Beruflich Dokumente
Kultur Dokumente
Petitioner Hayes appeals from the September 30, 2017 Order and Judgment
entered in the Middle District of North Carolina dismissing his Habeas Petition filed
pursuant to 28 U.S.C. § 2254. Hayes filed a timely notice of appeal on October 27,
2017.
3. Certificate of Appealability
4. Issue on Appeal.
police records, hidden from the jury, and from Petitioner Hayes for nearly two
decades after his 1994 trial for a double homicide, including (1) physical evidence
(shell casings) that contradicts the testimony of the two witnesses who identified
Hayes, (2) early police interviews of an eyewitness in which she gave descriptions of
the shooter’s hairstyle and height that did not match Hayes, (3) reports of a third
young man shot in the same incident who described a shooter other than Hayes, and
(4) interviews of eight or ten witnesses who told police about specific individuals
shooting at the two victims, provides clear and convincing evidence that this Court
actual innocence gateway, Schulp v. Delo, 513 U.S. 298 (1995) and McQuiggin v.
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Perkins, 569 U.S. 383, 133 S. Ct. 1924 (2013), thus allowing Petitioner to litigate his
5. Standard of Review
petitioner shows that “jurists [of reason] could conclude the issues presented are
U.S. 322, 327, 123 S.Ct. 1029, 1034 (2003); See also Buck v. Davis, 137 S. Ct. 759, 773
(2017). New reliable evidence of actual innocence creates an gateway for a habeas
569 U.S. 383, 133 S. Ct. 1924, 1931 (2013). The term “new” refers to evidence not
presented at trial, and not to “newly discovered evidence” that could have been
discovered with due diligence. Schulp, 513 U.S. at 324. See also Jones v. Calloway,
842 F.3d 454, 461 (7th Cir. 2016). A petitioner meets the threshold requirement if he
“persuades the district court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schulp
In the 1994 two-day, double murder trial of John Hayes, Jr., in Winston-
Salem, N.C., the jury did not hear many of the basic facts about the case, facts that
Mr. Hayes only learned about nearly two decades after his wrongful conviction
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when Winston-Salem Police Department files were finally disclosed to the Wake
The State’s Trial Story (“The Facts” as Told by the State). We now know
that the State culled the files of law enforcement to structure a partial narrative
about “what happened” early in the morning of July 23, 1993. With no useful
defense, the jury was left with only one explanation, a false story that John Hayes,
for no reason at all, fired a semi-automatic handgun down 22nd Street into crowd,
Here is what the jury was told at the 1994 trial. Petitioner John Hayes and
others heard gunshots outside a drink house in Winston-Salem, N.C., around 3:30
a.m. on July 23, 1993. Two cousins, Mary Geter and Anita Jeter, who were inside the
drink house with Hayes, testified that they heard shots coming from outside the
house. (Docket Entry 7-3, T pp 23-25) The two women waited in the drink house for
a minute or two as everyone else, including Hayes, ran out. (Docket Entry 7-3, T pp
25, 46-47, 57) The two women testified that they then went outside and stood on
the front porch of the drink house. (Docket Entry 7-3, T pp 48) They testified Hayes
was standing behind a blue car parked on the street in front of the house, and that
he opened the trunk of the car, took out a 9mm semiautomatic handgun and, for no
reason, while standing by the car, fired the gun twelve times down the street into a
crowd, randomly killing two young men. (Docket Entry 7-3, T pp 26-30, 48-51)
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The State called Cynthia Coleman to corroborate that a man matching the
description of Mr. Hayes was the shooter (even though she did not identify him as
the shooter to police or identify him in court). (Docket Entry 7-3, T pp 60-83)
Although no murder weapon was ever recovered (Docket Entry 7-3, T p 135), police
testified that twelve (12) shell casings found by the blue car matched a bullet (i.e.,
casings and bullet “fairly consistent”) found in the body of one of the young men
who was killed. (Docket Entry 7-3, T pp 135-136) In reality, with no match to the
actual weapon, the bullet from the victim could have come from any medium caliber
weapon (such as a .38 or .380 or a 357 or a 9mm). (Docket Entry 7-3, T pp 124) No
mention was made at trial of two 9mm shell casings found on the front porch of the
drink house, casings that the SBI Lab matched to the twelve casings found by the
road. With no evidence presented by Mr. Hayes, whose lawyer had only prepared
ten hours for this double homicide trial in the seven months since his appointment
by the court (Docket Entry 7-11, p 34-36), the jury took just 30 minutes to convict
The problem with the prosecution’s false narrative was that the State had in
its files physical evidence, the location of two shell casings from a 9mm gun found
on the porch of the house where all this started. The existence and location of these
two shell casings demonstrate that Mss. Jeter and Geter did not tell the jury the truth
The State’s story also left out that its corroborating eyewitness originally
described the shooter as a black male with his hair in “dreadlocks,” “plats” or
“uncombed,” whereas Mr. Hayes had a short Afro, and as being 5’5” tall whereas Mr.
