Ronnie Long Writ of Habeus Corpus Petition

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

No. __:____ HC ______
RONNIE WALLACE LONG, )

)
Petitioner, )
) PETITION FOR WRIT
v. ) OF HABEAS CORPUS
) 28 U.S.C. § 2254
FRANK LEE PERRY, Secretary, )
N.C. Dep’t of Public Safety, et al., )
)
Respondents. )
Case 1:16-cv-00539-CCE-LPA Document 1 Filed 05/26/16 Page 1 of 82

TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................i
TABLE OF AUTHORITIES .................................................................................... ii
INTRODUCTORY STATEMENT ........................................................................... 1
PROCEDURAL BACKGROUND............................................................................ 6
STATEMENT OF THE FACTS ............................................................................. 11
SUMMARY OF ARGUMENT ............................................................................... 31
GROUNDS FOR RELIEF ....................................................................................... 33
I. LONG’S CREDIBLE CLAIM OF ACTUAL

INNOCENCE CREATES A “GATEWAY” TO
FEDERAL HABEAS REVIEW ......................................................... 33
II. THE STATE VIOLATED PETITIONER’S

CONSTITUTIONAL RIGHTS UNDER BRADY V.
MARYLAND BY FAILING TO DISCLOSE SBI
REPORTS AND NOTES, THE VICTIM’S MEDICAL
RECORDS, AND DETECTIVE ISENHOUR’S
REPORTS ........................................................................................... 48
CONCLUSION ........................................................................................................ 71
SUPPORTING MATERIALS ................................................................................. 72
PRAYER FOR RELIEF .......................................................................................... 73
CERTIFICATE OF SERVICE ................................................................................ 76

TABLE OF AUTHORITIES
Cases
Bowen v. Maynard, 799 F.2d 593 (10th Cir. 1986) ................................................54
Brady v. Maryland, 373 U.S. 83 (1963) .......................................................... passim
Giglio v. United States, 405 U.S. 150 (1972) ..........................................................56
House v. Bell, 547 U.S. 518 (2006) .........................................................................34
Kyles v. Whitley, 514 U.S. 419 (1995) ........................................................... passim
Lindsey v. King, 769 F.2d 1034 (5th Cir. 1985) .....................................................54
Long v. Dixon, No. C-89-278-S (M.D.N.C. May 3, 1990) ...................................2, 7
Love v. Johnson, 57 F.3d 1305 (4th Cir. 1995) .......................................................49
Magwood v. Patterson, 561 U.S. 320 (2010)...........................................................10
McQuiggin v. Perkins, 133 S. Ct. 1924 (2013) .......................................................34
Perry v. New Hampshire, 132 S. Ct. 716 (2012) .....................................................34
Schlup v. Delo, 513 U.S. 298 (1995) .................................................................. 5, 33
State v. Bowden, 367 N.C. 329, 755 S.E.2d 53 (2014) .............................................9
State v. Henderson, 27 A.3d 872 (N.J. 2011) ..........................................................35
State v. Long, 293 N.C. 286, 237 S.E.2d 728 (1977) ................................................6
State v. Long, 365 N.C. 5, 705 S.E.2d 735 (2011) ................................................5, 9
ii

State v. Long, 377 S.E.2d 228 (N.C. 1989) ...............................................................7
State v. Long, 689 S.E.2d 137 (N.C. 2009) ...............................................................9
Strickler v. Greene, 527 U.S. 263 (1999) ................................................... 49, 64, 71
Teleguz v. Pearson, 689 F.3d 322 (4th Cir. 2012) ................................ 33, 34, 37, 38
United States v. Bagley, 473 U.S. 667 (1985) ...................................... 50, 56, 67, 68
United States v. Hodges, 515 F.2d 650 (7th Cir. 1975)...........................................34
Walker v. Kelly, 589 F.3d 127 (4th Cir. 2009)........................................................49
Wolfe v. Johnson, 565 F.3d 140 (4th Cir. 2009) .....................................................37
Woodson v. North Carolina, 428 U.S. 280 (1976) ....................................................6

Statutes/Rules
28 U.S.C. § 2244 (2015) ................................................................................. 10, 33
28 U.S.C. § 2254 (2015) ............................................................................. 1, 37, 48
Other Authorities
Avraham M. Levi, Are Defendants Guilty if They were Chosen in a

Lineup, 22.4 LAW & HUMAN BEHAVIOR, n. 4 (1998) ....................................... 43
Bradbury, M. D., & Williams, M. R., Diversity and citizen participation:

The effect of race on juror decision making, Administration & Society
(2013) ................................................................................................................. 47
Christian A. Meissner, John C. Brigham, Thirty Years of Investigating the

Own-Race Bias in Memory for Faces: A Meta-Analytic Review,
PSYCHOLOGY, PUBLIC POLICY & LAW, Vol 7.1 ................................................. 44
iii

G.L. Wells, B.L. Cutler, & L.E. Hasel, The Duke-Lacrosse rape
investigation: How not to do eyewitness identification procedures in M.
L. Siegel (ed.), Race to injustice: Lessons learned from the Duke
lacrosse rape case. 313 Carolina Academic Pres. 2009 .................................... 41
Gary L. Wells & Deah S. Quinlivan, Suggestive Eyewitness Identification

Procedures and the Supreme Court’s Reliability Test in Light of
Eyewitness Science: 30 Years Later, 33.1 LAW AND HUMAN BEHAVIOR,
Vol. 12 (2009).................................................................................................... 40
Gary L. Wells, Elizabeth F. Loftus, Eyewitness Memory for People and

Events, HANDBOOK OF PSYCHOLOGY PART THREE 149-60 (2003).................... 39
Jonathan M. Fawcett, Emily J. Russell, Kristine A. Peace, Joh Christie, Of

Guns and Geese: A Meta-Analytic Review of the ‘Weapon Focus’
Literature, PSYCHOLOGY, CRIME & LAW (2013), Vol. 19.1 .............................. 45
Kenneth. A. Deffenbacher, Brian. H. Bornstein, Steven D. Penrod, E.

Kiernan. McGorty, A Meta-Analytic Review of the Effects of High
Stress on Eyewitness Memory, LAW AND HUMAN BEHAVIOR (2004), Vol
28.6 .................................................................................................................... 45
Kevin Krug, The Relationship Between Confidence and Accuracy: Current

Thoughts of the Literature and a New Area of Research, APPLIED
PSYCHOLOGY IN CRIMINAL JUSTICE 31 (2007)................................................... 40
Nancy K. Steblay, Gary L. Wells & Amy B. Douglass, The Eyewitness

Post Identification Feedback Effect 15 Years Later: Theoretical and
Policy Implications, 20.1 PSYCHOLOGY, PUBLIC POLICY, AND LAW, Vol.
15 (2014)............................................................................................................ 40
Sarah M. Greathouse & Margaret B. Kovera. Instruction Bias and Lineup

Presentation Moderate the Effects of Administrator Knowledge on
Eyewitness Identification. 33.1 LAW & HUMAN BEHAVIOR at 79 (2009) ......... 41
Kenneth. A. Deffenbacher, Brian. H. Bornstein, E. Kiernan. McGorty,

Steven D. Penrod, Forgetting the Once-Seen Face: Estimating the
iv

Strength of an Eyewitness’s Memory Representation. JOURNAL OF
EXPERIMENTAL: APPLIED (2008), Vol. 14.2 ...................................................... 44
National Research Council of the National Academies, Identifying the

Culprit: Assessing Eyewitness Identification, 96 (2014) (National
Academies) ........................................................................................................ 44
Williams, M. R., & Burek, M. W., Justice, juries, and convictions: The
relevance of race in jury verdicts, Journal of Crime & Justice (2008) ............. 47

NOW COMES Petitioner Ronnie Wallace Long, pursuant to 28 U.S.C. §
2254, and through undersigned counsel, respectfully moves this Court for a writ of
habeas corpus requiring Respondents to release him from confinement or try him
anew within a reasonable time, showing the Court as grounds therefore the
following:
INTRODUCTORY STATEMENT
Ronnie Wallace Long was convicted on October 1, 1976 for burglary and
the rape of a prominent local widow in Concord, NC. Long was a twenty-one-
year-old black cement mason and the father of a two-year-old son.
Long was convicted and sentenced to two concurrent life sentences despite a
complete absence of physical evidence linking him to the crime. Physical evidence
was collected and tested, but his counsel did not know of the tests or their negative
results. Additionally, as described below, the victim’s identification of Long ten
days after the crime was highly suggestive and inherently unreliable. Finally, the
circumstances of the trial further undermine confidence in the verdict. An all-
white jury, which was drawn from a pool of prospective jurors hand-screened by
the County Sheriff, included four jurors with employment connections to the
victim’s spouse, and a racially polarized atmosphere existed.
* * *

Long was arrested on May 10, 1976, after being asked to accompany two
local police officers to the Concord, North Carolina, police station to resolve a
trespassing warrant for a charge that had been dismissed earlier that same day.
Upon his arrival, Long was instead arrested for burglary and rape and has remained
incarcerated for the 40 years since. Long has steadfastly maintained his innocence,
from his first contact with Concord police in 1976 until now. His claim of
innocence is persuasively reinforced by newly discovered exculpatory evidence,
which has been trickled out piecemeal to the defense in 2005, 2006, and 2015.
None of the new evidence was available to Long at the time of his 1976 trial or
prior to his 1989 habeas petition. See Petition for Writ of Habeas Corpus, Long v.
Dixon, No. C-89-278-S (M.D.N.C. May 3, 1990).
Most of the new evidence was first discovered after a court order in 2005
(“Discovery Order”). App. 100-04. Even after the court’s order, the evidence was
belatedly turned over following several requests and the affirmative denial of its
existence by the State Bureau of investigation (“SBI”) and the Concord Police
Department (“CPD”). The latent lifts discussed below were not produced at the
time of Long’s trial or after the Discovery Order, and first came to the defense’s
attention in 2015 after the North Carolina Innocence Inquiry Commission
(“NCIIC”) notified Long’s counsel that the lifts were discovered and queried

through a database.1 See CPD Evidence Processing Report, attached as Exhibit 1.
The evidence withheld from defense counsel at trial includes:
 The test tube containing vaginal swabs and secretions taken shortly
after the rape, which, according to the police report, were signed for
by Sergeant Lee;
 An SBI analyst report on Long’s jacket and gloves, which contained

no trace of the paint or fibers from the crime scene;
 An SBI analyst report regarding a suspect hair found at the scene of

the crime, which concluded that the compared hairs were different;
 An SBI analyst report on the victim’s clothing, finding no hairs

resembling Long’s;
 An SBI report for matchbooks recovered from the crime scene

compared with matches in Long’s car that found no sufficiently
identifying characteristics to link them to Long;
 And latent fingerprints discovered in 2015.
To this day, the sexual assault evidence kit or results from tests on this kit, if it was
tested, have not been made available to the defense. Considering the way in which
this evidence has been disclosed – first being denied, then found, then explained
away – there is no way to know what additional evidence may be or at one time
was in the State’s possession.
1
The North Carolina Innocence Inquiry Commission is a state agency with statutory authority to investigate
claims of innocence made by North Carolina inmates. As described below, the CPD’s report raises more questions
than answers because the report provides no information about which database was queried. See infra, pp. 35-36.

The fact that Long was not previously provided this evidence was clearly
established at an evidentiary hearing held in November and December 2008
following his Motion for Appropriate Relief (“MAR”).2 Long’s trial counsel
testified at the MAR hearing that he did not know that evidence was brought by
police investigators to the SBI Crime Lab for forensic testing in 1976 and that
these test results were favorable to Long. The Assistant District Attorney (“ADA”)
who prosecuted Long testified that Long’s trial counsel was not provided with
details about the forensic examinations and results. At the 2008 MAR hearing, the
ADA testified that the only forensic evidence he was aware of before trial was a
latent shoeprint taken by Detective Van Isenhour to the SBI Crime Laboratory. 2d
MAR T Vol. I pp. 313-314.3
The Cabarrus County Superior Court’s (“the MAR Court”) subsequent
denial of relief in 2009 was based on an unreasonable determination of the facts in
2
Long had earlier filed a pro se Petition for Post-Conviction Relief in 1986. The trial court denied his pro se
Petition after appointing counsel and holding an evidentiary hearing. A second MAR, with the assistance of
counsel, was filed on August 27, 2008. References to the MAR proceedings and evidentiary hearing relate to the
2008 MAR filed on Long’s behalf by counsel. The MAR will be referred to as either “2008 MAR” or “2d MAR.”
3
Throughout this Petition, the following conventions will be used: “T p. ___” for Vol. II of the trial
transcript; “T Argument p. ___” for the transcript of closing arguments at trial; “MAR p. ___” for the transcript of
the evidentiary hearing related to the 1986 MAR; “2d MAR T Vol. I p. ___” and “2d MAR T Vol. II p. ___” for the
transcript of the evidentiary hearing related to the 2008 MAR; and “App. ___” for the appendix to Long’s brief to
the Supreme Court of North Carolina after the denial of his 2d MAR. (Since Long’s case came before the Supreme
Court of North Carolina on certiorari, there was no settled record on appeal.) It is undersigned counsel’s
understanding that all of the above-referenced documents will be made available for this Court’s review by the State
under Habeas Rule 5. Petitioner will provide copies of any of the items upon request.

light of the evidence presented at the 2008 MAR hearing and the repeated
misapplication of clearly established federal law about the burden of proof
applicable to claims under Brady v. Maryland, 373 U.S. 83, 87 (1963).4 Long’s
claims were exhausted in state court after the North Carolina Supreme Court split
three-to-three, with one Justice abstaining, on the merits of his claims. State v.
Long, 365 N.C. 5, 705 S.E.2d 735 (2011). This even split resulted in the
procedural affirmation of the MAR Court’s decision.
Although this petition is being filed outside of the one-year statute of
limitations, Long’s persuasive claim of innocence creates a gateway to federal
habeas review under Schlup v. Delo, 513 U.S. 298, 314 (1995). A review of all the
evidence in this case makes clear that a fundamental miscarriage of justice would
result by failure to review the merits of Long’s claims. The withholding of
exculpatory evidence, the unreliable eyewitness identification, and the racially
biased jury-selection process deprived Long of a fair trial and a verdict worthy of
4
Although the burden under Brady is well–established as “not whether the defendant would more likely than
not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood
as a trial resulting in a verdict worthy of confidence,” Kyles v. Whitley, 514 U.S. 419, 434 (1995), the MAR Court
incorrectly applied the much more rigorous standard “that the result likely would have been different with the
claimed evidence.” App. 229 ¶17. While there exists compelling evidence to support Long’s claim of factual
innocence, that was not his burden before the MAR Court. Rather, Long was simply required to demonstrate that he
did not receive a fair trial. The trial court clearly erred in subjecting Long’s Motion to the incorrect legal standard.

confidence and wholly support’s Long’s innocence. The totality of these
circumstances begs for this Court’s review.
PROCEDURAL BACKGROUND
A. Trial and Appeal
Ronnie Long was indicted on May 17, 1976 in what was then the Nineteenth
Judicial District of North Carolina on charges of burglary and rape. App. 1-2. A
trial was held before Judge William Z. Woods during the September 27, 1976
Criminal Session of the Cabarrus County Superior Court. The jury returned
verdicts of guilty on both charges and the trial court entered judgments imposing
concurrent life sentences for the two convictions.5 App. 3-4. Long filed an appeal
of right to the North Carolina Supreme Court,6 which affirmed his convictions.
State v. Long, 293 N.C. 286, 237 S.E.2d 728 (1977).
B. First MAR (1986) and Habeas Petition (1989)
On August 1, 1986, Long filed a pro se MAR in Cabarrus County Superior
Court, arguing ineffective assistance of counsel. App. 219 ¶ 5; MAR T Vol. I p. 3.
5
At trial, Long was represented by the law firm of Chambers, Ferguson, Stein and Wallace (the “Chambers
Firm”). His lead trial attorneys were James Fuller and Karl Adkins, and their lead investigator in this case was Les
Burns.
6
At the time of indictment, rape and burglary carried a mandatory death sentence. On July 2, 1976, the
United States Supreme Court ruled North Carolina’s capital punishment statute unconstitutional and the possible
sentence became life in prison. Woodson v. North Carolina, 428 U.S. 280 (1976).

The Superior Court appointed counsel to represent Long for the MAR proceedings,
and the court ultimately denied Long’s MAR. Id. The North Carolina Supreme
Court denied certiorari on January 4, 1989. State v. Long, 377 S.E.2d 228 (Mem.)
(N.C. 1989).
On April 24, 1989, Long filed a pro se habeas petition with the United States
District Court for the Middle District of North Carolina, arguing ineffective
assistance of counsel on the basis of, among other things, his trial counsel’s failure
to adequately challenge the jury selection process. That petition was dismissed on
May 3, 1990. Long v. Dixon, No. C-89-278-S (M.D.N.C. May 3, 1990).
C. Discovery Order (2005), Second MAR (2008), and Appeal (2011)
Long later applied to the UNC Innocence Project to investigate his case, and
the Project recruited a volunteer attorney to litigate Long’s case. 2d MAR T Vol. I
pp. 97-99. On April 20, 2005, that pro bono counsel filed a Motion for Location
and Preservation of Evidence in Cabarrus County Superior Court. On May 23,
2005, the Superior Court issued an Order directing the District Attorney’s Office,
the Concord City Police Department (“CPD”), and the North Carolina SBI to
locate and preserve all physical evidence and records in the case and to provide
defense counsel with copies of all test results and reports prepared in connection
with the case. App. 100-04. The Court also ordered Northeast Medical Center,

formerly Cabarrus Memorial Hospital, to locate, preserve, and provide to the court
all biological evidence relating to this case. App. 105-06.
In response to the Discovery Order, the SBI reported that it had no evidence
related to Long’s case. App. 112. The CPD also reported that it did not locate any
physical evidence but did find a file on the case which included a May 12, 1976
summary, prepared by Det. Isenhour, who was also the evidence custodian. See
2005 Discovery Hearing Transcript, attached as Exhibit 2.7 That file included a list
of items Det. Isenhour had taken to the SBI for examination. App. 146-49.
Prompted by the discovery of that list, the SBI then found a file containing results
of examinations on the evidence from 1976 submitted by the CPD. The SBI
produced these results on January 13, 2006. App. 117-37.
Finally, the Northeast Medical Center provided the Cabarrus County
Superior Court with 26 pages of medical records pertaining to Long’s case. App.
7
At an evidentiary hearing in 2005, the State prosecutor stated that “we requested that the Concord Police
Department do a thorough search of all of their evidence and the inventory they have. . . . [I] know that based on
the work that he’s done, there have been at least 25 man hours spent searching for any of the items outlined in the
Court’s order . . . anything that may not have been introduced into court at the actual trial and they have found
nothing.” Exhibit 2 at 4. The officer who testified at the hearing, Sergeant Robert Ledwell, affirmatively denied
the existence of any physical evidence: “Really, the only thing I was able to locate was the case file.” Exhibit 2 at
7. Sgt. Ledwell answered affirmatively when asked whether the master file was “just paperwork.” Ledwell
further testified, “No, sir, no physical [evidence] . . . No, sir, no evidence sheets.” Id. When detailing the amount
of time spent searching the evidence room in response to the Discovery Order, Sgt. Ledwell testified that he and an
assistant spent “easily 12 to 14 hours manually going through what we had, the older evidence that we had and
physical searches.” Exhibit 2 at 9.

