, tiffs-Appellees, Maryland, LLC, Defendant. CPV Maryland, LLC, CPV Defendant- Appellant, Association; American Public Power Cooperative Rural Electric National Inc.; Mary-

Association; Energy NRG Nazarian; Douglas R.M. Harold Counsel; People’s land Office of Con- Williams; Brenner; Kelly Lawrence necticut Public Utilities Regulatory Speakes-Backman; Hughes, Kevin Authority; Department Connecticut Defendants. Energy and Environmental Protec- tion; George Jepsen, Attorney Association; American Public Power Gener- Connecticut; Cooperative al Rural Electric State of Con- National Counsel; Association; Inc.; Mary- Energy necticut Office of Consumer NRG Counsel; England People’s New Conference of Public land Office of Con- Commissioners, Inc.; Regulatory Utilities Maine necticut Public Utilities Commission; Authority; Department Public Utilities Rhode Connecticut Commission; Energy Island Public and Environmental Protec- Utilities Board; tion; George Jepsen, Attorney Vermont Public Service Ver- Gener- Connecticut; Service; Department al for the Con- mont of Public State Counsel; Public necticut of Consumer California Utilities Commis- Office sion; England Public Commission of New Conference of Public Service

Case Details

Case Name: Elrico Fowler v. Carlton Joyner

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jun 2, 2014

Citation: 753 F.3d 446

Docket Number: 13-4

Court Abbreviation: 4th Cir.