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Hayes was 6’ tall. The State’s version of events also made it seem that there were no
witnesses who saw other men shooting at the two young men who were killed,
when in fact there were eight or ten such witnesses as to other shooters who had
motives to shoot the two victims. Perhaps the most egregious strategy by the
prosecution, one clearly designed to promote one version of events, is that the State
made no mention to the 1994 jury that another young man was wounded, but
survived, that morning in 1993, and that the State had evidence that another man,
not Mr. Hayes, shot that young man. This third shooting victim was shot just before
Mr. Hayes exited the drink house, before this other young man was shot in the foot
from behind. It is no wonder that Mr. Hayes was convicted in just thirty minutes.
State Trial and Appeal: On October 11, 1993, Mr. Hayes was arrested for
the murders of Waddell Lynn Bitting (“Bitting”) and Stephen Joel Samuels
(“Samuels”) that occurred on July 25, 1993. On July 19, 1994, after a two day trial, a
jury in Forsyth County, N.C. convicted Petitioner Hayes of two counts of second
degree murder and the court sentenced him to two consecutive life terms. Mr.
Hayes appealed to the North Carolina Court of Appeals, which affirmed his
conviction and sentence on September 5, 1995. Mr. Hayes did not file any post-
District Attorney’s Office provided over 100 pages of police and SBI Lab reports to
the Innocence & Justice Clinic of the Wake Forest University School of Law (the
Clinic). On October 17, 2012, the Chief Assistant District Attorney sent an email to
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the Clinic, with copies to all local law enforcement agencies, announcing that the
Forsyth District Attorney’s Office would no longer engage in informal discovery with
the Clinic. (See Docket Entry 18-3 and 4, Recommendation of Magistrate). The Chief
A.D.A.’s refusal to provide further discovery did not comport with the intent of the
February 12, 2013, the Clinic filed a motion to compel discovery on behalf of Mr.
Hayes. (Docket Entry 7-7) The District Attorney strongly opposed the discovery
motion, despite his Chief Assistant’s earlier recommendation that a discovery order
was necessary, and Petitioner’s discovery motion was denied by the Superior Court.
(Docket Entry 7-8) A few weeks later, on March 7, 2013, Mr. Hayes filed a Motion
for Appropriate Relief and another Motion for Discovery. (Docket Entry 7- and 10)
On March 27, 2013, in response to the Petitioner’s new Motion for Discovery, the
photographs and a crime scene video to Petitioner’s counsel. (See Docket Entry 7-
Based not only upon the post-conviction discovery given to the Clinic,
between 2011 and 2012 [including police reports and some of the SBI Laboratory
reports], but also the new discovery given to the Clinic on March 27, 2013, with
extensions of time allowed by the court, the Petitioner filed an Amended Motion for
Appropriate Relief [AMAR] on August 30, 2013. (See Docket Entry 7-11)
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The Superior Court of Forsyth County, the Honorable William Z. Wood, Jr.,
held an evidentiary hearing on Mr. Hayes’ AMAR on October 7 and 8, 2014. (See
Docket Entry 7-12) On November 21, 2014, Judge Wood entered an order denying
all three claims in Petitioner’s AMAR. (Docket Entry 7-16; see also Docket Entry 1, ¶
11(a)(7), (8)) The transcript of the AMAR hearing was delivered to the Clinic on July
23, 2015. (Docket Entry 7-12, p 225) Petitioner, through the Clinic, filed a certiorari
petition with the North Carolina Court of Appeals seeking review of the denial of his
AMAR on July 16, 2016 (Docket Entry 7-18; Docket Entry 1, ¶ 11(d)), which that
Entries 6, 7) Petitioner replied, raising equitable tolling per the actual innocence
gateway for procedurally defaulted claims. (Docket Entry 7-10 and 11) The
18). The Petitioner filed Objections to the Recommendation on July 17, 2017 (See
Docket Entry 20). The District Court agreed with the Magistrate’s conclusion that
the State’s Motion for Summary Judgment should be allowed and the Petition
dismissed, and entered an Order and Judgment, and denied a COA, on September 30,
2017. (See Docket Entries 22 and 23) Notice of Appeal was filed on October 27,
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133 S. Ct. 1924, 1931 (2013); Schulp v. Delo, 513 U.S. 298 (1995); See also United
States v. Jones, 758 F.3d 579, 584 (4th Cir. 2014) (reasoning that “[s]ensitivity to the
remedy, and is not the same as the substantive “freestanding claim of actual
innocence” potentially allowed by Herrera v. Collins, 506 U.S. 390, 405 (1993).
with its much higher standard of proof. A procedural gateway claim focuses on
innocence, as in Herrera with its much higher burden of proof. “[T]he line between
what reasonable, properly instructed jurors would do.” Schulp v. Delo, 513 U.S.
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The State’s 1994 trial story was simple, but it was un-contradicted
because the State did not disclose, until two decades later, over 1,000 pages of
witnesses.
