*1 Cir.1994) (5th (upholding gency n. keeping firearm close at 2K2.1(b)(5) § based on hand. pos enhancement Because no evidence of this nature here, weapon session of location as present same the record fails to estab- drug though even paraphernalia, cache of lish that Blount was eligible for a 2K2.1(b)(5) may § weapon drawer which stored enhancement. locked). court, however,
have been This requires a clearer nexus between the fire III. arm and the associated offense. See Unit reasons, For these we hold that Blount Nale, 1000, (4th ed States v. 101 F.3d committed felony “another offense” but Cir.1996) (expressly rejecting the Condren that the record contains no evidence that approach); Young, United v. States cf. possessed he a firearm “in connection (11th Cir.1997) 834, (analyz 115 F.3d with” that It offense. follows that between Fifth differences Fourth and district court properly refused apply interpretations Circuit “in connection 2K2.1(b)(5) § enhancement. We therefore with”). circuit “in precedent Our treats affirm imposed the sentence by the district synonymous connection with” as “in with court. to,” relation as that term is used in AFFIRMED. 924(c) (West 2000). § U.S.C.A. See Unit Garnett, (4th ed States v. 243 F.3d
Cir.2001). interpretation, Under weapon possessed “in used connection
with” weapon another offense if the “facili
tates a tendency or has facilitate
[other] offense.” Id. at fire “[T]he 829. arm purpose must some or effect crime; respect presence the ... its George PAGE, Franklin Petitioner-
or involvement cannot
be
result
Appellant,
accident or coincidence.” Smith v. United
v.
States,
223, 238,
508 U.S.
113 S.Ct.
LEE, Warden,
Prison,
R.C.
Central
(1993);
er felony offense.” See 243 F.3d July Decided: (noting at 828 that Government has bur proving necessary den of support facts enhancement). 2K2.1(b)(5)
§ In a case us, like the one before the Government can meet by showing, this burden for example,
that the defendant used actually the stolen weapon occupants to intimidate of the
home, or he prepared for this contin- *2 Jones,
ARGUED: Lamar Clif- Walter ford, L.L.P., Clendenin, Jones, O’hale & Greensboro, Carolina, for Appellant. North Spalding, Special Deputy Valerie Blanche General, Attorney Depart- North Carolina Carolina, Justice, ment North Raleigh, Of for Appellee. ON BRIEF: William G. Jr., Carolina, Point, Causey, High North Appellant. Roy Attorney Cooper, Gen- Carolina, eral of North Justice, Department Raleigh, Of North Carolina, for Appellee. LUTTIG, WILLIAMS,
Before
GREGORY, Judges. Circuit part part
Affirmed in and dismissed by published opinion. Judge LUTTIG opinion, Judge wrote the which joined. Judge WILLIAMS GREGORY opinion concurring wrote judgement. gone through
OPINION bullet had her fish tank. The shot was fired defendant George LUTTIG, Judge: Circuit Franklin Page, pointing who was a high- Petitioner-appellant George Page chal *3 powered rifle out the window of his lenges validity his conviction and apartment opposite directly McGill’s sentence, imposed death a North Car building. He fired another shot when shooting olina court for the death of a Hollowell, person, maintenance Ellis police North Carolina officer. He claims went outside to a closer take look at a by denying that the state trial court erred blinds; in hole the vertical this shot hit request his a mental just the wall above Hollowell’s head. in of the violation Due Pro Shortly after 9:00 a.m. defendant fired a in Ake cess Clause as elucidated v. Okla vehicle, third moving shot into a a cable homa, 68, 1087, 105 470 U.S. S.Ct. van. (1985), by denying L.Ed.2d 53 and his Newsome, Police Officers E.A. A.N. jurors request during to interview voir Swaim, Bollinger, M.R. and J.W. understanding dire as to their of the con McKenzie of the Winston-Salem Police cept parole,” of “life