Richard Anthony Hoots v. Harry Allsbrook Attorney General of the State of North Carolina, Rufus L. Edmisten

protective for order. The court also motion motion

decided to treat motion as a summary judgment, stating ap- it peared genu- to the court that there was no fact, in ine issue of material the action. Jt.App.Supp. 221-22. The district court summary judgment

then entered for Du- Pont and dismissed the actions it. Lepus The claim of the Estate Bessie time, at that but dismissed subsequently settled. view, my district erred in court dismissing applied corpo- as it Count VI allowing only sharp- after rate concealment discovery. By narrowly ly limiting limited plaintiff showing to a of individual con- employees, e.g., cealment lower level director, plant medical the court made it impossible plaintiff prove for the facts

substantiating theory his of concealment group corporation the control Because

itself. of the district court’s rul- ings, plaintiff prohibited from

presenting summary judg- facts to defeat

ment. well,

For this reason case should be remanded for full trial the merits. HOOTS, Anthony Appellant, Richard ALLSBROOK; Harry Attorney General Carolina, of the State North Rufus Edmisten, Appellees. L.

No. 84-6724. Appeals, United Court of States Fourth Circuit. Argued Oct. 1985. Decided March remedies,

appeal post-conviction state Hoots filed a for a writ of habeas court, claiming in federal district corpus deprived that he was of his sixth amend- right ment to counsel because of ineffec- assistance of counsel. The tive district petition. court denied the We affirm.

I approximately p.m. Tuesday, on

At 11:00 24, 1979, July the Pizza1Hut restaurant Carolina, Thomasville, North was robbed robber, Hayes,1 two men. One Jeff register ap- went cash removed proximately second robber $500. powder” pistol. per- wielded a “black Four Shirley sons witnessed the crime: Karen Roark, manager; an assistant Linda Davis, waitress; Christopher Barnes Goins, Hall and Jeff both customers. Hayes other Shortly after and the robber restaurant, left the Officer T.W. Sells and Thomas, Bill members of the Detective Department, Thomasville Police arrived both separately. Roark described robbers the Pizza Thomas observed Sells. dining dimly lit but that the Hut room was place in which the took area suspects bright. Roark also described Davis, waitress, described to Thomas. the other and identified rob- apparently a for- Hayes, ber as who police employee. The offi- mer restaurant investigation report that re- cers filed an descriptions counted the on-scene robbery witnesses. Boyan, Boyan (Boyan, Nix & S. Robert brief), Point, N.C., appellant. for High police investigation, Following further indicted for armed was arrested and Gen., McNeill, Atty. Ra- Barry Asst. S. Weldon, ap- Jr. was robbery. Wilson 0. N.C., leigh, appellees. indigent. represent him as an pointed to in bond obtained a reduction Weldon ERVIN, PHILLIPS and Circuit Before release, permitted Hoots to secure obtained BUTZNER, Judge. Circuit Judges, Senior trial, interviewed sever- continuances of the PHILLIPS, witnesses, Circuit consulted the potential DICKSON JAMES al report. Judge: police investigation Hoots in- planned defense of Hoots was convicted Weldon’s Richard alibi, misidentifica- by a North the theories of robbery, and sentenced cluded armed tion, third-party commission forty years impris- court to Carolina state inef- received of direct crime. Hoots’ claim Following exhaustion onment. charged plea of no contest when and entered a Hayes confessions in has made several with the participation in the his he admitted trial, produced fective assistance of counsel is At this first based on six inadequate presentation of misidentifi- alibi witnesses who testified that Hoots third-party cation and commission theories. night robbery.3 was at home the Specifically, the claim is that Weldon failed Jerry Harper, Cindy Ridge, and Lavada investigation to conduct an sufficient to Harper Meade also testified for Hoots. discredit the state’s sole identification wit- testified that and Darrell visit- Shaw ness, investigate and present did not or apartment night ed his on the of the rob- Shaw, party, evidence that another Darrell bery, they pistol that borrowed a earlier Hoots, gunman. rather than was the day, Hayes that and that and Shaw left at p.m. 5'5", Harper 10:40 described Shaw as claim, necessary To consider the it is to pounds, balding with thin blond hair proceedings preced- describe that have extending and a thick mustache almost to appeal. ed this After his first trial ended his chin. Meade testified that he saw mistrial, in a Hoots has raised his sixth Hayes and Shaw both before and in appeal, amendment claims direct two the robbery. after The court sustained the proceedings ap- state court collateral objection proffered state’s to Meade’s testi- therefrom, peals and before the federal mony Hayes plan- he heard and Shaw proceeding. district court ning robbery. Ridge stated that she Hoots’ first trial ended a mistrial when they Hayes was with Meade when saw jury could not reach a verdict. Three Hayes after the Shaw and that for the state. witnesses testified Kar- appeared and Shaw nervous sweaty. Roark, manager, en the Pizza Hut assistant testify. Hoots did not gunman.2 identified Hoots as the She tes- trial, At Hoots’ second Roark and Detec- tall, gunman tified that the 5'6" was to 5'8" again tive Thomas testified for the state weighed pounds, 180-185 had blondish gave essentially the same as hair, kinky, curly, green but not and wore a given at the first trial. Weldon cross- face, shirt, scarf on his a dark and white examined Roark about variations in her pants. She stated that the in the descriptions earlier of the restaurant, kitchen area of the where she photograph was shown a of Shaw at the located, brighter was was than elsewhere trial, having second but denied ever seen restaurant, lengthy eye that she had and noted that he had a Shaw mustache contact with the that she was but that the man she saw did not. Officer robber, approximately fifteen feet from the trial, Sells was unavailable for the second gunman’s and that the scarf was sufficient- but his at the first trial ly sheer that she could discern the robber’s introduced. facial features. She testified that she rec- ognized spoken Hoots he had because again Weldon called several alibi witness- paid her he while his bill the restaurant addition, Thompson, es. In Don Hoots’ em- days several earlier. ployer, testified that Hoots called in sick 24th, July

