Professional Documents
Culture Documents
TIMOTHY RICHARDSON,
Petitioner-Appellant,
v.
GERALD J. BRANKER, Warden,
Central Prison, Raleigh, North
Carolina,
Respondent-Appellee.
No. 11-1
No. 11-2
RICHARDSON v. BRANKER
COUNSEL
ARGUED: Jonathan Porter Babb, Sr., NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellant/Cross-Appellee. Stanley F. Hammer, WYATT,
EARLY, HARRIS & WHEELER, LLP, High Point, North
Carolina, for Appellee/Cross-Appellant. ON BRIEF: Roy
Cooper, Attorney General, Raleigh, North Carolina, for
Appellant/Cross-Appellee. Kenneth J. Rose, CENTER FOR
DEATH PENALTY LITIGATION, Durham, North Carolina,
for Appellee/Cross-Appellant.
OPINION
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, the State of North Carolina seeks reversal of
the district courts judgment granting a writ of habeas corpus
to Timothy Richardson. In granting the writ, the district court
vacated the sentence of death imposed after Richardsons conviction for first-degree murder. The district court concluded
that the state courts of North Carolina unreasonably applied
the Supreme Courts holding in Strickland v. Washington, 466
U.S. 668 (1984), in rejecting Richardsons claim that his
attorney on direct appeal failed to provide effective assistance
of counsel. The district court held that Richardsons appellate
counsel rendered ineffective assistance by not raising on
direct appeal the state trial courts failure to instruct the jury
at sentencing concerning the statutory mitigating factor of
Richardsons age.
RICHARDSON v. BRANKER
RICHARDSON v. BRANKER
I.
We briefly set forth the facts of this matter, because the
issues presented primarily involve questions of law rather
than questions of fact, and because the Supreme Court of
North Carolina previously has provided in great detail the factual background of this case. See State v. Richardson, 488
S.E.2d 148 (N.C. 1997).
A.
Timothy Richardson was convicted by a jury in 1995 of
first-degree murder and first-degree kidnapping in connection
with the death of Tracy Marie Rich.1 Id. at 151. The evidence
at trial showed that on October 6, 1993, Richardson abducted
Ms. Rich after her work shift at the L & L Food Store (the
store) in Castalia, North Carolina. Id. at 151, 157. As stated
by the Supreme Court of North Carolina, "the evidence
tended to show that [Richardson] abducted the victim from
the store, drove her to a secluded area, and ran her down with
her own car. As the victim tried to crawl away, [Richardson]
drove over her again. [Richardson] then went back to the store
to make a robbery attempt." Id. at 157. Ms. Richs lifeless
body was found wedged under her car. Id. at 152. The cause
of Ms. Richs death was "multiple blunt-force injuries and
compression injuries to her body, head, and chest as a result
of being hit by and run over with a vehicle." Id. at 153.
Ample evidence supported the jurys finding that Richardson was the perpetrator who killed Ms. Rich. The prosecution
presented the testimony of an expert in the field of forensic
fiber identification, who testified that fibers from Richardsons t-shirt were consistent with fibers found on Ms. Richs
shirt. Id. at 153, 157. Another expert witness testified that a
1
The jury found Richardson guilty of first-degree murder on three separate bases: 1) malice, premeditation, and deliberation; 2) felony murder;
and 3) lying in wait. 488 S.E.2d at 151.
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that the murder was committed for pecuniary gain, and that
the murder was especially heinous, atrocious, or cruel. Id. at
160.
The trial court instructed the jury on four statutory mitigating factors, including: (i) that the defendant had no significant
history of prior criminal activity, N.C.G.S. 15A-2000(f)(1);
(ii) that the murder was committed while the defendant was
under the influence of mental or emotional disturbance,
N.C.G.S. 15A-2000(f)(2); (iii) that the capacity of the
defendant to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was impaired,
N.C.G.S. 15A-2000(f)(6); and (iv) any other circumstance
arising from the evidence which the jury deems to have mitigating value, N.C.G.S. 15A-2000(f)(9) (the "catchall" mitigating factor). 488 S.E.2d at 160. The jury found that the first
two of these mitigating factors were applicable under the evidence, but declined to find the latter two mitigating factors.4
Id. Notably, Richardsons defense counsel did not ask for, and
the trial judge did not submit, the statutory mitigating factor
of "[t]he age of the defendant at the time of the crime,"
N.C.G.S. 15A-2000(f)(7) (the (f)(7) mitigation instruction).5
4
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After balancing the mitigating and aggravating circumstances, the jury recommended a sentence of death. 488
S.E.2d at 151, 160. The trial court followed the jurys recommendation and sentenced Richardson to death, in addition to
a sentence of forty years imprisonment for the first-degree
kidnapping conviction. Id. at 151.