138. After in camera review, the Superior Court turned 11 pages over to Long’s
counsel. Id.
After exhausting investigative leads, counsel for Long filed a second MAR
in Cabarrus County Superior Court on August 27, 2008. 2008 Motion for
Appropriate Relief, attached as Exhibit 3. Among other things, the 2008 MAR
raised Brady claims related to the State’s failure to disclose the favorable SBI
reports and test results to the defense. An evidentiary hearing was held on
November 20-21 and December 2, 2008. 2d MAR T Vol. I p.1; 2d MAR Vol. II
p.1. On February 25, 2009, the Court denied Long’s Brady claims but granted
sentencing relief on other grounds. App. 218-31. The State appealed the MAR
Court’s Order granting sentencing relief and obtained a temporary stay from the
North Carolina Supreme Court, but the stay was eventually dissolved. State v.
Long, 689 S.E.2d 137 (Mem.) (N.C. 2009). The sentencing relief granted was
directly tied to other state court litigation, see, e.g., State v. Bowden, 367 N.C. 329,
755 S.E.2d 53 (2014), which was resolved unfavorably for Long.
Long appealed the Court’s denial of his Brady claims and the North Carolina
Supreme Court granted full certiorari review. State v. Long, 365 N.C. 5, 705
S.E.2d 735 (2011). In a February 4, 2011 per curiam decision, the North Carolina

Supreme Court – by a three-to-three vote with one Justice abstaining – affirmed the
MAR Court’s Order denying the Brady claims. Id.
D. Second Habeas Petition (2012)
Long’s 2008 MAR counsel then enlisted North Carolina Prisoner Legal
Services (“NCPLS”) to file a habeas petition on the basis of the Brady claims. On
February 3, 2012, NCPLS filed a habeas petition in the Middle District of North
Carolina, but, apparently unaware of the pro se habeas petition filed by Long in
1989, did not first obtain the permission of the United States Court of Appeals for
the Fourth Circuit to file a successive habeas petition. 28 U.S.C. § 2244 (2015).
After the habeas petition was filed, the federal magistrate judge assigned to
the case advised NCPLS of the 1989 petition, but it maintained that the 2012
habeas petition was not “second or successive” because the MAR Court’s holding
that Long “is entitled to have his sentence considered as a term of eighty years”
constituted a “new judgment intervening between the two habeas petitions.” See
Magwood v. Patterson, 561 U.S. 320, 341-42 (2010) (holding petition is not
“second or successive” under the Anti-Terrorism Effective Death Penalty Act
(“AEDPA”) if there is a “new judgment intervening between the two habeas
petitions”). The District Court disagreed and dismissed Long’s petition for lack of
10

jurisdiction. Petitioner has sought permission from the Fourth Circuit to file this
petition.
STATEMENT OF THE FACTS
A. The Crime
Around 10:00 p.m. on April 25, 1976, in Concord, North Carolina, the 54-
year-old widow of a Cannon Mills executive was raped by a man who broke into
her home by climbing up a paint-covered outside banister and entered through an
upstairs window. App. 59, 138-51; T pp. 108-09, 273-74; MAR T Vol. I p. 46.
The victim sustained injuries requiring hospital admission, App. 138-51, including
that her “fingernails were all sore” and some “had been bent backward,” which she
believed occurred when she fought and scratched her assailant, who was wearing a
leather jacket and a toboggan (a knit cap), App. 141. Hospital staff collected
numerous items of biological evidence from the victim, including pubic hair
combings and five samples of bodily fluid suspected of containing the sperm of the
perpetrator, which were taken “according to the rape protocol.” Id.
B. The Victim’s Identification of Long
About two hours later, at approximately 12:05 a.m. on April 26, 1976, CPD
Sgt. David J. Taylor talked with the victim at Cabarrus Memorial Hospital. T pp.
174-75. She described her attacker as follows:
11

[a] black male, height, five foot five to five foot nine, slender build,
slim hips. Subject was plain spoken, used correct English and at times
spoke very softly. No speech defect, accent, or noticeable brogue
evident. Subject was wearing a dark waist length leather jacket, blue
jeans with a dark toboggan pulled over his head. Could possibly have
been wearing gloves.
T pp. 243-44. Although a police photograph taken of Long four days after the
assault revealed that he wore a moustache and a “scruffy beard,” her description
did not mention any facial hair. T pp. 167 & 247; App. 59. Long still had a
moustache and beard when arrested on May 10, 1976. T p. 247; State’s Exs. 10 &
11.
The victim’s description of Long was also inconsistent with other significant
aspects of Long’s appearance. She described him as a “light-skinned . . . yellow
black man,” T p.122, but Mr. Long is a dark-skinned African-American. See
Photo of Ronnie Long, attached as Exhibit 4.
On May 5, 1976, ten days after the crime, Sgt. Taylor and Lt. George Vogler
of the CPD, who had earlier shown the victim a photographic lineup including
another suspect, T p. 180, apparently decided against a photographic lineup
including Long, and asked her to accompany them to district court on the morning
of May 10, 1976. The officers, knowing Long would be in court that morning for a
12

misdemeanor trespassing charge,8 suggested to the victim that her rapist may be
present and hoped she would identify him. T pp. 21, 45-46, 181 & 184.
On the morning of May 10, Sgt. Taylor and Lt. Vogler took the victim,
wearing a red wig and glasses to disguise herself, and her neighbor to the
courtroom. T pp. 24-25 & 182-83. The victim reported that officers told her to
“sit there [in the gallery] and to look around and see if [she] saw anybody that
[she] knew, or the man that raped [her].” T p. 27. The officers watched from the
jury box. T p. 30. There were 35 to 50 people in the courtroom and “there were
some blacks in there, like maybe a dozen.” T pp. 27-28. Long was seated in the
middle of the gallery for the full time. T p. 184.
The victim was “constantly just looking” around for about an hour or an
hour and a half, but did not identify Long as her assailant until the judge called him
to come forward for the trespassing charge. T pp. 28-30, 48-49, & 127.
About 15 to 20 minutes later, the officers took the victim to the police
station and showed her six to eight photographs, including one of Long in a black
leather jacket and one that “looked like it might have been a woman.” T pp. 33-35
& 49-50. When asked whether there was “anything distinctive about the dress of
8
The CPD could have used the photograph of Long taken on April 30, 1976, in connection with his alleged
trespass in Caldwell Park. The park was located behind and adjacent to his parents’ home, where Long lived at the
time. The trespass was dismissed on May 10, the day the officers took the victim to court.
13

any of those individuals . . . that drew [her] attention to them,” she said, “[It] was
the jacket . . . if it wasn’t the jacket, it was the identical, one identical to it. It was a
leather jacket.” T pp. 34-35. She further admitted that Long was the only one in
the photographs wearing a leather jacket and, on a question from the judge, that the
officers “could have” explicitly asked her to pick Long from the photo array. T p.
53.
C. Long’s Arrest
On the evening of May 10, 1976, Sgt. Taylor and Sgt. Marshall Lee went to
Long’s home and told him to come to the station to “straighten out” the trespassing
warrant, which had been dismissed that morning. T pp. 215-16. Upon his arrival,
Long was arrested on the rape and burglary charges. Id. By October 1, 1976, less
than five months after his arrest, Long was tried, convicted, and sentenced to life in
prison.
D. The Investigation, Including the Evidence Collected and Driven to

the SBI Lab for Analysis
Police, responding to the victim’s call to the CPD, arrived at the crime scene
just after 10 p.m. on Sunday, April 25, 1976. Sgt. Taylor arrived at approximately
10:30 p.m. with tracking dogs and searched the area for approximately 30 minutes.
T pp. 174-75. Shortly after midnight, Sgt. Taylor met with the victim at the
14

hospital and acquired the suspect description described above. Det. Isenhour
processed the crime scene and later testified that he only lifted a partial latent shoe
print from the scene. T p. 291. He did not reveal that he had also collected latent
fingerprints, carpet samples, suspect hair, and paint samples from the crime scene,
as well as the victim’s clothing and partially burned matches from the suspected
point of entry to the victim’s home. App. 117-21, 127-28 & 146-49. About three
hours after the rape, around 12:35 a.m. on April 26, 1976, Sgt. Lee took custody of
two specimens collected at the hospital: (1) a plastic bag containing combings of
the pubic hair of the victim, and (2) a test tube containing vaginal swabs and
secretions. App. 145.
At the time of his arrest, Long’s leather jacket, which he wore to the police
station on May 10, was also collected, as were gloves and matchbooks from his
father’s vehicle, which Long drove to the police station that evening. Police
reported finding a green toboggan9 in Long’s car and Det. Isenhour took inked
impressions of the shoes Long wore to the station.
On May 11, 1976, Det. Isenhour drove 15 items of evidence to the SBI
laboratory in Raleigh for examination, including the toboggan, Long’s gloves and
9
Long has steadfastly maintained that the toboggan was not his and that he had never seen it before his
arrest. T p. 218 (suppression hearing).
15

jacket, the victim’s head hair samples and pubic hair combings, carpet samples,
suspect hair, matchbooks from Long’s father’s car and the partially burned
matches from the scene, the victim’s clothing, paint samples, latent shoe print
impressions, and inked impressions of Long’s shoes. App. 117-21, 127-28 & 148.
Det. Isenhour delivered 13 of the 15 items to SBI Special Agent Rick Cone (“S/A
Cone) and the remaining two items to SBI Special Agent Dennis Mooney (“S/A
Mooney”). App. 117-21 & 127-28.
The sexual assault evidence kit – a test tube containing vaginal swabs and secretions
taken shortly after the rape, and signed for by Sgt. Lee for pickup from Cabarrus County
Hospital – was not listed in Det. Isenhour’s report of evidence submitted to the SBI and is
not mentioned in any SBI document thus far discovered in the case.
E. Forensic Analysis Conducted by the SBI Did Not Connect Long to

the Crime
The items delivered to the SBI by Det. Isenhour were examined by three
separate analysts, and each analyst produced his own report. App. 117, 127 & 129.
None of the forensic examinations connect Long to the crime.
The first report, prepared by SBI Special Agent Glen Glesne (“S/A Glesne”),
who conducted a microscopic comparison of sample head and pubic hair from
Long with a suspect hair collected at the crime scene, concluded that the compared
16

hairs were different. App. 129. S/A Glesne also reported that he examined the
victim’s clothing, including a pair of sandals, a blue house coat, panties and panty
hose, and found no hairs resembling Long’s. App. 129-37.
The second report, prepared by S/A Cone, concluded that none of the
clothing submitted for analysis (a leather jacket, a pair of black gloves, and a green
toboggan) had the presence of any paint or fibers from the crime scene, and none
of the partially burned matches found at the scene had “sufficient identifying
characteristics” to determine if they came from the matchbooks recovered from
Long’s father’s vehicle. App. 117-26. Five matchbooks were compared with the
matches from the crime scene. App. 126. Four matchbooks were eliminated as
possible origins for the burned matches because of a difference in color, and,
although the fifth matchbook could not be excluded on that basis, S/A Cone
concluded the burned matches from the scene “probably did not originate from this
matchbook.” Id.
The third report, prepared by S/A Mooney, compared two inked shoe
impressions taken from Long on the day of his arrest with the partial latent shoe
print impression taken from the crime scene. App. 127. While S/A Mooney
reported that Long’s shoes “could have made the shoe track impression” from the
17

crime scene, “there were an insufficient number of distinct characteristics noted by
which to effect any identification.” Id. (emphasis in original).
The MAR Court found that the SBI concluded in its report that the shoes
seized from the defendant “matched the tread design of the print left at the scene.”
App. 220 ¶ 12. The SBI analyst report states that no identification could be made:
“There was an insufficient number of distinct characteristics noted by which to
effect any identification.” App. 127. The examiner also testified at the trial he
could not state there was a match:
Q. [Prosecutor] Did you then . . . do you have an opinion

satisfactory to yourself, sir, as to whether or not State’s Exhibit
Thirteen was made by either specific object, namely State’s
Exhibit Fifteen-A or Fifteen-B?
A. No, sir, I do not.

...
Q. [Defense] Now, is it your testimony that if I found a pair of red
shoes in this courtroom, similar to the ones that were used to
make the inked impressions, that those shoes could also have
made an impression similar to what you have there?
A. Yes, sir, that is correct.
Q. So in other word, you are not telling this jury that your opinion
is such that the impressions you examined that were brought to
you by an officer from the Concord Police were made by any
type that you could identify?
A. That is correct.
18

T pp. 298-99.
When Det. Isenhour was asked at trial what evidence he had taken to the SBI
for analysis, he stated that he took only the latent shoe impression, the inked
impressions from Long’s shoes, and Long’s shoes. T p. 285. He further testified
that he remained with these items during the forensic analysis, thus never
relinquishing custody and control, T p. 265, but, the SBI reports show that, on May
11, 1976, Det. Isenhour released to the SBI the of evidence detailed above and
picked them up nearly a week later, on May 17, 1976, App. 117-21, 127-28.
F. Defense Counsel Was Not Told that the Evidence Above Had
Been Taken to the SBI and that the Hospital Had Retained the
Biological Samples and Turned Them Over to the CPD
At trial, Long’s principal defense counsel were James Fuller and Karl
Adkins. App. 3-4. Les Burns, an investigator, assisted the defense. 2d MAR Vol.
I T pp. 174-77. The State was represented by Assistant District Attorney (“ADA”)
Ronald Bowers. App. 3-4.
ADA Bowers testified at the MAR hearing that District Attorney (“DA”)
James Roberts handled discovery and that his office had an open-file discovery
policy. 2d MAR T Vol. I pp. 177-78, 252 & 297-99. Long’s trial counsel
specifically recalled a meeting at which DA Roberts handed over a packet of
documents relating to the case, which was the only documentary discovery the
19

defense received from Roberts.10 2d MAR T Vol. I pp. 113-15, 252-58. Fuller and
Burns recalled a second pretrial meeting with DA Roberts at which the defense had
the opportunity to inspect a jacket, toboggan, and gloves. 2d MAR T Vol. I pp.
118-19 & 257-58. Long’s trial counsel did not have another opportunity to inspect
any other physical evidence.
Det. Isenhour’s investigation summaries listing what items were taken to the
SBI and the SBI analysts’ reports were never disclosed to Long’s trial counsel. 2d
MAR T Vol. I pp. 130-33, 183-84, 256, 258 & 286-87. The defense team was also
never informed that the CPD had obtained a full sexual assault evidence kit from
the hospital. 2d MAR T Vol. I pp. 127-28, 194-95, 260, 262-63. Long’s trial
counsel recalled the State affirmatively denying that a rape kit had been taken. 2d
MAR T Vol. I p. 195.
ADA Bowers testified at the 2008 MAR hearing that he did not recall
seeing Det. Isenhour’s investigation summaries or the SBI reports before trial, and
he believed they were not turned over to the defense. 2d MAR T Vol. I pp. 133,
184 & 258. He further testified that, if he had had them, the SBI reports would
have been disclosed to the defense, and that he did not know about the fluid
10
The packet of materials from DA Roberts was admitted as Defendant’s Ex. 2 at the MAR hearing in 2008.
2d MAR p. 125. An identical set of discovery materials was kept in the courthouse file; it was admitted as
Defendant's Ex. 3. 2d MAR pp. 125-26; App. 85-86.
20

samples or pubic hair combings taken from the victim at the hospital, and if he had,
he would have requested further testing of them. 2d MAR T Vol. I pp. 304, 308 &
311-12.
Long’s trial counsel testified that, based on previous dealings with DA
Roberts, they trusted and relied on him to provide all the discovery pursuant to his
office’s open file discovery policy. 2d MAR T Vol. I pp. 177-78 & 252. Fuller
stated that he would have followed up with DA Roberts if there had been a
suggestion from anyone in the CPD or DA’s office that additional discovery
materials existed or that evidence had been sent for testing. 2d MAR T Vol. I
pp. 284-85.
G. Long’s Arrest and Trial Stirred Racial Unrest in Concord
Long’s arrest polarized the community. Marches and demonstrations were
held throughout the summer. App. 47-50; MAR T Vol. I p. 54. The atmosphere at
the 1976 trial was tense and racially polarized: “white folks were on the
prosecutor’s side and the black folks with a few, sort of a salt and pepper
sprinkling of whites” on the defense side. MAR T Vol. I p. 19. The jurors were all
white. MAR p. 82. When the verdicts were announced, spectators were cleared
from the courtroom by police. MAR T Vol. I pp. 54-55 & 61.
21

The victim was the widow of a well-known Cannon Mills executive, and, in
Cabarrus County at the time, there was a “real or perceived feeling that Cannon
Mills ran” the county, and, as Adkins testified, it would have been “difficult to
keep those kinds of feelings out of . . . [the] courtroom.” MAR T Vol. I p. 46.
Three of the jurors worked for Cannon Mills, and a fourth was married to a
Cannon Mills employee. App. 45-46 (newspaper article referred to at MAR pp.
82-83).
The all-white jurors were selected from a jury pool that was personally
vetted by the Cabarrus County Sheriff before anyone on the list was issued a
summons for service. The county’s Jury Commission Chairman explained the
process during voir dire:
[He] takes the [jury] roll lists to the Sheriff’s department and
sometimes the sheriff comes to our office on Church Street, and go
over name by name and he knows most of them personally, but
sometimes he also brings a couple of deputies with him; and they in
turn help him check the names off of the ones who are supposed to be
disqualified, or the same thing is done in the CPD . . . and that’s the
way we disqualify these people who are not eligible to be on the jury.
T Jury p. 20. The Chairman further explained that he “give[s] [the sheriff] a red
pencil and he marks that red through that particular name.” T Jury pp. 20-21. No
record was maintained of the reason for any disqualifications. Id.
22

H. The State’s Case at Trial
The State’s case relied almost entirely on the victim’s testimony. She
testified that her assailant threatened her with a knife, and beat and raped her. T
pp. 8-9 & 15-18. She testified that she struggled and fought for her life, T pp. 71,
113, 119, and that her assailant yelled, “Don’t look at my face,” T p. 78, and “kept
pushing . . . [her] face to the side, holding . . . [her] face with his hand,” id. The
victim also testified that she was very frightened, so frightened that she “had no
idea . . . [she]’d ever get out alive.” T pp. 12-13 & 116. As soon as her assailant
fled the scene, the victim ran to a neighbor’s house and reported the rape. T p. 19.
The victim identified Long at trial. T pp. 20.
Dr. Lance Monroe testified that he examined the victim on the night of the
attack and that, in his opinion, the injuries he observed on her had been caused by
“some sort of traumatic intercourse.” T pp. 172-73. He also described a slide he
had made containing semen and sperm he had collected during a pelvic
examination of the victim. T pp. 170-71. Dr. Monroe did not mention that
numerous items of biological evidence, including pubic combings and five samples
of bodily fluid, were collected from the victim and picked up from the hospital by
the CPD.
23

Detective Isenhour testified that he asked S/A Mooney to conduct the shoe
print examination and comparisons; S/A Mooney testified that he could not say the
shoeprint was made by either of Long’s shoes. T pp. 288 & 298-99. Det. Isenhour
did not mention the other 13 items he submitted to the SBI. At closing, the State
made the following arguments:
 “Every word [the victim] uttered is fully and entirely

corroborated by the evidence as was seen by the officers in her
home . . . and the latent evidence found by the officers.” T
Argument pp. 103-04 (emphasis added).
 “The man that made that footprint is the man that broke into her
home.” T Argument p. 109.
 The victim’s “testimony is not only accurate, but totally

consistent with every piece of physical evidence existent.
Everything she says happened that is capable of being
corroborated by physical evidence, corroboration, is so
corroborated . . . Every piece of physical evidence points
unerringly to the fact that [the victim] told you exactly what
happened that night unerringly.” T Argument p. 113 (emphasis
added).
The State also introduced as evidence the black leather jacket Long was
wearing the day he was arrested, a pair of black leather gloves, and a green
toboggan that were recovered from the car he drove to the police station the day he
was arrested. T pp. 238-40 & 301-02. The State did not disclose the examination
24

of these items that failed to provide any link between Long and the victim or the
crime scene.
I. The Defense Case
Long’s trial counsel presented an alibi defense, calling several witnesses
who testified that Long spent the afternoon and early evening planning a high
school reunion party, T pp. 311-12, 316-17, 322-23, 329 & 377, and spent the later
evening at home talking to his girlfriend and young son on the telephone, T pp.
338-43 & 349-53, waiting for his father to return home with the family car, T p.
348, and listening to music in his room, T p. 352. Then, around 10:25 p.m., he and
a friend drove to a party in Charlotte. T pp. 362 & 377. The victim testified that
the crime occurred around 9:30 to 9:45 p.m., which is when Long’s witnesses
testified that he was at home. T pp. 5, 40-41, 338-43 & 347-53.
Witnesses also testified that they did not observe any scratches or injuries on
Long, including a witness who was intimate with Long after the party, or any
scratches on his leather jacket. T pp. 325 & 330.
On both cross-examination and in their summations, trial counsel attempted
to challenge the accuracy of the victim’s identification by demonstrating that she
had little or no interaction with African Americans. T pp. 130-33; T Argument pp.
120-21. Among other things, she described the perpetrator as a “light skinned” or
25

