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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

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KALVIN MICHAEL SMITH, Petitioner, v. TODD PINION, Supt., Piedmont Correctional Inst., Respondent.

No. 1:10CV29

RESPONSE AND INCORPORATED BRIEF IN OPPOSITION TO MOTION TO APPEAR AS AMICUS CURIAE AND REQUEST FOR JUDICIAL NOTICE LR 7.2 & 7.3 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 to Appear as Amicus Curiae and Request for Judicial Notice filed by the Silk Plant Forest Truth Committee (“SPFTC”) in this Court on July 19, 2012. STATEMENT OF THE CASE AND FACTS A complete statement of the relevant facts and procedural history, along with references to the corresponding attached exhibits, can be found in Respondent’s previously filed Brief in Support of his Motion to Dismiss and Initial Answer. Briefly, Petitioner is a prisoner of the State of North Carolina who is serving a 145-to-183-month sentence for felonious Assault with a Deadly Weapon With Intent to Kill Inflicting Serious Injury and a 129-to-164-month Armed Robbery imposed in 1997 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 were affirmed 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 Dec. 15, 1998) (unpublished).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

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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 from Respondent. Respondent filed a Motion to Dismiss and Initial Answer, along with a Supporting Brief, on March 9, 2010. Therein, Respondent argued that Petitioner’s § 2254 petition was nine and one-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 to Dismiss. 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 Curiae and Request for Judicial Notice. (Docket No. 34) In the Amicus Curiae Motion, the SPFTC requests 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 to the SPFTC’s Amicus Curiae Motion. According to the SPFTC, it “engaged” Mr. Swecker to review findings previously made by a committee formed by the Winston-Salem City Council, which reinvestigated the crimes for which Petitioner was tried convicted, and to provide his opinion on the committee’s findings. The SPFTC indicates that Mr. Swecker’s opinions are contained in the report attached to its Amicus Curiae Motion, particularly noting Mr. Swecker’s opinion that a new trial is needed to provide “‘a full measure of justice.’” (Docket No. 34, pp. 5-6 (quoting attached Ex. A, p. 17)) LEGAL ARGUMENT 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

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Gov’g Sec. 2254 Cases (Lexis through July 24, 2012) (“The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.”). There is no question that the claims Petitioner raised in his § 2254 petition were adjudicated on the merits by the North Carolina state courts, and/or were procedurally defaulted. It follows that on 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 an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C.A. § 2254(d)(1). In examining the federal statutory provisions governing federal habeas proceedings, particularly 28 U.S.C. § 2254(d)(1) and (2), the United States Supreme 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), limits a federal habeas court’s review “to the record that was before the state court that adjudicated the claim on the merit.” Cullen v. Pinholster, 563 U.S. , ___, 131 S. Ct. 1388, 1398 (2011); Jackson v. Kelly, 650 F.3d 477, 492 (4th Cir.), cert. denied, U.S , 132 S. Ct. 64 (2011); see also Wilson

v. Moore, 178 F.3d 266, 272-73 (4th Cir.) (providing, pre-Cullen, that affidavit not presented to state court cannot be considered on federal habeas review), cert. denied, 528 U.S. 880 (1999). As Cullen ruled, the consideration of additional evidence beyond the state-court record “has no bearing on” this Court'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, 650 F.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, any evidence, documentary or otherwise, not presented to the state court in furtherance of those claims should have no bearing on this Court’s decision in the instant case. The report the SPFTC attaches to its motion was not considered by the state court. Consequently, this Court should deny the SPFTC’s Motion to Appear as Amicus Curiae and Request for Judicial Notice of the report attached