B.
Richardson filed an appeal with the Supreme Court of
North Carolina, in which his appellate counsel raised six
guilt-phase issues, and one sentencing-phase issue challenging the proportionality of Richardsons death sentence. Richardsons appellate counsel did not raise as error the state trial
courts failure to instruct the jury on the (f)(7) mitigation factor. The Supreme Court of North Carolina affirmed Richardsons convictions and sentences. Id. at 162.
In March 1999, Richardson filed a Motion for Appropriate
Relief in the Superior Court of Nash County, North Carolina
(the MAR court), seeking to vacate his convictions and sentences. In his motion, Richardson raised numerous claims,
including claims regarding the effectiveness of his trial counsel, the effectiveness of his appellate counsel, and the States
purported withholding of certain exculpatory evidence. Richardson later filed two amended Motions for Appropriate
Relief, adding a second category of allegedly exculpatory evidence withheld by the State, as well as a claim that he was
mentally retarded and thus could not be executed under state
and federal law.6
Richardsons argument of ineffective assistance of appel6
Richardson raised the claim that he was mentally retarded and could
not be executed before the Supreme Court issued its decision in Atkins, in
which the Court held that the execution of mentally retarded individuals
violated the Eighth Amendments prohibition against cruel and unusual
punishments. 536 U.S. 304.
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RICHARDSON v. BRANKER
10
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11
12
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ally, relying on the decision in Holden, as well as on the decision in State v. Zuniga, 498 S.E.2d 611 (N.C. 1998), an appeal
decided well after Richardsons appeal was argued, the district court held that "had counsel raised the [(f)(7) mitigation
instruction] issue on appeal, there is a reasonable probability
petitioner would have prevailed." Id. at 921-22. The district
court further concluded that "the State is unable to show the
error likely would have been found to be harmless beyond a
reasonable doubt on appeal." Id. at 922.
Because the district court considered Richardsons ineffective assistance of counsel claim de novo, the court did not
accord any deference to the MAR courts resolution of this
claim. The only reference to the MAR court in this section of
the district courts analysis is the conclusion that "[t]he
[MAR] courts determination to the contrary is based on an
unreasonable determination of the facts and an unreasonable
application of Smith v. Robbins[, 528 U.S. 259 (2000),] and
Strickland." 769 F. Supp. 2d at 924.
The district court ordered that Richardson be sentenced to
a term of life imprisonment unless the State initiated new sentencing proceedings within 180 days of the district courts
order. Id. at 928. With respect to Richardsons claim of ineffective assistance of trial counsel, his Atkins claim, and his
Brady claim, the district court granted the States motion for
summary judgment, holding that Richardson failed to establish that he was entitled to a writ of habeas corpus on those
claims. Id. at 908-19, 924-28.
The State timely filed a notice of appeal to the district
courts grant of the habeas petition on Richardsons claim of
ineffective assistance of appellate counsel. Richardson filed
an application for a certificate of appealability regarding the
claims that were denied by the district court. The district court
granted the application in part and denied it in part, granting
the certificate with respect to Richardsons Brady and Atkins
claims.
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13
II.
A.
i.
We first address the district courts decision granting a writ
of habeas corpus to Richardson on his claim of ineffective
assistance of appellate counsel. We review de novo the district courts order granting Richardson relief on this claim.
Kanai v. McHugh, 638 F.3d 251, 260 (4th Cir. 2011).
AEDPA governs federal courts consideration of a state
prisoners petition for a writ of habeas corpus. The standard
set forth by AEDPA (the AEDPA standard) mandates that a
writ of habeas corpus "shall not be granted" for any claim that
was adjudicated on the merits in a state court proceeding
unless the state courts adjudication:
(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.9
28 U.S.C. 2254(d); Harrington, 131 S. Ct. at 785; DeCastro
v. Branker, 642 F.3d 442, 449 (4th Cir. 2011).