The two primary witnesses at trial, Mary Geter and Anita Jeter, testified that they
went out the front door of the drink house a minute or two after Hayes, and that he
then left the porch of the drink house, went to his blue car parked in front of the
house, took an automatic handgun out of the trunk, and fired that gun from the
street near the car. (See Docket Entry 7-3, pp 27-35, 51-56) The jury was only told
about 12 shell casings found by the police in the street near the blue car. (See
Docket Entry 7-3, pp 98, 103, 106) We now know that police collected (from witness
John Hamm, two shell casings from the porch (Docket Entry 7-13, p 29), which could
not have been fired from a point beside the car. These casings were fired by the
same 9mm gun that fired the twelve (12) casings found in the street or on the
sidewalk, per the SBI Lab. (Docket Entry 7-11, pp 38-39) These shell casings
corroborate newly discovered witness accounts that someone other than Mr. Hayes
started shooting from the porch, and then moved into the street. The location of
these shell casings disproves critical trial testimony from Mss. Jeter and Geter and
proves that the State’s story of the crime at trial was impossible.
Here is how this false impression was created. Cousins Mary Geter and Anita
Jeter testified that John Hayes was inside the drink house playing cards when they
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heard shots firing outside. Hayes ran out when the shooting started, and these two
young women waited briefly and went out onto the porch. Hayes then left the
porch, went on to the sidewalk and to his blue car, and they watched him take a
handgun out of the trunk of his car and fire it repeatedly down 22nd Street into the
crowd as he stood by the car. (See Docket Entry 7-3, pp 28-35, 51-56, 62) If this
were correct, then all the shell casings from Hayes’ handgun would have ended up in
the street or on the sidewalk area near the car. In fact, this was the State’s trial
story. The location and trail of these newly revealed two (2) 9mm shell casings
Even though no murder weapon was found, the lead detective testified that
twelve (12) shell casings from a 9mm were found in the street or on or near the
sidewalk by the drink house, and that these twelve (12) ejected casings were fired
from the same weapon (consistent with the SBI Lab report). (Docket Entry 7-3, p
139) The lead detective also misleadingly testified that no shell casings were
found on the front porch of the drink house. (Docket Entry 7-3, p 137) This was
not true, as shown by: a report from Officer Kennedy (Docket Entry 7-13, p 30); and
a written request from the police department to the SBI Lab to test not only the
twelve 9mm shell casing found near the car, but also the two 9mm shell casings
found on the porch (Docket Entry 7-11, p 37) Detective Craven also perpetuated this
misrepresentation that no shell casings were found on the porch, only the twelve
(12) in the road or on the sidewalk. (Docket Entry 7-3, p 98, 106) In fact, through
questioning by the prosecutor, this officer testified that bullet holes on the ceiling of
the porch could only have come from a revolver because no shell casings were found
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on the porch. (Docket Entry 7-3, p 100; See Photos of holes on porch, Docket Entry
17-1, pp 7-9)
jury – two (2) shell casings were found by a citizen, John Ham, on the front porch of
the drink house, and were given to the police while they were processing the crime
scene. (Docket Entry 7-13, p 30) These two (2) additional 9mm shell casings (SBI
Lab Nos. Q-15 and Q-16) found on the porch of the drink house were fired from the
same weapon as the twelve (12) casings found in the street or on the sidewalk (Q-2
through Q-13), according to the SBI Lab. (Docket Entry 7-11, pp 38-39)
diagram of the street where this happened (22nd St), the sidewalk is five (5) feet
wide. (Doc. 17-13, p 18) Extrapolating from that diagram and police photograph, the
walkway to the front porch of the drink house is another five (5) feet, and then
another two (2) or three (3) feet up the steps to the porch. Two (2) evidence
markers (10 and 11) (left side of Photo A) (Docket Entry 17-1, p 2) show the two (2)
9mm casings found by police in the sidewalk. The other ten (10) casings were found
in the grass by the road or in the road. It would breach the laws of physics for shell
casings ejected from beside the blue car to fly or bounce 10 feet across the sidewalk
and walkway to the drink house, and then another 2 or 3 feet up the steps, landing
on the porch.
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A.
By not telling the jury about these two (2) other 9mm shell casings found on
the porch and fired by the same gun, the State created a false impression that Mss.
Geter and Jeter were credible, that Mr. Hayes left the drink house, left the porch,
went to his car, stood by his car, and took a 9mm from the trunk of his car and fired
twelve (12) times down the street, killing the two young men.
This misleading testimony, and failure to tell the jury about the two (2)
9mm shell casings on the porch, was compounded by the State when it hid the
fact that the third eyewitness, Cynthia Coleman, told the police that the
shooter initially fired from or just off the porch of the drink house. (Docket
Entry 7-11, pp 41, 43, 48) This misleading testimony circumvented defense
arguments that could have been made at trial regarding mistaken eyewitness
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identification by Cynthia Coleman, or even intentional covering for the real shooter
by Mss. Geter and Jeter. Ms. Coleman said the shooter shot first from the porch,
where two (2) shell casings were found, and then from near the car, where twelve
(12) casings were found. (Docket Entry 7-11, pp 41, 43, 48) If the truth had been
told about the two (2) shell casings found on the porch, and if all the statements by
Coleman had been revealed to the jury, then the credibility of Mss. Geter and Jeter –
the only two witnesses to connect Hayes to the crimes – would have been severely
impeached.