without violation of Department arrived after 9:00 a.m. to principles Kelly established v. South inspect apartment. McGill’s While Carolina, 534 U.S. S.Ct. Swaim and were proceeding Newsome (2002), L.Ed.2d 670 and Simmons v. South building question defendant’s Carolina, 2187, 129 S.Ct. U.S. residents, defendant fired two more (1994). judge L.Ed.2d 133 As no on the shots. While the officers radioed for panel believes that has made a rifle, help, again he his fired and the substantial the denial of showing of a con officers all took Several cover. testified claim, stitutional his right as to Simmons they moving saw defendant from no appealability certificate of on this claim window to window. issued, appeal and the as to that issue is 2253(c)(1). Stephen Officers John Pratt and Amos § dismissed. See 28 U.S.C. arrived at directly the scene and drove grant We do of appealability certificate building. to defendant’s Amos was at conclude, on petitioner’s Ake claim. We the hood of the car defendant however, when fired that the district court did not err another shot that claim, through pa- went in rejecting that and therefore af window, trol car’s back then hit Amos in judgment firm its as to issue. Pratt, along the chest. with officer Ste- I. others, Sigmon ven arrived and and took Sigmon Amos to the ambulance. testi- underlying petition- The relevant facts fied that he saw the muzzle flash and degree er’s conviction for murder first and heard shot that ten feet passed above succinctly related other are crimes set his head. forth in the North Carolina Supreme opinion affirming petitioner’s
Court’s con- Around 9:30 a.m. defendant called his viction and direct appeal: sentence on Mitchell, ex-girlfriend, Tamara and stat- February
[A]t around 8:00 a.m. on 27 ed that apartment his was surrounded sitting by police Sandra was thought McGill her officers and that he he apartment heard a explo- when she loud had shot At 10:00 a.m. someone. Ser- coming Marble, sion bar geant negotiator, from the counter. Be- crisis called blind, discussion, cause she McGill was called main- defendant. After defendant personnel, tenance who discovered that said he wanted to with his clinical speak Pollock, or a reasonable likelihood sic Dan and psychologist, materially assist chiatrist, spoke that such an Pollock Jason Crandell. presenta- to sur- implored preparation him him the and -with un- Id. at 488 S.E.2d continued tion of his case.” Negotiations ... render. agreed Thus, when defendant 11:45 a.m. til err, weapons, Crandell held trial court did not without that the go, Court Defendant office. to Pollock’s it affirmed conviction Marble custody thereaf- shortly taken into sentence. ter. brought petition for Petitioner then 693-94, N.C. *4 Page, 346 corpus in district writ of habeas federal (1997). S.E.2d court, raising his Ake claim. The again was, before and for some time the North court concluded that Petitioner district offense, by both a being adjudication treated of after the Court’s Supreme Carolina for various psychologist contrary and a to nor an psychiatrist the claim was neither hearing on pre-trial At a application disorders. of de- unreasonable according to petitioner, March petition. nied the Petitioner thereafter Court, “moved Supreme North Carolina appealability for a moved certifícate a foren- of a third Gregory Judge this Because court. type of that this arguing that, issue, psychiatrist, sic as to this concluded a clinical equipped than expert was better the denial of showing made substantial defense.” prepare legal psychologist right, we issue a certificate a constitutional at 488 S.E.2d Page, N.C. State v. petitioner’s on claim under appealability dispute petition- There no And the merits of Ake. we now address sanity at time of the offense er’s claim. court, The trial how- issue trial.
