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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT INFORMAL


INFORMAL BRIEF FOR HABEAS SECTION 2254 CASE

No. 17-7441, John R. Hayes, III v. Mark Carver


(MDNC: 1:16-cv-01100-TDS-LPA)

1-2. Jurisdiction & Timeliness of Notice of Appeal

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

The district court did not grant a certificate of appealability.

4. Issue on Appeal.

New reliable evidence of innocence, contained in the State’s disclosure of

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

should grant a Certificate of Appealability, through the equitable remedy of the

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

procedurally defaulted federal claims based on Brady, Alcorta and Strickland.

5. Standard of Review

The Court should grant a Certificate of Appealability (COA) when a habeas

petitioner shows that “jurists [of reason] could conclude the issues presented are

adequate to deserve encouragement to proceed further,” Miller-El v. Cockrell, 537

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

petitioner to present procedurally defaulted federal constitutional claims by

allowing an equitable exception to the limitations provisions of 28 U.S.C. §

2244(d)(1) to prevent a fundamental miscarriage of justice. McQuiggin v. Perkins,

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

v. Delo, 513 U.S. 298, 327-28 (1995).

6. Supporting Facts and Argument

A. NEW RELIABLE EVIDENCE, SUPPRESSED BY THE STATE FOR NEARLY


TWO DECADES, CONTRADICTS THE STATE’S 1994 TRIAL STORY.

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

Forest School of Law Innocence & Justice Clinic.

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

impeachment evidence about the inconsistencies previously told by the

prosecution’s witnesses, and no evidence of other shooters presented by the

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,

killing two young men.

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

him of the two counts of second degree murder.

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

about what they claimed to have seen.

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.

The Procedural History.

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-

conviction motions between 1995 and 2013.

Informal Discovery Provided (2011-2012): Between 2011 and 2012, the

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

post-conviction “open discovery” statute, N.C.G.S. 15A-1415(f).

State Court Formal Discovery and Motion for Appropriate Relief, As

Amended (2013-2016). In order to obtain the rest of the police reports, on

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

prosecutor’s office disclosed over 1,000 pages of documents, 17 audio recordings,

photographs and a crime scene video to Petitioner’s counsel. (See Docket Entry 7-

11 at 3; see also Docket Entry 7-12 at 70-71)

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

court denied on August 24, 2016 (Docket Entry 7-20).

Federal Habeas Proceedings (2016-2017). Mr. Hayes, through the Clinic,

filed a federal Habeas Petition on September 2, 2016. (See Docket Entry 1)

Respondent moved to dismiss the Petition on grounds of untimeliness. (Docket

Entries 6, 7) Petitioner replied, raising equitable tolling per the actual innocence

gateway for procedurally defaulted claims. (Docket Entry 7-10 and 11) The

Magistrate recommended that the Petition be dismissed as untimely (Docket Entry

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,

2017. (Docket Entry 24)

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B. NEW RELIABLE EVIDENCE OF MR. HAYES’ ACTUAL INNOCENCE EXCEPTS


PETITIONER FROM THE LIMITATIONS PROVISION OF 28 U.S.C. §
2244(d)(1).

New reliable evidence of actual innocence creates a gateway for a habeas

petitioner to present procedurally defaulted federal constitutional claims by

allowing an exception to the limitations provisions of 28 U.S.C. § 2244(d)(1) to

prevent a fundamental miscarriage of justice. McQuiggin v. Perkins, 569 U.S. 383,

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

injustice of incarcerating an innocent individual should not abate when the

impediment is AEDPA's statute of limitations).

A “gateway” claim of actual innocence is a procedural and equitable

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).

Petitioner Hayes is not making a Herrera “freestanding claim of actual innocence,”

with its much higher standard of proof. A procedural gateway claim focuses on

“actual innocence” by describing it in reasonable doubt terms, not actual, factual

innocence, as in Herrera with its much higher burden of proof. “[T]he line between

innocence and guilt is drawn with reference to a reasonable doubt…. [T]he

standard requires the district court to make a probabilistic determination about

what reasonable, properly instructed jurors would do.” Schulp v. Delo, 513 U.S.

298, 327-28 (1995) (emphasis added)

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Analysis of the New Evidence vs. the State’s Trial Story.

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

police and laboratory reports, physical evidence and audio recordings of

witnesses.

1. The location of two additional shell casings contradicts the trial


testimony of the two eyewitnesses who identified Hayes at trial.

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

was critical to the identity of the shooter.

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)

In fact, as shown by a police report by Officer Kennedy -- not disclosed to the

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)

Below (Photo B) is a police photograph of the sidewalk in front of the drink

house where the shootings occurred. (Doc. 17-1, p 3) According to a police

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

to socialize (See Docket Entry 7-3, T p 56).

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

police investigative reports were contemporaneous. Second, any lack of clarity

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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factual findings resulting from an investigation made pursuant to authority granted

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

porch would be used by the defense at trial.)

2. A main eyewitness at trial, Cynthia Coleman, initially described the


shooter as someone who did not at all resemble Mr. Hayes.

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

drove off. (Docket Entry 7-3, p 77)

In response to the prosecutor’s questions, M. Coleman testified that the

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

described in her recorded statement to Detective Barren on 8/10/93, a

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

group with a bottle going after someone in her trial testimony.

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

evolved 5’8” description.

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

colored shirt.” (Docket Entry 7-11, p 44)

3. Impeachment evidence against the two identifying witnesses, Mss. Jeter


and Geter, was not disclosed.

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.

4. A third undisclosed shooting victim and Nine Other Witnesses


identified shooters as someone other than Mr. Hayes.

