Federal judge rejects Kalvin Michael Smiths' request for new trial

A federal judge has denied a request by Kalvin Michael Smith for a new trial.

US District Court Judge Catherine Eagles' order on Monday denied Smith's petition for habeas corpus based on the finding that he did not file his motion within one year of discovering factual evidence underlying his claim. The ruling essentially leaves intact a 2009 state court decision upholding Smith's 1997 conviction in the brutal beating of Silk Plant Forest store employee Jill Marker.

The judge also rejected an actual innocence claim, based in part on the recantations of two witnesses Eugene Littlejohn and Pamela Moore, which would have provided an exception to the one-year timeliness requirement.

Eagles ruled that the evidence presented by Smith to support his claim of actual innocence
... at most calls into question the credibility of Mr. Littlejohn and Ms. Moore, neither of whom testified as an eyewitness. Mr. Littlejohn's credibility was already in question at trial, where he testified inconsistently and admitted to giving inconsistent statements to police before trial. The jury's verdict was not based only on testimony of Mr. Littlejohn and Ms. Moore; in addition, the jury had before it Ms. Marker's 1997 out-of-court identification of Mr. Smith, her in-court identification, and Ms. [Andra] Wilson's testimony that she heard Mr. Smith admit to beating Ms. Marker several times. Nowhere in this petition does Mr. Smith challenge Ms. Wilson's testimony.
The Silk Plant Forest Truth Committee, a grassroots organization of Winston-Salem citizens, issued a statement expressing dismay at the decision:
We are disappointed in today's ruling, which was based on the judge's interpretation of the law, not based on the facts. There was no hearing for her to learn the facts or even to hear arguments on the law. 
Since 2006, we have been advocating not for a person, but for transparency with respect to the facts of this case and its original investigation. That said, we believe no innocent human being is expendable no matter how inconvenient or embarrassing the facts. 
We are undeterred. The truth will prevail. Our American ideals of justice and genuine public safety demand it.
Eagles went on to say in the ruling that
... the state had additional inculpatory evidence that provided additional support for the verdict, including Mr. Smith's confession, which it did not put before the jury; had the allegedly exculpatory evidence discussed above been proffered, the prosecution likely would have put additional evidence before the jury, as the [motion for appropriate relief] court found with regard to the 1996 photographic lineup. (See Doc. 21-5 at 45, 50, 55-56); see also House v. Bell, 547 US 518, 537 ("Schlup makes plain that the habeas court must consider all the evidence, old and new, incriminating and exculpatory, without regard to whether it necessarily would be admitted...." (internal quotation marks omitted)). Mr. Smith's "new" evidence does not make it more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. 
In his supplemental brief, Mr. Smith also claims that the two investigative reports support his claim for actual innocence. First, as stated above, the court concludes that neither report is in evidence and neither should be considered. In the alternative, even if they are considered, they are insufficient to establish Mr. Smith's innocence. They merely reflect opinions differing from those of the MAR court and doubting the adequacy of the police investigation and the reliability of several pieces of evidence presented by the state. They do not present any new evidence that would tend to establish Mr. Smith's evidence. In fact, the report purportedly commissioned by the Winston-Salem City Council was directed toward reforming police procedures, and the committee was told to not make any findings of guilt or innocence. Similarly, the Swecker Report explicitly states that it "does not presume to exonerate Kalvin Michael Smith." (Doc. 41-1 at 18.) Though it recommends a new trial, it does not even suggest that Mr. Smith would not be convicted in view of the full record. Neither report is anywhere near as exculpatory as the evidence disapproved of in McQuiggin, which pointed directly to another person as the perpetrator. 
Nor is Mr. Smith entitled to an evidentiary hearing to develop his actual innocence claim. In evaluating a request for an evidentiary hearing, a district court "should consider the particular facts raised by the petitioner in support of his actual innocence claim." Teleguz v. Pearson, 689 F.3d 322, 331 (4th Cir. 2012). Mr. Smith has not raised any facts that would entitle him to further exploration of his actual innocence claim. In addition to its findings regarding the video, the MAR court found incredible the recantations of Mr. Littlejohn and Ms. Moore. (See Doc. 21-5 at 15, 18.) The investigative reports Mr. Smith references in his supplemental brief do not constitute clear and convincing evidence to rebut the presumption of correctness as to these findings. At most, they show that the evidence before the MAR court is subject to multiple interpretations; they do not show that the MAR court's interpretation was wrong. 
In the absence of clear and convincing evidence, it would be improper for the court to second-guess the court's findings. Cf. Teleguz, 689 F.3d at 331 ("[T]he district court is permitted under Schlup to make some credibility assessments when... a state court has not evaluated the reliability of the petitioner's newly presented evidence that may indeed call into question the credibility of the witnesses presented at trial." (internal quotation marks and alterations omitted)). Moreover, as stated above, even assuming the credibility of Mr. Littlejohn's and Ms. Moore's recantations, it is not more likely than not that no reasonable juror would have convicted Mr. Smith. 
In a related order, Judge Eagles denied a motion by the Silk Plant Truth Committee seeking judicial notice of the Swecker Report. Swecker, a retired assistant FBI director who oversaw the dismantlement of a Hezbollah terror cell in Charlotte and the capture of bomber Eric Rudolph, concluded "that due to the flawed nature of the original investigation only a new trial that considers the full record and evidence not available, misrepresented or omitted in the original trial will provide the full measure of justice the community of Winston-Salem and every accused defendant deserves."

The Winston-Salem City Council declined to intervene in the case and lend its institutional weight to the Swecker Report as the elected body ultimately responsible for the police investigation that developed the evidence on which Smith was convicted.

Eagles ruled:
The report reflects one man's opinion doubting the adequacy of the police investigation and the reliability of several pieces of evidence presented by the state. It does not present any new evidence that would tend to establish Mr. Smith's innocence. The report explicitly states that it "does not presume to exonerate Mr. Smith (Doc. 41-1 at 18.) Though the report recommends a new trial, (see id. at 19), it does not even go as far as to suggest that Mr. Smith would not be convicted in view of the full record. For these reasons, the report does not make it more likely than not that "no reasonable juror would have found petitioner guilty beyond a reasonable doubt."

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