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  • Jan 24 2000 Grand Jury indicted Allen for first degree murder.

  • Oct 27-Nov 13, 2003 Trial- Guilty verdict

  • Mar 3, 2006 NCSC affirmed death sentence

  • July 2, 2007 Initial MAR filed to V. Bradford Long, stating 10 claims

  • Sep 17, 2013 Filed SMAR supplementing some original claims and adding 2, bringing the total to 12

  • Sep 30, 2013 State filed motion to summarily deny all claims

  • Aug 18, 2016 MAR Court signed order summarily dismissing claims I-II, IV-VI and X-XII in the entirety and all subparts of Claim III except for H,J,K and a portion of I. On that same day the MAR court signed order allowing claims VII, VIII and IX

  • April 4, 2017 MAR court order a ‘limited evidentiary hearing’ on Claim III subparts H,J,K and a portion of subpart I

  • Aug 25. 2017 MAR Court conducted limited hearing, continued for Oct 31 2017

  • Sep 27, 2017 MAR court issued Memorandum concluding no further was necessary

  • Feb 12-15, 2018 MAR court conducted four day sentencing phase hearing on Claims VII-IX

  • Feb 6, 2019 MAR court dismissed all three of these claims

  • Aug 13, 2021 NCSC vacated portions of MAR Courts orders summarily dismissing certain Claims, remanded to MAR court to conduct ‘Full and Fair’ evidentiary hearing on the following: Claims II, III (A) (B) (C) (D )(E) (F) (G) (I), VI, X, XI, and XII.

Key Points of Argument

  • Counsel failed to use evidence that Ms. Smith had a compelling interest to claim that Scott Allen was guilty

  • Evidence that Vanessa Smith had motive to implicate Scott Allen in order to reduce her own criminal exposure

  • Evidence that Vanessa Smith had previously implicated Mr Allen and then recanted

  • Counsel failed to use evidence that revealed that the investigation ignored crucial evidence that is inconsistent with Scott Allen’s guilt

  • Evidence regarding the search of the crime scene, subsequent searches and forensic analysis of evidence

  • Evidence regarding the use of Mr Gailey’s ATM card

  • Failure to investigate other suspects

  • Counsel ignored evidence that Ms. Smith’s testimony was inconsistent with the crime scene

Conclusion of Arguments:

Constitutionally competent counsel would recognize that even with evidence of Ms. Smith’s drug use and jealousy, jurors would likely question why Ms. Smith would falsely implicate Mr. Allen and if Mr. Allen was not guilty, so in turn question who was. Jurors would also believe that, although none of the evidence collected at the crime scene implicated Mr. Allen, none of the evidence exonerated him. A full coherent presentation for reasonable doubt would have provided answers to these questions and dispelled the belief that there was no potentially exculpatory evidence at the scene.

Ms. Smith implicated Mr. Allen not because she feared for her life, but because she knew that this was consistent with the conclusion already reached by law enforcement, and she needed to adopt this approach if she wanted to cooperate with law enforcement and have a “normal life”.

Available evidence revealed that Ms. Smith had previously cooperated with Lt. Bunting in another investigation and then recanted her statement implicating Mr. Allen. Evidence at the scene could not be shown to exonerate Mr. Allen only because investigators ignored evidence that was inconsistent with their belief that Mr. Allen was guilty.

In fact, evidence at the scene and from the bank undercut Ms. Smith’s claims. Counsel’s failure to use the available evidence to effectively argue the evidence that was presented, and to object to the State’s improper closing argument over the failure to test the shotgun shells fell below any objective standard of reasonableness in 2003. There is a reasonable probability that but for these errors the result of the trial would have been different. There was no strategic reason not to present a full and coherent case for reasonable doubt based on information readily available to trial counsel, counsel’s failure deprived Scott Allen of the effective assistance of counsel and prejudiced him during both the guilt/innocence phase of the trial and at sentencing.


General Statutes of North Carolina

§Ch 15A-1411. Article 89 Motion for Appropriate Relief (MAR) and other Post-Trial Relief

Prerequisites for a new trial on the grounds Of newly discovered evidence are

…(7) that it is of such a nature as to show that on another trial a different result will probably be reached and that right will prevail.