“yellow” black man, T p. 122, but Long is black and dark skinned. See Exhibit 4.
The victim also admitted to recognizing Long because he was wearing a leather
jacket similar to the one she recalled the assailant wearing. T pp. 140-41. Finally,
despite being in the courtroom with only a dozen black people, it took the victim
more than an hour to identify Long, and then only when he was called to the bench
by name. T pp. 127-29.
Long’s trial counsel also challenged the accuracy of the identification by
highlighting the victim’s state of mind during the attack. She was terribly
frightened and extremely emotionally upset, and the assailant held a knife to her
throat during the attack. T pp. 113, 116, 120 & 129; T Argument p. 139. Counsel
also pointed to the fact that the victim testified that the toboggan concealed the
assailant’s face. T p. 137; T Argument p. 147.
Finally, Long’s trial counsel pointed to the lack of physical evidence
connecting Long to the crime: S/A Mooney admitted that he could not say the
latent shoe print was made by Long’s shoes, T p. 299; there was no paint on the
leather jacket or gloves, although the assailant likely shimmied up a white painted
surface to reach the second floor window, T Argument p. 116; there were no
scratches on Long, although the victim vividly described how she fought her
assailant, T Argument pp. 145-46; the hair that could be seen in the toboggan was
26

light in color rather than Long’s black hair, T p. 310; and no blood was found on
Long’s clothing, T Argument p. 145. Trial counsel did not have the medical
records of the victim and, as described above, were unaware of the existence of the
other favorable evidence.
J. Evidence From State Post-Conviction Proceedings
At the 2008 MAR hearing, Long’s counsel presented newly discovered
evidence, including Det. Isenhour’s summary reports, App. 146-51; the three SBI
analysts’ reports and their associated notes, App. 117-137; and the victim’s
medical records, App. 139-145. 2d MAR T Vol. 1 pp. 131-32, 133-37, 321
(Defendant’s Exhibits 4A, 4B, 5 and 7, respectively). The summary reports
presented included the May 12, 1976, summary report discussed above, which lists
the 15 items of evidence taken to the SBI, and a second report prepared by Det.
Isenhour excluding the information related to the evidence taken to the SBI other
than the latent shoe print evidence.11
At the hearing, a number of witnesses testified about the withheld evidence.
The witnesses included two SBI agents, an outside forensic expert, and Long’s trial
attorneys. Jennifer Remy, a senior hair analyst with the SBI, summarized S/A
11
The second report is entitled “Latent Evidence Work and Photography . . . ,” but it does not include all of
the now-known latent evidence that was collected by the CPD and lacks other information related to the
materiality of the latent evidence included in the report.
27

Glesne’s 1976 report concerning the known samples of the victim’s hair and pubic
hair combings, a hair found at the crime scene, the suspect’s pubic hair, and clothes
worn by the victim at the time of the rape. 2d MAR vol. II pp. 10-18, 24-28, 32-33.
She testified that S/A Glesne’s analyses concluded that the hair “was different
from the suspect’s hair.” 2d MAR vol. II p. 26.
S/A Cone also testified that an examination of Long’s clothing failed to
reveal the presence of any fibers or paint similar to items collected from the crime
scene and conceding that, in a violent rape such as the one in this case, there
probably would have been some transfer of material. 2d MAR vol. II pp. 69 & 81.
Among other things, given that there was white paint on the pole up which the
assailant climbed to break into the house, one would expect to find traces of white
paint on the assailant’s clothing. 2d MAR vol. II p. 136.
Jeffrey Hollifield, owner and operator of a private forensic laboratory,
testified that the absence of any hair, fiber, and paint on any possession of Long’s
was significant and probative. 2d MAR vol. II pp. 138 & 159. He indicated that,
in a violent crime such as the one here, it would be unlikely not to find some sort
of trace evidence in any of the items submitted for analysis. 2d MAR vol. II pp.
112 & 117.
28

Long’s trial counsel testified that the undisclosed SBI reports would have
been critical to the defense at the time of trial. 2d MAR T Vol. I pp. 194-95 &
258-59. Fuller stated that S/A Cone’s SBI report, which found no trace of fibers or
paint from the crime scene on Long’s clothes, would have been particularly helpful
to the defense:
I think the test results on the jacket would have been absolute
dynamite for a trial attorney who knew what he or she was doing back
in 1976. And in fact it probably, it could well have been the most
critical piece of evidence in the case, because without the test we tried
to argue, and it’s hard to argue when you don’t have the test result.
But here’s the point. And again, you need to go back to a situation
where the stress and the frustration you could cut with a butter knife.
There is a real war going on down here, albeit in my view with two
very good lawyers, there’s a jury, and you get up there and you can
say, the assailant, this other person, climbed up, it was either a
banister or a drain pipe that was covered with whitewash in a black
leather jacket and the lab tests show that there are no particles. Now,
you can brush it off. You can run a vacuum cleaner over it. But the
SBI lab would have found any particles of white paint and those
would have pointed inextricably to Ronnie Long and they’re not there
and therefore they point even louder that it wasn’t Ronnie Long.
. . .
Well, Ma’am, my question, and maybe I just didn’t say it well, is my

coming up with an argument is not nearly as important as my being
able to say I’m in partnership with the SBI who tested this jacket and
they couldn’t find one iota of paint, and the reason is, not because I
say so, but because they say so. It wasn’t there. And if it wasn’t there,
he wasn’t there.
29

2d MAR T Vol. I pp. 270-71. He then explained the cumulative effect of the
undisclosed SBI reports:
Well, I would have pursued the reports we could get in hopes that they
would tend to show his innocence that he maintained all along, and
again, equally important, the studies, the tests that didn’t show, those
have both an individual and a cumulative effect. And I’m not talking
in the aftermath of CSI. I’m talking about in the 70’s. I got one test
here that does not implicate you. Okay. I’ve got a second test that
does not implicate you. And now the jury is paying attention. And
now I’ve got a third test and a fourth test, and pretty soon it creates a
snowball effect that you’re not the defendant. And that’s why I
believe every one of those tests was critical.
2d MAR T Vol. I pp. 258-59.
According to Fuller, cross-examination of the victim was made particularly
difficult given the competing racial empathies and tensions that simmered in the
courtroom during the trial of a young black man accused of raping the white
widow of a Cannon Mills executive in 1970s Concord. Fuller testified that the SBI
reports would have made his cross-examination of the victim more effective:
I mean, you just don’t act like race isn’t a factor. It was a factor. And
my point is instead of my being able in effect with nothing in my
hands to cross examine this nice lady who sadly had been raped by
somebody, but with nothing to show positive or negative, it just made
it a darn near insurmountable climb up the mountain. If I’d been able
to take test after test and show that this guy who didn’t admit it, that
there was evidence, both affirmative and non, I guess that didn’t point
to him, I think in that context, in this kind of case, in this county at
that time, it would have made all the difference in the world.
30

2d MAR T Vol. I pp. 263-64.
Adkins testified that if they had known of the existence of the SBI reports,
they would have retained an expert “to examine the reports and the results and give
us guidance on interpreting the information. And then we would have done
whatever was necessary to follow up.” 2d MAR T Vol. I p. 185. That follow-up
would have included “independent testing done to confirm or refute whatever
might have been in the SBI reports.” 2d MAR T Vol. I p. 186. In Adkins’ view, it
would have been “critically important to have forensic evidence in a case where
your prosecution is relying primarily, and almost exclusively in this case on
eyewitness testimony, which at the time we knew was unreliable, but the scientific
body of work confirming that theory, that legal theory of ours, had not been done.”
Id.
As Long’s trial counsel indicates, because of the circumstances of this trial,
the disclosure of this evidence would have “made all the difference in the world.”
2d MAR T Vol. I pp. 264.
SUMMARY OF ARGUMENT
This Petition should be granted for two reasons. First, in light of the
evidence that is now known, coupled with the new understanding of the fallibility
31

of eyewitness identification (as described below), Long presents a credible claim
of actual innocence, permitting this Court to review his constitutional claims.
Second, the MAR Order was contrary to, or an unreasonable application of, the
Supreme Court’s clearly established Brady jurisprudence with respect to each of
the three fundamental Brady components: favorability to the accused; suppression
of evidence by the State; and materiality. Most of the MAR Court’s findings of
fact are not relevant to the disposition of his Brady claims. To the extent any of
the findings of fact are relevant, they were based on an unreasonable determination
of the facts in light of the evidence presented at the MAR hearing.
Long has been incarcerated for almost 40 years, after being convicted almost
entirely on the victim’s highly questionable eyewitness identification. The only
other evidence the State argued implicated Long was the equivocal testimony of
the latent shoe print examiner and the similarity in some of Long’s and the
assailant’s clothes. It is now known that the State possessed significant
exculpatory evidence, including all of the SBI agents’ analyses that failed to
implicate Long. The hair did not match his. The prints did not match his. The
burned matches did not match the matchbooks in his car. There was no transfer
evidence on his clothing, including no white paint on his clothes, which the SBI
analyst admitted he would have expected with the assailant shimmying up the
32

white-painted pole to access the victim’s house. In short, there was no evidence
that Long was ever in the victim’s home, other than her identification.
GROUNDS FOR RELIEF
I. LONG’S CREDIBLE CLAIM OF ACTUAL INNOCENCE CREATES

A “GATEWAY” TO FEDERAL HABEAS REVIEW.
A. Actual Innocence Gateway
As discussed above, because this petition is filed outside the one-year statute
of limitations under 28 U.S.C § 2244(d)(1), Petitioner seeks federal habeas review
by this Court based on the actual innocence gateway under Schlup v. Delo, 513
U.S. 298 (1995). In order for the gateway to open, Petitioner must show that new
reliable evidence not presented at trial makes it “more likely than not that no
reasonable juror would have convicted him in the light of the new evidence.” Id. at
327. The United States Court of Appeals for the Fourth Circuit recently elaborated
on the proper approach to such claims. First, “the district court must consider ‘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) (citing
Schlup, 513 U.S. at 327-28). Next, “the district court must make a holistic
determination of how a reasonable juror would perceive all of the evidence in the
33

record.” Teleguz, 689 F.3d at 330. If it is “‘more likely than not any reasonable
juror would have reasonable doubt’ as to petitioner’s guilt, then the petitioner has
satisfied the Schlup standard.” Id. at 328 (quoting House v. Bell, 547 U.S. 518,
538 (2006) (emphasis added)).
Once the Schlup standard is met, the district court must review the merits of
Long’s substantive claims, id. at 327, and, if Long passes through the gateway, he
is entitled to a review of all barred claims on the merits regardless of AEDPA’s
statute of limitations. McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013).
A consideration of all available evidence in this case convincingly
demonstrates that there would be a reasonable juror who has reasonable doubt.
The conviction was based almost exclusively on an eyewitness identification
following an unorthodox and suggestive procedure. Even in the best
circumstances, eyewitness identifications are known to be unreliable and a leading
cause of wrongful convictions. See, e.g., Perry v. New Hampshire, 132 S. Ct. 716,
738 (2012) (Sotomayor, J., dissenting) (“The empirical evidence demonstrates that
eyewitness misidentification is ‘the single greatest cause of wrongful convictions
in this country.’”); United States v. Hodges, 515 F.2d 650 (7th Cir. 1975) (“There
is no question that identification testimony is notably fallible, and the result of it
can be, and sometimes has been, ‘the greatest single injustice that can arise out of
34

our system of criminal law,’. . . namely the conviction of the wrong man through a
mistake in identity.” (internal citation omitted)); State v. Henderson, 27 A.3d 872,
885 (N.J. 2011) (“eyewitness ‘[m]isidentification is widely recognized as the
single greatest cause of wrongful convictions in this country’”) (internal citation
omitted). Moreover, as discussed, the newly discovered evidence unequivocally
points to Long’s innocence.
B. New Evidence Supports Passage through the Innocence Gateway
At the time of trial, the State failed to provide material, exculpatory evidence
to the defense, including the evidence that is the subject of this Petition and
additional new evidence discovered since the 2008 MAR hearing by NCIIC. The
new evidence discovered since the 2008 MAR hearing is particularly important to
this Court’s consideration of whether an evidentiary hearing is necessary to resolve
Long’s actual innocence gateway claim. The new evidence, i.e., latent fingerprints
collected from the crime scene, may be highly probative of the identity of the
perpetrator, as a number of the lifts were repeatedly checked against suspects by
the CPD.12 Isenhour Report dated May 12, 1976, App. 147. This new evidence
12
The State will likely argue that the latent lifts are immaterial because evidence at trial suggests that the
perpetrator wore gloves. This argument should fail for several reasons: (1) the CPD believed that the lifts had
probative value and repeatedly compared them to suspects; (2) there was some dispute at trial whether the victim
was certain that the perpetrator wore gloves; and (3) evidence at trial showed that burned matches from a
matchbook were found just inside of the location where the perpetrator entered the victim’s home, and it is
unlikely that a gloved person could tear, light, and burn matches from a matchbook in the dark.
35

should have been provided to Long’s counsel before the 2008 MAR hearing
pursuant to the Discovery Order discussed above, which directed the State to
“locate and preserve all physical evidence gathered in the investigation” leading to
Long’s arrest and conviction and to “inform defense counsel whether any physical
evidence is still in [its] custody.” App 100-04.
The CPD responded to the Discovery Order by denying that it had any
remaining physical evidence in its possession. App 110. Yet, when the NCIIC
reviewed the case in 2014, it obtained the latent prints from the CPD. The latent
lifts do not match Long, but the full extent of the value of the lifts remains
unknown. The NCIIC asked the CPD to run the lifts through an automated
fingerprint identification system (“AFIS”), which compares the lifts to known
offenders in a database. The one-page report provided to Long says that “no
possible contributors” of the latent lifts were identified,13 yet no information was
provided regarding the specific database queried. See Exhibit 1. Given that there
are national, statewide, and local databases, without knowing which database was
queried, the scope and related effectiveness of the search cannot be determined.
More troubling is the obvious conflict that exists in having the CPD, which had
13
The language “no possible contributors” is itself problematic with respect to AFIS. Upon information and
belief, a query always returns possible contributors, and the analyst must make a subjective judgment whether any
of the possible prints match the latent print in question.
36

earlier denied having physical evidence in its possession, conduct the examination
to determine their value.
In an effort to understand the examinations conducted on these latent prints,
Long recently asked for the NCIIC file on the case, but the State (DA’s Office)
objected to the provision of its file and the NCIIC refused to provide any of its file
over that objection. The State’s objection is consistent with its overall approach in
this case since the beginning, which seems to be to make every effort to prevent
Long from accessing favorable evidence in the State’s possession.
C. The Continued Suppression of Evidence by the State Warrants

this Court Holding an Evidentiary Hearing on the Gateway Issue
Ordinarily, 28 U.S.C. § 2254(e)(2) “precludes a district court form
conducting an evidentiary hearing on a federal habeas claim if the petitioner ‘failed
to develop the factual basis of the claim in state court proceedings.’” Wolfe v.
Johnson, 565 F.3d 140, 166 (4th Cir. 2009) (quoting 28 U.S.C. § 2254(e)(2)). In
the gateway context, however, the Fourth Circuit has clarified that courts may
order evidentiary hearings to establish whether the threshold of actual innocence
has been met. Teleguz, 689 F.3d at 331. The court reasoned that an evidentiary
hearing may be necessary to assess the probative value of new evidence that has
not been considered by the state court. Id. at 331-32. Here, of course, the
probative value of the latent evidence was never considered by the state court since
37

it was suppressed by the State. See Affidavit of Donna Bennick, attached as
Exhibit 5. There is also reason to believe additional evidence continues to be
suppressed, as Long’s 2008 MAR counsel was never provided with state records
revealing the alternative suspects considered by the NCIIC. Id.
In addition, while the state court’s factual findings bearing on the resolution
of a gateway issue are presumed to be correct, this presumption may be rebutted by
clear and convincing evidence from the Petitioner. Teleguz, 689 F.3d at 311. As
will be discussed infra, the 2008 MAR Court’s findings of fact are unreasonable in
light of the evidence presented at the MAR hearing. Additionally, the new
evidence found since the Order denying Long’s 2008 MAR further supports the
claims Long made at the MAR hearing. Thus, the MAR court’s analysis of the
evidence was necessarily frustrated by the State’s continued suppression of
additional evidence favorable to Long. Therefore, any of the state court’s factual
findings bearing on the gateway issue should not be presumed correct, and this
Court should hold a hearing to make its own determinations in light of the newly
available evidence.
D. The Evidence Presented at Trial Was Unreliable
Long was convicted based on the victim’s identification and his possession
of attire similar to that worn by the perpetrator. His possession of similar attire is
38

hardly noteworthy, as there was no distinctive piece of clothing worn by the
perpetrator that would make possession of similar clothing probative. Long wore a
black leather jacket, which was common attire in the 1970s. Additionally, as
discussed above, the jacket worn by Long had no signs of being scratched or
otherwise marked during a struggle, which would have been expected here.
There are numerous reasons why the victim’s identification of Long was
highly unreliable. Most telling, it was not supported by her pre-identification
descriptions of her assailant. In the pre-identification description, she described
him as light-skinned or “yellow,” did not describe her assailant as having facial
hair, and was not sure whether he wore gloves. Also, according to research, the
physical appearance of the person identified, whether the identification is correct
or not, can distort the witness’s memory of the perpetrator. That is, once a witness
identifies someone, they tend to incorporate the features and other characteristics
of the person identified into their recall of the assailant, which might explain why,
at trial, the victim in this case claimed to be certain of the assailant’s facial hair
despite its absence in her initial descriptions. T p. 32.14
14
See Gary L. Wells, Elizabeth F. Loftus, Eyewitness Memory for People and Events, HANDBOOK OF
PSYCHOLOGY PART THREE 149-60 (2003) (misleading post-event information can alter a person’s recollection in
powerful ways, including people recalling a clean-shaven man as having a moustache).
39

