Professional Documents
Culture Documents
Unpublished
Unpublished
No. 10-6077
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Graham C. Mullen,
Senior District Judge. (5:04-cv-00193-GCM)
Argued:
Decided:
PER CURIAM:
Following
jury
trial,
Lamont
Claxton
Underwood
Court,
Watauga
County,
North
Carolina
of
the
sentence
of
kidnapping
conviction.
forty
After
years
on
the
unsuccessfully
first-degree
challenging
his
On December 23,
corpus,
such
that
if
the
state
court
did
not
grant
for a stay.
- 2 -
I
On January 30, 1996, a Watauga County, North Carolina grand
jury
indicted
Underwood
for
the
first-degree
kidnapping
and
because
he
affections
of
Weden
Kay
saw
him
as
(Weden),
romantic
Underwoods
rival
former
for
the
fiance.
Wedens
decision
to
break
up
with
him;
that
he
had
stalked, spied on, and harassed Weden and her teenage son Jason
Weden; that Gunnarsson had begun to date Weden shortly before
his
murder;
and
that,
upon
learning
that
Weden
was
dating
- 3 -
- 4 -
denied
as
improvidently
granted,
2000).
- 6 -
535
S.E.2d
33
(N.C.
for
the
defense,
Defense
Counsel
Whittle
told
the
jury:
Now, as has been said to yall while you were
getting
picked
as
jurors,
this
is
a
totally
circumstantial case. There arent any eyewitnesses to
any event. But there is an eyewitness who supposedly
saw someone after Mr. Gunnarssons body was found out
there in Deep Gap.
Mr. LC Underwood was put in a
line-up and the individual sat there and looked at him
with six other guys: No, he isnt the person I saw.
We have a confession by someone else who said he
killed Mr. Underwood [sic].
We have someone who saw
someone outside of Ms. Millers house at the time of
her murder, the Clerk of Court down there in Rowan
County, and a composite sketch was made.
It was not
Mr. Underwood.
(J.A.
563).
Whittle
Next,
briefly
in
thirteen
recounted
sentences,
Underwoods
law
Defense
Counsel
enforcement
career.
(J.A. 564).
third
party
(Brandon
Shelton)
through
the
investigating
officers.
confessed
to
killing
Gunnarsson,
but
later
recanted
the
of
the
confession
through
- 7 -
Shelton
during
the
States motion.
The State took approximately three weeks to present its
case.
During
the
States
case,
the
defense
drew
out
the
State
evidence
rested,
which,
procedure,
the
under
entitled
defense
the
the
rested
North
defense
without
presenting
Carolina
rules
to
the
make
After
of
any
criminal
final
closing
defense-State-defense.
During
the
defenses
initial
closing
supposedly saw someone after Mr. Gunnarssons body was found out
there
in
Deep
Gap,
and
failed
to
pick
Underwood
out
of
- 8 -
(J.A.
drawn
out
the
substance
of
such
evidence
during
Defense
confession
Counsel
issue
during
never
specifically
closing
rebuttal
And,
addressed
statement,
the
the
each
reminded the jury during such statement that the defense need
not present any evidence in the case, and Defense Counsel Kaplan
explained that the defense decided not to present any evidence
because the State has not proven its case beyond a reasonable
doubt.
(J.A. 2767).
forty
years.
Underwood
filed
direct
appeal
making
In a published opinion,
that
Underwood
prejudicial error.
received
fair
trial,
free
from
(N.C.
Ct.
App.
ultimately
1999).
denied
The
Underwoods
North
Carolina
request
for
Supreme
certiorari
Court
review.
October
Appropriate
4,
Relief
Carolina
General
subjected
to
2001,
(MAR)
in
Statute
ineffective
Underwood
state
court,
15A-1415,
assistance
filed
of
Motion
pursuant
arguing
counsel
to
that
by
for
North
he
virtue
was
of
During
(J.A. 255).
opening
arguments,
defense
counsel,
Chester
Defendants behalf.
(J.A. 257).
had
truthfully
confessed
to
Gunnarssons
murder.
466
U.S.
668,
688
(1984),
and
that
there
is
of 2254 provides:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment
of a State court shall not be granted with respect to
- 11 -
of
counsel
solely
by
virtue
of
Defense
Counsel
evidence
regarding:
(1)
line-up
in
which
an
eyewitness did not identify him as the man she saw coming out of
the wooded area near where Gunnarssons body was found; (2) a
composite drawing of a man seen outside Millers house at the
time
of
her
murder
whom
did
not
resemble
him;
and
(3)
(J.A. 563).
Because
the
MAR
court
rejected
Underwoods
Robbie
Smith,
Brandon
Shelton,
nor
Heather
Shelton
in
failing
exculpatory evidence.