be an at ever, It noted that denied this motion. II. being treated two
petitioner was A. (a and a psychiatrist specialists petition corpus for writ were avail- As the of habeas specialists chologist), that these 3, 1999, on in this case was filed December petitioner, thus there to aid able date of expert. April On after effective need for a third such was no Death the Antiterrorism Effective appeal, petitioner “contend[ed] direct (“AEDPA”), Penalty of 1996 Pub.L. providing the State Act the trial court erred 104-132, ap- AEDPA while No. Stat. a forensic with access to adjudication of type of to the federal courts’ plies for the same denying request Angelone, claim. See Beck v. Supreme Id. The expert.” (4th Cir.2001). n. 3 In concluded, North Car- 261 F.3d applying Court Ake, that, the North Carolina “[g]iven particular, since Su- interpretation olina’s peti- addressed the merits preme the trial when it Court the facts court before appeal, claim on not dem- tioner’s Ake direct ruling,” petitioner its “did made 2254(d) 2254(d) § applies.1 a foren- Section particularized need for U.S.C. onstrate already claim resolved on direct brought claim in had been 1. Petitioner his Ake also post-conviction Appropriate previously Relief appeal. Motion for noted that We 15A-1419(a)(2) Carolina pro- in North court. The North Carolina § is not state N.C.G.S. rejected claim the basis of on prevents habeas re- cedural bar that federal 15A-1419(a)(2), concluding § N.C.G.S. granting upon testimony bars the of habeas relief sentencing used adjudicated well, phase claim the merits to establish future Ake’s dangerousness. jury state court unless the can show The convicted Ake imposed that the state court’s decision was either a death sentence. to” or an “contrary involved “unreasonable appeal, On Ake challenged as a vio of, application clearly established Federal process lation of due the court’s refusal to
law, Supreme as determined Court provide a court-appointed psychiatrist. States,” the United “unreasonable Supreme The Court sustained the chal given determination of the facts” evi- lenge: “We therefore hold that when a dence before the state court. defendant demonstrates to the judge sanity that his at time of the offense is
B.
significant
trial,
to be a
factor
the State
must,
minimum,
aat
assure the defendant
to a competent psychiatrist
access
who will
Oklahoma,
In Ake v.
Court
an appropriate
conduct
examination and
“whether
re-
addressed
the Constitution
evaluation,
assist in
*5
preparation,
pre
quires that an indigent defendant have
83,
sentation of the defense.” Id. at
105
psychiatric
access to the
examination and
S.Ct. 1087. The Court had no trouble
necessary
prepare
assistance
to
effec-
determining that Ake had established to
condition,
tive defense based on mental
his
the trial court that his mental
at
state
the
sanity
when his
at the time of the offense
time of the
be a
offense would
substantial
question.”
70,
is
seriously
470
at
U.S.
case,
factor in his
thus
concluded that
rection what presented has to this why is needed. The Petitioner nor such an what two dis holding of Ake “assure can be understood as phrase within the one, arguments, to a tinct that Ake mandates competent access the defendant If access significance. it particular chiatrist” is of forensic (as the defen- mental health to a non- opposed to the trial court that appears expert) has competent access forensic when already dant has defense, sanity significant can assist it shown will be a psychiatrist who *6 two, trial, access been “as- factor at the and that the avail follows that such has to sure[d],” ability that need do of Pollock and thus the State Drs. Crandell and testify satisfy not to for did not no more. It is thus unreasonable conclude, Circuit, duty Ake to access provide has the Eleventh that State’s under as trial to a mental two ex “a defendant must show the court health as the all probability perts perform there a could not or would not exists reasonable expert (including that an would be of assistance the tasks the non-testimonial both tasks) expert required of a de court-appointed to the and denial of defense witness, fundamentally by in expert a fense as assistance would result envisioned Ake.2 Kemp, interpretation unfair Moore 809 F.2d North Carolina’s of trial.” Cir.1987). (11th Gambrell, Or, an- at phrased See 318 N.C. 347 S.E.2d (defense read, permits health witness way, reasonably expert other mental inquiry evaluating, pre on will dispositive appellate review ] “assist! be, petitioner’s explana- paring, to heard and his in both “having presenting defense tion, judge guilt