Lyons v. Lee

Lyons, Petitioner- James Robbie oppressive and more much different ety Appellant, this to sanction If we own. were than our other way for conduct, point the we would v. criticism of public officials stifle state Prison, Warden, Lee, Central R.C. And performance. and their policies their Carolina, Raleigh, North vulnerable particularly leave we would Respondent-Appellee. community. kind of in this paper kind of 02-13, Nos. 02-14. Mary’s such as St weeklies Alternative objects of in the deep ire may stir Today Appeals, of Court United States hardly say on irreverence, can but we their Fourth Circuit. part they play no useful that account 28, 2002. Argued Oct. No doubt political dialogue. in the opinion of time its formed over has public 21, 2003. Decided Jan. reputation. responsibility paper’s be attacks to its believed If defendants to un-

scurrilous, was either remedy their or to initiate own response their

dertake law was not for action. It

defamation organized to summon

enforcement to the cause the sheriffs office

force of on the dispatch deputies

censorship and in the dead suppression

errands

night. district court judgment the case is remand- reversed and

therefore consistent with proceedings for further

ed

this opinion. AND REMANDED.

REVERSED LYONS, Petitioner-

Robbie James

Appellant, Prison, Warden, LEE, Central

R.C.

Raleigh, North

Respondent-Appellee. Osborn,

ARGUED: John Kirk Osborn P.L.L.C., Hill, Tyndall, Chapel & North Carolina, for Appellant. Valerie Blanche Spalding, Attorney Special Deputy Gener- al, Justice, Department Carolina, Raleigh, Appellee. North for Conner, Jr., denying his habeas Dix- court’s orders L. district BRIEF: Ernest ON P.L.L.C., Foster, on, Doub, two & have consolidated Conner relief. We Greenville, Appellant. North in this court. For the petitions for review Attorney General of North Roy Cooper, follow, grant to a we decline reasons Carolina, Department the appealability and dismiss certificate of Justice, Ap- for Raleigh, North appeal. pellee. I. WILLIAMS, LUTTIG, and

Before GREGORY, Judges. Circuit A. certifícate of Application for September the afternoon of On appeal and dismissed denied appealability in was shot and killed his Stephen Stafford Judge opinion. WILLIAMS by published Lytle wit- place of business. Victoria Judge in which majority opinion, the