Separately, witnesses’ statements of certainty or confidence in identification
should not be viewed as indicia of the accuracy of the identification. Studies have
found that confidence is, at best, only moderately correlated with accuracy,15 and
that this moderate correlation erodes further when the viewing conditions are
poor16 and suggestive identification procedures are used,17 as these procedures
wrongly reinforce the victim’s belief in her ability to accurately identify the
perpetrator.
The procedures used to identify Long were highly unorthodox and
suggestive, and, in light of possible alternative, more conventional, identification
procedures, one of which (a photo array) the CPD had used with an earlier suspect,
suspicious. As described above, on May 10, 1976, CPD officers escorted the
victim to district court, telling her that the man who raped her might be in the
courthouse. Understandably fearful and anxious, the victim wore a red wig and
glasses to disguise herself, as she sat in the gallery for about an hour or an hour and
15
Kevin Krug, The Relationship Between Confidence and Accuracy: Current Thoughts of the Literature and
a New Area of Research, APPLIED PSYCHOLOGY IN CRIMINAL JUSTICE 31 (2007).
16
Nancy K. Steblay, Gary L. Wells & Amy B. Douglass, The Eyewitness Post Identification Feedback Effect
15 Years Later: Theoretical and Policy Implications, 20.1 PSYCHOLOGY, PUBLIC POLICY, AND LAW, Vol. 15 (2014).
17
Gary L. Wells & Deah S. Quinlivan, Suggestive Eyewitness Identification Procedures and the Supreme
Court’s Reliability Test in Light of Eyewitness Science: 30 Years Later, 33.1 LAW AND HUMAN BEHAVIOR, Vol. 12
(2009).
40

a half. 18 She testified she was “constantly just looking” around until Long’s case
was called and she identified him as he began walking to the front of the
courtroom. T pp. 29-30, 48-49, 96 & 127. Testimony at Long’s trial suggested
that investigators did not tell the victim that Long was their prime suspect before
her identification, but it is clear that investigators had singled him out from the
moment they entered the courtroom, as they reported immediately observing him
sitting in the middle of the courtroom with his father. T p. 184.
Even if CPD officers did not intentionally encourage the victim to identify
Long, controlled studies show that investigators can inadvertently convey the
suspect’s identity to witnesses, which increases their likelihood of identifying the
suspect.19 Here, CPD officers remained in the courtroom within the victim’s line
of sight throughout the process, and, during this time, they were keenly interested
in whether the victim would identify Long.
Among other things, this procedure lacked an important safeguard for all
identifications – known innocent fillers.20 These fillers, who are similar in
18
This anxiety of the victim likely made her more vulnerable to any advertent or inadvertent suggestion by
investigators, as making an identification would end her uncomfortable experience.
19
Sarah M. Greathouse & Margaret B. Kovera. Instruction Bias and Lineup Presentation Moderate the
Effects of Administrator Knowledge on Eyewitness Identification. 33 LAW & HUMAN BEHAVIOR at 79 (2009).
20
G.L. Wells, B.L.. Cutler, & L.E. Hasel, The Duke-Lacrosse Rape Investigation: How Not To Do
Eyewitness Identification Procedures in M. L. Siegel, Race to injustice: Lessons learned from the Duke lacrosse rape
41

appearance to the suspect, ensure that the identification is based on recognition, not
based on the fact that a suspect stands out from a group of easily excludable
candidates. Fillers also guard against misidentification leading to wrongful
convictions, because selection by the witness of a known-innocent filler has no
criminal consequence for the individual identified and provides critical feedback to
investigators regarding the quality of the witness’s memory. Here, all that is
known about the other individuals in the courtroom when Long was identified is
that there were approximately “12 Black men” in the general age range of the
assailant. T p. 185. Given that these men were not selected fillers, all of them
could have been easily excludable based on factors such as hair length, height,
weight, etc., which would have highlighted Long as the black male investigators
believed to be the assailant. Holding the procedure in a courtroom further
enhanced the likelihood that the victim would select someone despite his possible
innocence, because the courtroom itself conveys a message that the persons present
were criminals.
More questionable was the decision to employ this in-court identification
procedure, which carried a great deal of anxiety for the victim, rather than the
case, 313 Carolina Academic Press 2009.
42

standard photo lineup. The CPD had a photograph of Long, which could have
been used, along with photos of other men – fillers – fitting the assailant’s general
description. That procedure could have been carried out five days earlier, without
subjecting the victim to the anxiety of sitting in a courtroom with her possible
attacker, exposing Long to the risk of being wrongly identified, and exposing the
public to five additional days of insecurity from the possible perpetrator remaining
at large. The CPD’s failure to use the more common identification procedure
raises questions about the investigators’ purpose in showcasing Long at the
courthouse. Given that mistaken identifications occur frequently even under ideal
circumstances,21 this Court should give very little weight to the victim’s
identification of Long under the highly unorthodox and suggestive procedure
employed here.
It is also now known that the victim’s identification involved nearly every
factor researchers have found contributes to misidentifications, including the
following:
 Cross-racial identification. The victim was white and admitted

unfamiliarity with Blacks. T p. 131. It is a well-established
phenomenon that individuals have more difficulty identifying
21
Avraham M. Levi, Are Defendants Guilty if They were Chosen in a Lineup, 22 LAW & HUMAN BEHAVIOR,
400 (1998) (noting that assuming a fair, single-suspect lineup, the probability of an innocent defendant being
chosen is approximately 25%).
43

members of other races. This cross-racial effect (“CRE”) has
gained general acceptance and has been found to occur across a
range of races, ethnicities, and ages.22 A 2001 meta-analysis of
CRE studies highlights the concern caused by convictions
resting solely on cross-race identifications, as it shows that the
likelihood of a mistaken identification is significantly more
likely in other-race than in same-race conditions.23
 Impermanence of memory. The victim’s identification took

place 16 days after the attack. It is well established that memory
decays with time, and that, as the period between the time of the
incident and the identification increases, the accuracy of the
identification decreases.24 A corollary and confounding effect is
that witnesses are more likely to make an identification as time
passes, indicating that pressure to make an identification
increases as the crime remains unsolved.25
 Weapon and stress effects. The victim’s assailant had a knife

and she testified she was terrified that she would not survive the
encounter. It is well established when a weapon is present
during a crime, the victim’s attention is drawn away from the
perpetrator’s characteristics in favor of the weapon itself,
decreasing the victim’s ability to accurately describe and
identify the perpetrator and thereby creating a greater potential
22
See National Research Council of the National Academies, IDENTIFYING THE CULPRIT: ASSESSING
EYEWITNESS IDENTIFICATION, 96 (National Academies 2014).
23
Christian A. Meissner, John C. Brigham, Thirty Years of Investigating the Own-Race Bias in Memory for
Faces: A Meta-Analytic Review, PSYCHOLOGY, PUBLIC POLICY & LAW, Vol 7.1 at 15.
24
See e.g. Kenneth. A. Deffenbacher, Brian. H. Bornstein, E. Kiernan. McGorty, Steven D. Penrod,
Forgetting the Once-Seen Face: Estimating the Strength of an Eyewitness’s Memory Representation. JOURNAL OF
EXPERIMENTAL: APPLIED (2008), Vol. 14.2 at 147.
25
Id.
44

for mistakes in identification.26 It is also well established that
extreme stress negatively impacts identification accuracy.27
These factors are independently sufficient to raise questions about a possible
mistaken identification, but collectively raise significant concern about the
reliability of the victim’s identification of Ronnie Long.
Finally, although the victim selected Long from a photo array approximately
twenty minutes after the courtroom identification procedure, T p. 39, that second
identification cannot remedy the defects of the courtroom identification because
the victim was already primed to select Long and only had to pick the same person
she selected just twenty minutes before.
E. Petitioner’s All-White Jury Resulted from the Purging of the

Juror Rolls by Local Law Enforcement Officials
As noted above, the Cabarrus County Jury Commission Chairman described
the following as a matter of common practice in his county at the time:
[He] takes the [jury] roll lists to the Sheriff’s department

and sometimes the sheriff comes to our office on Church
Street, and go over name by name and he knows most of
them personally, but sometimes he also brings a couple
of deputies with him; and they in turn help him check the
26
See, e.g., Jonathan M. Fawcett, Emily J. Russell, Kristine A. Peace, Joh Christie, Of Guns and Geese: A
Meta-Analytic Review of the ‘Weapon Focus’ Literature, 19 PSYCHOLOGY, CRIME & LAW 35 (2013).
27
See, e.g., Kenneth. A. Deffenbacher, Brian. H. Bornstein, Steven D. Penrod, E. Kiernan. McGorty, A Meta-
Analytic Review of the Effects of High Stress on Eyewitness Memory, 28 LAW AND HUMAN BEHAVIOR 699 (2004).
45

names off of the ones who are supposed to be
disqualified, or the same thing is done in the Concord
Police Department…and that’s the way we disqualify
these people who are not eligible to be on the jury. . . . I
give him [the sheriff] a red pencil and he marks that red
through that particular name.
T Jury pp. 20-21.
The Sheriff testified that he struck through a couple dozen or more names
from the list. T Jury p. 31. There was no testimony regarding the number of jurors
struck from the jury rolls by other law enforcement officers, including the Concord
Police Chief.
The Chairman acknowledged that neither he nor the Commission made an
independent inquiry of the names disqualified by law enforcement. T Jury p. 22.
At trial, the court asked whether the list of those marked off was available, but the
Chairman said he was unable to locate it. T Jury p. 28. Notably, Long’s juror pool
included just 2 blacks out of 49 potential jurors. T Jury p. 1. An additional 50
jurors were summoned, and the total number of potential black jurors called to the
jury box during jury selection was 4 out of 43. MAR T at 28. All four were
excused.28 Given the questionable jury-selection process, this Court should give
less weight to the jury’s finding of guilt.
28
The racial composition of a jury has been found to dramatically influence results in criminal cases. Among
46

F. It Is More Likely Than Not That No Reasonable Juror Would
Have Convicted Long
All of the new evidence described above, including the evidence that has
been discovered since Petitioner’s 2008 MAR hearing, was withheld from the
defense at trial and is favorable under Brady, either because it is wholly
exculpatory or has significant impeachment value. Considering all of this new
evidence together with the scant evidence presented against Long at trial makes
plain that it is more likely than not that no reasonable juror would have convicted
Long. It would be patently unreasonable to elevate the now-known fallible
eyewitness evidence over the numerous examinations of physical evidence in the
case that in no way connect Long to the crime.
Long’s jury, the composition of which was carefully engineered by law
enforcement’s improper participation in the construction of the jury rolls, resulting
in an all-white jury, was grossly hindered by the very narrow view of the evidence
it was provided. Had the State honored its obligations under Brady, even this
unrepresentative jury would have had the opportunity to more fairly assess the
question of Long’s culpability. Given this, this Court should give no deference to
other things, the greater percentage of Whites on a jury, the more likely it is to convict a Black defendant.
Williams, M. R., & Burek, M. W., Justice, juries, and convictions: The relevance of race in jury verdicts, Journal of
Crime & Justice, 31, 149-69 (2008). This association persists regardless of crime type or strength of case. See
Bradbury, M. D., & Williams, M. R., Diversity and Citizen Participation: The Effect of Race on Juror Decision
Making, Admin. & Soc’y, 45, 563-82 (2013).
47

the jury’s determination and instead conduct a wholly independent assessment of
the totality of the evidence in this case.
II. THE STATE VIOLATED PETITIONER’S CONSTITUTIONAL

RIGHTS UNDER BRADY V. MARYLAND BY FAILING TO
DISCLOSE SBI REPORTS AND NOTES, THE VICTIM’S MEDICAL
RECORDS, AND DETECTIVE ISENHOUR’S REPORTS.
Because Long’s claim of actual innocence is credible and thus opens the
gateway to federal habeas review, this Court may review Long’s claim that the
State failed to disclose exculpatory and impeachment evidence under Brady.
A. Standard of Review
Habeas corpus relief is available when a state court’s decision on the merits
is contrary to or an unreasonable application of clearly established federal law, or
was based on an unreasonable determination of the facts in light of the evidence
presented. 28 U.S.C. § 2254(d). Here, given that Long has exhausted his claims in
state court, habeas relief should be available because the state court decision is
contrary to and an unreasonable application of clearly established federal law, and,
its findings of facts, in many respects, are unreasonable in light of the evidence
presented.
48

B. Legal and Constitutional Grounds for Relief
“There are three fundamental components to a Brady claim: (1) ‘the
evidence at issue must be favorable to the accused, either because it is exculpatory,
or because it is impeaching’; (2) the ‘evidence must have been suppressed by the
State’; and (3) the evidence must be material to the defense . . . .” Walker v. Kelly,
589 F.3d 127, 137 (4th Cir. 2009) (quoting Strickler, 527 U.S. at 281-82).
The State has an affirmative obligation to disclose favorable evidence to the
defense. Suppression of such evidence violates a defendant’s rights under the Fifth
and Fourteenth Amendments, irrespective of the good or bad faith of the
prosecutor, Brady v. Maryland, 373 U.S. 83, 87 (1963), and whether or not the
evidence was requested by the defense, Kyles v. Whitley, 514 U.S. 419, 433
(1995). The prosecutor has an affirmative duty to obtain information in the
possession of other state agencies and disclose it if it is favorable to the defense.
Id. at 432; Love v. Johnson, 57 F.3d 1305, 1314 (4th Cir. 1995). A defendant may
reasonably rely upon the State’s representation that it is following an “open file”
discovery policy as fulfilling its constitutional duty. Strickler v. Greene, 527 U.S.
263, 284 (1999).
A new trial is required where the suppressed evidence is material, that is,
where there is a “reasonable probability that, had the evidence been disclosed to
49

the defense, the result of the proceeding would have been different. A ‘reasonable
probability’ is a probability sufficient to undermine confidence in the outcome.”
United States v. Bagley, 473 U.S. 667, 682 (1985). In evaluating materiality, the
court should consider the cumulative effect of all of the suppressed evidence,
Kyles, 514 U.S. at 436-37, not only upon the jury, but also upon defense counsel’s
preparation or presentation of the defense’s case, Bagley, 473 U.S. at 683. While it
is the defendant’s burden to establish a “reasonable probability” of a different
outcome, the proof required is less than a preponderance: “The question is not
whether the defendant would more likely than not have received a different verdict
with the evidence, but whether in its absence he received a fair trial, understood as
a trial resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at 434.
C. Contrary to the State Court Order, Favorable, Material Evidence

Was Suppressed by the State, Resulting in a Verdict Unworthy of
Confidence
The 2008 MAR Court denied Petitioner’s Brady claim by finding that he had
failed to establish any of the three necessary components, concluding:
The Defendant has failed to prove by a preponderance of evidence

that his due process rights have been violated under Brady v.
Maryland, 373 U.S. 83 (1996), in that he has not shown by a
preponderance of the evidence that the claimed evidence was withheld
by the State, that it was exculpatory, or that the result likely would
have been different with the claimed evidence. Decisions made by
50

trial counsel for strategic purposes have been weighed as part of this
determination.
App. 229 ¶ 17.
As will be discussed below, the MAR Court’s Order was contrary to, or an
unreasonable application of, the Supreme Court’s clearly established Brady
jurisprudence with respect to each of the three fundamental Brady components.
Petitioner contends that most of the MAR Court’s findings of fact are not relevant
to the disposition of his Brady claims. In the alternative, to the extent any of the
findings of fact are relevant, they were based on an unreasonable determination of
the facts in light of the evidence presented at the MAR hearing.
1. The Suppressed Evidence is Favorable
The SBI reports and notes, Detective Isenhour’s summary reports, and the
victim’s medical records were all suppressed and are all favorable to the defense.
a. Exculpatory evidence need not affirmatively exonerate

the defendant.
With respect to the three SBI reports and the associated notes of the SBI
analysts, which showed no connection between Long and the crime scene, the
MAR Court noted that “both the expert for the State and the defense testified that
the absence of evidence was not evidence of evidence [sic] and the lack of fibers or
fragments did not exonerate the defendant.” App. 222 ¶ 22. The Order concluded
51

that S/A Cone’s report finding that Long’s clothing failed to reveal the presence of
any fibers or paint similar to items found at the crime scene “contained no
meaningful analysis . . . [and was] not exculpatory.” App. 228 ¶ 10.
That narrow view of favorable evidence is contrary to well-established
federal law. In Kyles v. Whitley, the State argued that a computer printout of
license numbers of cars parked at the crime scene on the night of the crime, which
did not list the number of the defendant’s car, “was neither impeachment nor
exculpatory evidence because Kyles could have moved his car before the list was
created and because the list does not purport to be a comprehensive listing of all
the cars” at the scene. Kyles, 514 U.S. at 450-51. In rejecting that argument, the
Supreme Court ruled that “[s]uch argument . . . confuses the weight of the evidence
with its favorable tendency. . . . [H]owever the evidence would have been used, it
would have had some weight and its tendency would have been favorable to
Kyles.” Id. at 451.
Here, although the three SBI reports and accompanying notes in this case,
which were withheld from the defense, do not indisputably exonerate Long, they,
like the printout in Kyles, contain no evidence connecting him to the crime, where
one would expect to find some if he were in fact the perpetrator:
52

 Hair: “Microscopic examination and comparison of the hair
found at the scene in Item #9 showed it to be different from
[Long’s] hair in Items #4 and #5. No hair or hair fragments
similar to [Long’s] were found in the victim’s clothing in Item
#13.” App. 129.
 Long’s Clothing: “Examination of the clothing in Items #1, #2,

and #3 failed to reveal the presence of any fibers or paint
similar to those in Items #6, #7, and #8, respectively.” App.
117.
 Matches from Long’s father’s vehicle: “Examination of the

matches in Item #12 failed to reveal sufficient identifying
characteristics to allow the examiner to give an opinion with
regard to their origin relative to the matchbooks in Item #11.”
Id. Five matchbooks were compared with the matches from the
crime scene. App. 126. Four matchbooks were eliminated as
possible origins for the burned matches because of a difference
in color, and, although the fifth matchbook could not be
excluded on that basis, S/A Cone concluded the burned matches
from the scene “probably did not originate from this
matchbook.” Id.
 Victim’s Pubic Hair Combings: Examination of the combings

of the victim’s pubic hair in Item #10 showed only Caucasian
hair. App. 135.
 Shoe Track Impressions: “There were an insufficient number

of distinct characteristics noted by which to effect any
identification” based on the submitted shoe track impression.
App. 127.
These SBI reports and notes are, individually and collectively, exculpatory –
particularly in a case built almost exclusively on a victim’s eyewitness
53

identification. As trial counsel testified at the 2008 MAR hearing, the evidence
failing to connect Long to the crime scene would have been “absolute dynamite”
evidence to challenge the victim’s identification of Long as her assailant. 2d MAR
T Vol. I pp. 258-59, 263-64 & 270.
b. Evidence that discredits the investigation is Brady

material.
The MAR Court unreasonably construed “evidence favorable to the
accused.” The Court concluded that the semen evidence, collected immediately
following the crime and placed in glass test tubes, “would have been suspect” by
the time defense counsel obtained the victim’s medical records. App. 224 ¶ 27.
Yet, even if that were the case, the failure to preserve critical biological evidence
could have been used by the defense to impeach the investigation. As courts have
long recognized, “[a] common trial tactic of defense lawyers is to discredit the
caliber of the investigation or the decision to charge the defendant, and we may
consider such use in assessing a possible Brady violation.” See Kyles, 514 U.S. at
446, (quoting Bowen v. Maynard, 799 F.2d 593, 613 (10th Cir. 1986)); Lindsey v.
King, 769 F.2d 1034, 1042 (5th Cir. 1985). The State’s subsequent loss of this
biological evidence and the withheld SBI reports and notes further discredit the
investigation.
54

The MAR Court also unreasonably construed the import of the State’s
failure to preserve the crime scene and conduct a reasonably diligent effort to
identify the sources of the hair collected. The Court found that the potential
sources of the hair collected at the scene, including the “negroid” hair, could have
come from the victim’s white nephews, police dogs, and other people at the post
office the victim had “walked through” earlier that day, which allowed the Court to
disregard the favorable report indicating that the suspect’s hair found at the scene
did not match Long. App. 221 ¶ 16. The Court ignored the defense’s possible uses
of the report. For example, the defense could have shown that the hair did not
match Long and that the CPD investigation was deeply flawed.
The defense also could have shown S/A Glesne’s failure to examine the
hairs he believed to be Caucasian found in the victim’s underwear and to determine
the source of the hairs, especially since victim described her attacker as a “light-
skinned” or “yellow-looking” black man. 2d MAR vol. II p. 33; T p. 122. The
State’s investigators and the MAR Court (see e.g., App. 221 ¶ 18) both apparently
presumed that the pubic hair of a person exhibiting both Caucasian and African
features would not appear “Caucasian” to a hair analyst. This presumption may
well have caused the police to neglect leads on other suspects who may have
appeared less “black” relative to Long, who is dark-skinned.
55

c. Impeachment evidence is Brady material.
A long-established constitutional dictate is that the State has a duty to
disclose both impeachment and exculpatory evidence. Bagley, 473 U.S. at 676;
Giglio v. United States, 405 U.S. 150, 154 (1972). Yet, in this case, the MAR
Court neglected to mention impeachment evidence at all: “In order to demonstrate
a Brady violation, the defendant must prove by a preponderance of the evidence
that the evidence was exculpatory . . . .” App. 226 ¶ 2. The Court did not discuss
the impeachment value of any of the evidence at issue in Long’s Brady claims.
This fact is especially salient because the State’s case rested almost entirely on the
credibility of the victim’s identification and the integrity of the investigation, and
much of the withheld evidence would have impeached both.
For example, the MAR Court failed to recognize any impeachment value in
the SBI reports and associated notes, and in Det. Isenhour’s report fully describing
the items he collected and submitted to the SBI for analysis.29 The SBI reports,
associated notes, and Det. Isenhour’s report were all powerful impeachment
material.
29
As discussed above, Det. Isenhour completed a second report, which is undated but is limited to that which
he testified to at trial. App. 150-51. This report does not identify or discuss the many other items taken to the SBI
for testing and analysis, which were included in the report found years later pursuant to the Discovery Order. App.
146-49.
56