Mss. Geter and Jeter did not tell the truth about their involvement with
or presence at the drink house. One of them, Anita Jeter, actually worked at the
drink house and knew the owner (Docket Entry 7-11, p 85), a statement
inconsistent with her testimony that these cousins did not drink and were just there
The WSPD and SBI lab reports concerning the two (2) shell casings, including
the report discussing how Mr. John Ham (now deceased) found the casings on the
drink house porch and gave them to the police while they were still at the crime
scene, are “reliable” evidence for this equitable innocence gateway review, at
which the evidentiary rules of admissibility do not apply. First, these official
should be held against the takers and custodians of the reports – i.e., the custodian is
responsible for spoliation. Third, the reports are in fact admissible pursuant to
N.C.G.S. Rule of Evidence 803(8)(c), since the officers had a legal duty to make the
reports and they are being used “against the State in a criminal case[s], [or are]
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by law….” Fourth, the defense could have called the lab technicians or crime scene
investigators at trial to verify the information. Fifth, if disclosed in time, the defense
could have subpoenaed Mr. Ham (before he died in 2009) to point out exactly where
he found the two shell casings on the porch; after his death, since he is “unavailable,”
the report and his statements are admissible under NCRE 804(a)(4) and (b)(5).
Sixth, the reports could have been used to cross examine the detective and officers
who testified at trial, and who omitted the critical fact about the 9mm shell casings
on the porch. And, seventh, the two (2) 9mm casings on the porch actually came
from the same handgun that killed the two young men, and were not fired by some
random unrelated gun. (See Petitioner’s Objections, Docket Entry 20, pp 13-22, for a
more detailed discussion on how the reports of the two (2) shell casings on the
Coleman testified at trial that when her sisters and she arrived on 22nd St.,
they parked a few houses down from the drink house, and saw about five (5) or six
(6) people standing in the yard and ten (10) or fifteen (15) people on the porch.
(Docket Entry 7-3, pp 68-69) Less than five minutes later, there was a fight on the
porch. (Docket Entry 7-3, p 70) After that, the crowd from the drink house started
down the street, and Coleman and her group started walking back to her car.
(Docket Entry 7-3, pp 71-72) At this point, shots rang out behind them, at the top of
22nd St., and then shots from the bottom of 22nd St. (Docket Entry 7-3, pp 73-74) She
could not identify the person who was shooting down the street, but she did see the
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person was standing beside a dark blue car in the road in front of the drink house.
(Docket Entry 7-3, pp 74-75) The shooter at first aimed the gun into the air and
then he lowered it and was firing into the crowd down 22nd St., where the men were
shot. (Docket Entry 7-3, pp 75-76) That shooter jumped into the blue car and it
shooter was a black man, and “It looked like he had on a light colored T-shirt and
maybe dark clothes at the bottom.” (Docket Entry 7-3, p 77) The prosecutor clarified
that Ms. Coleman was unable to identify the shooter, and she admitted on cross that
she did not recognize any of the people in the crowd (Docket Entry 7-3, p 80), and
she did not know Mr. Hayes, nor had she seen him before. (Docket Entry 7-3, p 87)
The State did not reveal to the jury what Cynthia Coleman actually
statement that was not introduced into evidence or disclosed in discovery, (Docket
Entry 7-11, p 46-60): After she and her sisters and friend got out of her car, and
went and spoke to some other friends standing nearby, “[t]here was a burst of
commotion there on the porch of the drink house. So we turned around and we go
up, look up there to see who’s fighting and then somebody stepped off the porch
and fired a gunshot. Then we started running back to the car.” (Docket Entry 7-11,
p 48) This shot was fired “[u]p in the air….I seen just the sparks going up
[inaudible].” She did not know who was firing the shot. (Docket Entry 7-11, pp 48-
49) This could not have been Mr. Hayes because Mss. Geter and Jeter followed him
out of the drink house and watched him take the gun out of the trunk of the car. This
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could account for one of the two (2) 9mm shell casings found on the porch (the two
(2) 9mm casings in addition to the twelve (12) by the car). Then, after she and her
group got back in her car after hearing the first shot(s), “I seen a bunch of guys walk
down from the drink house, say we going to get him and one of them had a glass
bottle.” (Docket Entry 7-11, p 49) At that point she heard a gunshot coming from
the other end of the street. (Docket Entry 7-11, p 50) There was no mention of a
The prosecutor did not ask Coleman to describe the shooter’s hairstyle
at trial. This was important because the prosecutor had access to police
reports in which Coleman described the shooter’s hairstyle that did not match
Hayes. In handwritten police notes dated 7-28-93, an officer recorded that Coleman
said the shooter had “dreadlocks or uncombed” hair. (Docket Entry 7-11, p 41) In
another typed report dated 9/23/93 by the lead detective, Barren, Ms. Coleman told
police that the shooter had “hair worn in plats.” (Docket Entry 7-11, p 44) And, in
the recorded statement of 8/10/93, she told Detective Barren that the shooter had
“dreadlocks in his hair.” (Docket Entry 7-11, p 52) These descriptions do not
match Mr. Hayes who had a short Afro in the summer of 1993. (See photographs
attached to AMAR, Docket Entry 7-11, pp 30-32 (two of which are from WSPD))
The prosecutor did not ask Coleman to describe the shooter’s height at trial.