Officer Sells testified that Roark had de- did not work on the 23rd or 5'7", gunman July pounds, scribed the as and returned to work on 25.- Officer Terry Arney with short blond hair. Sells stated that of the Thomasville Police De- robbery. partment there were other testified that Jennifer witnesses to appellant’s girlfriend, him Detective Thomas testified that Roark de- then told Hoots 5'5", day robbery. pounds, was ill in bed on the scribed the curly Jerry Harper Ridge they testified as with blond hair and scarf. unduly suggestive suppressed two 3. The district court found that most of these 2. The court Roark, photographic identifications of witnesses had a reason to be biased in favor of Hoots, upon Jennifer, identification girlfriend, but admitted the in-court ruling and that Hoots' independent that it basis. Roark wife, had an specifically now his testified that Hoots previously preliminary Hoots at a had hearing. identified robbery. at home at exact time of the they appeared plan testify the first trial. Meade did not which had at Indeed, Cindy Ridge the second trial. Weldon did not testified that Meade had told attempt Hayes-Shaw her of the plan- to introduce evidence of conversation. Jan- (the Harper ning Hayes Jerry ice Harper) of a sister stat- believing good Hayes faith ed that she July had no basis saw Shaw on they an 24 when her attempt gun. for such because same trial borrowed brother’s light pants, ruled recalled wore judge had the evidence inadmissible She that Shaw t-shirt, long Again, sandy trial. Hoots did black and had at the blonde or testify. light brown hair. stated She that she later $20, found a note from guilty, found Hoots and he was Hayes expressed the sentiment that imprison- years to a term of 40 sentenced give he wished he could money. more represent appointed ment. gunshop employees Two testified that appeal, private Hoots on but Hoots secured Hayes had in been the store several times appeal, On direct the North Car- counsel. during July, they specifically did but not Appeals olina Court of affirmed Hoots’ con- remember had accompanied that Hoots viction, Hoots, N.C.App. v. 50 State Hayes. (1981), alia, rejecting, 404 274 S.E.2d inter claim of Hoots’ ineffective assistance of Finally, Attorney Weldon at the testified appeal the North counsel. Car- post-conviction hearing. He recounted the Supreme olina Court was dismissed for conflicts he had had with Hoots and his ques- lack of a substantial constitutional father over of the conduct the case. He 302 N.C. 279 tion. State police related the that he reviewed investi- (1981). 354 S.E.2d gation report, and on that basis had chosen subpoena not to interview or the witnesses sought post-conviction then Hoots relief the report whom stated could not have raising in the state courts the ineffective identified said Hoots. He that he had not An of claim. evidentia- assistance counsel introduced other evidence at the second hearing provided. presented ry was Hoots trial, gunshop such of the number of witnesses. Linda Barnes Da- Meade,4 employees felt that and because he vis, Pizza who the Hut waitress had not judge ruling the trial abide in would his trials, the testified that the testified third-party of the trial that evidence long-sleeved gunman top wore dark commission of the crime inadmissible. pants, sandy white had brownish hair he Weldon admitted that had not investi- hung right out on the side of his that head. gated forgery Roark’s criminal record of thought that the She stated she convictions, check arrests and worthless covering object cloth his had a dark entire thereby impeach and had failed The two who head. restaurant customers witness. state’s identification robbery testified witnessed also for the first time. One recalled that robbers post-convic- The denied state trial court toboggans, only or but he wore scarves findings upon relief tion based of fact backs, could not saw their make out conclusions of law. The court found that The features. other could recall that obtaining in Weldon had been successful stockings. had or the robbers on scarves bail, securing reduction in and in Hoot’s presented attempt also continuances of the trial to to ob- Hoots several witnesses presence Hayes, theory party his a third tain the of who was out of to buttress Meade, found that Lavada The court Weldon sub- had been who state. witnesses, poenaed presented trial but numerous had testified the first not trial, second, alibi at the recalled conversation between Hoots’ defense second light in most evening July presented of all evidence Hayes and Shaw on the record, second had trial. 4. Meade also a criminal subject impeachment if been called at family. post- favorable to The court his child from Hoots’ At Hoots. also deter- mined that Hut in the Pizza hearing, Hayes again conviction once advantages was such that Roark time, changed position. his This under her testimony made more reliable than that oath, April recanted statement witnesses not called Wel- reembraced the March statement exon- don. The state court found that the other erating testimony repeated, This Hoots. investigated by evidence presented not or however, Hayes’ con- claim that he was probative Weldon was not or not either did reprisal cerned about from the fami- Hoots participant exclude Hoots as a the rob- ly. bery, and justi- that Weldon was therefore court re- state trial concluded after relying ruling fied in in the first ceiving from and other trial that such evidence inadmissible. Hayes’ prejudice hearing testimony The court witnesses that found no the failure Weldon to her worth- provide did unreliable and a basis less check The North Carolina convictions. ground newly for a new on the trial Appeals Court of denied Hoots’ rejected discovered evidence. Also review. event, and, any probative unreliable