A comparison of Det. Isenhour’s trial testimony to the withheld records
shows that Det. Isenhour was untruthful at trial. ADA Bowers twice asked Det.
Isenhour if he had ever relinquished possession and control of the latent lift of the
shoe track, and the detective twice responded in the negative: “it has not” and “no,
sir.” T pp. 265, 282.
This testimony is contrary to contemporaneous SBI records. The SBI
reports show the latent prints were submitted to the SBI on May 11 and returned to
Det. Isenhour on May 16: “DISPOSITION OF EVIDENCE: Items #1 and #2 are
herewith enclosed.” App. 127. The first time the question was asked during voir
dire, Det. Isenhour explained:
Q. Has (the latent footprint) ever been out of your possession and
control since you took it?
A. It has not.
Q. Did you take it anywhere for comparison with any other print
of a shoe?
A. I did.
Q. And what date did you take it?
A. May the eleventh.
Q. Where did you take it?
A. To the State Bureau of Investigation laboratory, Latent

Evidence Section in Raleigh.
57

Q. While that comparison was made, did it leave your possession
and control?
A. It did not.
Q. And what did you do with it once the comparison was made?
A. It’s been under my custody and control.
Q. So that latent lift has never left your custody and control since
you took the lift from the porch, is that correct?
A. It has not.
T p. 265 (emphasis added). In front of the jury, Det. Isenhour was even more
explicit:
Q. What did you then do for the remainder of the day of the 11th of
May sir?
A. I went to Raleigh, North Carolina, to the State Bureau of

Investigation Lab. I had previously contacted a Special Agent
that I would be enroute (sic) there.
Q. Officer Isenhour, did you take any items with you when you
went?
A. I did.
Q. What did you take?
A. I took the pair of shoes which I received from Long in

Kannapolis. I took two inked impressions, one of the left shoe
and one of the right shoe which I had made on May the tenth,
and I took the latent lift, which I had lifted from the top of the
banister column at [the victim’s home].
...
58

A. I asked Mr. Mooney if he would make an examination of the
latent lift, which I had lifted and compare it to known inked
impressions of a pair of shoes which I had in my possession.
Q. What happened?
A. He did examine the items in my presence at the State Bureau of

Investigation Lab.
Q. What then happened?
A. The items were further examined by another Special Agent in

the Lab.
Q. Then what happened?
A. Then we talked about the findings of their examination, and I

was told that I would receive a written report later as to what
they had told me orally, and I took the items with me and came
back to Concord.
T pp. 285-88 (emphasis added).
Det. Isenhour also testified that the clothes taken from Long never left his
custody:
Q. What did you receive?
A. I received a black leather-type coat from Sgt. David Taylor. I

received a green cloth toboggan from Sgt. Taylor, I received a
pair of black gloves from Sgt. Taylor. I received a quantity of
matchbooks from Sgt. Taylor.
Q. I hand you, now, sir, a leather jacket marked for identification

as State’s Exhibit Number Seven, and ask you if you can
identify that sir?
A. I can.
59

Q. What is that?
A. It’s the black jacket that I received from Sgt. David Taylor.
Q. Where has it been since you received it?
A. It’s been in my custody and control.
T p. 289.
Despite being asked open-ended questions – e.g., what did you take with you
and who did you see? – Det. Isenhour responded, untruthfully, that he took only
the latent shoeprint lift, the shoes, and the inked shoe impressions.
The SBI reports directly contradict Det. Isenhour’s testimony. As detailed
above, they document that Det. Isenhour took a total of fifteen items to the SBI
along with a request for trace evidence comparison of hair, and carpet and paint
samples, and a request for the latent examination of a shoe print impression. App.
117 & 127. These fifteen items were submitted to the SBI on May 11, 1976, where
they were tested and analyzed, and then returned to Det. Isenhour on May 17,
1976. App. 118, 119, 120, 129, 131.
Det. Isenhour’s apparent decision to conceal that the additional thirteen
items had been taken to the SBI is evidenced by the two versions of his
investigation summary reports. App. 146-51. In the report dated May 12, 1976, he
lists all fifteen items of evidence “submitted by hand” to the SBI laboratory in
60

Raleigh and notes that he expected the items taken to the SBI to be returned to him.
App. 148.
The other version of Det. Isenhour’s investigation summary report, which is
not dated, lists “the impressions of Long’s shoe bottoms” and the latent lift as the
only items submitted to the SBI laboratory. App. 150. This version of the report
states that “certain articles of clothing belonging to Ronnie Long were collected by
this Officer,” but asserts that they were “held for investigative uses” rather than
taken to the SBI. Id. This version of the report also fails to mention the pubic hair
combings taken from the victim, the test tube containing swabs or the suspect hair
recovered in the hallway. App. 150-51.
2. The State suppressed the SBI reports and associated notes,

Detective Isenhour’s summary reports, and the victim’s medical
records.
The MAR Court concluded that Long “failed to prove by a preponderance of
evidence that the State failed to disclose the three State Bureau of Investigation lab
reports (Lab Report 1: shoeprint analysis, Lab Report 2: hair analysis, Lab Report
3: paint, fiber and matches analysis), Detective Isenhour’s Crime Scene
Identification Report and the victim’s medical records.” App. 226 ¶ 4. To the
contrary, it is incontrovertible that the reports and notes of Special Agents Glesne
(hair) and Cone (paint, fiber and matches) were not disclosed to the defense.
61

Defense counsel Fuller and Adkins and defense investigator Burns testified
adamantly that the first time they had seen the SBI reports, or even knew they
existed, was after they had been discovered by the SBI pursuant to the 2005
Discovery Order. 2d MAR T Vol. I pp. 127-28, 133-34, 184-85, 258-62.
Even more telling, ADA Bowers, who questioned Det. Isenhour at trial,
testified at the MAR hearing that he believed the SBI reports were not provided in
discovery. He testified that he believed he had not seen the reports or known of
their existence because if he had, he would not have allowed Det. Isenhour to
testify falsely at trial:
But there’s a thing that – in regard to this hair and this stuff, one
of the things that you said was that I asked Mr. Isenhour a
question about something and he said he only took something
down to the lab, the latent print, the show, and that I stopped
there. If I had known about the rest of this I wouldn’t have
stopped there, because I’m not going to make – that’s a
strategic mistake that’s just stupid. If I have the tests, if I have
evidence that he’s taken it to the lab, I’m not going to sit there
and let the defense lawyer be the one to bring that out. If I know
about it, it’s coming out.
2d MAR T Vol. I p. 313.
It is likewise incontrovertible that the DA’s Office had an open file
discovery policy at the time. 2d MAR pp. 177-78; 252-53; 297-99. Long’s trial
62

counsel testified that they believed they had been given all discovery in the case,
pursuant to the open file policy. 2d MAR T Vol. I pp. 177-78, 252.
Yet, the MAR Court erroneously suggested throughout the MAR Order that
the DA maintained an open file policy in name only, and that defense counsel were
actually required to seek information about Long’s case directly from the police or
hospital. See App. 220 ¶ 10, 223 ¶ 24 and ¶ 27, 224 ¶ 27 & 228 ¶ 12. The Court
apparently reached this conclusion based on the testimony of ADA Bowers at the
2008 MAR hearing, who stated he did not handle discovery in the Long case and
only became involved in the case a few days before trial, 2d MAR T Vol. I pp. 297
& 299, and on Fuller’s testimony at the same hearing that the DA set up a meeting
for him to discuss the case with some police officers, 2d MAR T Vol. I pp. 279-83;
MAR T Vol. I pp. 24-25. Fuller recalled that this discussion with police officers
occurred at the second meeting between the defense team and prosecution, where
the DA allowed the defense to inspect the physical evidence the State intended to
introduce at trial. 2d MAR T Vol. I pp. 282-83. Burns testified that the police
investigators “were not cooperative” with the defense team, meaning that “they
weren’t answering any questions”: “If it went beyond the scope of what we were
looking at. We’d ask, what is this? They would say, that’s the defendant jacket. If
63

we asked, have you run any tests on it, we either wouldn’t get an answer or they
would refer us back to Mr. Roberts.” 2d MAR T Vol. I p. 154.
The MAR Court’s conclusions on this matter are contrary to or an
unreasonable application of the Supreme Court’s clearly established Brady
jurisprudence in at least two respects: First, “if a prosecutor asserts that he
complies with Brady through an open file policy, defense counsel may reasonably
rely on that file to contain all materials the State is constitutionally obligated to
disclose under Brady.” Strickler, 527 U.S. at 283. Second, the prosecutor has an
affirmative duty to obtain information in the possession of other state agencies and
disclose it if it is favorable to the defense, regardless of whether or not it is
requested by the defendant. Kyles, 514 U.S. at 432-33. Therefore, the MAR Court
erred in imposing an affirmative obligation on the defense.
3. The MAR Court’s Finding that Long’s Trial Counsel Was

Aware of Detective Isenhour’s Report Is Unreasonable in Light
of the Evidence Presented.
The MAR Court found that an Identification Report referenced by Taylor at
trial was Det. Isenhour’s withheld report detailing the collection of items submitted
64

to the SBI. App. 223 ¶ 26.30 This finding is an especially egregious misstatement
of MAR and trial testimony and is unreasonable in light of the evidence presented.
Despite specifically concluding otherwise at the 2008 MAR Hearing, the
MAR Court Order found that Long’s trial counsel was aware of Det. Isenhour’s
report. App. 223 ¶ 26. At the 2008 MAR hearing, the State asked Adkins if he
should have been alerted to the fact that he did not have Det. Isenhour’s summary
report in his discovery when Taylor testified to an investigative report. 2d MAR T
Vol. I pp. 206-07. MAR defense counsel objected to the question, pointing out
that Taylor was being asked specifically about Defendant’s Trial Exhibit Three –
an Identification Report, including the victim’s initial description of her assailant
while in the hospital, which was part of the case file. 2d MAR T Vol. I pp. 207-08.
Any other reports Taylor may have had in his file on the witness stand were not
identified. After reviewing the trial exhibit, the Court ruled it was speculation that
Sgt. Taylor had Det. Isenhour’s reports with him or that trial counsel should have
been alerted to the possibility that Officer Taylor had other reports:
Now, my conclusion from that is that there were additional

reports to which he was referring, but as soon as he began his
description of the reports the judge sustained the objection to
30
The MAR Court also found that defense counsel did not “appear surprised” at trial when Taylor testified to
the Identification Report, which, as noted above, the Court mistakenly concluded was the withheld report. App.
223 ¶ 26. Judge Bridges did not preside at trial, which separately draws into question his conclusion about defense
counsel’s appearance at trial.
65

that line of questioning and then the questions returned to the
document, Defendant’s Exhibit Number 3.
Now, it appears that those were some additional police reports

apparently prepared by some officers other than Officer Taylor.
But as to exactly what they were, and certainly as to forming
any conclusions that they were, the documents are not
identified as Defendant’s Exhibits 4A and 4B,31 certainly don’t
think that can be established through the testimony of this
witness at this point.
2d MAR T Vol. I pp. 212-13. Thus, the MAR Court specifically concluded at the
MAR hearing that it was speculation that Sgt. Taylor was referring to any specific
reports. Yet in its Order denying Long’s Brady claims, the MAR Court ignored
that conclusion and found instead that he was referring to Det. Isenhour’s reports.
App. 223 ¶ 26.
4. The SBI reports and notes, the victim’s medical records, and
Detective Isenhour’s reports are all “material” under Brady.
In assessing Petitioner’s Brady claims, the MAR Court applied the incorrect
standard for evaluating Brady materiality, thereby reaching a decision contrary to
clearly established federal law. Kyles v. Whitley instructs courts that, in
determining Brady materiality, “[t]he question is not whether the defendant would
more likely than not have received a different verdict with the evidence, but
31
At the 2008 MAR, Long introduced Det. Isenhour’s summary reports as Exhibits 4A and 4B. App. 146-51.
66

whether in its absence he received a fair trial, understood as a trial resulting in a
verdict worthy of confidence.” 514 U.S. at 434 (emphasis added).
In denying the Brady claim, the MAR Court repeatedly used the standard of
prejudice that was specifically held to be incorrect by Kyles – i.e., that the
defendant would have received a different verdict had the evidence been disclosed.
App. 227 ¶¶ 7-9; 228 ¶¶ 10, 11 & 13; 229 ¶¶ 14-17. The MAR Court also required
Long to show Brady materiality by a preponderance of the evidence – i.e., more
likely than not – which was also rejected by Kyles. App p. 227 ¶¶ 7-9; 228 ¶¶ 10-
12; 229 ¶¶ 15-17.
As discussed above, the SBI reports and associated notes, the victim’s
medical records, and Det. Isenhour’s reports would have allowed the defense to (1)
more credibly attack the victim’s identification of Long, (2) impeach Det.
Isenhour’s testimony concerning which evidence he took to the SBI for analysis
and whether it was always in his custody and control, and (3) more
generally discredit the police investigation. This evidence is material under Brady
because its cumulative effect on the jury would have been significant in a case that
relied so heavily upon a questionable eyewitness identification. Kyles, 514 U.S. at
436-37; Bagley, 473 U.S. at 683. The materiality determination is strengthened
67

further by the additional consideration of the newly discovered latent fingerprint
evidence discovered by the defense in 2015.
In making a materiality determination, the court must consider the
evidence’s cumulative effect on defense counsel’s preparation for trial, as well as
its effect on the jury. Bagley, 473 U.S. at 683. But the MAR Court here
unreasonably applied this clearly established federal law by failing to consider the
effect of the suppressed evidence on defense counsel’s preparation for Long’s trial.
Among other things, Adkins testified that, had they had access to the SBI report,
defense counsel would have consulted with an expert who could interpret the
results and that defense counsel would have followed up in any way they deemed
necessary, based on the results and consultation. 2d MAR T Vol. I pp. 185-86.
Again, it is important to note that Adkins testified that he was not made aware of
the existence of any physical evidence before the trial, despite the DA’s open-file
policy. 2d MAR T Vol. I pp. 194-96.
The MAR Court concluded that Long’s trial attorneys “contradicted one
another on several occasions regarding how they may have used some of the
information they claim they did not receive, if they would have used it at all.
Therefore, the claims the defense alleged at this hearing as to how they may have
68

used this information at trial if they had known about it carries no weight or merit,
is not material and would not have changed the result at trial.” App. 228 ¶ 13.
While the MAR Court does not clearly state how defense counsel
purportedly contradicted one another, whether they did or not is irrelevant to the
disposition of the Brady claims. The Supreme Court’s Brady jurisprudence does
not require a defendant to show a perfectly coherent defense strategy with respect
to the suppressed evidence. It is natural for co-counsel to consider multiple
options in developing trial strategy, and settling on the best option as the case
develops. Trial counsel both agreed that all of the suppressed evidence was
critical to the defense. 2d MAR T Vol. I pp. 194-95 & 258-59. To the extent they
disagreed about how they could have best used the suppressed evidence, this only
increases the significance it would have had on trial preparation and strategy.
Although the MAR Court noted that trial counsel recognized the strategic
value of not testing physical or medical evidence that could have inculpated Long,
App. 223 ¶ 27, 224 ¶ 30, 225 ¶ 31, 227 ¶ 6, 228 ¶ 12 & 229 ¶ 17, defense counsel
Adkins expressly qualified those statements. Adkins acknowledged that,
hypothetically, he would not have tested a rape kit not tested first by the State, but
he was clear that the State was certain to test any semen evidence prosecutors
knew about. 2d MAR T Vol. I pp. 200-01. In fact, ADA Bowers testified that he
69

certainly would have ordered testing of the biological material collected from the
victim if he had known about it. 2d MAR T Vol. I pp. 311-12. Adkins testified
unequivocally that the defense would have ordered an independent test of the
biological evidence if the State’s own test did not clear Long. 2d MAR T Vol. I p.
201.
The MAR Court’s Order finds that, as Adkins and Fuller were experienced
trial attorneys, they realized “it was to their client’s advantage not to have certain
items of evidence tested because they ran the risk of the results inculpating their
client.” App. 224 ¶ 30. Again, the MAR Court’s Order fails to note that both
attorneys testified that, while it would normally be strategically unwise to have
evidence examined that might be inculpatory, that principle did not apply to
evidence that had already been examined by the SBI and found to have no
connection to the crime. 2d MAR T Vol. I pp. 200-01, 272. The MAR Court then
makes a finding based on no testimony at the hearing and contrary to the testimony
of the attorneys, that Adkins and Fuller decided not to even ask if SBI analysis had
been performed. App. 225 ¶ 31. It is incomprehensible that two well-respected
attorneys, both former judges, would fail to perform the unquestioned duty of
counsel to investigate all evidence held by the State which might either incriminate
or clear their client. See, e.g., Strickland v. Washington, 466 U.S. 668, 691 (1984).
70

This finding clearly violates established federal law, because “defense counsel may
reasonably rely on that file to contain all materials the State is constitutionally
obligated to disclose under Brady.” Strickler, 527 U.S. at 283.
CONCLUSION
Petitioner presents clear and convincing evidence of his actual innocence,
which creates a gateway for federal habeas review. Here, a reasonable juror would
have reasonable doubt, which allows this Court to hear Petitioner’s Constitutional
claim on the merits. Moreover, additional latent fingerprints collected from the
crime scene and discovered since the 2008 MAR hearing further support
Petitioner’s claims. This new evidence should have been provided to the defense
pursuant to the Discovery Order. This case has been frustrated by a long process
of trickling out evidence by the State. An evidentiary hearing must granted to once
and for all fully assess all the evidence in the state’s possession and how it relates
to Long’s innocence.
Finally, in denying Petitioner’s Brady claims, the MAR Court’s decision
was contrary to, or an unreasonable application of, the clearly established federal
law of Brady and its progeny in the following respects: (1) it fails to acknowledge
that exculpatory evidence need not necessarily be exonerating evidence; (2) that
evidence which discredits the investigation is Brady material; (3) that
71

impeachment evidence is Brady material; (4) that the State has an affirmative duty
to produce evidence favorable to the defense; and (5) that defense counsel may
reasonably rely on a prosecutor’s open file discovery policy. Moreover, the MAR
Court applied the incorrect standard for evaluating Brady materiality, thereby
reaching a decision contrary to clearly established federal law. To the extent any
of the MAR Court’s findings of fact are relevant to the disposition of Petitioner’s
Brady claims, the MAR Court’s determination of such facts was unreasonable in
light of the evidence presented. Therefore, Petitioner’s is entitled to habeas relief.
SUPPORTING MATERIALS
Petitioner has electronically filed the following exhibits in support of this
Petition:
1. CPD Evidence Processing Report, dated June 4, 2015
2. 2005 Discovery Hearing Transcript
3. Motion for Appropriate Relief, filed August 27, 2008
4. Photo of Ronnie Long
5. Affidavit of Donna Bennick
6. Order Authorizing the District Court to Consider Successive
Application for Relief under 28 U.S.C. § 2254, filed May 24, 2016
72

PRAYER FOR RELIEF
Wherefore, Ronnie Wallace Long respectfully petitions this Honorable Court
for the following Relief:
1. An Order pursuant to Habeas Rule 4 directing Respondents to file an
Answer;
2. An Order pursuant to Habeas Rule 5 directing the Respondents or, in
the alternative, Petitioner, to file copies of the trial transcript, transcripts of post-
conviction proceedings, an appellate briefs and opinions;
3. An opportunity to address the Court further through briefing and oral
argument;
4. A writ of habeas corpus directing Respondents to free Petitioner or
retry him within a reasonable time; and
5. Such other and further relief as seems just and proper to the Court.
Respectfully submitted, this 26th day of May, 2016.
/s/ Jamie Lau

N.C. Bar No. 39842
Attorney for Ronnie W. Long
Duke University School of Law
Wrongful Convictions Clinic
Box 90360
Durham, NC 27708
Telephone: (919) 613-7764
E-mail: [email protected]
73

/s/ Theresa A. Newman
N.C. Bar No. 15865
Box 90360
Durham, NC 27708
Telephone: (919) 613-7133
74

VERIFICATION
I, Jamie T. Lau, solemnly attest that I am an attorney for Petitioner, Ronnie
W. Long, in this matter and that I have read the forgoing Petition for Writ of
Habeas Corpus and that the same is true to my knowledge except as to those
matters alleged upon information and belief, and as to those matters, I believe them
to be true.
This the 26th day of May, 2016.
/s/ Jamie Lau

N.C. Bar No. 39842
Box 90360
Durham, NC 27708
Telephone: (919) 613-7764
75

CERTIFICATE OF SERVICE
This is to certify that the undersigned has this day served the foregoing
PETITION FOR WRIT OF HABEAS CORPUS upon the Attorney General of
North Carolina by depositing a copy thereof, postage prepaid, in the United States
mail, addressed as follows:
The Honorable Roy Cooper