sentencing phases”). trial concluded the and For the should the have follow, argu granted request petition- that unless he reasons neither of these likely adequate availing petitioner.3 an ments is to er would denied two, argu- peachable, make was Petitioner did not this second that neither witness ment, trained). approximating argu- forensically anything nor ment, Court, Supreme to Carolina the North magistrate judge assigned petition- 3. A was as an examination of his brief to that court Brief, Def-App's App. case dis- reveals. Rec. on er’s when it was before the federal See C, days (contending only of Vol. Ex. at 6-15 trict court. Within ten of submission recommendation, magistrate peti- petitioner’s expert incompe- judge's witnesses were one, because, magistrate easily objections im- filed tent Dr. Pollock was tioner easily arguments clearly The first these is health is appli- a reasonable speaks only Ake the aid of a dismissed. cation of Ake. psychiatrist,” “forensic” “competent not a argument The second equally is unavail- There is no psychiatrist. suggestion ing. argument, only As to we need a “in- psychiatrist
Ake that non-forensic pre-trial look to the hearing wherein the a competent” purposes aiding defen- decided, motion was addressed a preparing dant defense which one’s identify arguments made to court that, sanity at issue. Nor is it true as by petitioner and the composite infor- fact, matter mental non-forensic mation that was before the court trial categorically “incompe- health when it on ruled the motion for appoint- assist a un- tent” to defendant. It is not ment of the additional ex- mental health all, then, reasonable to conclude that pert. not require psychia- Ake does forensic hearing, At prosecutor trist, initiated provided that ex- which pert the defendant discussion motion for appoint- does Indeed, ment following: otherwise with the “competent.” access is only plausible this is the of Ake. reading The final motion that we want to hear today is a motion the defendant for a Thus, point because does not appoint tending evidence in the record and/or psychologist assist them I will show that Drs. Crandell and Pollock fell just [petitioner’s let Mr. Eubanks competency, below this standard of refusal to be heard.... He counsel] Court’s further has hold that the trial denying private doctor, court erred in of a services Dr. Ja- petitioner’s request Crandell, for a forensic mental son who’s treated him for over judge’s Schronce, recommendation. The sum total of review. See United States v. (4th objections 1984). written to the recom- Although F.2d 93-94 Cir. magistrate judge mendation yet specifically addressed our in a circuit follows: published opinion, other held circuits have objection that the to raise failure “suffi petitioner, by through Now comes under- *7 ciently specific to focus the court’s district counsel, signed respectfully objects who to the legal the factual attention on and that issues Magis- of the recommendations United States dispute” truly any appellate are waives 72(b) Judge required by as trate Rule of the Street, review. States v. United 2121 E. 30th Federal Rules of Civil Procedure. (10th 1996). par 73 F.3d Cir. In undersigned As counsel is new unaware of ticular, general objection ad a of the kind authority for the issues raised in brief in the by petitioner vanced avoid insufficient to support petition of the habeas counsel relies id.; Secretary waiver. See Howard v. argument presented on the in that brief. Servs., Health & Human 508-09 F.2d Respectfully day submitted this the 14th 1991); (6th Faulkner, March, Cir. Lockert v. F.2 d1015, (7th 1988) ("Just Jud., Cir. com as a Magis. Objections Pet.’s to Recomm. of stating plaint only complain’ T no states App. Rec. on Vol. Document No. claim, objection 72(b) stating object’ pre only 'I Federal Rule Civil Procedure states Clark, review.”); that, “[wjithin Goney serves no issue for days being after served (3d Cir.1984). Although, 6-7 749 F.2d copy a of the disposition, a recommended appear, argu may petitioner's reasons that party specific, serve and file written ob- unavailing, petitioner’s jections proposed findings to the ments recom- are failure and added). object magistrate (émphasis judge’s mendations.” to the Petitioner recommenda specificity obviously satisfy requirement required by did not tion Rule with the held, is, alone, long upon standing this Rule. As we have a the failure to sufficient basis objections magistrate judge’s judgment to a raise rec- which district to affirm of the appellate right ommendations waives the court this claim. as to ... findings on their Pollock, [petitioner] Dan a vise what Dr. who’s and year,