Later, non-participation of Hoots’ sought was the testimo- again Hoots and was de- post-conviction ny Joyce Pegues nied relief the state that Shaw had made post-conviction pro- courts. In that second implicated statements to her Shaw ceeding, sought relief on the basis the robber. court concluded that even newly discovered evidence that was claimed reliable, Pegues testimony if only point- exculpate him the Shaw, participation ed to the of presence would not be newly inconsistent This discovered evidence claim theory robbery basis, was based on the that of Hoots as well. On this the court Hayes by was committed and newly-discovered ruled that evidence participant. that Hoots was a Follow- not Hayes Shaw did justify about not ing the denial Hoots’ first motion for of law, new trial under state and denied relief, appropriate Hayes had been arrested requested relief. The North Carolina in Illinois and extradited to North Carolina. denial, Appeals affirmed Court of find- Illinois, In confessed to police he had ing that court did its the lower not abuse officer that he robbed the Pizza Hut discretion, and its conclusions that were statement, In with Shaw. this supported by substantial evidence. State Later, Hayes exonerated Hoots. on March v. 616, N.C.App. 74 76 334 S.E.2d 26, 1984, Hayes had made another state- (1985). ment to a North Carolina law enforcement Following of denial his first motion officer which he reiterated his Illinois relief, post-conviction state court for Hoots confession Hoots. la- that exonerated Still petitioned the federal district court for a ter, however, 7, 1984, being April on after corpus raising writ of of decep- test habeas his claim polygraph told that a showed tion, Hayes his March 26 recanted state- ineffective of in his assistance counsel ment that had exonerated Hoots. This re- state trial. canting April implicated 7 statement magis- was referred to a Shaw, describing

both Hoots and Hoots as findings trate who made recommenda- as the driver of and Shaw tions for denial of writ that were af- the Pizza vehicle in which the robbers fled firmed the district court.5 also asserted Hut. statement that appeal reprisal himself and This followed. feared evidentiary hearing unnecessary. evidentiary hearing was not conducted made a new An magistrate challenge appeal the district court. concluded Hoots on does conclu- it, including transcripts that the record before sion of the court. hearings, state trials and and records of the

1219 ing II of law and fact on the ultimate issue of whether Hoots received effective assist Washington, v. Strickland 466 U.S. freely ance. We review that de ultimate (1984), 668, 2052, 104 S.Ct. 80 L.Ed.2d 674 termination the basis of the habeas Supreme held a convicted Court that Strickland, record. See 698, 466 U.S. at claiming defendant ineffective assistance 2070, 700; Cuyl 104 S.Ct. at L.Ed.2d at First, things. must establish two that the Sullivan, v. 335, 100 er 1708, 446 U.S. S.Ct. deficient, performance was counsel’s Johnson, Knight (1980); 64 L.Ed.2d 333 second, performance prej- that deficient (4th Cir.1983). F.2d Id. 466 U.S. at defense. udiced the bound, however, 80 L.Ed.2d at 693. Be- We are S.Ct. the state post-conviction factfindings that has not court’s cause we conclude Hoots satis- basic of the Strickland surrounding to the circumstances prong fied the second the iden- presentation and the by establishing prejudice, we affirm tification test Weldon of the misidentification defense.6 judgment of the district court that urged Hoots has he did not receive ineffective assistance receive Hoots did not fair, full, adequate hearing in state counsel. matters, court on these and we cannot con- possible Hoots has advanced three bases upon clude the record that the state court’s finding deprived he of effec- for a findings fairly supported. were not First, he claims that Wel- tive assistance. The state court found re- that Weldon inadequately investigated the defense don police investigation report, viewed the because Weldon neither misidentification Weldon testified that on the basis of that subpoenaed interviewed nor strategic he Second, review made a decision not to eyewitnesses other than Roark. eyewitnesses call the who could not iden- he should re- asserts tify Hoots he could because felt he make a background criminal searched the stronger by emphasizing case that of all used her record of worthless check the witnesses one credibility convictions to identify Hoots. The district Third, could court eyewitness. argues state’s sole support found evidence the record to by his defense prejudiced that Weldon fail- pursued claim that he this strate- Weldon’s ing investigate third-party the to commis- gy at second trial. the by attempting raise sion defense and not to at second trial. the defense Ordinarily, considering courts these in We consider order. claim of ineffective assistance should not second-guess strategic counsel. decisions of

A. Strickland, 689-90, 466 U.S. at 104 2065-66, 80 L.Ed.2d at 694-95. The district court found that Wel S.Ct. at investigate particular, to interview and use the wit a “decision not to don’s failure directly robbery not iden must be assessed for reasonable to the who could nesses circumstances, Davis, Hall, Goins, Hoots, namely, applying ness in all tify the heavy This measure of deference to counsel’s prejudice the defense. federal did 691, 2066, Id. at the conclusion of the finding judgments.” accords with 104 S.Ct. at ruling Giving at deci state their 80 L.Ed.2d 695. Weldon’s North Carolina courts investigation carry possi his post-conviction proceeding. first sion on Hoots’ testimony past by eyewitness de a review of not bound ble We are nevertheless police report proper amount of def court and the dis termination the state erence, however, prejudiced, we would be inclined to that Hoots was not trict court performance respect find that his represents a mixed find- for that conclusion 700, prejudice facts determined in the course of Though performance com- historical deciding assistance re- injury a claim of ineffective ponents are viewed of the ineffectiveness fact, Strickland, by subject the deference commanded 28 main questions of law or as mixed 2254(d) (1982). 698, 2070, Id. § U.S.C. 466 U.S. at L.Ed.2d at 104 S.Ct. at 80 1220 sufficiently satisfy only days deficient to had seen him several earlier at prong part of the test. Strickland post-conviction the Pizza Hut. As their Neglect eye- even to interview available revealed, proceeding testimony the other simply witnesses to a crime cannot be as- three witnesses would not have testified strategy Here, cribed to trial and tactics. gunman, that Hoots was not the but would foregoing any Weldon’s conceded basis for they have stated that could not iden- interview with three of the four witnesses tify Davis, at all. Had Goins robbery simply solely

to the on his and Hall testified that effect at reading police report of a he concluded that trials, prosecution undoubtedly would interviews were not warranted. argued advantages that the

Assuming deficiency representa explained available to ability Roark her respect, pass tion in this preju we inability of the other three witnesses to Strickland, inquiry. dice See U.S. at positive This, make a identification. in- 2069, 695, at 104 S.Ct. L.Ed.2d at 699. deed, prosecution was advanced at that, As to the test is whether “there is a the second explanation trial as an for the that, probability reasonable but for coun robbery failure of the other witnesses to errors, unprofessional sel’s the result of make a testimonial identification of Hoots. proceeding would have been different. post-conviction Davis’ affidavit showed probability A probability reasonable is a presum- she testified at trial she sufficient to undermine confidence in the ably would have differed from 2068, outcome.” Id. S.Ct. at description type headcovering of the Specifically, 80 L.Ed.2d at 698. we assess worn and Hall and Goins’ whether, if Weldon had interviewed the testimony presumably also have var- other witnesses and on that basis ied to some extent from Roark’s on that testimony had determined to offer their point,7 but we cannot determine that these so, it “reasonably and had then done is presumed discrepancies descrip- in detail of likely” their would have give tion rise to a probability” “reasonable caused a different result. Id. at that Hoots would not have been found S.Ct. 80 L.Ed.2d at 699. We con have, guilty eyewitnesses actually had the other clude that it would not and on that Though prejudice prong disputed by basis find the testified. the fact was Davis, standard not met. lengthy Strickland Roark testified that she had eye contact with the None of the The state’s identification case was com- other witnesses would have testified af- pletely dependent upon firmatively gun- that Hoots was not the standing Karen Roark. Roark was man. We are bound a state court find- throughout kitchen area of the restaurant ing enjoyed unique lighting that Roark ad- part the that of and the restau- vantages, presume and must that the state lighted rant was better than the areas in effectively explained would have the dis- Davis, Goins, Hall, which and the non-testi- crepancies on that commonsense basis in fying eyewitnesses, post- were. The state conjunction ordinary with the confusion of conviction court found as fact that the rela- eyewitness description any fast-moving locations of and tive available to Finally, jury apprised event. the had been gunman the four witnesses made the theory of a that Shaw was the readily “more identifiable” to Roark. by Jerry Harper had heard Shaw described testimony at the second trial Roark’s con- mustache, having tained an identification of a thick and had lis- unshakable Roark, cross-examination, by her claim that she tened to buttressed af- green gunman protruded covering. 7. Roark testified that the wore a that hair out one side of the face, gunman "appeared" wearing scarf on his and that the scarf was suffi- Hall said the to be stocking ciently light permit sheer in the to her to dis- a or hose over a section of his head gunman gun- cern facial Davis said the and face. Goins’ affidavit recited that the features. head, wore a cloth that covered his entire but man wore a dark scarf that was not sheer. gunman not have different. The to firmatively the did been failure use assert that impeach check convictions to mustache, that shown to worthless and have give comparable does not rise to a Roark photograph, her in a the implication of Roark’s testimonial untrust- basis, conclude that Hoots On this we worthiness, however. attorney’s to not shown that his failure has vagaries attempts the to im- Given potential interview use peach to with matters collateral testimonial robbery sufficiently eyewitnesses to trustworthiness, simply are we not able to him, therefore hold that prejudiced and we impeach to by declare that failure that deprived respect he was not in this gives means here rise reasonable of counsel. assistance Strick- effective probability it been that had done Hoots 691-93, land, 466 U.S. at S.Ct. not have been convicted. It all de- would L.Ed.2d impression pends strongly upon so being trustworthiness testimonial other- B. conveyed by testimonial wise content and not make conceded that did demeanor, by degree witness to led that have him to inquiries would by appearance her demeanor and which discovery of criminal record. Roark’s may developed general jury witness had been arrested convicted Roark record, On sympathy. Roark was a charges, check numerous worthless witness, good, positive cogently who ex- forgery for that felony had two arrests plained the basis for her It identification. for ob- misdemeanor convictions resulted possible impeachment that is of course taining goods worthless checks. sufficiently might have shaken her credibil- criminal record Hoots maintains that this doubt ity tip to the reasonable balance. It to have been discovered and used should however, possible, equally at least that is Roark, failure impeach and that Weldon’s attempt impeach by to collateral state’s identification viewed means would have been by her criminal record constituted witness unwarranted, desperate effort to dis- as an of counsel. ineffective assistance in- witness whose credit a trinsically wholly demeanor credi- or agree We defense counsel that Strickland, a mere possibility ble. Under investigate possible dinarily duty has might the result have been different prosecution wit impeaching for methods say We cannot that this does not suffice. obligation That was breached nesses. impeach undermines confi- failure to our Weldon, attempt who not even did result, it may in the however draw dence record, out criminal search Roark’s industry and question counsel’s acumen easily have been discoverable.8 developing of this fully a basis defense performance cases such deficient some client. to a de might prejudicial be so criminal standard for fendant the Strickland Finally, we examine contention of counsel would be ineffective assistance inadequately investi by Hoots that Weldon think can be We do not satisfied. defense presented that Shaw gated here, found however. that Hoots unin was the by Hayes committed perjury or convicted of volved Had been trials, At the first and second directly ques- into and Shaw. crime that called another testimony by Jerry Har testimony, introduced her we Weldon reliability tion Hayes together were per and Shaw might find had shown a reason- that Hoots shortly robbery apartment before the for the failure to his probability that but able they powder” borrowed a “black of the trial would and that impeach, the outcome county of oc- residence. arrests and convictions 8. All of Roark’s County, in Guilford curred were recorded 1222 anee of counsel. Evidence of the commis- Cindy Ridge him. testified at

pistol from by party crime a third is admissi- Lavada sion of a trials that she was with both “points unerringly” if it to the Hayes ble Meade and saw and Shaw trial, guilt party to the robbery. of the third inno- At the first how- before Hamlette, ever, the accused. v. ruled evidence cence of State the court inadmissible (1981).9 490, 338, robbery Hayes planned 302 N.C. 276 S.E.2d 346 and Shaw best, might have been was At the evidence that together. Hoots now claims that it Meade, through Harper, Janice ineffective for Weldon not to introduced assistance Cindy merely Ridge at second trial attempt to introduce the Hayes par- as well Weldon indicated that Shaw Meade at the second trial and for “point not Harper ticipated in It did investigate to and call to fail Janice unerringly” guilt rather him. If called at the to the Shaw as a witness for possi- trial, for it did not exclude the it is that Meade than second now revealed bility participant that Hoots was a third attempted testify that he would have to crime, accompanied Hayes robbery in the and that Hayes plan heard and Shaw elicited, into the restaurant as the while Ridge If would have testi- detail. getaway vehicle.10 Hayes remained in the fied that she and Meade saw and Shaw robbery, together after the and that Shaw it evidence that had before planning her of the conversa- Meade told Hayes together shortly be- and Shaw were Hayes Janice tion between and Shaw. they fore and after the and that Harper would have told of the note probable robbery weapon had borrowed the apartment by money left in her brother’s Harper. They heard testi- Jerry from also Hayes. mony by rejected Roark that Shaw evidentiary ruling challenged by gunman. The evidence excluded not trial, proffered by never was based on a and that was Weldon at the second trial law, subject Harper, reading and Janice been correct of North Carolina it attempt intro- exclusion at the second trial because did Weldon’s decision not to law, not, required by North Carolina at the second duce inadmissible evidence point unerringly guilt of Shaw and did not constitute ineffective assist- trial evidence, Foster, third-party N.C.App. commission 234 introduce the 9. See abo Slate 33 then, (1977) (evidence unquestionably showing the North Vanderhall S.E.2d that others 443 rule, and Weldon had no basis for partic- Carolina challenging did were involved in crime not exclude proper ruling, defendant, un- the trial court's proper- ipation of and was therefore law, made at first trial. Hoots does Vanderhall, der that excluded); ly 239, N.C.App. State v. application allege here that of the North (1976) ("points unerr- S.E.2d rule, him, prejudiced it to the extent Carolina standard). prop- ingly” Hoots contends that the pro- due worked an unconstitutional denial of law now er statement of North Carolina is cess. Makerson, N.C.App. State v. found in Makerson, (1981). the inter- 277 S.E.2d 869 evidence considered 10. We observe that the adopted Carolina court a more mediate North regard North Carolina courts with to Hoots’ admissibility relevancy and lenient test for the post-conviction relief does second motion for showing the involvement of third evidence directly claim of ineffective not bear on Hoots' parties Vander- a crime. We conclude that proceed- most recent state assistance. ing, In that represent proper state- hall and Hamlette Hayes statements Hoots relied on First, Hamlette is ment of North Carolina law. subsequent to the trials of Hoots in Shaw made pronouncement of that state’s the most recent concluded, there how- 1980. The state courts court, presume highest that it remains and we ever, inculpatory statements of Shaw that the Second, the decision in Makerson authoritative. participation Hoots from did not exclude Appeals does not North Carolina Court of one of both Hamlette, and thus cannot be cite Vanderhall or recent, statements, though Hayes' most the rule in as an extension or variation of seen robbery that included embraced a version of the those cases. participants. The and Shaw as both Hoots Moreover, adopt purposes appeared claim of of Hoots' Carolina courts North assistance, rule, i.e., evidence of Shaw’s we note that Makerson Hamlette that the ineffective with Hoots’ Hoots in must be inconsistent decided after the two trials of involvement participation justify a new trial. in order to not to At the time of Weldon’s decision requires 1219-21.3 Strickland of Hoots. Hoots’ claim of the innocence ion court pertains this consider all of assistance as it ineffective determining counsel’s deficiencies “rea- evidence therefore fails. otherwise, probability.”4 To do sonable AFFIRMED. majority, treating has the results upon attorney two errors which Hoots re- ERVIN, dissenting: Judge, Circuit petition for his for writ of cor- lies habeas agree the decision of I am unable to with separate petitions. pus, as two deprived majority that Hoots was not right his sixth amendment to effective II. Thus, grant I would assistance of counsel. proper application Under a of Strick- corpus. Hoots’ for a writ of habeas prong, second there is a reasonable reason, land’s respectfully I dissent. For that that, probability but for Weldon’s un- two errors, professional pro- the result I. ceeding would have been different. The properly apply majority The has failed to jury would have found Hoots innocent. Washington, 466 U.S. the Strickland (1984) key prosecution for the 668, 2052, witness L.Ed.2d 674 104 S.Ct. stated, majority Karen Roark. As instant case. Al- to the facts of the test completely state’s case Hoots was attorney fail- though agree I Weldon’s testimony. eye- dependent upon Roark’s She solicit from other ure to only witness who identified Hoots her was the impeach Roark with witnesses Thus, gunman. evidence contradict- the first convictions satisfied criminal discrediting test,1 ing and Roark’s disagree I prong of the Strickland jurors’ put doubts in the minds unprofession- would have that such with the conclusion identity There is as to the prong.2 the second conduct did not meet al probability that these doubts finding a reasonable clearly warrant a The facts acquittal have resulted an prejudiced would performance deficient Weldon’s Hoots.5 Hoots’ defense. contradicting Roark’s testimo- prong of the Evidence applying the second through test, been obtained majority ny did not con- could have

Strickland eyewitnesses three testimony of the other effect of Weldon’s the accumulative sider testified that majority Roark had unprofessional two errors. being gunman as recognized she separately and deter- the errors evaluated green a sheer scarf independently because he wore that each one did not mined discern face and thus she could that but for across his probability create a reasonable error, hair features. She described jury verdict his facial and specific a different size, color, affirmatively as- Majority Opin- his hair would have occurred. See (3) evidence on the perform- failure to introduce prong counsel’s is whether 1. The Strickland, party defense. The commission of crime 466 U.S. at 686- third deficient. ance was 2064-65, probability majority applied test the reasonable L.Ed.2d at 693. 104 S.Ct. at times; (1) to error once to error and once two (2). once, applied only should have been The test prong rea- "there is a 2. The second is whether (1) (2) conjunctively. I do to errors that, un- probability but for counsel’s sonable however, opinion majority’s agree, re- errors, proceeding professional the result of the (3). garding Majority Opinion error See at 1221- proba- A reasonable would have been different. 23. probability undermine bility sufficient to is a outcome.” Id. confidence in the Indeed, enunciating prong the second at 698. S.Ct. at 80 L.Ed.2d 4. test, plural of court used the Strickland supra footnote 2. “error.” See upon errors committed Hoots relied three assistance: the ineffective to illustrate guilt beyond prove (1) state had to at trial the other 5. The to interview and use failure Roark; (2) doubt. reasonable eyewitnesses; failure to serted that he gunman’s had no mustache. Roark facial features were not discern- eye able, also stated that she reasonably probable never lost contact it is the gunman. with the testimony verdict, This would jury, rendering in its would have disputed by have been eye- the other description doubted Roark’s and identifica- witnesses. gunman, tion of the thereby relying more on the evidence Shaw and Hoots’ Davis, Goins and Hall would have testi- alibi. gunman fied that the and his features were not identifiable covering because of the majority contends that the testimony over his face and head. Davis would have Davis, Goins, and Hall would have been gunman claimed the eye had contact with lighting discounted because the where her. corroborating Such evidence raises positioned Roark was was better than the substantial testimony doubt about Roark’s lighting where the other three witnesses regarding covering ability the face and her were located. lighting This distinction in is any to see gunman. characteristics of the significant enough presume jury the addition, single eyewitness’s In positive would have considered Roark’s testimony gunman seriously identification of a is more reliable. questioned eyewitnesses when three other First, lighting the gunman, around the single cannot detect even a facial feature. witnesses, not the important is more when eyewitnesses’ Evidence of the three ina- discerning through features covering. bility gunman’s to make out the facial char- An argued effective counsel could have acteristics would pos- have refuted Roark’s Moreover, point at trial. slight the differ- gunman itive assertion that the did not ences cannot extenuate the sub- Conflicting have a mustache. evidence as discrepancies stantial eywitnesses’ gunman's hair, coupled facial with testimony. Roark stated she could see that testimony disputing positive Roark’s gunman hair, kinky-like had blond as he identification, could have led to Hoots’ ex- only wearing covering. facial oneration. other three witnesses would have stated unequivocally gunman