Attorney General of North Carolina
Attention: Appellate Section
PO Box 629
Raleigh, NC 27602
This 26th day of May, 2016.
/s/ Jamie Lau

N.C. Bar No. 39842
Box 90360
Durham, NC 27708
Telephone: (919) 613-7764
76

EXHIBIT
'
I
I
a.
1
Concord Police Department

Evidence Processing· Report
DATE: June 4th, 2015 TYPE OF CASE: First-Degree Rape, Robbery

OCA: 76 CRS 5708 DATE OF OFFENSE: April 25th, 1976
SUSPECT(S): Ronnie Wallace Long
EXAMINED BY: B. Schiele
ITEM(S) EXAMINED
Item # 1: Sealed envelope containing nine (9) latent fingerprint lift cards
Item #2: Sealed envelope containing twenty-two (22) latent fingerprint lift cards
Item #3: Sealed envelope containing twelve (12) latent fingerprint lift cards ·
TYPE OF EXAMINATION
AFIS submission
RESULTS OF EXAMINATION
Item #1: One latent lift card (01-9) submitted to AFIS network. Query returned no
possible contributors of the latent impression.
Item#2: Three latent lift cards (02-1, 02-8, and 02-11) submitted to AFIS network.
Queries returned no possible contributors of these latent impressions.
Item#3: Insufficient value for AFIS submission.
~_)Jw
Sergeant Brian Schiele
Concord Police Department
Criminal Investigation Div.
Case 1:16-cv-00539-CCE-LPA Document 1-1 Filed 05/26/16 Page 1 of 1

EXHIBIT
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
1.
COUNTY OF CABARRUS SUPERIOR COURT DIVISION
STATE OF NORTH CAROLINA, ) FILE NOS. 76 CRS 5708

) 76 CRS 5709
v. )
)
RONNIE WALLACE LONG, ) TRANSCRIPT OF PROCEEDINGS
)
Defendant.
____________________________) )
CABARRUS COUNTY SUPERIOR COURT
JUNE 13, 2005 CRIMINAL SESSION
W. ERWIN SPAINHOUR, JUDGE PRESIDING
PROCEEDINGS HELD JUNE 16, 2005
Counsel for the State:

Roxann Vaneekhoven
District Attorney
P.O. Box 70
Concord, North Carolina 28026
Counsel for the Defendant:

Donna Bennick, P.C.
Janine M. Zanin
100 Europa Drive, Suite 569
Chapel Hill, North Carolina 27517
Catherine M. Goodwin, RPR

Official Court Reporter
Judicial District 19-A
77 Union Street South
Concord, NC 28025
704.262.5643

State v. Long 06/15/05 2
1 P R 0 C E E D I N G S
2 (Counsel for the State, counsel for the
3 defendant and the defendant being present,
4 the following took place:)
5 THE COURT: Ronnie Wallace Long, State versus
6 Long. A faxed copy that I've received from the North
7 Carolina State Bureau of Investigation received this
8 morning, to me from John H. Watters, W-A-T-T-E-R-S, legal
9 counsel for the SBI reflecting the fact that -- and the
10 document would speak for itself. I will read a portion of
11 it into the record. Mr. Watters has asked the SBI
12 laboratory personnel to search under the name of Ronnie
13 Wallace Long and the name of the victim. The name
14 mentioned -- I won't recite it into the record at this
15 point. It will be a matter of record. A search was
16 conducted under the name -- under that name and no rape kit
17 was discovered by the SBI. That's in the record. If you'll
18 put that in as Court's Exhibit.
19 All right. I believe the matter is before
20 the Court today, Ms. Vaneekhoven, for the purpose of
21 determining whether or not anything has been located to
22 test. And the Court has signed an order requiring the
23 hospital here, Northeast Medical Center, to search their
24 records, to search their inventories, and samples and
25 everything else to determine whether anything has been

1 received or whether anything was located. Now,
2 Ms. Vaneekhoven, if you will address that, please.
3 MS. VANEEKHOVEN: I will, Your Honor. These,
4 just for the record, are 76 CRS 5708, 5709, Ronnie Wallace
5 Long. We had delivered to the hospital the order that Your
6 Honor signed with regard to a search for any physical
7 evidence, particularly the rape kit or any slides with semen
8 on them. The hospital reported back to us by way of a
9 letter as well as including just the actual written medical
10 records of the victim in this case. But their letter
11 responding to the request for the rape kit or any slides or
12 physical evidence, they said there is none, no pathology
13 records or slides. Your Honor, I'd like to make this part
14 of the Court file as well.
15 THE COURT: All right.
16 MS. VANEEKHOVEN: And Ms. Bennick, I'll let
17 you review that.
18 Your Honor, I'm going to mark this as State's
19 1 and just ask that it be maintained in the Court's file for
20 Northeast Medical Center.
21 THE COURT: You know, that number bothers me.
22 Why don't you put it State's 1 (2005)?
23 MS. VANEEKHOVEN: Okay. I'll be happy to do
24 that. If I may approach with that document?
25 THE COURT: Yes, please. Ms. Bennick, you've

1 been shown a copy of this?
2 MS. BENNICK: I have Your Honor, just now.
3 THE COURT: All right. Let me read it. In
4 fact I'm going to read this into the record. To whom it may
5 concern, In Re Sarah Judson Bost: Your request concerning
6 the above-mentioned patient has been received and is being
7 returned for the reasons indicated below. First, we have no
8 record of this patient having been treated -- strike that.
9 They've only checked it. It's a block and they've checked
10 it. Strike that. No pathology records or slides. Signed
11 by Alisha Proctor, it appears. That will be State's
12 Exhibit 1 (2005). Anything else that you can report to the
13 Court?
14 MS. VANEEKHOVEN: Your Honor, further, we
15 requested that the Concord Police Department do a thorough
16 search of all of their evidence and the inventory they have.
17 I've brought Sergeant Robert Ledwell with me today to answer
18 any specific questions the Court might have, but I know that
19 based on the work that he's done, there have been at least
20 25 man hours spent searching for any of the items outlined
21 in the Court's order, the clothing, the rape kit, slides,
22 anything that may not have been introduced into court at the
23 actual trial and they have found nothing.
24 THE COURT: Okay.
25 MS. VANEEKHOVEN: I know that Your Honor is

5
State v. Long 06/15/05
1 familiar, but I think it's important to say that the law did
2 not change until 2001 to maintain these types of items. It
3 was effective October 1st of 2001. The statute 15A-268 then
4 came into effect, and although we were hopeful that they
5 would find some of these items, they weren't required to
6 keep the items based on just the number of cases that are
7 processed, the limited space in the inventory room, and the
8 fact that this case is 30 years old. But if you would like
9 Sergeant Ledwell to answer further, he'd be happy to do
10 that.
11 THE COURT: I believe I do. Let's have him
12 sworn.
13 SERGEANT ROBERT LEDWELL
14 being first duly sworn, was examined and testified as
15 follows:
16 THE COURT: All right, sir, if you'd take the
17 stand.
18 EXAMINATION
19 BY THE COURT:
20 Q State your name for the record, please.
21 A Sergeant Robert Ledwell.
22 Q And your employment?
23 A Sergeant with the Concord Police Department.
24 Q And how long have you been so employed?
25 A With Concord Police approximately seven years.

State v. Long R. LEDWELL - Exam 6
1 Q All right. And what are your duties there?
2 A Sergeant criminal investigation involving crime
3 scene, evidence property control and supervisor of the sex
4 crimes unit.
5 Q All right, sir. Pursuant to the Court's
6 instructions and orders previously regarding the case of
7 Ronnie Wallace Long, have you caused a search to be made for
8 evidence that might be tested for DNA?
9 A Yes, sir, I have.
10 Q And will you describe your efforts in regard to
11 that?
12 A Myself and my assistant, Ms. Nolan, who is also a
13 property control officer, we have -- we inventoried pretty
14 much the entire room by paperwork.
15 Q Pretty much the entire what room?
16 A I'm sorry, excuse me, the evidence room, the
17 evidence control room that we have. Went through, could not
18 locate anything. There is one area of the evidence room
19 where older cases, I've noted the older cases' evidence have
20 been stored in the past. I physically have been through
21 that three times myself. The furthest back I've seen dated
22 is a missing person from 1980, and that was an exception.
23 Everything else was in the probably the mid '90s,
24 homicide cases that we had.
25 The other inventory, I've spoke with officers that

1 had been involved with the case as far as their knowledge of
2 any disposition on any of the evidence. We've been in touch
3 with Pam Walker with the clerk's office as far as any
4 disposition on discarding of the evidence. Detective
5 Vincent Nash who since has retired who would manage the
6 property in the evidence room from '92, I believe, until
7 2003 when he retired, I spoke with him on the phone in
8 regard to the evidence. He said during his tenure inside
9 the room, he never recalled seeing anything of that case in
10 there. Ms. Nolan, once we conducted an inventory, this
11 would have been her third complete inventory of the room.
12 And, obviously, we didn't find it upon my assistance with
13 her, and she didn't recall any evidence being noted from the
14 first couple of times that she found, also. Really, the
15 only thing I was able to locate was the case file.
16 Q Case file.
17 A The master file with the statements.
18 Q Just paperwork?
19 A Yes, sir.
20 Q Just paperwork. No physical evidence?
21 A No, sir, no physical.
22 Q Anything whatsoever to do with this case?
23 A No, sir, no evidence sheets. I'm not even sure
24 how they documented the evidence at that point in time.
25 THE COURT: Thank you, sir. Do you wish to

1 ask anymore questions?
2 EXAMINATION
3 BY MS. VANEEKHOVEN:
4 Q And approximately how many officers would you say
5 that worked on the case years ago did you make personal
6 contact with?
7 A I did speak with - his rank at the time was
8 lieutenant - Vogler. I spoke with him and Sergeant David
9 Taylor who was a sergeant at the time. I spoke with both of
10 them. I haven't -- those wer~ the two. Those were the two
11 I spoke with. I'm sorry.
12 Q And between you and your assistant, Nolan,
13 approximately how many hours, or you and she together, would
14 you say that this search encompassed?
15 A The actual physical search in the room, easily 12
16 to 14 hours manually going through what we had, the older
17 evidence that we had and physical searches. She had done
18 searches when I was out of town on another issue, and I've
19 since gone through the room at times myself, too.
20 Q And then the other hours were spent speaking to
21 officers who had worked on the case?
22 A Speaking to other officers, retired officers,
23 correspondence with the clerk's office, the hospital, State
24 Bureau of Investigation, things like that -- things of that.
25 MS. VANEEKHOVEN: No further questions, Your

9
State v. Long R. LEDWELL - Exam
1 Honor.
2 THE COURT: Ms. Bennick, do you wish to ask
3 any questions?
4 MS. BENNICK: Just a few, Your Honor.
5 EXAMINATION
6 BY MS. BENNICK:
7 Q Sergeant Ledwell, you spoke with I believe you
8 said his name was Nash. He was the prior evidence
9 custodian
10 A Correct.
11 Q -- for the Concord Police Department, and I
12 believe you said from like 1992 until you took over. Is
13 that correct?
14 A Yes, ma'am.
15 Q Do you know who was the evidence custodian prior
16 to Mr. Nash, or more specifically who might have been the
17 evidence custodian in 1970?
18 A No. As of 1976, I do not know.
19 Q And I know you said you've only been on the force
20 for seven years in Concord, but do you know or have any
21 knowledge of the procedure that the Concord PO had in terms
22 of when evidence has been disposed of, whether records were
23 kept of what was disposed of, when it was disposed of, how
24 it was disposed of?
25 A When I spoke with Sergeant David Taylor, I

1 inquired briefly about the evidence procedure then. He
2 indicated what is now a uniform supply closet on the second
3 floor was the evidence room at that time, which we also
4 subsequently searched, and my understanding that the
5 evidence was tagged with the case number and placed in
6 there. As far as the paperwork and the paper trail at that
7 time, I do not know. The only thing that I have located as
8 far as any evidence documentation is a spiral ring notebook
9 in an old file cabinet in one of the evidence cages that we
10 have from the old White Star grocery store that used to be
11 downtown Concord from 1980. That's the closest to any
12 documentation I found.
13 Q And is that spiral notebook notes made by
14 officers, investigating officers in this case?
15 A It appears to be someone showing evidence that has
16 been brought in and possibly sent off to the lab. I tried
17 to decipher what it was. It's not -- it's not as detailed
18 as the records we would keep today.
19 Q But is it in essence an evidence log? Does it say
20 what was sent to the lab?
21 A It appears that to me.
22 Q And is that the paperwork you were referring to
23 earlier when you were answering Judge Spainhour's questions?
24 You said you found the case file. Is that the notebook or
25 was there more than --

1 A I found the master investigation file.
2 Q And can I ask how large that file is?
3 A Well, as far as page, numerical pagewise, I can't
4 give you how many pages are in there. I can tell you it
5 contains a lot of the paperwork. The forms are different
6 than what I'm accustomed to now. But the statements
7 there's several statements in there, different types of
8 documentation.
9 Q Police reports?
10 A Yeah. Again, what I'm assuming is the police
11 report. Again, today's standards that's not what we use.
12 And I believe there's some correspondence between the
13 officers in other jurisdictions in that case.
14 Q When you spoke with Detective Vogler and Sergeant
15 Taylor - I believe that was their titles at the time - did
16 they indicate whether any evidence had been sent off for
17 testing and returned to the police department?
18 A They -- they did not indicate that. The only
19 thing that I'm aware of that was - from speaking with the
20 State Bureau of Investigation - that had been sent up that
21 was documented I believe were the shoe impressions that were
22 recovered from the crime scene. I spoke with the SAC
23 Supervisor, Agent Susie Barker in the serology unit, which
24 is the DNA unit at the SBI. Since that's what we were
25 looking for that's where I started at, and I know Susie

1 well. And she said the only file that they could find of
2 anything submitted in that case under those names was a
3 latent latent file; nothing -- nothing serological.
4 Q So according to Susie I think you said Baker?
5 A Yes. Barker, yes, ma'am.
6 Q Barker. The only record of anything going to the
7 SBI in this case was the shoe print?
8 A That's my understanding, yes, ma'am.
9 Q So they still have written records at the SBI of
10 receiving the shoe print in this case?
11 A I'm not speaking for the SBI but from what I'm
12 understanding is they have a latent file. If that entails
13 the shoe print, that's my understanding.
14 Q And did you ask them in the conversation with the
15 SBI whether or not they would be -- they would provide a
16 copy of their -- for lack of a better word I'm going to call
17 it an evidence log. That may not be the proper terminology.
18 A I did not ask for that. No, I did not.
19 MS. BENNICK: I have no further questions,
20 Judge.
21 THE COURT: All right. Anything further?
22 MS. VANEEKHOVEN: Just one further for
23 clarification.
24
25

1 EXAMINATION
2 BY MS. VANEEKHOVEN:
3 Q The spiral notebook that you've referred to.
4 A Yes, sir -- yes, ma'am.
6 A No, ma'am, it was not.
8 this case?
9 A Not on my observations, no, ma'am.
10 Q So what you're saying then, the significance of
11 that spiral notebook is just that it was the oldest one you
12 found in the evidence room?
13 A That's the earliest documentation of any evidence
14 that I could find.
15 Q But it has nothing to do with this case?
16 A Not that I -- not that I've noticed, no, ma'am.
17 MS. VANEEKHOVEN: Okay. Nothing further.
18 THE COURT: All right, sir. Thank you, sir.
19 You may step down.
20 (Witness excused.)
21 THE COURT: Anything else the State wishes to
22 present?
23 MS. VANEEKHOVEN: No, Your Honor.
24 THE COURT: All right. Ms. Bennick, I have
25 nothing to test it appears.

1 MS. BENNICK: Well, Your Honor, I have to beg
2 to differ.
3 THE COURT: All right, what's that?
4 MS. BENNICK: You have a toboggan.
5 THE COURT: Well, the toboggan as the Court
6 recalls from previous testimony and from other recollection
7 is that a toboggan was located under the seat of the car of
8 the defendant.
9 MS. BENNICK: The defendant's father's car.
10 THE COURT: The defendant's father's car, not
11 even the defendant's car. And the defendant was arrested, I
12 think, 16 days after the alleged event.
13 MS. BENNICK: Correct.
14 THE COURT: Or the event I should say. And
15 that the Court also knows that the toboggan was placed on
16 the head of defense attorney Karl Adkins during the jury
17 argument in this case.
18 MS. BENNICK: How do you know that, Your
19 Honor?
20 THE COURT: I know that.
21 MS. BENNICK: I've read the transcript. It's
22 not in the transcript.
24 MS. BENNICK: I don't doubt your word.

1 MS. BENNICK: But I don't see why the hat
2 can't be tested.
3 THE COURT: For what?
4 MS. BENNICK: If necessary we could take a
5 DNA sample --
6 THE COURT: Stand up, please.
7 MS. BENNICK: -- from Karl Adkins.
8 THE COURT: I can't hear you unless you stand
9 up. And it's required by the rules, Ms. Bennick.
10 MS. BENNICK: Oh, I'm sorry, Your Honor. In
11 Orange County we --
12 THE COURT: This is Cabarrus County.
13 MS. BENNICK: I'm sorry.
14 THE COURT: And the rules apply in Orange
15 County as well.
16 MS. BENNICK: I'm sorry.
17 THE COURT: And the rules are quite clear
18 that when you address the Court, as counsel knows, you're
19 supposed to stand up, and we like -- we play by the rules in
20 this court.
21 Now, I don't know what possible -- how could
22 it ever be relevant, anything to do with the toboggan where
23 it has certainly been involved in being under the seat of a
24 car for 16 days after a rape occurred and then -- the fact
25 is that if it's -- how could it possibly show anything?

State v. Long 16
06/15/05
1 What could you possibly show? What is there to test about a
2 toboggan?
3 MS. BENNICK: Because, Your Honor, the victim
4 testified at the trial that that toboggan looked like the
5 one the perpetrator was wearing on the evening of the crime.
6 THE COURT: Okay.
7 MS. BENNICK: And that would say that there's
8 a good chance that the perpetrator's hair was left in that
9 toboggan. And so if that hair in that toboggan does not
10 match Ronnie Long's hair, but the State's position is that
11 that toboggan helped tie him to the crime, then I think it's
12 very relevant.
13 THE COURT: You're saying -- I take it from
14 what you're saying - to take your argument to its logical
15 extension - that unless a hair sample is found of the
16 defendant in the toboggan, that it must be someone else who
17 did the crime. Is that what you're saying?
18 MS. BENNICK: Well, I think that it would at
19 least probably lead to require at least a new trial, Your
20 Honor. If Ronnie Long's hair is not in that toboggan
21 THE COURT: What if an attorney's hair is in
22 the toboggan?
23 MS. BENNICK: Well, that's why I'm saying if
24 you're concerned about it being Karl Adkin's hair, I'm sure
25 we can get Karl Adkins to give a sample.

1 THE COURT: Well, would you like to respond
2 to that argument?
3 MS. VANEEKHOVEN: Just briefly. That's like
4 saying that because his fingerprints weren't at the crime
5 scene he didn't do it, but he was wearing gloves.
6 THE COURT: Right.
7 MS. VANEEKHOVEN: I don't think it's
8 dispositive of anything. It has been contaminated. We
9 don't know how many jurors handled it, the clerks handled
10 it, the police handled it, the lawyer had it on his head.
11 It's not going to prove anything. I think it's a fishing
12 expedition. It's smoke and mirrors and it's absolutely not
13 relevant to whether in fact it matches his hair.
14 THE COURT: And a toboggan that's been under
15 the seat of a car for 16 days, I don't understand how in the
16 world that is dispositive of anything. Ms. Bennick, if you
17 could explain that to me, I'll be glad to consider it.
18 MS. BENNICK: Because, Your Honor, if the
19 police's theory was that he took the toboggan off after the
20 crime and stuck it under the seat of the car, then it stayed
21 there for 16 days until they found it, where's the taint
22 between in the 16 days?
23 THE COURT: We don't know that it stayed
24 under the seat for 16 days.
25 MS. BENNICK: That's true, we don't.