Ultimately,
the
to
fulfill
their
promise
to
present
(J.A. 3023).
district
court
granted
Underwood
- 13 -
may
not
have
been
actually
exculpatory,
and
that
the
district
court
held
that
defense
counsels
mere
to
constitutionally
deficient
performance
which
J.A. 3023.
II
A
district
courts
decision
to
grant
habeas
relief
is
reviewed de novo.
Bell,
counsel
based
claim
is
upon
representations
made
during
the
defenses opening statement to the jury that the jury would hear
certain allegedly exculpating evidence, but then resting without
calling
6
any
witnesses
in
such
regard
and
not
addressing
- 14 -
the
omissions
in
its
initial
closing
statement.
On
appeal,
the
claim
in
his
MAR,
and
thus,
we
are
not
faced
with
Thus,
See Sharpe
v.
(analyzing
Bell,
593
ineffective
F.3d
372,
assistance
382-84
of
(4th
counsel
Cir.
2010)
claim
under
2254s
deferential standard).
As previously stated, to prevail on a claim of ineffective
assistance of counsel under Strickland, a defendant must show
both
that
standard
there
is
counsels
of
a
representation
reasonableness,
reasonable
id.,
fell
466
probability
below
U.S.
that,
an
objective
at
688,
and
that
but
for
counsels
See,
examined
the
record,
we
hold
the
Having
MAR
courts
an
unreasonable
application
of
Strickland,
nor
was
opening
Stricklands
statement,
deficient
Underwood
performance
cannot
prong.
establish
First,
Defense
cross-examination
of
Watauga
County
Deputy
Sheriff
Paula
concerning
cross-examination,
the
murder
Deputy
of
Sheriff
Gunnarsson.
Townsend
During
either
such
admitted
or
interviewed
who
person
lived
in
the
vicinity
of
where
the
similar
line-up
physical
identically
included
Underwood
characteristics
dressed
in
slacks
to
and
- 16 -
and
five
Underwood
a
military
other
men
with
and
who
were
green
colored
jacket; (4) the men in the line-up were asked to wear a military
green colored jacket, because the line-up witness had told her
and other investigators that the person she saw had a jacket
that same color and investigators had seized jackets that same
color from the defendants residence, (J.A. 1571); (5) she was
present during the line-up; (6) the men in the line-up were
asked to look one way and then the other way for the witnesss
viewing; (7) the witness was given all the time she needed to
look at the men in the line-up; and (8) the witness did not
identify
testimony
anyone
on
in
the
line-up.
cross-examination
The
was
elicitation
consistent
with
of
this
Defense
(J.A. 564).
and Defense Counsel Kaplan each reminded the jury during such
statement that the defense need not present any evidence in the
case,
and
Defense
Counsel
Kaplan
explained
that
the
defense
decided not to present any evidence because the State has not
- 17 -
(J.A. 2767).
In
promised
range
of
line-up
evidence
professionally
did
not
competent
fall
outside
assistance,
the
and
wide
thus,
466 U.S.
at 690.
B
With
during
respect
the
establish
to
the
defenses
Stricklands
composite
opening
drawing
evidence
statement,
deficient
promised
Underwood
cannot
prong.
First,
performance
Terry
Anger.
Sheriffs
murders
of
Miller
Special
Department
and
Agent
with
Gale
its
Gunnarsson.
assisted
investigation
During
the
Rowan
into
the
cross-examination,
(1)
(3)
at
the
time
Terry
Osborne
provided
such
trial,
Terry
Osborne
was
the
Clerk
of
Court
for
(J.A. 2107).
Deputy Sheriff
Anger was the lead investigator for the Rowan County Sheriffs
Department
concerning
the
murders
of
Miller
and
Gunnarsson.
stated
that
composite
drawing
was
made
to
locate
the
line-up
examination
evidence,
one-hundred
these
percent
elicitations
fulfilled
on
Defense
crossCounsel
each
during
the
addressed
defenses
closing
the
composite
rebuttal
drawing
statement
by
pointing out to the jury that the defense had drawn out the
substance of such evidence on cross-examination.
Third, Defense
(J.A.
all
these
circumstances,
Defense
Counsels
handling
of
the
composite drawing evidence did not fall outside the wide range
of professionally competent assistance, and thus, Stricklands
deficient performance prong is not met.
C
Lastly, we consider Underwoods ineffective assistance of
counsel
claim
confession.
scope
on
with
respect
to
the
evidence
of
third-party
habeas
review,
given
the
state
of
the
Underwood presented no
thus,
we
are
precluded
from
considering
the
potential
(affidavit
state
not
presented
to
habeas
court
cannot
be
of
(A
motion
judgment
for
must
appropriate
be
supported
relief
by
made
affidavit
after
or
the
other
judge
who
hears
the
motion.).