a of the might him be” “a review medical I understand sees after who psychologist jail, al- did every week counsel not take records.” Petitioner’s practically I’m not appointed and any exception prosecutor’s he’s not state- though qualified testify in he’s whether that had available the ser- sure ment experts. court. vices of two mental health upon representa- Based this J.A. 201-202. and hearing, tellingly, Later in the it unquestiona- prosecution, following exchange occurred: that understood ble trying THE I’m other COURT: —in already “ha[d] services of words, you if thing one have no it’s “a psychologist” who private doctor” psychological or no psychiatric witness every in the week practically him “sees one, I get witness and want but jail.” you here impression distinct know later, petitioner’s trial time A short of at and one least one for the motion explained counsel in- chologist the defendant who—that was made because additional paragraph tends call or that five two treat- it was believed motion. wouldn’t be experts would health mental That’s—all that’s MR. EUBANKS: impartial,” be- “totally independent true. intended to call them the State cause essence, And, THE what COURT: witnesses: you’re appoint me to do is an- asking Honor, Page Mr. informa- Your —our other one. using certain medical tion—the MR. EUBANKS: Yes. it, witnesses, already I take added). At point, (emphasis J.A. Dr. Crandell and Pol- available. them it again, appear reasonable would well, it to me appears lock have been— requesting mind that the defendant was already. be State’s witnesses they will no perform third who would tasks reason, we we need the believe For beyond performed that were to be those psychia- psychologist assistance by petitioner’s ex- first two peo- either independent of of those trist perts. records, medical which ple to review stuff, Judge, of boxes
consists
petitioner’s presen-
At the conclusion of
know,
you
what
advise us
tation,
specifically
what—
the trial court
asked
might be. We
like
findings
their
parties
anything
both
either had
add
if
somebody totally independent
to have
(thus
yet another
giving petitioner
oppor-
*8
impartial.
arguments
tunity
present new
or
object
prosecutor
the
the
expert
anything
third mental
or
The
health
J.A. 202.4
said),
counsel,
had
coun-
trial
to “ad-
to which
necessary, said
was
tasks,
course,
testimony, to
the
expert
present
other
advise
the mere fact that an
Of
viability
attorney
the
by the State
witness
defendant’s
as
might
called
as
fact
be
defense,
preparation
insanity
partial
and to assist in
or her
“behol-
does not render him
experts.
State
See
of cross-examination of
prosecution” as that term is used
den to the
Ake,
1087;
Next the defendant a similar (and Petitioner did not contend not does manner has had the of ... services Dr. now) requires that Ake Pollock, ... Dan a psychologist who has a mental health expert re- privately been retained the defendant gardless of whether defendant has evaluating has been ... the defen- experts, mental health undoubtably be- over an approach- dant extended period, cause Ake cannot re- possibly be read to years, prior nine to this moment. require “ap- such. Ake not quire does There is no psychologist posi- better pointment” expert; of a mental health it tion to have evaluated defendant requires only that the State “assure the Pollock, is Dr. readily than avail- who a competent defendant access to [mental able. expert]” will who assist the defense. this,
And only where defendant does not otherwise a mental health number, next apparent The it is from can who assist him. the defendant’s own documents that he has available at very moment a Additionally, despite opportu- numerous chiatric witness and a psychological wit- so, nities to do did suggest who ness have treated any way to the trial court that two long period over of time and are famil- experts would unable to him assist physical iar with his mental and condi- defense, argue nor he did that Drs. tion. be, Pollock and Crandell should or needed number, be, Next paid by the defendant has failed to the State. Petitioner also *9 suggest to demonstrate to the Court’s satisfac- not the purpose did that for the the need yet psychiatric requested any for appointment provide another witness or another psychological provided by witness that not be assistance would Crandell, it apparent when Court specifically, that he Drs. Pollock and readily has available him at neither did that this time he contend he needed 420 2254(d)(1) § 28 U.S.C.A. particu- health in United States.”