wrote a shooting.2 Stafford owned nessed wrote joined. Judge GREGORY LUTTIG as Curb Mar- small business known Sam’s concurring opinion. a (Sam’s) Winston-Salem, in North Car- ket Lytle September that on olina. testified OPINION stopped parked at Sam’s. She she WILLIAMS, Judge. Circuit store, got in front of the and as she out of jury convicted Robbie A North Carolina car, her she noticed two men across felony murder Lyons first-degree James store; Lytle while street. entered she robbery dangerous with a attempted and store, men, in the one of the Derick was robbery). armed Fol- weapon (attempted Hall, entered the store. While she was sentencing proceeding, a lowing capital items, Lytle waiting pay for Hall to for his recommended, the trial court im- jury and Lyons standing outside and look- noticed a of death on the first- posed, sentence ing Lytle paid into the store. then for her conviction.1 After degree felony murder purchases and left the store. remedies, exhausting all available state door, Lytle closed her car she heard As in the United Lyons petitions filed two shots, gunshots. Upon hearing three States District Court for the Middle Dis- heard up she looked and saw a flash. She for a writ of habeas trict of North Carolina him moan and saw fall forward Stafford (West § corpus. See 28 U.S.C.A. the counter and then backward to the over 1994 & The first Supp.2002). afterward, Immediately floor. she saw state court con- challenges separate a Lyons gun run of the a out store with robbery. viction for common law The sec- his hand. and petition challenges ond the conviction murder. The sentence for Hall, that, Lyons’s accomplice, testified petitions district court ordered that both morning September on the Hall had prejudice. be denied with and dismissed long-barreled gun. .22-caliber When Sam’s, Hall and went to had appealability a certificate of seeks (COA) they appeal possession gun. ap- of the As granting permission affirming Lyons’s judgment published opinion on the olina’s The trial court arrested attempted first-degree felony with a dan- conviction of conviction and sentence gerous weapon. Lyons, appeal. See murder on direct State 468 S.E.2d 204 N.C. 2. These facts are derived from statement North facts in the Court of Car- store, circumstance, port told Hall that proached to rob the money going and was he needed that Lyons state submitted evidence had Sam’s, Lyons en- Lytle After left store. been convicted of two felonies involv- turn to freeze and tered and told Stafford ing the use or threat of violence to the obeyed Hall the command around. also person, one of which an was armed rob- playing part that he was no demonstrate other one of bery,3 which was Hall heard five shots. When robbery. law robbery.4 common found around, Lyons gone Hall turned statutory nonstatutory two and four miti- lying on the floor. Stafford Stafford was gating circumstances. The unani- speak, in an and he grunting effort mously that the aggravating found circum- alarm up pushed burglar reached and sufficiently stance was substantial to call the floor. collapsing before back onto for the imposition of death when consid- that pathologist forensic testified The mitigating jury ered with the factors. The left hand and one bullet entered Stafford’s recommended, unanimously and the trial This wound was recovered from his wrist. a sentence of death. See imposed, court having consistent with Stafford 15A-2000(b) (2001). § N.C. Gen.Stat. gun and in itself would not grasped Lyons appealed Supreme to the Court of frag- fatal. Two more bullet have been North which found no error in upper in ments were discovered Stafford’s Lyons’s conviction or death sentence. On arm. also would not have This wound 7, 1996, October the United States Su- fatal in the short term. Stafford had been preme Lyons’s petition Court denied for a shot in the back. That bullet also been Lyons challenge writ of certiorari. did not through lung went into chest Stafford’s robbery his common law conviction in ei- to bleed to and aorta and caused Stafford appeals. ther of these direct expert death. The firearms testified that were recovered two the bullets 14, 1997, April Lyons On filed a Motion fragments .22 The were caliber. other (MAR) Appropriate Relief from the yield were too deformed to recovered robbery 1993 common law conviction and a result. first-degree MAR from the murder convic- in court. tion North Carolina state After B. hearings, the state holding evidentiary two finding The returned a verdict Lyons’s requested MAR re- court denied Lyons guilty attempted robbery armed 19, 1999, August Supreme lief. On first-degree felony and murder under the Lyons’s of North Carolina denied Court theory, attempted murder with the armed January petition for certiorari review. On At robbery underlying felony. as the the United States Court sentencing phase, the court submitted and denied certiorari in both cases. circum- found one separate petitions then filed two had Lyons previously stance: been in for habeas relief the federal district felony involving convicted of a the use or challenges his common law person. sup- threat of violence to To court. One (armed robbery). August challenge robbery deadly weapon On does not the armed 10, 1993, Lyons negotiated guilty conviction. entered a robbery pursuant plea common law Alford, v. robbery 4. The common law conviction (1970). Lyons was sen- place stemmed from a crime took on proba- probation released. His tenced to Stratford Road in Winston-Salem. robbery originally charged with a tion was terminated in October 1993. with conviction, that “reasonable could the other chal- demonstrate robbery (or, matter, murder conviction. lenges his agree debate whether for that to a United petitions were referred that) have been re- should magistrate judge, see U.S.C.A. States or that the solved a different manner (West Supp.2002), § who rec- & “‘adequate were to de- presented issues ommended that the district court dismiss encouragement proceed fur- serve ”” review, After novo petitions. both dea (quot- ther.’ Id. at 120 S.Ct. 1595 magistrate adopted district court Estelle, n. ing Barefoot peti- as to both judge’s recommendations (1983)). 4, 103 Lyons’s petitions for tions and dismissed The district court also de- habeas relief. A. to the Common Law Rob- R.App. P. clined to issue COAs. Fed. bery Right In Conviction Its Own 22(b)(1) (“If applicant an files a notice of The district court dismissed appeal, judge the district who rendered challenge to his common law con judgment must either issue certifi- jurisdic viction its own for lack of why a appealability cate of or state certifi- tion because was no “in cus longer issue.”). should not cate with In tody” respect to this conviction. (1) Lyons appeal seeks to four issues: Slack, the Court clarified the challenge he can common law whether his 2253(c) § showing required satisfy (2) robbery in right; conviction its own the peti where district court dismisses the challenge can enhanced whether he his tion on procedural grounds. based See first-degree murder on the sentence for Slack, 484, at 529 U.S. 120 S.Ct. 1595. robbery ground that his common law a Where the district court “denies habeas obtained; unconstitutionally conviction was (3) petition procedural grounds on without during whether the instructions sentencing claims, phase reaching prisoner’s underlying the of his the process murder conviction violated his due prisoner a should issue when the COA (4) rights; and whether North Carolina’s shows, least, jurists at that of reason short-form indictment renders the first- would find it peti debatable whether the degree murder conviction and death sen- tion states a valid claim of denial a the pursuant Apprendi tence invalid v. New constitutional and that of rea 2348, 466, Jersey, 530 120 147 U.S. S.Ct. son would find it debatable whether the (2000). L.Ed.2d 435 address each of We procedural district court was correct in its Lyons’s requests below. ruling.” Id. “Section 2253 mandates that showings both be made before the court of II. appeals may appeal.” entertain the Id. at theAs district court declined to 485, 120 plain proce S.Ct. 1595. a “Where COA, a we a grant issue must first COA to dural present bar is and the district court entertain appeal. 28 U.S.C.A. dispose is correct to invoke it to of the (West 2253(c)(1) § Supp.2002); Slack case, jurist a reasonable could not conclude McDaniel, 529 U.S. 120 S.Ct. either in that the district court erred dis 1595, 146 L.Ed.2d 542 “Under missing petition petitioner the or that the AEDPA, a not may COA issue unless ‘the proceed should be allowed to further.” Id. applicant a has made substantial 484, 120 at S.Ct. 1595. ” of the right.’ denial of constitutional custody” As not “in for the Slack, 483, at 120 U.S. S.Ct. 1595 2253(c)). common at robbery § law conviction the time (quoting 28 U.S.C.A. To make required showing, petitioner petition, the the must he filed his habeas reasonable find court’s jurists could not the district S.Ct. Maleng v.