§Ch 15A-1415 Ground for Appropriate Relief Which May Be Asserted by Defendent After Verdict:

(c) Notwithstanding the time limitations herein a defendant at any time after verdict may by a motion of appropriate relief raise the ground that evidence is available which was unknown or unavailable to the defendants at the time of trial which could not with due diligence have been discovered or made available at that time, including recanted testimony, and which has a direct and material bearing upon the defendant’s eligibility for the death penalty or the defendant’s guilt or innocence.

Showing Required for a New Trial Based on Recanted Testimony:

The rule for granting a new trial for newly discovered evidence is not the same as the rule for granting a new trial for recanted testimony. A defendant

may be allowed a new trial on basis of recanted testimony if:

1- The court is reasonably well satisfied that the testimony given by a material witness is false and

2- there is a reasonable possibility that had the false testimony not been admitted a different result would have been reached at the trial

§ Ch. 15A-1419 When Motion For Appropriate Relief Denied:-

(b) The court shall deny the motion under any of the circumstances specified in this section, unless the defendant can demonstrate:

…(2) That failure to consider the defendant’s claim will result in a fundamental miscarriage of justice.

(e) For the purposes of subsection (b) of this section a fundamental miscarriage of justice only results if: A defendant raising a claim of newly discovered evidence of factual evidence or ineligibility for the death penalty otherwise barred by the provisions of subsection (a) of this section or GS 15A-1415 (c) may only show a fundamental miscarriage of justice by proving by clear and convincing evidence that, in light of the new evidence, if credible, no reasonable juror would have found the defendant guilty beyond a reasonable doubt or eligible for the death penalty.

North Carolina General Statutes Annotated (N.C.G.S.A) §15A-1443

§15A1443 Existence and Showing of Prejudice

(a) A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant. Prejudice also exists in any instance in which it is deemed to exist as a matter of law or error deemed reversible per se.

(b) A violation of the defendant’s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt that the error was harmless.

North Carolina Supreme Court Judge’s Benchbook

Motions for Appropriate Relief (MAR)

I. Introduction

A. MARs Generally: A motion for appropriate relief is a statutorily created vehicle for defendants to challenge their convictions and sentences. A MAR may be filed before, during, or after direct appeal, although some restrictions apply to the types of claim that can be raised after a certain date. The statute also authorises the State to file a MAR in certain circumstances. However, the overwhelming proportion of MARs are filed by the defense, and many of those are pro se. The statute also authorises a judge to act sua sponte and grant relief on his or her own MAR.

Unlike an appeal, where the reviewing court is bound by the records, in a MAR proceeding, the trial court may hold an evidentiary hearing. Thus the procedure often is used when the claim is one that depends on facts outside the record, such as ineffective assistance of counsel. However, MARs are not limited to claims that require factual findings and can assert errors of law.

IX Counsel Issues

A Attorney-Client Privilege and Ineffective Assistance Claims

When a defendant’s MAR alleges ineffective assistance of prior trial or appellate counsel the defendant is deemed to waive the attorney-client privilege with respect to oral and written communications between counsel and the defendant “to the extent that the defendants prior counsel reasonably believes such communications are necessary to defend against allegations of ineffectiveness”. This provision seems to suggest that the defendant’s prior counsel should review the case file to determine which communications are necessary to defend against the claim rather than turn over the entire file to the State. The waiver of attorney-client privilege occurs automatically upon the filing of the MAR alleging ineffective assistance of prior counsel; the superior court is not required to enter an order waiving the privilege.

X Procedural Default

In order for a court to reach the merits of the claims raised in a MAR, the defendant must satisfy certain procedural rules. If the defendant fails to do so, he or she is deemed to have committed a procedural default. When this occurs and the defendant cannot establish that an exception applies, the MAR is rejected on grounds of procedural bar.