The limited scope of federal review of a state petitioners
9
Richardson does not dispute that the MAR court adjudicated the merits
of his claim of ineffective assistance of appellate counsel. We also note
that our analysis primarily applies the first prong of the AEDPA standard
because Richardsons arguments concern issues of law, rather than factual
determinations.
14
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habeas claims, as established by AEDPA, is grounded in fundamental notions of state sovereignty. Harrington, 131 S. Ct.
at 787. When a federal court adjudicates a habeas corpus petition brought by a state prisoner, that adjudication constitutes
an intrusion on state sovereignty. See id. ("Federal habeas
review of state convictions . . . intrudes on state sovereignty
to a degree matched by few exercises of federal judicial
authority.") (Citation omitted). However, AEDPA restricts
that intrusion of state sovereignty by limiting the federal
courts power to issue a writ to exceptional circumstances,
thereby helping to ensure that "state proceedings are the central process, not just a preliminary step for a later federal
habeas proceeding." Id. The restrictive standard of review
established by AEDPA "further[s] the principles of comity,
finality, and federalism." Williams v. Taylor, 529 U.S. 362,
436 (2000).
The Supreme Courts recent decision in Harrington, which
also involved a habeas claim alleging ineffective assistance of
counsel, is instructive regarding the significant deference that
federal courts must accord to state court decisions adjudicating habeas corpus claims on their merits. As the Supreme
Court observed, "[t]he pivotal question is whether the state
courts application of the [applicable federal legal] standard
was unreasonable." 131 S. Ct. at 785 (emphasis added).
Fundamentally, "an unreasonable application of federal
law is different from an incorrect application of federal law."
Id. (quoting Williams, 529 U.S. at 410) (emphasis in original).
The standard of an "unreasonable" application of federal law
requires a "substantially higher threshold" to obtain relief than
the standard of an "incorrect" application of federal law.
Schriro v. Landrigan, 550 U.S. 465, 473 (2007). "[S]o long
as fairminded jurists could disagree on the correctness of [a]
state courts decision," a state courts adjudication that a
habeas claim fails on its merits cannot be overturned by a federal court. Harrington, 131 S. Ct. at 786 (quoting Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, "even a strong
RICHARDSON v. BRANKER
15
case for relief does not mean the state courts contrary conclusion was unreasonable." Id. at 786 (citing Lockyer v. Andrade,
538 U.S. 63, 75 (2003)).
Accordingly, Richardson had the burden of establishing
that the MAR courts decision "was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement." Id. at 786-87. As stated by the Supreme Court, this is
a standard that "is difficult to meet . . . because it was meant
to be." Id. at 786.
Additionally, when a petitioners habeas corpus claim is
based on alleged ineffective assistance of counsel, we review
the claim through the additional lens of Strickland and its
progeny, as discussed below. The AEDPA standard and the
Strickland standard are dual and overlapping, and we apply
the two standards simultaneously rather than sequentially. See
Harrington, 131 S. Ct. at 788. This imposes a very high burden for a petitioner to overcome, because these standards are
each "highly deferential" to the state courts adjudication and,
"when the two apply in tandem, review is doubly so." Id.
(citations and internal quotation marks omitted).
To prevail on a claim of ineffective assistance of counsel,10
a petitioner ordinarily must satisfy both parts of the two-part
test set forth in Strickland. Wiggins v. Smith, 539 U.S. 510,
521 (2003); Williams, 529 U.S. at 390; Strickland, 466 U.S.
at 687; Jackson v. Kelly, 650 F.3d 477, 493 (4th Cir. 2011).
10
As the Supreme Court explained in Strickland, the Sixth Amendments guarantee of "the right to counsel is the right to the effective assistance of counsel." 466 U.S. at 686 (quoting McMann v. Richardson, 397
U.S. 759, 771 n.14 (1970)). Although Strickland involved a claim concerning the alleged ineffective assistance of the defendants trial counsel,
the right to effective assistance of appellate counsel, as well as the Strickland standard for evaluating an ineffective assistance of counsel claim,
was extended to appellate proceedings in Smith v. Murray, 477 U.S. 527
(1986), and Smith v. Robbins, 528 U.S. 259 (2000).
16
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17
must demonstrate that the MAR court incorrectly and unreasonably concluded that Richardson failed to demonstrate there
was a "reasonable probability" the Supreme Court of North
Carolina would have held in his favor had his appellate counsel raised the issue of the (f)(7) mitigation instruction in the
direct appeal.
ii.