procedural ruling debatable. (2001), apply does not to him because his Cook, 488, 490-91, original conviction was argu- void. This (1989) (interpreting 104 L.Ed.2d alternative, ment is without In merit. the 2254(a) requiring § as that U.S.C.A. Lyons argues that he falls into the excep- custody” “in under petitioner habeas be tion to for appoint Coss the failure to under attack at the conviction or sentence exception by counsel and the articulated filed). Thus, the time his plurality Coss claims of actual on application for a COA innocence. As represented by claim. counsel in robbery pro- the common law First-Degree ceeding,

B. Mur- exception ap- for failure to By the der Sentence As Enhanced point apply. counsel does not Even as- Robbery Law Conviction Common suming exception espoused by exists, challenges plurality also his first-de Coss does gree by murder sentence as enhanced satisfy the exception because his claim of robbery conviction on the common law actual innocence5 does not on rest evi- common law con ground dence that could not have been discovered unconstitutionally viction was obtained. through earlier the exercise of due dili- general rule applied The district court gence. County in Lackawanna articulated Dist. Coss, 394, 400, 121 Att’y v. Thus, general rule that federal (2001), a peti postconviction relief is unavailable when may challenge tioner an enhanced sen challenges a prisoner current sentence on ground prior tence on the that the convic it ground that was enhanced based on unconstitutionally tion was obtained allegedly an convic unconstitutional Because, accordingly dismissed claim. petitioner longer tion for which the is no below, Lyons as we discuss has not shown it custody applies “that of reason would find deba on the facts of this case. whether the district court was correct table Because we cannot conclude that “reason Slack, procedural ruling,” in its 529 at U.S. jurists” able would find the district court’s 484, 1595, deny applica 120 we S.Ct. “debatable,” Slack, procedural ruling 529 tion for a on this claim. COA 1595, at U.S. 120 S.Ct. Lyons’s application a COA on this argues first that Lackawan Coss, County Att’y na Dist. claim. U.S. plea, Lyons, an Because entered to "Tracee Smith driver of the [the car] Alford innocence,” gun show "actual he show by [Lyons's must that that the knew used co-defen- factually he was innocent of both the common alleged to victim a dant] threaten was robbery charge pleaded law to which he pellet gun belonging non-functional to her original charge robbery. See 12-13.) armed nephew.” (Appellant's Br. at There States, 614, 624, Bousley v. United testimony is no indication that such could not (1998) ("In 140 L.Ed.2d 828 presented through have the ex- been in 1993 forgone cases where the Government has diligence. of due ercise charges plea more serious in the course of Moreover, Lyons finding does not rebut the bargaining, petitioner's showing of actual in- of the state habeas court that his Mo- denied charges.”). also to nocence must extend those (the Appropriate tion for Relief state MAR court) strong that "the State had evidence claims that he is innocent of the [Lyons’s] guilt robbery pursuant original charge of armed to of armed because the (J.A. 455.) pellet pistol According § was not functional. to N.C.G.S. 14-87.” at Slack, wrong.” al or First-Degree Murder claims debatable