Thus, the procedural default rules preclude consideration of the merit when a procedural error has occurred

Fig 3: Grounds for Procedural Default

1. The claim was not raised in a prior MAR

2. The issue was determined in a prior proceeding

3. The claim was not raised in a prior appeal

4. The defendant failed to timely file the MAR

XC General Exceptions

1. Good Cause and Actual Prejudice- A defendant is excused from procedural default if he or she can demonstrate good cause and actual prejudice

a. Good Cause : GS 15A-1419 (c) provides that good cause can be shown only of the defendant establishes, by a preponderance of evidence , that his failure to raise the claim or file a timely motion was:

* the result of State action in violation of the federal or state constitutions, including ineffective assistance of trial or appellate counsel;

The first ground- the result of State action in violation of the federal or state constitutions expressly includes ineffective assistance of trial or appellate counsel. However, the statute also provides that “a trial attorney’s ignorance of a claim, inadvertence, or tactical decision to withhold a claim may not constitute good cause”, neither may “a claim of ineffective assistance of a prior post-conviction counsel constitute good cause”

b. Actual Prejudice: GS 15A-1419 (d) provides that actual prejudice may be shown only “if the defendant establishes by a preponderance of the evidence that an error during the trial or sentencing worked to the defendant’s actual and substantial disadvantage, raising a reasonable probability, viewing the record as a whole, that a different result would have occurred but for the error”

Ineffective Assistance of Counsel Claims

I. The Sixth Amendment to the Federal Constitution guarantees that, in all criminal prosecutions, the accused has the right to assistance of counsel. This guarantee has been interpreted to include the right to effective assistance of counsel. Ineffective assistance of counsel (IAC) claims are commonly asserted in post-conviction motions for appropriate relief.

II. Types of IAC claims

A. Attorney Error Claims

1. Defined. Attorney error claims, sometimes called Strickland claims, are the most common types of IAC claims. Essentially these claims allege that counsel handled the case improperly, For example, the defendant might allege that counsel failed to object to evidence, request a jury instruction, or call a witness.

2. Standard. In Strickland v. Washington, 466 US 668 (1984), the United States Supreme Court (USSC) set forth a two-part test for evaluating attorney error IAC claims. Under the test, a defendant asserting this type of claim must show that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced the defense.

a. Deficient Performance. Deficient performance means that counsel’s conduct fell below an objective standard of reasonableness. Objectively reasonable performance is performance that is reasonable under prevailing professional norms. Reasonableness is evaluated on a case by case basis.

When a State MAR court rules on procedural default, its decision has implications beyond the state proceedings. If the State court finds procedural default has occurred, and if the rule relied upon is adequate and independent and the relevant exceptions do not apply, then the Federal habeas court will enforce the State court’s decision and will decline to consider the Federal claim on the merits. Where, however, the Federal habeas court is unable to discern the basis of the State court decision, inefficiency is created, as is the potential for erroneous decision making and the erroneous denial of the Federal habeas remedy.

Under 28 USC §2254 it is argued that trial counsel is ineffective when they fail to conduct adequate investigations. Most often with claims of this nature, the court will rule a ‘procedural default’. To overcome this, a prisoner must not only demonstrate ‘cause’, but so too ‘actual prejudice’. Courts may excuse procedural default only if a prisoner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law”. With respect to cause, “attorney error cannot provide cause to excuse a default”. Under AEDPA: State post conviction counsel’s ineffective assistance in developing the state court record is attributed to the prisoner. “A prisoner bears the risk in federal habeas for all attorney errors made in the course of the representation.” Coleman 501 US at 754. Thus, a prisoner is at fault even when state post conviction counsel is negligent (ineffective) by not raising the issue that trial counsel was ineffective (negligent) for failing to develop the record. Attorney error is not cause to excuse attorney error, and so the prisoner is responsible for those errors then deemed harmless by the court as to avoid any responsibility to seek justice.