As an initial matter, we conclude that the district court
erred in considering Richardsons Strickland claim under a de
novo standard of review. In a manner almost identical to the
Ninth Circuits error in Harrington, the district court explicitly conducted a de novo review, concluded that Richardsons
counsel rendered ineffective assistance under Strickland, and
stated in a conclusory manner that "[t]he MAR courts determination to the contrary is based on an unreasonable determination of the facts and an unreasonable application of
[Strickland]."11 769 F. Supp. 2d at 924. However, as the
Supreme Court stated in Harrington, "AEDPA demands
more."12 131 S. Ct. at 786; see also Bell, 236 F.3d at 157 (recognizing that federal courts may not conduct de novo review
of habeas corpus claims that were adjudicated on the merits
by a state court).
In holding that the Ninth Circuit erred in considering Harringtons habeas corpus petition de novo, the Supreme Court
provided further instruction concerning federal courts duties
11
In Harrington, the Supreme Court observed that the Ninth Circuit "explicitly conducted a de novo review, and after finding a Strickland violation, it declared, without further explanation, that the state courts
decision to the contrary constituted an unreasonable application of Strickland." 131 S. Ct. at 786 (internal citation omitted).
12
We observe that, before AEDPAs enactment in 1996, federal courts
were required to exercise independent judgment when reviewing a state
prisoners application for habeas relief. See Bell v. Jarvis, 236 F.3d 149,
159-60 (4th Cir. 2000) (en banc) (discussing Williams v. Taylor, 529 U.S.
362, 399-401 (2000) (OConnor, J., concurring)).
18
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19
20
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The court held that the instruction should have been given despite evidence that Holden "had more life experience than a ten-year-old-child."
450 S.E.2d at 885.
RICHARDSON v. BRANKER
21
The court observed that Spruill was "thirty-one years old, had worked
as an automobile mechanic and in a shipyard, moved on to a better position, attended church, and functioned quite well in the community." 452
S.E.2d at 305.
15
The Supreme Court of North Carolina ultimately may have applied
Spruills "counterbalancing evidence" standard, because that standard has
been applied by that Court in several more recent cases. See, e.g., State v.
Hurst, 624 S.E.2d 309, 323-25 (N.C. 2006) (applying Spruills "counterbalancing evidence" standard in rejecting defendants argument that he
was entitled to a (f)(7) mitigating instruction); State v. Thompson, 604
S.E.2d 850, 867-68 (N.C. 2004) (same); State v. Call, 545 S.E.2d 190,
198-99 (N.C. 2001) (same); State v. Steen, 536 S.E.2d 1, 18-20 (N.C.
2000) (same); State v. Meyer, 540 S.E.2d 1, 6 (N.C. 2000) (same). In contrast, we have found only two decisions in which the Supreme Court of
North Carolina applied Holdens "substantial evidence" standard. See
State v. Zuniga, 498 S.E.2d 611, 612-13 (N.C. 1998) (applying Holdens
22
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23
24
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25
In Brady, the Supreme Court held that a due process violation occurs when the prosecution suppresses evidence favorable to an accused that is material either to guilt or to
punishment, irrespective whether the prosecution acted in
good faith. 373 U.S. at 87; see also Strickler v. Greene, 527
U.S. 263, 280 (1999); Kyles v. Whitley, 514 U.S. 419, 432
(1995); United States v. King, 628 F.3d 693, 701 (4th Cir.
2011). Such evidence is "material" if there is a reasonable
probability that the proceeding would have resulted in a different outcome had the evidence been disclosed to the
defense. Strickler, 527 U.S. at 280; Kyles, 514 U.S. at 433;
United States v. Bagley, 473 U.S. 667, 682 (1985); see also
King, 628 F.3d at 702. Like the use of the term "reasonable
probability" in the context of Strickland, a "reasonable probability" under Brady is one that is sufficient to undermine confidence in the outcome of the proceeding. Kyles, 514 U.S. at
434; Bagley, 473 U.S. at 682. At the heart of this inquiry is
a determination whether the favorable evidence withheld from
the defendant reasonably could be considered as placing the
entire case in such a different light that confidence in the verdict is undermined. Strickler, 527 U.S. at 290; Kyles, 514 U.S.
at 435; King, 628 F.3d at 704.