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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

blue car. (Docket Entry 7-11, pp 67, 70-74)

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

7-11, pp 65-67) This was corroborated by another witness to the shootings,

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

7-8 (re audio))

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

Crump” or “Demo.” (Docket Entry 7-11, p 8)

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

determine whether she had been intimidated by Demo and Sunshine.

An anonymous tip to CrimeStoppers also indicated that “Demo” (Darren

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.

It is ironic that the Magistrate discounts eight of those eyewitnesses (excluding

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

eyewitnesses equivalent, in this respect, to the State’s three trial eyewitnesses. At

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

that a reasonable jury would find Mr. Hayes innocent.

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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

enforcement should have followed up more meticulously on most of these leads.

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

severely impeaches its identification eyewitnesses. This suppression resulted in a

trial tainted by constitutional violations, including: failure to disclose exculpatory

and impeaching evidence, as required by Brady v. Maryland, 373 U.S. 83 (1963),

United States v. Bagley, 473 U.S. 667 (1985) and Kyles v. Whitley, 514 U.S. 419

(1995); the State’s presentation of or failure to correct misleading or incomplete

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

counsel, Strickland v. Washington, 466 U.S. 668 (1984).

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

additional 18 recorded witnesses interviews.

All of this new evidence must be also evaluated in light of the lack of evidence

presented in this case. No murder weapon was ever recovered. No forensic

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

to this day – after 24 years of incarceration -- maintains his innocence.

The evidence showing actual innocence is “new” because it was not

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).

This new evidence is “reliable” because it was information obtained by

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,

in which it held that a petitioner’s unjustifiable delay in presenting affidavits helpful

to the defense could be considered in the reliability or credibility evaluation for an

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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-

effect-on-reasonable-jurors standard is applied. Schlup, 513 U.S. at 330.

The District Court here correctly eliminated the timing of the filing of the

Petition as a factor to be used in evaluating the reliability of the new evidence

presented in support of Mr. Hayes’ gateway innocence claim. (Docket Entry 22, pp 2-

3)

C. WITH THIS NEW RELIABLE EVIDENCE, IT IS MORE LIKELY THAN NOT


THAT ANY REASONABLE JUROR WOULD HAVE REASONABLE DOUBT
ABOUT THE GUILT OF MR. HAYES, AND THE DISTRICT COURT ERRED BY
FINDING OTHERWISE.

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.

When reviewing the new evidence to support an innocence gateway

claim, it must be noted that “reliability” does not mean “admissibility.” Rather,

evidence offered to support an actual innocence gateway claim is considered

holistically and cumulatively, with “’all the evidence’ old and new, incriminating and

exculpatory, without regard to whether it would necessarily be admitted under

‘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)).

D. THE DISCLOSURES BY THE STATE OF THE NEW EVIDENCE GIVES RISE

TO CLAIMS FOR VIOLATION OF PETITIONER’S FEDERAL

CONSITUTIONAL RIGHTS UNDER THE 6TH AND 14TH AMENDMENTS TO

THE U.S. CONSITUTION.

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

his Habeas Petition (Docket Entry 1).

(a) False or Misleading Testimony. The convictions should be set aside

because the newly revealed police reports show that the State either presented

misleading testimony to the 1994 jury or failed to correct false testimony, 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, 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

particles found in clothing from victim, corroborating female defendant’s statement

that decedent was trying to break into her house through the window). The

prosecution has a non-delegable duty to correct false impressions, despite

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

prosecution failed to disclose material exculpatory evidence, as required by Brady v.

Maryland, 373 U.S. 83, 87 (1963), and its progeny. This obligation includes the

disclosure of evidence impeaching the State’s witnesses, such as prior contradictory

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)..

(c) Ineffective Assistance of Counsel. It is extremely unlikely that complete

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

recordings of witnesses. Assuming the exculpatory evidence was provided to the

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defense, then Mr. Hayes’ trial counsel, failed to provide effective assistance by failing

to cross examine the State’s witnesses as to their earlier contradictory statements or

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

(2nd Cir. 2004) (unpublished).

Conclusion: A Certificate of Appealability Should Be Issued Based Upon

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

courageous defense of the British soldiers in Boston in 1770. 1 In the American

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

crucible of cross-examination. These “facts” can be physical evidence, witness

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

clothing, physical appearance and hairstyle, the impeachment evidence of the

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

eyewitness descriptions of hairstyle, facial description or race may be the stubborn

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

Constitutional rights, as protected by Brady, Napue and Strickland.

7. Relief Requested:

Petitioner Hayes asks the Court to (1) grant him a certificate of

appealability on the issue of whether he has established an actual innocence

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

2 See National Registry of Exonerations,


http://www.law.umich.edu/special/exoneration/Pages/about.aspx, last visited
11/22/17)
3 See House as well as the 351 DNA exonerations in the U.S. since 1989,

www.innocenceproject.org, last visited 11/22/17)


4 See, e.g., the exoneration of LaMonte Armstrong, a Greensboro, N.C. case, National

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

concurrently and appoint the undersigned counsel to represent him on

appeal; and (3) order formal briefing on the issue.

8. Prior Appeals: Petitioner Hayes has not previously appealed to this Court.

Respectfully Submitted this the 27th day of November, 2017.

/s/ S. Mark Rabil


S. Mark Rabil, Attorney for Petitioner
N.C. Bar No. 9427
Director, Innocence & Justice Clinic
Wake Forest School of Law
P. O. Box 7206
Winston-Salem, N.C. 27109
Tel. 336-782-4447 (cell)
Tel. 336-758-6111 (office)
Fax. 336-758-2231
Email: rabilsm@wfu.edu

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

registered CM/ECF users:

Peter A. Regulski (pregulski@ncdoj.gov)


Assistant Attorney General
N.C. Department of Justice
P. O. Box 629
Raleigh, N.C. 27602-0629

/s/ S. Mark Rabil, Attorney for Petitioner

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