Accordingly,
on
federal
of
telling
the
jury
that
someone
- 20 -
else
had
confessed
to
killing
victim
Gunnarsson
as
(although
Underwood)
and
he
mistakenly
then
resting
referred
the
case
to
the
without
purposes
of
our
analysis,
we
will
assume,
without
Rather, after
that,
had
defense
counsel
not
brought
up
the
other
words,
there
is
not
reasonable
that,
Id. at
inescapable.
Over the course of approximately three weeks, the State
methodically built its case against Underwood by placing before
the jury abundant motive and physical evidence supporting its
theory that Underwood murdered both Gunnarson and Miller.
With
In addition to
evidence
establishing
threatening
her
that
physical
Underwood
safety
sent
during
Weden
their
letters
tumultuous
harbored
raging
jealousy
against
anyone
whom
he
with
Weden,
including
Gunnarsson
and
Wedens
example,
late
at
night
on
the
same
night
that
Gunnarsson had last been seen alive, Underwood, while on his own
date with a different woman, stalked Weden and Gunnarsson in
order
to
learn
of
Gunnarssons
identity.
Underwood
indeed
identity
the
night
of
December
3,
1993,
he
falsely told Rowan County Deputy Sheriff Terry Anger twelve days
later that he had never heard of Gunnarsson.
second
example
of
Underwoods
raging
jealousy,
Weden
dumped
it
in
Wedens
lap,
and
walked
outside.
Once
outside, Underwood told the male friend who had accompanied him
to the restaurant that he wanted to wait for Weden and her date
to exit the restaurant so that he could hurt [the date] some
way or beat him up on the ground or pavement out there.
1743).
(J.A.
Once
the police officers arrived, they escorted Weden and her date to
Wedens car.
that the police had been called, Underwood (with his friend in
the car) surreptitiously followed Weden and her date back to
Wedens house.
Underwood
remained
very
agitated
and
angry
for
approximately
car
was
able
to
talk
Underwood
into
driving
back
to
Underwoods residence.
For
Underwood
third
told
his
example
buddy
of
Rex
Underwoods
Allen
Keller
raging
on
two
jealousy,
separate
(J.A. 1862).
Keller
to
make
between
eight
and
ten
anonymous
physical
overwhelmingly
tied
evidence
obtained
Underwood
to
by
law
Gunnarssons
enforcement
murder.
This
evidence showed that Gunnarsson had been shot twice in the head
with .22 caliber bullets and that Miller had been shot twice in
the head with .38 caliber bullets.
.38
as
caliber
deputy
Colt
Detective
sheriff
for
Moreover, he was
Special
Lincoln
while
County.
formerly
While
the
consistent
with
having
been
fired
by
.38
caliber
Colt
Detective Special.
An expert in the field of fiber and textile identification
testified
that
his
comparison
of
- 24 -
electrical
tape
found
near
shampooed.
cleaning,
that
The
especially
Underwood
timing
and
extent
shampooing
the
trunk,
was
attempting
Gunnarssons murder.
investigators
to
of
the
requested
strongly
suggested
eliminate
evidence
of
searched
the
Monte
Carlo
on
February
1,
1994,
Underwood,
lid.
518
S.E.2d
at
235.
This
evidence
his
will.
against
Underwood
And,
by
far,
consisted
of
the
the
most
damaging
following:
(1)
evidence
expert
Underwoods
Monte
Carlo
had
the
identical
microscopic
although
it
is
microscopic
possible
for
characteristics
two
in
people
their
to
hair
have
and
the
the
same
same
this
overwhelming
evidence,
gleaned
from
asserts
opening
that
defense
arguments
prejudicial
omission
that
of
the
to
there
remark
the
counsels
confession
is
single
by
someone
reasonable
would
have
reference
else
probability
resulted
in
during
was
that
so
the
different
We are unpersuaded.
States
case
against
Underwood
was
so
line-up
statements,
intention
at
and
and
composite
it
the
sketch
appears
time
was
that
to
evidence
defense
elicit
from
during
counsels
the
opening
likely
investigating
to
various
Gunnarsson.
family
Full
members
and
realization
- 26 -
of
friends
this
that
he
had
strategy
was
fact that, when all was said and done, the States case against
him was iron-clad and overwhelming, and it is clear to us that
there
is
Counsels
no
reasonable
assumed
probability
unprofessional
that,
error,
but
for
Defense
the
outcome
Strickland,
of
466
U.S. at 694.
Accordingly,
Underwoods
we
hold
the
MAR
courts
ineffective-assistance-of-counsel
rejection
claim
as
of
it
Ohio
Supreme
assistance-of-counsel
unreasonable
Courts
claim
application
of
rejection
was
the
not
law
of
his
contrary
clearly
ineffectiveto
or
established
an
in
light
of
the
evidence
presented
- 27 -
in
the
State
court
III
Because
ineffective
the
MAR
assistance
courts
of
denial
counsel
of
claim
Underwoods
as
outlined
current
in
this
- 28 -