Richardson argues that the State withheld two pieces of
evidence that he contends are material. First, Richardson
asserts that the State withheld sketches of shoe prints drawn
from a ceiling tile taken from the crime scene. According to
Richardson, the sketches show a pattern consistent with shoes
belonging to Hedgepeth, thus bolstering Richardsons claim
that Hedgepeth was present during the commission of the
crime. Second, Richardson asserts that the State withheld outof-court statements made by a testifying witness in which the
witness stated that she saw Hedgepeth with Richardson on
three occasions on the day of the crime. Although we initially
address this evidence on an item-by-item basis, our determination whether the withheld evidence was "material" ultimately must be made by considering its cumulative effect. See
26
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Kyles, 514 U.S. at 436 n.10; United States v. Ellis, 121 F.3d
908, 916 (4th Cir. 1997).
i.
We first consider the ceiling tile sketches that Richardson
claims are exculpatory. Joyce Petzka, an Agent with the North
Carolina State Bureau of Investigations (SBI), examined two
pieces of tile found at the crime scene. The first piece of tile,
labeled "item 6," was found on the floor of the store. Agent
Petzka testified at trial that item 6 bore a shoe impression that
matched shoes seized from Richardson.
Agent Petzka also examined a piece of ceiling tile recovered from the store labeled as "item 41," which the State inadvertently discarded before Richardsons counsel had an
opportunity to examine it. She testified that item 41 "had several small portions of questioned footwear impressions; however, these impressions were very faint and they were not
sufficient for comparison purposes." During crossexamination, Agent Petzka stated that the shoe impression
contained on item 41 was not consistent with the shoes worn
by Richardson on the night of the crime.
Unbeknownst to Richardson, however, Agent Petzka had
drawn sketches of item 41. Richardson first received these
sketches during the state post-conviction proceedings. These
sketches showed a "zigzag" pattern that Richardson contended was consistent with the pattern of Hedgepeths shoes.
Richardson unsuccessfully raised this issue in the MAR
court as part of his Brady claim. The MAR court held that
"there is no reasonable possibility that, had the alleged error
in question not been committed, a different result would have
been reached at trial." As discussed below, the MAR courts
decision was not unreasonable and, accordingly, we affirm the
district courts rejection of this claim.
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27
Yes, it is.
Thus, despite the fact that Richardson did not have a sketch
of item 41 at his disposal, his counsel was able to elicit testimony concerning the type of shoeprints on item 41 and the
fact that those prints were inconsistent with Richardsons
shoeprint. Accordingly, the sketches of item 41 do not add
any substance to Agent Petzkas testimony and, therefore, do
not constitute Brady material for this purpose. See McHone v.
Polk, 392 F.3d 691, 701 (4th Cir. 2004) (undisclosed evidence
cannot form basis of a Brady violation if it is consistent with
trial testimony or merely cumulative to undisputed facts).
Second, with regard to Richardsons contention that the
sketches of item 41 would have demonstrated that the other
individuals shoeprints were those of Hedgepeth, this argument is pure conjecture. Richardson cannot point to substantial evidence that the print on item 41 matches Hedgepeths
28
RICHARDSON v. BRANKER
shoes. The mere fact that the sketches of item 41 and Hedgepeths shoes both displayed a "zigzag" pattern is insufficient,
given the undisputed testimony that the shoe impression on
item 41 contained inadequate detail to make a comparison to
any particular shoe. On this point, Agent Petzka testified as
follows:
Q. Ms. Petzka, the item number 41 is a large piece
of sheetrock, isnt it?
A.
Yes.
Yes.
Q.
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29
No.
30
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31
8. I never told the defense attorneys this information at the trial because they didnt ask me and I
didnt volunteer information because of what Mr.
Werner told me.21
Richardson asserts that the above out-of-court statements
made by Atkinson would have provided corroboration for
Richardsons defense that Hedgepeth was involved in the
crime. However, an obvious weakness in Atkinsons postconviction affidavit is that it contains information contradicting certain aspects of her trial testimony. For instance, in the
affidavit, Atkinson states that Richardson came to her house
on the night of the crime with Hedgepeth. In contrast, at trial,
Atkinson testified that Richardson came to her house on the
night of the crime looking for Hedgepeth:
Q: Ms. Atkinson, tell the ladies and gentlemen of
the jury if you saw Mr. Richardson on the 6th of
October, 1993.