This was important because the prosecutor had access to the following information.
In the police notes of her interview on 7/28/93, she said the shooter was 5’5” or
5’6.” (Docket Entry 7-11, p 41) In her recorded 8/10/93 statement, she stated as
follows as to the shooter by the blue car: “He looked short, about 5’8.” (Docket
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Entry 7-11, p 52) In the typed summary report dated 9/23/93 by the lead
detective, Barren, wrote that Coleman told police that the shooter was
“approximately 5’6 to 5’8”.” (Docket Entry 7-11, p 44) These descriptions do not
match Mr. Hayes, who was taller (6 feet) than the man she described to police – i.e.,
6” or 7” taller than the original description on 7/28/93, and 4” taller than the
At trial, the prosecutor did ask Coleman about the shooter’s clothing, and
she testified the shooter had on a “light colored t-shirt and maybe dark clothes
on the bottom” (Docket Entry 7-3, T p 72). This was contradicted by early police
reports, not disclosed to the jury. Initially, on 7/28/93, Coleman told police that
the shooter was wearing “jeans” and a “stripe shirt.” (Docket Entry 7-11, p 41) In a
marginal note on that same 7/28/93 report, the officer wrote that the shooter was
wearing “dark jeans – stone wash” and a “multi-colored strip shirt horizontal”
(Docket Entry 7-11, p 41) In another typed report dated 9/23/93 by the lead
detective, Barren, Ms. Coleman told police that the shooter was “wearing a dark
There is new reliable impeachment evidence against the two key witnesses
at trial, Mss. Geter and Jeter. The two young women who identified Hayes as the
shooter told the jury they were just at the drink house to socialize when in fact one
of the two cousins actually worked there. At trial, Ms. Jeter said that she only knew
about the drink house by the “word” of people who came into the store where she
worked a few streets away. (Docket Entry 7-3, p 60) Ms. Jeter also testified that she
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never worked in the drink house. (Docket Entry 7-3, p 61) This was not true, as she
told Detective Barren earlier that she was working part-time at the drink house and
that her job was to serve drinks to the customers. (Docket Entry 7-11, p 85) The
disclosure of this misrepresentation to the jury would have cast serious doubt on
her credibility, as it could have been argued that she was protecting or covering up
for the real shooter, or that she was testifying in return for a deal – i.e., it is a crime
to sell alcohol without a license (N.C.G.S. 18B-303(b)), and she was not charged.
Mss. Geter and Jeter initially told the police that Hayes fired a “large
caliber” handgun as opposed to the medium caliber weapon that killed the
two men. At trial Ms. Geter testified that she did not know the difference between a
semi-automatic and a revolver (Docket Entry 7-3, p 34) nor did she notice anything
in particular about the gun Hayes was shooting. (Docket Entry 7-3, p 54) In fact,
Mss. Geter and Jeter told police that Hayes was shooting a “large caliber semi-
automatic handgun that was dark in color.” (Docket Entry 7-11, pp 85-88)
Ostensibly, this was not revealed to the jury by the State because it contradicted the
medical examiner’s testimony that both murder victims were shot by medium
caliber bullets (Docket Entry 7-3, p 121) (i.e., such as the gun which fired the 9mm
casings found by the curb where Hayes was allegedly shooting). Thus, a false
impression was created: that Mss. Geter and Jeter saw Hayes shoot down the street
with a medium caliber, 9mm handgun, the weapon that murdered the two young
men.
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At the 1994 trial, the State presented evidence that many other shots were being
fired on 22nd Street that night. As Mss. Geter and Jeter testified, the reason the
people ran out of the drink house was because they heard shots outside. Despite
police reports and recorded statements in WSPD files, the State did not
mention (or disclose to the defense) any of the other eight or ten witnesses
who claimed to see other shooters firing in the direction of the victims. This is
significant because no witnesses testified at trial that they saw specific shooters,
other than Mr. Hayes (per Mss. Jeter/Geter), shooting in the direction of the young
men who were killed. It must be remembered that the bullets that killed the two
young men were medium caliber, but the crime lab could not match those bullets to
any specific gun, nor to the 14 shell casings found near or on the porch of the drink
house. Thus, it is possible that bullets from two different guns killed the two young
men.