06/15/05 18
State v. Long
1 THE COURT: It may have stayed under there
2 for two seconds.
3 MS. BENNICK: It's true, we don't. But,
4 Judge, it's the only possible piece of evidence that appears
5 to be left in this case that could exonerate Mr. Long.
6 THE COURT: Well.
7 MS. BENNICK: And I don't see the harm to the
8 State to test this toboggan. Where is the harm?
9 THE COURT: Well.
10 MS. VANEEKHOVEN: The harm is in leading the
11 people in our community to believe that because his hair
12 isn't there he didn't commit this crime, and that's
13 completely misleading. This case was -- there was in-court
14 identification, shoe print that was consistent with, and the
15 fact of the matter is finding any hair in that toboggan that
16 would match the defendant's or be able to tell whose it is,
17 would be close to impossible. And, again, even if his hair
18 was not found in the toboggan, it's not dispositive of the
19 other evidence in this case. And it's not likely--
20 frankly, it's not likely that it would be his hair. But,
21 nonetheless, it's not going to make any difference to what
22 the jury heard and what the outcome of the case was.
23 THE COURT: All right. If there were -- it's
24 just a tragedy in fact that there are no slides available at
25 Northeast Medical Center. We know from the record that --

1 Dr. Monroe's a wonderful doctor.
2 MS. BENNICK: Yes, he was.
3 THE COURT: And he probably delivered every
4 baby in this county during World War II.
5 MS. BENNICK: He delivered me.
6 THE COURT: Okay. In any event, we know that
7 he made slides and I'm not blaming anybody at the hospital,
8 but it's a tragedy if those slides are not available. If
9 they were, this Court would certainly order them to be
10 tested. But I am not going to go on a fishing expedition
11 about that toboggan. I am denying the motion. This Court
12 will deny the motion to test the toboggan. It is totally
13 irrelevant, cannot prove anything to exonerate this man it's
14 this Court's opinion, and that's my ruling.
15 MS. BENNICK: And I take exception.
16 THE COURT: I know and I understand that.
17 You absolutely have the right to do that. But in this
18 matter, unless there's something else to test or something
19 other to say, then these proceedings will be closed.
20 MS. BENNICK: Well, Your Honor, I would add
21 two final requests, which is that we be allowed to look at
22 the master investigative file that the police officer has
23 testified today that he found in the evidence room relating
24 to this case, and to ask the District Attorney to produce
25 anything from her file that would indicate a log or a report

1 of evidence collected in the event that there are other
2 things that were collected that we are unaware of from the
3 trial transcript. Because all I have been relying on -- all
4 I have in this case is the trial transcript.
5 THE COURT: I understand.
6 MS. BENNICK: That's all I've got.
7 THE COURT: All right. I have no problem
8 about letting you see the records. I'm sure the district
9 attorney would have no problem nor the police. You've got
10 the master file there. I'll order that. And certainly if
11 there's anything that arises to the level that can be tested
12 that would be relevant - and I emphasize that would be
13 relevant and material to the case - then I will be glad to
14 consider that at that time, or whoever the presiding judge
15 is at that time.
16 MS. BENNICK: And, Your Honor, my co-counsel,
17 Ms. Zanin, has indicated- and maybe I misunderstood- that
18 you said something about there were hospital records. I
19 didn't pick up on that.
20 THE COURT: Hospital records were mentioned.
21 And there they are.
22 MS. VANEEKHOVEN: Yes. In fact I was going
23 to give them to the detective. The file that I have is what
24 he gave me but I've torn everything apart and put it in
25 different order, so ...

1 THE COURT: Okay. Now wait a minute. Those
2 are hospital records of the victim in this case.
3 MS. VANEEKHOVEN: That's correct.
4 THE COURT: And those are confidential
5 records. And if you're asking for those -- are you?
6 MS. BENNICK: Yes, Judge, I would. If
7 necessary I could -- I believe the rule was that I could
8 issue a subpoena, they would be produced to you in camera
9 and it would be up to you to decide whether to let me review
10 those or not. I believe that's the current state of the
11 law.
12 THE COURT: I agree and that's what I want
13 you to do. I will review them. You hold them,
14 Ms. Vaneekhoven, and you may issue your subpoena and request
15 that I review them in camera and I will do so.
16 MS. BENNICK: And I should direct that
17 subpoena to Ms. Vaneekhoven's office and not the hospital?
18 THE COURT: Yes.
19 MS. BENNICK: That would be more expeditious,
20 I think.
21 THE COURT: Of course. Of course. And I'll
22 be glad to review those in chambers.
23 MS. BENNICK: Thank you.
24 THE COURT: All right. Okay. Anything
25 further we need to talk about?

1 MS. BENNICK: I don't think so today.
2 THE COURT: All right. Thank you.
3 Sheriff, let's take a recess until 2 o'clock.
4 (End of hearing.)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

1 CERTIFICATE
4 I, Catherine M. Goodwin, do hereby certify that
5 this transcript is a true, correct and verbatim record of
6 said proceedings as transcribed to the best of my ability.
7 I further certify that I am neither counsel for,
8 related to, nor employed by any of the parties to the action
9 in which this proceeding was heard; and further, that I am
10 not a relative or employee of any attorney or counsel
11 employed by the parties thereto, and am not financially or
12 otherwise interested in the outcome of the action.
13
14
15
16 Official Court Reporter
17
18
19
20
21
22
23
24
25

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
COUNTY OF CABARRUS SUPERIOR COURT DIVISION
STATE OF NORTH CAROLINA, ) FILE NOS. 76 CRS 5708

) 76 CRS 5709
v. )
)
RONNIE WALLACE LONG I ) CERTIFICATE OF DELIVERY
)
Defendant.
____________________________) )
This is to certify that the transcript of the
hearing heard on June 16, 2005, in the above-referenced
matter was requested on September 16, 2015 and delivered to
the party indicated below on October 15, 2015; said
transcript consisting of 23 pages.

Official Court Reporter
Katlin Karges
Duke Law
210 Science Drive
P.O. Box 90360
Durham, North Carolina 27708-0360

• STATE OF NORTH CAROLINA
CABARRUSCOUNTY
STATE OF NORTH CAROLINA

:U~ lllE COURT OF GE.~'EBAL JUSTICE
.SUP,ERIOR COURT DIVISION
CASE NOS:
'J ··::-
v.
v< ~ v, .....
76 CR$708 ~ 7() CR 5709
RONNIE WALLACE LONG,
Defendant..
*"***************·****'**!Jf***'"'******""**-•**'"*****•*************'******************
MOTidNFORAPPROPRIATE RELIEF
N.C. Qen,,Sta,t~ § 15.1\.. 1415~) (3)~ . (8) & (e)
****'**'~~**"'*****'********************'****"***************************************
NOW CO:MES the defendant, Roru~~ 'Nallace Lpng. and moves the CQurt for appropriate relief
• pu~W:mtto:
1. N.C. Gen~ Stat. § lSA-l4lS (b) (3). on the grounds that Ronme WaUaee :LOng's
conviction was obtained in violation of the ,Constitution of the. United States; and the
to
Con,stitution of N~IJ Caronna il;l that 1h~ ,Sutttf(alled. disclnse excutpatt)ry material tc. tbe
defense in violation ofdefendant's :right to a fair trial under the dueP,rocess clause·oftheFifth
~dFouJ:teen~hAmen<Jments oftne Umted States Constitution and Article I, Section 19 of the
North Carolhta Constitution; and
2. N~c. Gen.. Stat•. § l5A..l4.1S (~) on the.groWid that new mdence is available whim was
uulu:nlwn. or UJl•vaU,bl~ to the defe~~allt; aj;. ~e time o.f trbil, 'f~b could ~ot with (Jue
diligence have been discovered at that time an4 which has a direct and material bearing upon
defend~t,s guilt or inn.ocel}ce;'a.nd
3.. N..C. G~n. s~t.at. §.lSA""14lS (b) {S):, on tb~ ~ound that Mr.. Lung's .Judgmen.ts a:n:d
Commitment$ lh:tntld be c9:rre¢t;~ an~:a~ended>to $pecilleally~tate fh:lt 1\ft<~ Long, shalt"be
imprisoned tor a. term ofSOyean·intheSta:te'-sprisoo" in·accontaru::ewith,N~C.Gen5 Stat.§
14-2 which was in effect .-t th.e time tbat be was; $.tnteaeed mO~tob:er of 1976; and
• 1
Case 1:12.;.Cv~00119 Document:f. :3 Filed 02/03/12 Paae 1 of47

----1--------------------'----·-·············-··"'"'""·····"···································-···················"··············-

4. N~C.. Ge~+ Stat. §l5A-14l5 (b) (7) & (b) (8), Qn the· ground th~t thesentel:lteJmposed.
upon Mr. Long i.sinvaliclas a matt~r of law due to significant changes in North Carolina's
sentencing law.
PROCEDURALffiSTORY
On October 1,. 1976, Ronnie Wallace Long ("Mt. Long''.) was convicted in Cabarrus County
Superior Court, the Honorable William .Z. Wood preSiding, ofone count of first-degree rape and orte
courit of first;.degree burglary. He was ~ntenced to two concllitent life sentences. Mr. Long's
appea.l (State v. Long. Z93 N,C. 286; 237 S~K2d 728 (1977)) and his 1987 $te petitioRfor post--
conviction reliefon the ground$ ofineffective assistance ofcounsel and racialdjscri.rnl.patioP. in the
selection of the jury was d.en:ied.
On May 2S. 2005, tb.e H()norable ErMn Spainhour granted M;r. Long'sJvfoti()n to Locate and
Pres,erve Evidence {the "Pres~~on Order'~. Ex. A). As part of that ()rder, the Cabarrus County
District Attorney's Office (the ~DistrictAttoroey'.s Office1'), the Concord dity Police Department
(the ~concord Polic<: Depamne.nt'~}and tbe N. c~ State Bureau of investigation (the>~SBI'") were
ordered, inter alia, to;
L Submitfor inspection '~e·records of their e\iidence custodians relating to any and all
evidence collected in [Sta.te \t. Long];n and
2. "Provide de;.fense cotmse1· with copies>of a1Vtest res-ult!) or reports prep:ared in
connection with this· matter.''
On June 16, 2QOS, ~;{James· rcconve,ned before the Gl)urt for law enfotc;etllent to teport
to the Court on their efforts to ]oca.te evidence .and to be heard. on Mr~ Lon~· s Motion for DNA
testing (the "DNA Motion")~ In the JJNA moijo.nt Mr. Longreque~ among other things, that the
Case 1 :t2~cv-00119 Document t-3 Filed 02103112 Paae 2 of 47

---+----------~-------------:-----· ··-·---·---··-·-.. . . . . . . . . . . . . ..
•• toboggan which was introduced again.stbirti athistrhdl and whi:ch contains ha:irtha.tcan be seen by
the naked eye and is reddish in colc:l~\ be submitted for DNA testing.
At the June 1-6th hearing~ pursuantto tl:le Preservation Order~ the Sin reported tha.t·''the only
evid~ce_foundbytbeSBithatpe;rtains-tothese.mfittersisa:latentshoeprlntthatwasusedtolinkthe
defendant to these crimes." .-(Ex. B 15.) Oider ofthe Hon. Erni.n Spainhour dated June 17;2005$the
''DNA Order~). Further, the Concord Police Department reported that the only item found mtheir
possessionrelating to this case vtas the master case fuel consisting entirely ofpaper workand. a spiral
notebook listing various items ofevidet:lee that were ''n,otspecific to this case.' (Ex. B, 6.) The 1
District Attorney told the Court tP.at she had :~viewed 'the police department file and there was
nothing in it ofevidentiru:y value. Bvetl:thougb the COurt denied the DNA Motion, findmgtb.at·any
testing done on the ~ir:could .n:otconc11lBiyely ex:<nlt~l·at(: Mr. Long and that the evidence was ''not
•
sufficient, as a matter of law, to compel DNA testing t() prevent manifest injustice,', the DNA O.rder
includedaditectiontbafdefensecounsel bep-ermittedto examine the master case file and the spiral
notebookin the possession ofthe.Concord.Poli(:e Departm.ent.
On its o'\.Vn initiative, this Court, 'by order dated June 7. 2005, directed NorthEast Medical
Cen~t to locate and preserve allbiol<>gicalevidence n1the hospital's possession and to provide the
Court with a descriptive inventory ofsuch evidence. Northeast Medical Center~ by letter dated June
5~ 2007·; indicated they tutrted everYthing over to the Conoord Police Depamnent onApri126~ 1976.
Acopyofthis Courtys order anti tb~,Nqrtb~tMedi~Ceiltezoletterart! annexedeollecqvelyher.etu
as Exhibit C. By letter of thiS Court to the unde~igJ:led Oated July lZ, 2005 (Ex. D) •. coupsel was
provid.ed with certiilii rnerucalreb{)rds afthe: vi9timwliich w~re provitiedtq the Coup by NorthEast
MediCal Center.. This Court reviewed in cam.erq2q pages ofme(lical recort!s:. redacted. certain
• 3
Case 1:12..;cv~00119 Document 1..;3 Filed 02/03112 Paoe 3 of47

• portions and then provided ll remaining pages to ®unsel} Th~ medical ~cords indicate that Dr.
Lance Monroe, the physician who examin~ the victim at.~ hospital on the riighl of the crime:
(a) combed the victim ~s:pubic hair· and put it into a plastic bag;
(b) took fluid fri:Jm the victim.'s vaginal vault and placed it on a slide by wet
preparation;.
(c) took additional secretions from the vagiruil vault and placed lliem on hvo slides
for dried preparations; and
(d) took a portionofthe fluid found in the vagina and .Placed it on two swabs which
were then pl~d into a test tube and stoppered.
Counsel found in the medical records a docume11t entitled «Authorization for Release of:Rape
Infortnation, Specimens & Photographs'', <bnedAprilZ6., 1976, whicltindicat~ the '~comhed.pubic
hair fofth~ victim] .in plastic h~g,.' and'~ 1 testtube with vaginal: swabs and secretions'~ wen:! released
to M§trshall J. I.&e <:>f the Concord Police Depatt:ment. (Ex. E).~
AJJ diseussed more fully below, when eounsel examined the Concord Police Department
master case file; we discovered that certain physical evidence was personally delivered by Concord
Police Detective Van Isenhour on May ll) 1976 to the SBHabfot testing. With fue,assistance of$be
North Caroli~a Center on Actual lnhorence and based on the efforts of SBI Agent Bill Weiss~ in
January of2006 the SBI test results- excUlpatory in-namre ..... were delivered to cotinsel.
Based ott that finding and other information that came to light, on March 15, 2007, counsel
filed another Motion to Locate and Preserve Evidence, requesting an order be issued to UNC
Hospitals to search for ar1,y testr~ortsr~lati~toan.y biological evidencejn this case, including but
l .To protect the victim\~ privacy~ ~et' medical tewrdS are not a;nnexed to this mot:iOtt. However, sinee: the Court hiSS
po~ession otthem, itis respec.tfU!ly request:ed they be conSt~ered part of4l~ ~oor<L . . ·
2
This (;curtaJlio ordered the ~e~~h of a~~r'il~enmit \\fhipb.~e Cpur;t l~~:migP-t<;ontain soo;teofDt.lvf9m:cf:'s
tceC()fd$' and othermedicalitetns. {E:L F), F~U~·the ~tbJH.1ourt i~ed an. order; dated July ~2~ 20051
m
indicating that nothmg was fotmd the 'premises rebwn~to this matter, {ex. G;)
Case 1:12-Cv-Q0119 Document1-3 Filed02/03!12 Paae4of47

.... ·······-·····-··············---------.,-----------------...,
not limited to serological testing)> and to searchfor·any·te:sts tha:t.tllayhave beencohductedon·the
victim's clothing {the '"UNC Motion~\ .Ex. H)," .Based upon our investigation and rese~
undersigned counsel discovered .that. in the 1970s serological testing was frequently utilized to
convict defendants ofmurder1,Uld/6r rape~ 3 While su¢htestingwas-toU,tmely conducted by the SBI~it
was also conducted by what was then called North (!arolina Memorial Hospitali located in Chapel
Hill, North Carolina (now caUedUNC Ho$l)itals). The'DisfrictAttorney conSented to the UNC
Motion, and the Consent Order (px. t; was duly served upon UNC'Hospitals on Aprill2J 2007. By
Affidavit ofMedic:al R.ec·ord.CustQd~, da~April26) 2(}07 (Ex.J)," counsel wa,s.iriformed that a.fter
a diligent search,. trNC H:osp$tals"hllS no 1ned,icaLreccu:dsin the n,ame ofthe victim or~tt. Lon~{
Counsel bas continued to try to determine if any serological testing was done by the SBf but our
efforts ~ve beeu to no avail to 4~e.
Counsel also continued to search for the victim's clothing witb the assistance, of Concord
Police Sgt. Robert Ledwell. Sgt. Ledwell informed 'US tha:tlie looked in the 'old' evidenee room art
1 1
several oocasions;Jnclud.ing a search ofthat.roomjustbefurethe Concotd Police Dep.artrnem moved
into its new headquarteiS; The clothing has .not been found and counsel does not kno:w whether~ at
some poi.nt i.titime~ it was nJ.isplaced,lost ot destroyed. In addition,. counselhas continued tb search
the SBI for testing but, pnee again, our efforts have }}e~p; to po avail.. B~ed upon the exculpatory
evidence that has bee.Q found, criunsel seeks a new trial for Mr. Long~
. ·~•..
e.g., Statev. Ora~, 292N.C. 270,233 S.B:2d 905 (1977}~ StateV, King. 287 N.C. 645, 215 s.E~2d. 540
3
(197S); stam v. Woods. 286, ·&~c. 612,. 21:3 $J3:.d2l4 (1975).