A:
Q:
Yes, I did.
Where did you see him?
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A:
Q:
A:
RICHARDSON v. BRANKER
A:
33
...
Q: Did you tell the SBI agents that came to your
house that you had seen [Hedgepeth] that day?
A:
Im not sure.
Q:
A:
(Emphasis added.)
In light of the conflict between the statements in Atkinsons
affidavit and her testimony at trial, the impact of her affidavit
statement that she saw Richardson with Hedgepeth on the
night of the crime is significantly lessened. Further, the probative value of the affidavit statements was minimal because, at
best, those statements placed Hedgepeth at Atkinsons house
with Richardson nearly forty minutes before the crime could
have occurred.22 Thus, the affidavit statements do not bear on
the testimony of the numerous witnesses whose trial testi22
34
RICHARDSON v. BRANKER
mony placed Hedgepeth at locations other than the store during the time period in which the crimes occurred.23
iii.
With the above considerations in mind, we conclude our
Brady inquiry by addressing whether the withheld evidence at
issue, when considered cumulatively, is "material" under
Brady. We again pose the question that federal courts must
answer when examining a Brady claim through the lens of
AEDPA: Was the MAR courts holding that "there is no reasonable possibility that, had the alleged error in question not
been committed, a different result would have been reached
at trial," incorrect to a degree that this conclusion "was so
lacking in justification that [it] was an error well understood
and comprehended in existing law beyond any possibility for
fairminded disagreement?" See Harrington, 131 S. Ct. at 78687.
The answer to this question is "no." The additional evidence concerning the sketches of item 41 did not add any new
facts to the trial evidence, and Richardsons argument to the
contrary is not supported by the record. In addition, the statements contained in Atkinsons affidavit were in direct conflict
with the sworn statements she made at Richardsons trial and,
even if true, serve only to place Richardson and Hedgepeth
together at least 40 minutes before the criminal activity commenced. Thus, this evidence, even viewed cumulatively, does
not place Richardsons trial in such a different light that confidence in the verdict is undermined. See Strickler, 527 U.S. at
290; Kyles, 514 U.S. at 435. At the very least, the MAR
23
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35
36
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37
67, but, as described below, the MAR court held that these
results were not qualifying I.Q. scores under the statute.
Richardsons test score of 64 resulted from an aptitude test
Richardson took in 1991 while enrolled in the tenth grade.
The MAR court noted that a flood destroyed "most of the
information" relating to this test. Accordingly, the MAR court
observed that "[t]here is no raw test data to support this score
as required by the General Statutes, and no way of knowing
who administered or how this test was administered." Thus,
Richardsons score of 64 on this test was not a qualifying test
score under the statute, because there was no evidence that the
test was individually administered, or was a "scientifically
recognized standardized" I.Q. test, or was "administered by a
licensed psychiatrist or psychologist," each of which is
required under N.C. Gen. Stat. 15A-2005(a)(2).
Richardsons test score of 67 resulted from a Wechsler
Adult Intelligence Scale Third Edition (WAIS III) test that
Richardson took in 2002 at the direction of Dr. John Warren,
a licensed psychologist. As noted by the MAR court, Dr.
Warren did not personally administer this test. Instead, he "directed his Psychometrician, [John] Tatum, to personally
administer this test."24 Dr. Warren was not present when the
test was administered, and Mr. Tatum is not a licensed psychiatrist or psychologist. Accordingly, the MAR court held that
Richardsons test score of 67 was not a qualifying score under
the statute because the test was not "administered by a
licensed psychiatrist or psychologist," as required by N.C.
Gen. Stat. 15A-2005(a)(2).
The State proffered test results showing that Richardson
had I.Q. scores of 73 and 74. Richardsons I.Q. score of 73
24
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RICHARDSON v. BRANKER
Richardson contends that the MAR court did not adjudicate the merits
of the issue whether he proved significantly subaverage intellectual functioning. However, Richardsons contention is refuted by a plain reading of
the transcript of the MAR courts evidentiary hearing, as well as the MAR
courts order denying his mental retardation claim. Accordingly, we
decline Richardsons invitation to review the MAR courts decision de
novo rather than under the deferential standard of review set forth by
AEDPA.
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39
40
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41