forensic (West 2003); Taylor, Williams v. lar.5 529 U.S. 362, 402-03, 120 146 S.Ct. L.Ed.2d the entirely reasonable for As it was (2000). empha- separately 389 I write court, petitioner’s “having heard after Oklahoma, that petitioner Ake v. to conclude requirements size the of explanation,” an adequate be denied “likely 68, 82, 470 105 84 S.Ct. L.Ed.2d U.S. confront fairly to the State’s opportunity (1985). 53 defense,” v. Moore present and to case Ake, must, “the at a mini Under requested Kemp, 809 F.2d at were mum, the defendant access to a assure denied, North Carolina to be motion competent holding the trial who will conduct an Supreme Court’s of petition- not err in its denial court did appropriate examination and assist eval for of a third appointment er’s motion uation, presentation of preparation, constitutes an neither mental health Ake, at the defense.” 470 U.S. Ake con- nor is application unreasonable Supreme empha 5.Ct. 1087. The Court decision, sought by the relief trary to assisting preparation sized that of a under 28 U.S.C. barred petitioner 1) includes, but limited to: defense is not 2254(d).6 § 2) defendant; testifying examining the on 3) behalf; helping determine viabil CONCLUSION 4) defense; ity insanity assisting for a certifícate of request Petitioner’s preparation the cross-examination on his Ake claim is granted, appealability psychiatric of the witness. State’s request appeala- a certificate of and his 82, 105 S.Ct. 1087. U.S. bility on his Simmons claim denied. the district court as to judgment The the State “assure” Because must de- Ake affirmed, and the claim is petitioner’s access to fendant has a mental ex- from the district court’s denial appeal pert, must all relevant factors we consider Simmons claim is dismissed. has determine whether such access been PART, IN DISMISSED AFFIRMED The mere of one or presence assured. IN PART. multiple experts mental health does not See, e.g., satisfy Ake. United States v. GREGORY, Judge, concurring Circuit Cir.1986) (find- Crews, (10th F.2d 826 judgment. in the that a defendant was entitled majority’s I concur conclusion despite a psychiatrist, petitioner has failed demonstrate fact treating that he was examined four rulings state were “con- court’s court-appointed all of psychiatrists, trary appli- to or involved an unreasonable condition). whom testified his mental law, clearly federal as cation of established Regardless determined Court of the of whether a defendant has fact, conclusion, very appeal, has Given this we do not need to Until whether, the burden of 28 address even if pointed to no in the record Drs. evidence overcome, 2254(d) petition- § U.S.C. could be act Pollock and Crandell did not as the de- er has shown that constitutional error experts fense that North Carolina contem- injuri- that did occur had "substantial should, they required plates as under Ake. determining ous effect or influence in evidence, simplest form of Even such Abrahamson, jury's verdict.” Brecht v. point from an affidavit either 619, 638, U.S. S.Ct. 123 L.Ed.2d counsel, from trial or from himself Netherland, (1993); Tuggle see F.3d is absent from the record. (4th Cir.1996) (applying 1392-93 Brecht errors). harmless error standard to Ake *10 multiple to one or mental health access indi- experts when those cannot
experts, collectively fulfill, mini- vidually or at a Ake, mum, contemplated by it is duties responsibility provide the State’s a mental health who provide requisite can assistance. Here, petitioner alleges that not he did of a mental health receive assistance required by but fails existing how show mental health ex- satisfy perts require- were unable to Ake’s ments. Because there is no evidence demonstrating the record that petitioner’s could experts provide assistance, requisite I concur in the majority’s decision. KING,
Karen Bauries Plaintiff- Appellant, INTERNATIONAL, MARRIOTT IN CORPORATED; Karl I. Freder
icks, Defendants-Appellees.
No. 02-2139. United of Appeals, States Court Circuit.
Fourth Argued: June July Decided: