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NC Justice Department response to Kalvin Michael Smith amicus brief

NC Justice Department response to Kalvin Michael Smith amicus brief

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Published by Jordan Green
NC Justice Department requests that federal court ignore opinion rendered by former FBI Assistant Director Chris Swecker that Kalvin Michael Smith deserves new trial, filed Aug. 3, 2012
NC Justice Department requests that federal court ignore opinion rendered by former FBI Assistant Director Chris Swecker that Kalvin Michael Smith deserves new trial, filed Aug. 3, 2012

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Published by: Jordan Green on Aug 09, 2012
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)KALVIN MICHAEL SMITH,))Petitioner,))v.)No. 1:10CV29)TODD PINION, Supt.,)Piedmont Correctional)Inst.,))Respondent.)
Respondent, Todd Pinion, Superintendent of Piedmont Correctional Institution in Salisbury, North Carolina, by and through his counsel, Roy A. Cooper, Attorney General, Mary Carla Hollis,Assistant Attorney General, and Danielle Marquis Elder, Special Deputy Attorney General,respectfully offers the following Response and Incorporated Brief in Opposition to the Motion toAppear as Amicus Curiae and Request for Judicial Notice filed by the Silk Plant Forest TruthCommittee (“SPFTC”) in this Court on July 19, 2012.
A complete statement of the relevant facts and procedural history, along with references tothe corresponding attached exhibits, can be found in Respondent’s previously filed Brief in Supportof his Motion to Dismiss and Initial Answer. Briefly, Petitioner is a prisoner of the State of NorthCarolina who is serving a 145-to-183-month sentence for felonious Assault with a Deadly WeaponWith Intent to Kill Inflicting Serious Injury and a 129-to-164-month Armed Robbery imposed in1997 for the assault of Jill Lee Marker and the armed robbery of her place of employment, the Silk Plant Forest, in Winston-Salem, North Carolina. Petitioner’s 1997 conviction and sentences wereaffirmed on direct appeal. State v. Smith, No. COA98-449, slip op. (N.C. Ct. App. Dec. 15, 1998)(unpublished). Petitioner thereafter initiated two post-conviction proceedings in state court, neither 
Case 1:10-cv-00029-CCE-LPA Document 36 Filed 08/03/12 Pa e 1 of 6
of which afforded him any relief.On January 12, 2010, Petitioner filed through counsel, Mr. David C. Pishko, a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (§ 2254 petition) in this Court. On January 28,2010, this Court, the Honorable L. Patrick Auld Magistrate Judge presiding, ordered a response fromRespondent. Respondent filed a Motion to Dismiss and Initial Answer, along with a SupportingBrief, on March 9, 2010. Therein, Respondent argued that Petitioner’s § 2254 petition was nine andone-half years late under the applicable statutory deadline. The parties filed additional responses,and the § 2254 petition remains pending in this Court for decision on Respondent’s Motion toDismiss.On July 19, 2012, the SPFTC, an organization referring to itself as “a local group of concerned citizens of Winston-Salem, North Carolina,” filed a Motion to Appear as Amicus Curiaeand Request for Judicial Notice. (Docket No. 34) In the Amicus Curiae Motion, the SPFTCrequests that this Court take judicial notice of a report by an individual named Christopher Swecker.The report to which the SPFTC refers, along with Mr. Swecker’s Curriculum Vitae, are attached tothe SPFTC’s Amicus Curiae Motion. According to the SPFTC, it “engaged” Mr. Swecker to reviewfindings previously made by a committee formed by the Winston-Salem City Council, which re-investigated the crimes for which Petitioner was tried convicted, and to provide his opinion on thecommittee’s findings. The SPFTC indicates that Mr. Swecker’s opinions are contained in the reportattached to its Amicus Curiae Motion, particularly noting Mr. Swecker’s opinion that a new trial isneeded to provide “‘a full measure of justice.’” (Docket No. 34, pp. 5-6 (quoting attached Ex. A, p.17))
This Court should deny the SPFTC’s Motion to Appear as Amicus Curiae and Request for Judicial Notice. Respondent recognizes that the Court has discretion to allow for the filing of amicus briefs. However, that discretion is not limited, particularly in the area of federal habeas litigation.As is well established, rules of civil procedure and other court rules control federal habeas proceedings, unless such rules contradict with rules specific to those proceedings. Cf. Rule 12, Rules- 2 -
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Gov’g Sec. 2254 Cases (Lexis through July 24, 2012) (“The Federal Rules of Civil Procedure, to theextent that they are not inconsistent with any statutory provisions or these rules, may be applied toa proceeding under these rules.”).There is no question that the claims Petitioner raised in his § 2254 petition were adjudicatedon the merits by the North Carolina state courts, and/or were procedurally defaulted. It follows thaton federal habeas review this Court is constrained to grant relief on the adjudicated claims only if the state-court ruling on those claims "resulted in a decision that was contrary to, or involved anunreasonable application of, clearly established Federal law, as determined by the Supreme Courtof the United States." 28 U.S.C.A. § 2254(d)(1). In examining the federal statutory provisionsgoverning federal habeas proceedings, particularly 28 U.S.C. § 2254(d)(1) and (2), the United StatesSupreme Court recently held, with absolute clarity, what was already well established in this Circuit,that § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA), limitsa federal habeas court’s review “to the record that was before the state court that adjudicated theclaim on the merit.” Cullen v. Pinholster, 563 U.S. , ___, 131 S. Ct. 1388, 1398 (2011); Jacksonv. Kelly, 650 F.3d 477, 492 (4th Cir.), cert. denied, U.S , 132 S. Ct. 64 (2011); see also Wilsonv. Moore, 178 F.3d 266, 272-73 (4th Cir.) (providing, pre-Cullen, that affidavit not presented to statecourt cannot be considered on federal habeas review), cert. denied, 528 U.S. 880 (1999). As Cullenruled, the consideration of additional evidence beyond the state-court record “has no bearing on” thisCourt's analysis of a prisoner's §2254(d)(1) claim that the state-court determination of the merits of his underlying constitutional claim was "unreasonable". Cullen, 131 S. Ct. at 1400; Jackson, 650F.3d at 492 .Here the state court adjudicated the merits of the claims Petitioner raised in his § 2254 petition and/or found them procedurally defaulted. As such, in accordance with Cullen, anyevidence, documentary or otherwise, not presented to the state court in furtherance of those claimsshould have no bearing on this Court’s decision in the instant case. The report the SPFTC attachesto its motion was not considered by the state court. Consequently, this Court should deny theSPFTC’s Motion to Appear as Amicus Curiae and Request for Judicial Notice of the report attached- 3 -
Case 1:10-cv-00029-CCE-LPA Document 36 Filed 08/03/12 Pa e 3 of 6

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