An egregious violation was that the State did not present evidence that
another young man, Kenneth Evans, 16 years old at the time, was shot in the
foot as he ran down the same sidewalk as the two young murder victims.
(Docket Entry 7-11, pp 62-81) Evans initially told police in 1993 that, before he left
the porch of the drink house, he saw another person – not the shooter by the blue
car - firing a handgun from across the street in the direction of the two men who
were shot and killed. While Evans was still on the drink house porch, before he ran
down the sidewalk and was shot in the foot, he looked across the street from the
drink house. He saw a man standing behind a white Cavalier and that man was
firing a chrome semi-automatic handgun “that sounded like a .380” (also a medium
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caliber) in the direction of where the two young men were killed. (Docket Entry 7-
11, pp. 71-73) This was different from the man described by Mss. Geter, Jeter, and
Coleman. This other shooter was not firing from beside the dark blue car on the
side of the street with the drink house, but across the street. The description of the
shooter by Evans did not match the description by the two main eyewitnesses who
identified Hayes --Mss. Geter and Jeter. This shooter was across the street from the
drink house, not in the street beside the house, and was firing by a white car, not a
The reason for the nondisclosure that Mr. Evans was also shot could have
been that he saw this other shooter, and that this evidence would have
contradicted the State’s trial story. Another reason could have been that Mr.
Evans initially told police that a man named “Grant” was the shooter. (Docket Entry
Haushen Lindsey, who also told police about Grant. Mr. Lindsey told police that
Grant shot Evans because he had a “beef with him.” (Docket Entry 10-1, pp 13-17).
Mr. Lindsey also told police that Grant planned the shooting before Bitting (one of
the murder victims) went up to the drink house. (Docket Entry 10-1, p. 14) And,
per Mr. Lindsey, Grant asked Dedrick Crump “who else you got some beef with out
here” before Mr. Bitting was shot. (Docket Entry 10-1, p. 13; Docket Entry 7-11, pp
In addition to Mr. Evans and Mr. Lindsey, there were eight other witnesses
as to other shooters, known to the State in 1993, and disclosed nearly two decades
later.
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Josephine McGill told the police that Grant and “Darren” were shooting during
the time that Mr. Evans, Mr. Samuels, and Mr. Bitting were shot. (Docket Entry 10-2,
pp. 5-6; Docket Entry 7-11, p 8 (audio)) It appears that “Darren” was “Darren
Avlon Fryer told Winston Salem Police that “Demo” left the porch of the drink
house and fired shots in the air. He yelled, “There go that M.F.! He gonna pay me my
money” and then pulled out his gun and shot Mr. Samuels in the head with a .38
revolver as Mr. Samuels was trying to enter his car. (Docket Entry 10-3, pp. 6-7)
This matched the medical examiner’s testimony that Mr. Samuels was shot in the
head from behind. (Docket Entry 7-3, pp 116-18) This also matched the crime scene
evidence: Mr. Samuels’ keys were found next to his body by his car. (Docket Entry
7-11, p 8) After “Demo” shot Mr. Samuel, another individual named Antonio Bryant
aka “Sunshine” yelled, “There go the other one!” as both “Sunshine” and “Demo”
approached Mr. Bitting on the porch with their guns out. (Docket Entry 10-3, p. 7)
After further questioning and an “inconclusive” polygraph, Ms. Fryer retracted her
statements to police, saying she was scared but had wanted to help. (Docket Entry
10-3, p. 21) The defense, however, never had the opportunity in 1993 or 1994 to
Crump) and “Sunshine” (Antonio Bryant) approached the victims about money.
They shot Mr. Samuels as he ran to his car and Mr. Bitting as well. Both “Demo” and
“Sunshine” told everyone, “if anyone tells on him he hurt them.” (Docket Entry 10-6)
Donnell Garner told Winston Salem Police that “Sunshine” was shooting “this big,
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fat boy.” (Docket Entry 10-5, p. 13) This sounds like Dedrick Crump, who was 5”8”
and weighed 230 pounds. (Docket Entry 10-7). Shanta Levette Smith and Teresa
Smith also implicated “Fat Cat” as the shooter. (Docket Entry 7-13, pp. 36-37).
Michael Tolliver (Docket Entry 10-4, p. 22-23) and Teresa Smith (Docket Entry 7-
13, pp. 36-37) saw “Rob” White and Valmark Cuthrell shooting a .32 semi-automatic
and a .38 revolver into the crowd. Both a .32 and a .38 are classified as medium
caliber weapons, and so is a 9mm, per Dr. Lantz. (Docket Entry 7-3, p 124) An
anonymous caller to Crime Stoppers also indicated that Mr. Hayes was not the
shooter but implicated “Fat Cat” and “Rob” as the shooters. (Docket Entry 10-8, p. 2)
The District Court erred by adopting the Magistrate’s summary dismissal of Mr.