The court reiterates that counsel’s ineffectiveness constitutes cause for an exception to procedural default only if there is an accompanying constitutional violation, but because assistance of counsel is not guaranteed in the Constitution, how can counsel’s ineffectiveness even be considered for argument as any justification for relief. That the court conveniently (procedurally) ignores the asserted error of an undeveloped trial record (i.e. alibi witness, witness coercion by the police, faulty or fabricated evidence, perjury etc.) is of no consequence to the attorneys, the prosecutors, and indeed the court itself, for it is a court of law, not one of justice or truth. Often prisoners need evidence outside the trial record to support claims of ineffective assistance, but because the court has made introducing ‘new’ evidence of innocence close to impossible, procedurally, so too has it rendered any claim of responsibility to any party other than the defendant, ineffective. And thus “to ensure that the state court judgements are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism”.

When the State declares a procedural default it is for the purpose of being able to state then that the claim of IAC is without factual support, which is relied upon by the under-developed state court record. If the state does not do this the Federal habeas courts would be required to conduct evidentiary hearings to determine if indeed State post conviction fact finding fell short. Even then, when on occasion the federal appeals court does conduct an evidentiary hearing for any purpose, it may not consider even evidence of innocence unless the aforementioned exceptions in §2254(c)(2) are satisfied. Because the State court did not recognise the ineffectiveness of trial counsel to develop a record, or of post conviction counsel to raise the issue of trial counsel’s failure to raise a claim then any consideration for an evidentiary is null, because there is no point in developing a record for cause and prejudice if a later court cannot even consider the evidence on its merits.

Thus, the USSC holds that if “district courts held evidentiary hearings without first asking whether the evidence the petitioner seeks to present would satisfy AEDPA’s demanding standards, they would needlessly prolong federal habeas proceedings”. And because a federal habeas court may never “needlessly prolong” a habeas case, even for the sake of truth, justice and innocence, particularly given the ‘essential’ need to promote the finality of State convictions, a Martinez hearing is improper if the newly discovered evidence never would “entitle [the prisoner] to federal habeas relief”.

In this dual-sovereign, federal courts must afford unwavering respect to the centrality “of the trial of a criminal case, in state court”. That is the moment at which “[s]ociety’s resources have been concentrated … in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens”. Such intervention is also an affront to the State and its citizens who returned a verdict of guilty after considering the evidence before them. Federal courts, years later, lack the competence and authority to re-litigate a State’s criminal case.

So- leading up to your trial the counsel assigned to you fails to investigate some or all aspects of your case, and so the record (body of evidence) for the jury to determine either your guilt or innocence on is underdeveloped. Counsel (trial) may also, for whatever reason, decide not to, or fail to present known evidence of your innocence, of prosecutorial misconduct, etc. to the jury for the record. The trial counsel will say this was ‘strategic’ or ‘tactical’ in nature and so deny any responsibility of ineffectiveness and negligence. The district court (the only fact finding court) decides this ‘strategy’, and/or ‘tactic’, was ultimately ‘harmless’ because whatever evidence not in the record for the juror to consider would not have affected their decision, and so would not have resulted in a different outcome. This while never recalling any of these jury members to decide for themselves if the verdict would have been different had they known of that alibi, perjury, prosecutor’s coercion, faulty lab result etc.

This same ‘fact-finding’ court can, and does, routinely dismiss claims of prosecutors knowingly using false evidence, coercion, perjury, ineffectiveness and recantations, finding no fault in trial counsel’s failure to present these. In some cases, like mine, the presentation of this evidence by post conviction appellate counsel is suppressed or ignored outright, and because there isn’t even opportunity to properly and thoroughly present it, it is denied because there is no factual basis for the evidence when the court refuses to hear it. When this court denies or fails to amend the record, hearing evidence of innocence or misconduct, and the next higher court only considers whether the lower court properly followed procedural rules, while not considering evidence of innocence even when it knows it exists, what chance does the prisoner have?

Harmless error, cause, finality, immunity, law… These supersede ineffectiveness, prejudice, innocence, accountability and justice in US courts today. The largest prison population in the world proves it. The only industrialised country in the Western Hemisphere to have a legalised death penalty proves it. My case proves it as I continue to try and have my appeal decided two decades after being charged, tried and convicted on nothing more than one person’s testimony.

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