Substantial implicated evidence at trial a cov- man, ering addition, Shaw, another over his In Darrell head. body size, color, eye He stated that she never lost had the same contact with hair gunman. Davis, clothing on the date who was the of the same distance, direction, gunman Moreover, but a different at the Pizza from Hut. Roark, gunman undisputed evidence showed that would have Shaw and robber, gunman testified that the Hayes, primarily the other looked Pizza Hut were (Davis) at her glanced shortly occasionally before and after the rob- at Roark. bery gun and had borrowed the used Shaw, however, crime. had a mustache. unexplained discrepancies These directly This feature conflicted with required jury to assess the credi- description Roark’s of the and bility of Roark eye- and the other three implied thus Shaw’s innocence. Considering totality witnesses. however, (i.e., description met Roark’s evidence, evidence and proba- would-be it is was similar in size and hair color and had given ble that the would have little mustache). no credibility testimony. to Roark’s The cor- roborating finding Hoots to be the three uninterested Shaw, eyewitnesses jury gave weight appears more to be worthy more undisputed testimony Roark’s contrary than to the belief than of a implicating single other evidence If Shaw.6 Da- witness. This is especially true vis, Goins, witness, and Hall had testified that the single Roark, when the like has previously In addition to the discussed bed evi- Hoots sick in another town before directly implicating dence during also the time of the presented four alibi witnesses who testified that acts, that, ability of criminal indi- but for the omission at trial been convicted of Davis, Goins, testimony tendency cate her to be and un- and Hall and dishonest proof of past criminal discrediting truthful. As a result of this Roark’s convic- tions, evidence, jury would have found sole identification it is state’s of being innocent at the Pizza reasonably probable jury would night July Hut on the 1979. Accord- have found the evidence insufficient ingly, would I the district court reverse prove a reasonable beyond doubt grant Hoots’ for a writ of habeas gunman. Hoots was the corpus. The not consider majority does Roark’s implica- as an

worthless check convictions testimonial tion her untrustworthiness. disagree. Intentionally cashing I worth- is dishonest and In- less checks deceitful. deed, has stated that this circuit convictions checks cashing worthless under false AND STATE FARM FIRE CASUALTY any crimen pretenses or other falsi bears COMPANY, Appellee, directly upon propensity the witness’s testify honestly truthfully. See Unit- v. Cunningham, ed F.2d 696 States GARRITY, Byrd Lisa Administratrix of (4th Cir.1981). Rice, Judy Appellant, Estate of majority The also underestimates probative using Roark’s value of criminal Rice, Freddie B. Defendant. by speculating conviction to have had a No. 85-1227. jury negative could impeachment. reaction I to the do not be- Appeals, United States Court lieve have had jury would such reac- Fourth Circuit. speculation majority’s tion. The is based Argued Nov. 1985. assumption that Roark’s identifica- Decided March tion was credible not contra- Davis, dicted other evidence. Had

Goins, testified, Hall Roark’s suspect, thereby rais- would have become ing to Roark’s truth- doubts as testimonial

fulness. would made These doubts have jurors hearing more amenable im- peaching statements Roark. sum, unprofessional errors Weldon’s devastating to Hoots’

were defense. Davis, Goins, and testimony of Hall would the state’s sole contradicted identifica- ju- would have tion witness. This led the accuracy of rors to doubt the Roark’s de- scription and identification given probably then would have evidence, other weight more participation. alibi These re- and Shaw’s sults, (i.e., coupled with evidence her crimi- convictions) impeaching nal Roark’s credi- prose- bility, have culminated proof. cution’s to meet its burden of failure Thus, prob- there is more than reasonable

Case Details

Case Name: Richard Anthony Hoots v. Harry Allsbrook Attorney General of the State of North Carolina, Rufus L. Edmisten

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Mar 5, 1986

Citation: 785 F.2d 1214

Docket Number: 84-6724

Court Abbreviation: 4th Cir.