Hayes’ use of contemporaneous (1993) police reports that list these ten witnesses
who describe shooters, other than Mr. Hayes, who may have actually been the killer.
Fryer and an anonymous 911 caller) to other shooters for this reason: “Critically,
not one of those witnesses saw anyone shoot the two murder victims.” (Docket
Entry 18, p. 28, emphasis in original) This is no different than the three State’s
eyewitnesses. Not one of the three – Mss. Geter, Jeter or Coleman – actually “saw
anyone shoot the two murder victims.” Rather, they only saw someone shoot down
the street in their direction. This actually makes those eight or ten newly revealed
least eight eyewitnesses who saw other people shoot in the direction of the murder
victims outweigh the three who testified at trial, and make it more likely than not
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As to “reliability,” it must again be remembered that it was the State that was in
possession of these reports from the ten witnesses about other shooters. Law
And the State, as constitutionally required, should have disclosed the evidence pre-
trial, while evidence and memories were still fresh. It is Mr. Hayes who has been
prejudiced by the delay in disclosure, not the State. For example, Mr. Evans was 16
years old in 1993 when he was shot, and he was the surviving victim in this case.
Most likely, he had a much clearer memory of what transpired in July 1993, as
opposed to October 2014, when he testified at the AMAR hearing (Docket Entry 7-
12, T pp 83-107).
This new evidence contradicts the State’s version of what happened and
United States v. Bagley, 473 U.S. 667 (1985) and Kyles v. Whitley, 514 U.S. 419
evidence, in violation of Alcorta v. Texas, 355 U.S. 28 (1957), Miller v. Pate, 386 U.S.
1 (1967) and Napue v. Illinois, 360 U.S. 264 (1959); and ineffective assistance of
New and reliable evidence revealed to Mr. Hayes nearly two decades
after the trial shows that the State’s story excluded critical facts. This new
evidence opens the actual innocence gateway for Mr. Hayes to proceed with
his underlying constitutional claims, as allowed by Schulp v. Delo, 513 U.S. 298
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(1995) and McQuiggin v. Perkins, 569 U.S. 383, 133 S. Ct. 1924, 1931 (2013).
The 1994 jury in the two-day murder trial would have had reasonable doubt about
this trial story if the State had let the jury know about the evidence from over 1,000
pages of police reports, SBI Lab reports, photographs, videos, and diagrams, plus the
All of this new evidence must be also evaluated in light of the lack of evidence
evidence tied Mr. Hayes to the crime (no prints or DNA). There was no evidence of
any motive, confessions or admissions by Mr. Hayes, who pled not guilty at trial and
presented at the 1993 trial. The term “new” refers to evidence not presented at
trial; not to “newly discovered evidence” that could have been discovered with due
diligence. Schulp, 513 U.S. at 324. See also Jones v. Calloway, 842 F.3d 454, 461 (7th
Cir. 2016).
the police shortly after the crimes in 1993, and includes police notes, diagrams,
recordings and transcripts of witness interviews, and SBI Laboratory reports. The
State is not prejudiced by Mr. Hayes’ use of law enforcement reports to support his
habeas claims because the State had all of the evidence in its control for twenty
years. This new evidence is different from that criticized by the Court in McQuiggin,
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actual innocence gateway claim. McQuiggin, 133 S. Ct. at 1931. In McQuiggin, the
petitioner obtained three affidavits between 1997 and 2003 regarding the 1993
murder, and he waited until 2008 to file his habeas claim. Id. By contrast, all the
documents in this case were in law enforcement files from the beginning of the
investigation in 1993. Thus, there has been no prejudice to the State, only to Mr.
Hayes.
Even with the new information, a gateway claim is allowed to proceed, even
when “the issue is close,” or the evidence does not show “a case of conclusive
exoneration.” House, 547 U.S. at 553-554. The sufficiency of the trial evidence test is
not the issue in an actual innocence gateway claim, in which only the probable-
The District Court here correctly eliminated the timing of the filing of the
presented in support of Mr. Hayes’ gateway innocence claim. (Docket Entry 22, pp 2-
3)
The District Court erred by finding, “[i]n any event, removing this timing
consideration in any form would not alter the fact that the evidence, viewed as a
whole, fails to meet the actual innocence gateway standard.” (Docket Entry 22, p 3)
There is, to the contrary, new reliable evidence of innocence that contradicts the
State’s case and raises new reasonable doubt. Each of the three main eyewitness
(Mss. Geter, Jeter and Coleman) are severely impeached by the newly disclosed
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documents, new evidence of shell casings on the porch contradicts the State’s trial
story, and evidence of other shooters was hidden from the Petitioner and the jury.
claim, it must be noted that “reliability” does not mean “admissibility.” Rather,
holistically and cumulatively, with “’all the evidence’ old and new, incriminating and
‘rules of admissibility that would govern at trial.’” Teleguz v. Pearson, 689 F.3d 322,
328 (4th Cir. 2012) (quoting House v. Bell, 547 U.S. 518, 538 (2006)).