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thereto. In addition to having no bearing on this Court’s review via Cullen, the attached report is simply irrelevant. The report contains the opinions of Mr. Swecker concerning the evidence and investigation in the case for which Petitioner was convicted and sentenced. Particularly notable is Mr. Swecker’s opinion that justice dictates there be a new trial. Mr. Swecker is in essence and erroneously giving an opinion regarding a determination that is solely within this Court’s province. For this and other reasons noted herein, Mr. Swecker’s report is irrelevant to this Court’s adjudication in the present case. Furthermore, Mr. Swecker’s opinion does not speak to the standard for habeas review, that being not whether the state court erred but whether its adjudication of Petitioner’s claims for relief were an unreasonable application of, or contrary to, United States Supreme Court case law. See 28 U.S.C. § 2254(d)(1). Finally, a determination of the merits of the grounds for relief Petitioner alleges in his § 2254 petition is not currently pending before this Court. Rather, at this point in the litigation, this Court is deciding via Respondent’s Motion to Dismiss whether the AEDPA’s applicable statute of limitations bars Petitioner’s § 2254 petition. In this regard, Mr. Swecker’s report is even more irrelevant to the issues currently pending in this Court. Given Cullen’s prohibition against submission of new evidence in federal habeas actions, and what the SPFTC seeks to add to the record of this case is irrelevant, the Court should deny the Motion to Appear as Amicus Curiae and Request for Judicial Notice. Respondent is aware that prior to Cullen, in Winston v. Kelly (Winston I), 592 F.3d 535, 55657 (4th Cir. 2010), cert. denied, U.S. , 131 S. Ct. 136 (2010), the Fourth Circuit held that a §

2254 petitioner could present evidence, even if he had not previously presented that evidence to the state court, where the petitioner satisfies the “exacting burden” of “diligently develop[ing] the record in state court.” In other words, to submit such new evidence, "a [p]etitioner must prove that the state court improperly denied him an opportunity to develop the factual record in the face of well-supported requests and that he exercised due diligence in gathering available information, requirements that mirror the standard under § 2254(e)(2) (which applies even if § 2254(d) does not)." Hurst v. Branker, No. 1:10CV725, 2011 U.S. Dist. LEXIS 58910, *29 n.15 (MDNC, June 1, 2011)

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(Auld, L., Mag. J.) (unpublished but available electronically). The Fourth Circuit has affirmed that Winston I remains good law, even in light of the Supreme Court’s holding in Cullen. Winston v. Pearson (Winston II), F.3d , , 2012 U.S. App. LEXIS 12937 (4th Cir. June 25, 2012). The

decision in Winston I gives the SPFTC no grounds for submitting Mr. Swecker’s report for consideration by this Court. As the SPFTC itself somewhat acknowledges, the report contains no new facts for submission but a person’s opinion based upon facts that existed, but were not necessarily submitted to the state court, at the time of the state-court proceedings. As such, the report cannot be considered by this Court, even in light of the Fourth Circuit’s holding in Winston I. Thus, this Court should deny the pending Motion to Appear as Amicus Curiae and Request for Judicial Notice. CONCLUSION For the reasons stated above, the SPFTC’s Motion to Appear as Amicus Curiae and Request for Judicial Notice should be denied. Respectfully submitted, this the 3rd day of August, 2012. ROY COOPER Attorney General /s/ Mary Carla Hollis Mary Carla Hollis Assistant Attorney General Email: mchollis@ncdoj.gov State Bar No. 25731 /s/ Danielle Marquis Elder Danielle Marquis Elder Special Deputy Attorney General Email: dmarquis@ncdoj.gov State Bar No. 19147 North Carolina Department of Justice P.O. Box 629 Raleigh, North Carolina 27602 Telephone: (919) 716-6500 Facsimile: (919) 716-0001

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA ) ) ) ) ) ) ) ) ) ) ) )

KALVIN MICHAEL SMITH, Petitioner, v. TODD PINION, Supt., Piedmont Correctional Inst., Respondent.

No. 1:10CV29

CERTIFICATE OF SERVICE We hereby certify that on August 3, 2012, we electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of the filing to the following: David C. Pishko dcpishko@epmlaw.com PETITIONER’S COUNSEL OF RECORD Richard J. Rutledge, Jr. Rick@RickRutledgeLaw.com COUNSEL OF RECORD FOR THE SPFTC ROY COOPER Attorney General /s/ Mary Carla Hollis Mary Carla Hollis Assistant Attorney General Email: mchollis@ncdoj.gov State Bar No. 25731 /s/ Danielle Marquis Elder Danielle Marquis Elder Special Deputy Attorney General Email: dmarquis@ncdoj.gov State Bar No. 19147 North Carolina Department of Justice P.O. Box 629 Raleigh, North Carolina 27602 Telephone: (919) 716-6500 Facsimile: (919) 716-0001

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