C. 484, 120 at S.Ct. 1595. U.S. Jury Instructions Lyons has that there is not shown Next, jury that the Lyons argues jury ... a “reasonable likelihood that the its instructed as to consider improperly way ... in a that applied the instruction mitigating ation circumstances viola of constitu prevented] consideration Carolina, 494 McKoy tion of v. North U.S. Boyde v. tionally relevant evidence.” Cali 433, 110 S.Ct. fornia, The district court found (1990).6 Accordingly, rea claim had no merit. “Where district jurists could not find the sonable district rejected [petitioner’s] court has consti court’s assessment of the constitutional debatable. claims merits, tutional claims on the 2253(c) § required satisfy straightfor the trial argues also petitioner ward: The must demonstrate response jury’s question court’s to the jurists would find the dis that reasonable unconstitutionally coercive.7 This claim trict court’s of the constitution- has no merit.8 Because we cannot con- assessment deliberation, McKoy jury 6.The Court held in that the 7. After three hours of jury requiring asked "whether or not decision [its] [had] instruction (J.A. be unanimous on issue number four.” jury unanimously to find the existence of miti 129.) responded "your at The court decision Eighth gating circumstances violated on issue number four does have to be unani- McKoy, Amendment. 494 U.S. at you're mous. If unanimous —if all twelve case, S.Ct. 1227. In this the trial court did you yes, you yes. find then would answer it If jury unanimously not instruct the that it must no, you you all twelve of find then would mitigating circum find the existence of (J.A. 129.) answer it no.” at stances. The was instructed to resolve asked, Issue Four on the verdict sheet "Do reaching four issues in its decision at the you unanimously beyond find a reasonable (1) sentencing phase of the trial: whether the aggravating doubt circumstance found, jury unanimously beyond a reasonable unanimously by you found in Issue isOne doubt, the existence of the cir sufficiently imposi- substantial to call for the cumstance; (2) whether one or more mem penalty tion of the death when considered mitigating bers of the or found one more mitigating with the circumstance or circum- circumstances; (3) whether the unani (J.A. by you?” stances found one or more of found, doubt, mously beyond a reasonable 139.) at mitigating by that the circumstances found jurors one or more are insufficient to out response given by judge 8. The was consis weigh aggravating circumstance found instructions, tent with earlier which we (4) unanimously by jury; whether the McKoy. have found did not violate See also found, jury unanimously beyond a reasonable French, 865, (4th Green v. 143 F.3d 889 Cir. doubt, circumstance, that the if 1998) (rejecting requiring similar claim that found, sufficiently is substantial to call for the unanimity as to the sentence recommendation imposition death sentence when consid McKoy), abrogated grounds violated on other mitigating ered with circumstances found 362, by Taylor, Williams v. 529 U.S. 120 S.Ct. by jurors. upheld 1495, one We (2000). or more have 146 L.Ed.2d 389 portion by of the instructions delivered North Moreover, regard- the lack of an instruction McKoy Carolina courts as not violative of on ing consequences of a deadlock was not French, several occasions. See Williams v. unconstitutionally coercive. The United 203, (4th 1998); 146 F.3d 215-16 Cir. Noland recently Supreme States Court held that French, 208, (4th v. 134 F.3d 213-14 Cir. trial court need not as to the instruct 1998); Dixon, 956, Smith v. 14 F.3d 981 n. 15 consequences should it to reach a unani- fail (4th 1994) (en banc); Dixon, States, Cir. v. 3 Lawson mous decision. Jones v. United 527 743, (4th 1993); 373, 381-82, 2090, Maynard F.3d 754 Cir. v. U.S. 119 S.Ct. 144 Dixon, 407, (4th Cir.1991). 943 F.2d 418-20 L.Ed.2d 370