as discussed more fully in Mr. Hayes’ Petition for a Writ of Certiorari filed with the
North Carolina Court of Appeals in July, 2016 (Docket Entry 7-18) and as set forth in
because the newly revealed police reports show that the State either presented
violation of Alcorta v. Texas, 355 U.S. 28 (1957), Miller v. Pate, 386 U.S. 1 (1967),
and Napue v. Illinois, 360 U.S. 264, 269 (1959). In Miller, the prosecution did not
tell the jury about a lab report showing no blood on panties found near the crime
scene, but left the jury with the false impression they were blood stained. Id. Here,
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the prosecution allowed the jury to have the false impression that all the shots
allegedly fired by Mr. Hayes were from the street, as claimed by its two identifying
witnesses, when it had police and lab reports that two shell casings from the same
9mm were found on the porch, consistent with someone other than Hayes firing the
shots. See also Hamric v. Bailey, 386 F2d 390 (4th Cir. 1967) (jury not informed of
lab report corroborating self-defense and contradicting State’s trial story – i.e., glass
that decedent was trying to break into her house through the window). The
disclosure to the defense. See See U.S. v. Sanfilippo, 564 F2d 176 (5th Cir. 1977)
(b) Brady Violations. The two murder convictions in this case were
obtained in violation of the Due Process clause of the 14th Amendment because the
Maryland, 373 U.S. 83, 87 (1963), and its progeny. This obligation includes the
statements. United States v. Bagley, 473 U.S. 667, 678 (1985). Materiality is
measured by the cumulative effect of all undisclosed evidence, not by the effect of
any single piece of evidence. Kyles v. Whitley, 514 U.S. 419, 438 (1995)..
discovery was provided to defense counsel, especially since his time records show
he only expended ten (10) hours preparing for this double homicide jury trial and
there were more than 1,000 pages of police reports and seventeen (17) audio
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defense, then Mr. Hayes’ trial counsel, failed to provide effective assistance by failing
to call witnesses to testify about the other shooters. See generally Strickland v.
Washington, 466 U.S. 668, 686 (1984). See Reynoso v. Giurbino, 462 F.3d 1099 (9th
Cir. 2006) (defense counsel’s duty to investigate impeachment material and cross
examine with impeachment material). See also Harris v. Artuz, 100 Fed.Appx. 56
The New Reliable Evidence Hidden By the State for Two Decades
“Facts are stubborn things,” John Adams argued to the jury in his brilliant and
adversarial system of justice, “what happened” in a criminal case can only properly
be decided by a jury when the “facts” are presented to the jury and subjected to the
statements or other seemingly small, but tell tale, parts of the larger puzzle.
Our adversary system can only work fairly, and our juries can only render
reliable verdicts, when all the evidence is presented to them. This did not happen in
this case. The shell casings, the early witness descriptions to police of the shooter’s
identification eyewitnesses, and the evidence from ten witnesses about shooters
other than Mr. Hayes, are the type of “stubborn” facts upon which great defense
1 “’Facts are stubborn things,’ he [Adams] told the jury, ‘and whatever may be our
wishes, our inclinations, or the dictums of our passion, they cannot alter the state of
facts and evidence.’” McCullough, David, JOHN ADAMS (2001), p. 68.
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lawyers, such as John Adams in his defense of the British soldiers in 1770, rely to
challenge the State’s case, to prove innocence. This type of evidence, small points at
times, has led to the exoneration of many actually innocent people – 2,127
individuals since 1989. 2 In one case the stubborn fact may be new DNA evidence. 3
In another case, it may be a palm print. 4 And in still other cases, varying prior
facts. 5 Mr. Hayes has presented substantial evidence supporting his petition for
equitable relief so that he may proceed through the gateway of actual innocence in
order to present his substantive arguments to the Court about the violation of his
7. Relief Requested:
gateway claim in order overcome the procedural limitations bar to his federal
habeas claims (seeking relief pursuant to Brady, Alcorta and Strickland), by proving
by clear and convincing evidence that no reasonable juror would have found him
Registry, id.
5 See National Registry, id. In 625 of the 2,127 exonerations since 1989, mistaken
eyewitness identification was a factor. See the N.C. mistaken identification cases
listed in the Registry, including: Darryl Hunt - also a Forsyth County, N.C., case, as is
Hayes [in the Darryl Hunt case the eyewitness descriptions of the suspect’s hair
ranged from “close-cropped,” to “short Afro,” to “braids,” to “corn rows,” to “plats,”
to a “Michael Jackson type jehri curl”]; Ronald Cotton; and Lesley Jean.
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guilty of the offenses in light of new reliable evidence suppressed by the State for
nearly two decades; (2) grant his in forma pauperis application filed
8. Prior Appeals: Petitioner Hayes has not previously appealed to this Court.
Certificate of Service
I hereby certify that on the 27th day of November, 2017, I electronically filed
the foregoing document for which conventional service is required with the Clerk of
court using the CM/ECF System, which will send notice of such filing to the following
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