535 jurists find of a denial of a “that reasonable would constitutional elude assessment of the con- any the district court’s on of his claims. I write separately, however, or wrong,” debatable claim[ ] stitutional because I read Lackawanna Co. 484, 1595, Slack, Coss, at 120 S.Ct. we 394, 529 U.S. Att’y Dist. v. 532 121 U.S. S.Ct. for a on deny Lyons’s application COA this 1567, (2001), more broad- claim. ly majority. than does the Coss, stated, In Court D. to North Carolina’s qualified § “When an otherwise 2254 peti- Short-Form, Indictment tioner can demonstrate that his current Lyons moved for leave to amend sentence was enhanced on the basis of a to include a claim that petition his habeas prior conviction obtained where there was indictment rendered his the “short-form” a failure to counsel in appoint violation of conviction for murder invalid Amendment, the Sixth the current sen- allege indictment did not each because the tence cannot stand and relief habeas is first-degree mur element of the crime of 403-04, Id. at 121 appropriate.” S.Ct. States, der, in of Jones v. United violation majority 1567. The finds that because 1215, 227, 143 L.Ed.2d 119 S.Ct. “Lyons by represented counsel (1999), Jersey, v. Apprendi 311 New law robbery proceeding,” common Coss 2348, 466, 120 S.Ct. 147 L.Ed.2d Ante, him any does not afford relief. at (2000). The district court denied 435 “Ap to amend because Lyons’s motion I, however, not do read the Coss rule prendi application cannot have retroactive quite narrowly. so As Justice O’Connor 548.) (J.A. at The district to this case.” explained, habeas directed at “[A] held that recognized court that we have may effectively the enhanced sentence be and Jones state new rule of Apprendi only forum the first and available re- applied constitutional law cannot be Coss, view of the conviction.” 532 retroactively to cases on collateral review. 406, J„ Sanders, (O’Connor, 121 U.S. at S.Ct. 1567 247 F.3d See United States added). (4th denied, 139, Cir.), concurring) (emphasis ap- Coss cert. U.S. therefore, only to situations plies, Lee, (2001); ap- Hartman v. 283 F.3d where there is an absolute failure to see also (4th Cir.2002). counsel, point any 192 n. As has but also to situations not shown that reasonable would a Sixth Amendment viola- where there is proce debate whether the district court’s that it is as if a defen- tion so substantial Slack, correct, ruling at legal repre- dural U.S. the benefit of dant never had applica undisputed It had sentation. tion for a COA on this claim. attorney in the court-appointed Clary. R. George conviction: Mr. “Pete”

III. question in this case is whether herein, stated For the reasons Lyons enter an Al- Clary’s advice—that for a COA and dismiss application exchange for a sentence guilty plea in ford appeal. incompetent, so conflict- probation —was ed, effectively deny Lyons corrupt or as DISMISSED. to counsel. his Sixth Amendment GREGORY, concurring: Judge, Circuit Lyons is unable to make a sub- Because litigation stantial that this strate- majority’s finding I concur with the right to gy him his constitutional Lyons has failed to make substantial denied counsel, Lyons request for a COA is de- majority’s my either the or

nied under

application of Coss. Accordingly, I concur. America,

UNITED STATES

Plaintiff-Appellee, McCARTER, Todd

Stevon Kathlyn Snyder (argued), Giannaula Defendant-Appellant. Turner, Attys., James Lee Asst. U.S. No. 01-21203. Houston, TX, for U.S. Appeals, United States Court Fifth Circuit. Randy (argued), Schaffer The Schaffer Firm, Houston, TX, for McCarter. Dec. HIGGINBOTHAM,

Before and DUHÉ DeMOSS, Judges. Circuit HIGGINBOTHAM, E. PATRICK Judge: Circuit Stevon Todd McCarter his con- appeals conspiracy pos- viction for possess with intent than session to distribute more kilograms five argues of cocaine. He the district court abused its discretion refusing felon-in-possession to sever his counts, charge ammunition from drug in admitting evidence of an of- extraneous fense, that, instructing McCarter, to convict it had to find that he stealing knew he was more than five kilograms of cocaine. Because we con- clude that the trial court abused its dis- cretion in failing felon-in-pos- to sever the counts, charge drug session from the vacate McCarter’s conviction sentence trial, and remand for a new need objections. reach McCarter’s other

Case Details

Case Name: Lyons v. Lee

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jan 21, 2003

Citation: 316 F.3d 528

Docket Number: 02-13, 02-14

Court Abbreviation: 4th Cir.