Th~ victim's. medical records ipdi~d.~.·~. ~t0;odsami)1e was-~. fiulli.tht-vit:tim·on •·the nig_ht·ofthe crime and
4
sent to the Depart:mentofPatbologyattJNCHospl.tals to hetestedforethano:lana "other volatilesn~ Those testS

were negative. ·
• 5
Case 1:12-cv-00119 ·Document

- t--3 FUed
.. -
02103112. Paa.'.e 5 o.f 4 7
·-

····································· ............................................................... --·--·-·--·-·---~---...
• Introduction
On May lOt 1976, Mr. Lon~ a . .nineteerryear~ old cement masqn from Concord> North
Carolin~ 'With no prior. felony record appeared in. Cabanus CountY District Cour4 accompanied by
his father~ on a misdemeanor trespass charge. The trespass case was dismissed and he return~ home
where he livyd with hi$ parents and where ,he grew up with his sevenl?rothers and .sisters.
That evening, Sst David Taylor and Officer Marshall Lee of the Concord Police Department
went :to .Mr. Long"s home and asked him to come to the station to '~straighten out [a] trespassing
warrant}' (Trial !r. 21 5; )··.Mr. Long voluntarily drove to the policestation belieVing he was going 1
to attend to some un:fimshed paperwork telatedto his tnoming court appearance on the dismissed
trespass charge. Unbeki:lQWn.Stto hini,. he-was a>S;uspectin atape ca:seandhe woUld never go home
again. He was· ·taken into the State's custody that evening ·and there be has -remained for the past
thirty tWo _years.
On Qctpbet 1) l976" within ~months ..of his arre&t, lyfr. Long was trfed and convicted of
burglary and of the rape ofa promin~t white woman. in her historicdowntoW!l Concord home. 5
From the outset of this case, Mr.. Long has· consistently maintained his innocence. Ind(!ed~ his
contin,~ed profession of irulocence has helped to k~p him incarcerated: the North Caroljna Parole
Board has deni~d him parole b~use be refuses tt?·- admifbiS:~(gui.lf' and participate in a sex offender
treatmentprogram.(Ex. K).
$ At trial; Mr. Loni·was. represented. by the law fl!r11 O:fefuUnber~ FergttsOn,: Stein -·and· Wallace (tile "'Chambers
Firm.u)•. His t~d tnal~tromeys w¢re Jama F\il~r("Mr. Fulte.r") and
Karl. AdkinS e'Mr. ~dkfus}, ·Their: lead
invesf;igat~Jr in thi$ case was 1$ B~(''Mt-c. Butn$~~ See the accompanying affidavits of:Mr.. Fulle£, !vfr; Adkins
and Mr. .Burns:. . . . .
Case1:12.:.cv~0119· [)ocum~nt1-3. Fit:ed02/03/12 Paa-e6of47

·············---·-···---------~-------
• The -State:'s Case

The State's ca:Se at trial r~lied almost entirely on the testimony ·of the -victim. She testified
that on April25, 1976~ she was attai;ked and taped in herhome by :an individual she described to the
police just after fue·orime occl.lrted as:
-'~A black male~ height, five, foot fiwtofivefot>t:hine:slender build~ slim hips. SubJect
was plain spoke11t used oo~ct Englisb and at times spoke very softly. No-$peech<d~fect,
accent. or noticeabl~brogue ~Vide.nt ~nbjeetwas.wea.ring a; <:4trlc 'Waist lengthleather
jacke1; blue jeans with a dark tOboggan pulled overhis .head. Gould possibly have been
wearing gloves.;1 (Trial Tr. 179~ 243-44, Ex. t.) ·
Th.at description did nOt inclpQ.~ any mention <:>fthe pexpetrat6i: having any kip:d offacial hair.
(Trial Tr. 243.) A police p}lotograpb ~of Mr. Lo-ng onA.pri13Q, 1976 ~veals that he wore a
moustache and a ''scrufty beard';, at that time. (Trial Tr. 247; .State~s Ex. lO; State's Ex. 11.) 6
(Trial Tr. 8~18) She testified she struggled andfou~htforb.er life (TrlaiTr* 15, 16~- 71,113, 119);
that her assailant Ct>ntinuallyyeUe~ Hdon'tlo-okalmy face" {trial Tr. 9); andthatherassm1ant i~kept
pushing [her] face to the side, hold~ pier} face with his bandn (Trial Tt. 78). The victim also
testifieclthat she was very frightened) so frightened that "[she] had no idea [she1~d ever get out alive.
There was noway. [She] couldll'tseeimy way of ever getting outh (TrialTr. 6~9, 12,13,44 44,
116.) As soo-n as her a.ssallantfledthe sc~e-" the Ytctim.ran to a n~~gb.ii>Qr' s house and reported the
rape. (Trial tr.l9.) Shew~ ad,mitt;ed fP tlje Mspital alfuQst i~diately afte~ the attack. (Trial Tr.
143~145.)
6
On April30, 197~. Mr. tqp;g was artJ:!ste(i for alle~~ q-es~ in Caldwel(Parl4 which W3$located rlgbt
behmd and adjilcenttc bi$ parent$' .hpme w~ryJ>;e li~ at tbe.tinle. Op~n his ~~s~ hj~ ·~mug ~Qf' .~ .taken:'
That phot.ogra,ph sho-ws, ~r. Lpng with s,ide}?ums. a mo~c~ an<i·a scruffY l>~l!t"d. The trespas~ charge was
disniissed o.nMay 10.>1976'- the·~· Mt. Lotlg ~In cou~tand :was identifi¢d by the victim.
Case 1:12~cv..00ft9 Docum~n~ 1..:3 FUed 02/03112 Paoe 1 of41

.................................... ____ ~--~--~---------------------------
Dr. Lance Monroe testif!ed th.arhe examined t11e victim otfthe night of the attaCk and that. in
his-opinion, the injuries-he obsenied on.tbe victiii1 had been caused by Hsome sort-oftraumatic
intercourse."· {frial Tr. 172). Dr: Monroe also described a slide he had made C():tltain]ng semen and
sperm he !:tad collected durh1g a pelvic examination of the victim. {Trial T:t. .170--71.} There was no
testimony by Dr. Monroe th~tnutt1.ero~ it.ems o_fbiological_evidence:i including pubic combings and
no less than five samples ofthe bodily fluid of the perpetrator, were collected from the Vict:i.rn. (Trial
Tr. 166-173.) There was also no. . .

~estimony
- by Dr. Monroe
.-
or anyone else at the trial that the
.
biological evidence was picked up :from the hospital by Offieer Lee of the Concord ·PoliQe
Departtnent (see Trial Transcript)~
W'hlle the vi-ctim waS, beingtreated in the hosp:itaL the Concord .Police Department conducted
a full-scale investigationofthe crime scene. Pllr&'Ua.Ut totrutt investigation, Detective Vanrsenhour)
•
whQ was the evidence custodian at the time! •. testl1:1ed that he lifted apartiallatentshoe print from one
ofthe·porch columns onthevictim"sbome. He testified he had no wayofknowing when the shoe
print was made and that it could have been made' as long as one month prior to the night ofthe rape.
(Trial Tr. 291 ~) Detective Isenhourtoldthejury thathe a3ked SBI Agent Dennis :f...fooney to conduct
an examination and comparison ofllie impression taken from the crime scene to a set ofsh<>e trackS
taken on paper from shoes collected from Mr~ Long on the day ofhis·arrest. (Trial Tr* 288), Agent
Mooney testified that_he con,d.ucted tbe examination and com.parison and that,.inhi$ opinion, the
shoes taken from Mr. Long "~could have made~ the shoe track hp.pression found at the scene. (Trial
Tr. 297~98.) However, Agent Mooney.also admitted thai .he could not say that the print "'was
ll1ade,. by either of .Mr. L()n,g's sho~... (l'ri~l Tr. ,49$.;.99.)
• 8
Case 1:12·cv..OOt1.9 Document t-3 Filed02/03112 Paoe8of47

• of physical evidence recovered from. the scene. At closing,theDistrictAttomey•s office made the
following arguments:
• {'Every word [the victinl] uttered .is fully and elitirelycortoborated by the evidence as
was seen by the o·fficers in her home . . . and the latent evidence found by the
officers." (Trial Tr. 10.3-04.)
•tThe :man that made that footprint is the man that broke into het home~,; (Trial Tt, 109.)
• .~'Mrs. Bo$!stestimony is not only accurate, b:uttotally consistent with every piece
of physical evidence existent. Evetyth.ing she says happenedthatis capable ofbeing
~~oborated.:by physical eyidenC<':~ C:{!rrobar.ationJis so corroborated .•. Eve:ey piece
of p.bysical evi.Ience p9ints Dl!erringly to the fa~t that [the victiml tolp you
exactly whathappe:ned that night unerlin.gly. '' (Truu Tr~ 113, emphasis added.)
At trial, the only direct evidence introduced linking Mr. Lon~ to the crime was the victim}s
eyewitness identification. ·The only scientific evidence introduced by·ilieState was the latent sboe
printthat the State;s own witi:less could not conclusively link to Mr. Long. TheState al$o.introduced
as evidence against Mr. Long ablackleatherjacket.he was wearing the day he was•arrested, ap¢r of
black leather gJoves and a. green toboggan that were recovered from the car he drove to the police
station the day he was arrested. Mr. Long has. consistently and persistently denied, from the
begi:nning ofthis case, that the tobOggan belonged to him and testified he had never seen it before.
(frialTr. 21 &.) Atthe trial~ defense oo'unsel elicited fr0ll1 Sgt. Taylor thanhe hairs that can be seen
in the toboggan ate light in rolor. ('frial Tr. 31 0.} ~It\ Long is an Afric.;~nAmerican wbose·hair was:
and is bl~ck.
The.Identifieaflon.
.. . -.
Evidence. and Procedure
OnMay 5. 1976, ten days after the crime occuued, Sgt. Taylor.and Lt. George Vogler went to
the victim' shome and told her, "'it would be necessary for hertel go to district court onMay 10~ 1976
Case 1 :12-ov-00'119 Document 1'-3 Fited 02/03/12 Paae 9 of47

af9:3·0 a.m. to observe all petsons:inthe courlroom''l. stating that ''we don't know, we: have reason to
believe that maybe this day,. orin a couple ofdays ifyou would come...that there might he a man in
the courtroom that [she] couldideritify...as the man who raped [herr;; and to "watch carefully for,
and see if she could recognize;thepersonwhobrok:e in on. her ,April25, 1976 and raped. her~ (Trial
Jj
Tr. 20·21, 181.) She W"a.<i told, ''they had reason to believe there might be somebodythete that [she}
could recognize.~. as theman·who raped me.''{Trial Tr. 21, 45-46.}
Sgt~ Taylor and Lt. Vogler picked the victim up the moming of May l Otb-fifteen. days after
the crime occu.tred ... and escorted her. to the courtroom.

..
(Trial Tt;25; 183 .) Mr. LQng was scheduled
. . . . . . . .
toappearincourtthatmom.ingfortheallegeci.trespassviolation.(Td~liJ:'r.2l4.) Shestatedshewas
instructed by the officers ''to sittitere and tolookaroundan.d seeifl saw anybody that I knew) or the
man that raped me, and I did that Beforelcam.e..d(}Wn to be seate~ I looked around to see ifl could
• see any black person and 1 saw a 'few'. {TrialTr. 27,)
The victim testined there were 35.: 50 :people in the courtroom that day (Trial Tr. 27) and
"there were some blacks in there, like maybe, a dozen,'. (Trial Tr. 27-28~) She also testified that the
judge asked people who did notbave a lawyer to line up front and pick up soule papers {Trial Tr.
28), and that ~~maybe two ofthetn were blackn (TrlatTr. 28-29). She testified on cross examination
that one of the black men in the courtroom was ·"very light and tan, and all stooped over . . • and I
noticed several.in the audienee that had affos~' (Trial Tt. 45-46). \\'hen asked.if she saw '(anybody
She testified .she satin the eourt:t'oom ~constantly lookingarau.nd"' (Trial T.r. 29) for about an
hOur or an ho\ll' and a ha!fbefore Mr. Long's case was ca!letl (Trial Tr. 4849, 127). Sf1etestified
she did .not see Mr. Long duting.the entire time .she was 'looking around. {Trial Tr. 2'8)~ She also
• 10
Case 1: 12-cv-.00119 Document 1-3 Filed. 02/03/12 Paae 10 of 47

stlited thatin her mind s.he lcnewwhy she· was ask:fJdta gQ to courtthattJay. (frial Tr. 129)' emphasis
added)~ The victim testified that tbe judge ~'aSked for Ronnie Wallace .Long to come before ...
come up'" (Trial Tr~ 29)~ and· that she recognized .Mr~ Long es be was walking toward the judge with
his rather (Trlil Tr. 30, 51-52). She testified she indicated to her friend ~~e s the one<>', but aJso
indicated that she saw Lt. Vogler and Sgt~ Taylor sitting in dle ju:ry bo?t (Trial Tr. 30), even though
she claitned~'shedidn)treallylookatthem until after lreali~ thatJhadrecognizedhim'' (Trial tr.
3Q...31). The trial testimony.indicates that·Sgt. Taylor observed where Mr. Long was sitting in the
courtroom, andnoticedthathisfatherwassittingbeside.him. ('friatTr.l8.4~185.) Sgt Taylor was
also observing the victim. (Trial Tr.l85-186.) Befoteleaving the courtroom, the officers asked the
victim if she was ~'sure" and she said ~)res";<tbat there was ~~no dtn.ibtiri rny mind. Absolutely no
doubt'~. (Trial Tr. 33).
•
About 15 or 20 twenty minutes after the courtroom identification (Trllil Tr. 49), the officers
took the victim to the police smtiot1 and showed her 6 or 8 pictures. The victim testified '~I picked
him out". (Trial Tt. 33; $0.) f!owever, she also testified that qne Qfthe.people in the photo array
'~looked like it might hav~. been a woman". {Trial Tr. 34~) A<ldi:tionally, she was asked at .trial if
''them was a:nything.distinctiv~ abo:ut thedtess ~f~yindividuals.depicted:iil·tho~• photographs that
drewyourattentiontothcrn·•.andshereplied'tltwasth~jac:ket ... itwastbeidentical~ooeidenticalto
it It was a leatherjacket~\ (Trial•'Tr. 3S;) She testifie<f.:that Mr. ·tong was the onlyone.i.n any of the
pictures that had on a black leather jacket (Trial Tr. 53.)
The victim testified that she :was trot sure ifthe police told her Mr~ Longls name ·before she
saw him in. the cou:rt:ruom or at the foUow;.up photo say (trial Tt. 52). She wavered m her
testimony as to whether or not sh.eknew the name ofMr.. Long before the judge called his casein the
• 11
Case 1:12-cv..Q011.9 Documeot 1~ FUed02/03/12 Paae 11 of47

• courtroom that day,· and also wavered abo.ut whether or not the police told her Mr. Long's name
before she. viewed the photo array. {Trial tr. 51-53.} Shetestffied that ''they could have [asked her to
pick out RonnieLongJ bu:ti don't know~ I don't remember finding ou~ even finding out that when~
what'hls .n.ame was. reaiiy;~ .. (Trial Tr. 53.)
During the. trial,; the victim pointed to Mr. Long from the witness stand and identified him as
her assailant (Trial Tr. 20.) She said there wes no doubt in her mind whatsoever that it was hirn.
' (Trial Tr. 40, 187.) The State also .had her eX:ati1i:!le Mr. Long"'s photograph a second time from the
witness stand. (Trial Tr. 40.) Despite her alleged certainty, the victim admitted she rtever visited in
blackpeople~shomes(Tria1Tr.l30--l3I);didnotbavehlookpeopieev.ervisitm.berho.me(TrialTr~,
131 ); and said she did not know very many black p&lple and did not have much experience with
them (Trial Tr~ 131 ~I 33 ). l)e victim also testifiedJhat she was very frightened, so frightened that
•
·~[she] hadnoidealshe]'deV:ergetout adive.OTherewasnoway. [She) couldn'tseeaqywayofever
getting out'' (Trial Tr, 42.)She said her assailant thr¢tenedher witha knife while repeatedly yelling
"don't look at me" and shoving he-r head to tbe s1d<f so thatshe could not get a good look at his face.
(Trial Tr. 9J8.)
;rbe.])efense Case
Mr. Long's·trial counsel put !orthanalibidefense, calling several witnesses who teStified. that
he had spent the aftemoon,planning-ahighscl::llcKilreil!iionparty (TtialTr. 311-12,316-17" 322-2:3,
329) .377); spent timeathomein theevening(atthetime oftheatta¢kofthe victim) talkin!I to his
girlfriend and young son on the phone (Trial Tr~ 33843~ 347-53); listened to music in hls room
(Trial Tr. 352); and then, around 10:00 p.m.~ drove with a friend to a party in Charlotte (frial Tr.
362, .377)~ The victim. testified ~t the atuwk ()cc~e~laround 9:.~0~~l:45 p.m. w.h~ witnesses
• 12
Case 1:12-cv~00119 Dpcument 1-3 Filed 02/03/12 Paoe 12 of 47

• testified Mr. 'Longwasathome.(trial Tr~ 5,40"-41,_.3:38..43. 347-53.) Otherwimesses testinedthat
they.did not observe any scratches orinjuries on: Mr.. Lo11g or an.y scratches on his jacket that night at
the parcy. (Trial Tr. 325, 330.)
The trial transcript reflects that on both cross examination and in. the:ir summations, the
defense attempted to cha.Uengethe acc~y ofthevictitn' sidentlficatiort.by de:tnonstrdti~ that she·
had little to no interaction with. A.frican-Antericans. They pointed out that: her initial descriptionof
the perpetrator did not resemble Mr. Long or include a descri.pti.ort of the perpetrator having facial
hair; she was terribly frightened; ·she had. alcnife to her throat; it took her a long time to identify Mr.
Long even. though she sat in the eourtrooJ:llfora.tlhot~t or more looking for him; she initially told the
police her attacker was bl~l< but then Crumgedher testiinony to ~'lightsk:iilned" or)'ellow looking'';
she recognized Mr. Long becau.,";e IE·was wdiringa leather jacket; the toboggan bid the perpetrator's
face; she was:. understandably,·extremely emotionally upset. The defense also pointed to the lack of
physical evidence connecting :Mt. Long tothe critri.e: SBl Agent Dennis Mooney admitted that he
could not say that the latent ~ho(! print was ~.by Mr. Loqg's shoes; there was no paint on the
leather jacket or leather gloves; there ·were no scratChes on Mr. Long or bisjacketeven·though the
victim admitted she fought her assailant; the hair that could be seen in the toboggan was light in
color as opposed to the black bait ofMt. Long; and no blood was·Jound on Mr& Long:~s clothing.
Trial counsel did not have the medical records of the victim and;..of course, were unaware of the
existence o'fexculpatory evidence.
New.Evidwce
Asaresult ofthis CoUrt's otder ~tingthatc.O'f.mselbe ~lbWed to examine the master-case
file and the work ofSgt Rob{!rt Ledwell of~ Cgt1cord Police.D~partrneQt iti~ now known that: on
13
Case 1:12-cv-001 Hl Oor;ument 1;_3 Filed 02103112 Paae 13 of 47

-··--·-··-····-·------·-----·--------·------------·----------------------
.... ·············· ··---···-·····------------.,.------:------------------
• the night ofand the day after the crime :occurred~ the police collected certain physical evidence~
including a ~'suspect hair" found at the bottom of the stairs where: the rape took place; the clothing
the victim was wearing when she was. attacked, paint samples. from the porch banister believed tt>
have been scaled by the perpetr:ator, and carpetfibets .from the victim ,s home. The summaries of th~
physical evidence collected) which.·were found. brcurrentcounseHn the master case file, are a~d
hereto collectively as Exhibit M.
In additio~ the master case file revealed that almost all of the physical evidence was sent to
the SBlfor forensic examination. A copy ofthe evidence sent to the S~I and the requests for various
tests to be conducted.is·annexedherewasE:xhibitN. These documents showthat,in. addition to the
shoe print evidence that .wag. introduced at trialJ :Nfr. Long's jacket, gloves and the toboggan
attributed as belonging to filin by tllY .Police wer~ ,Personally delivered by Detective Isenhour to the
SB:I on May ll, 1976 to be ana.lyzed fot,~¢ pres¢nce ofpaint, carpet fiber~ or the victinfs hair.
\Vhile photographs of the victim's. clothing~ which was tom from het body by her assailan:t. were
introduced attrial (State•s Ett. 3}, the actual items of clothing (whiqh included her housecoat, pants,
underwear~ pantyhose and bedroom slippers) W'Vte. not. However, the victim's ·clothing was
delivered to the 'SBI for analysis to look fo.r ~· presence of ,Mr. Long~s head and pubic hair.
Matchbooks taken from, Mr. Long's 'Yebicle ort the datofhls arrest were asked to be cor:npared with
burned matches fotmd in the ¥icti1n'stesidence on the nig:ht ofthe crime. Finally, Mr. Long's head
and pubic hair were delivered fot com:parison vvitb. th:e haitfound in the hallway at the. base of the
stairs where the victim Was'rnpetl. TbeSBJ reportS indicate that after the evidence was testedtit \Vas
to be retrieved personally fttimthe<SBI by Detective Ise®<Ju~-. (Ex..O). Cottnselll~ been tma.ble to
discover whatbappened to the evide~ after it~ relya,gOO by the SBito De~ec1ive Thenllour..
14
Case 1;t2-cv~00119 Document 1;;.:3 Filed 02f03/12 Paae 14 of47

----- ------~--..----___,.,~-----------------~-
• The master ta~ file d.ld not contain any SBl test reports. Oespite the SBI's iriitialletter to
this Court on June 16, 2005, indicating they had. t.to records ofany testing done in this case aside
from the latent shoe print introduced attriat (Ex. P), the master case file indicated-the, SBI tested
physical evidence. With the assistance of the North Carolina Center o:n Actua11nnocence3 tlleSBI
was urged to look for the test reports which were found and provided tn defense counsel inJanuary
of2006~ A copy ofthe SBI test reports are annexed as follows: a report by Examiner Glen Glense,
dated May 191 1976 (Ex. 0); areportbyExaminetR.;D~ Cone; dated May 14, 1976(Ex. Q);and a
report by Examiner Dennis Mooneyj dated May 19 1 1976 (Ex~ R). The tes.t results are astounding
for none-ofthem shilw any match to Mr. Long. .Rather all ofthe SBJ results pointt;d in the opp()si'fe
direction- the physic(ll evidence in thi$ case sttQttglypairtted.to Mr. Long's innocence. Just as
astounding is the fact that I'Ulne, ofthis evidenee was mttoduced at .trial becat!>fe Mr; LOng's trii1l
attorneys were corn,pletely unaware thiitif~d bee_n collected, sent to th~ SBTCJ'J!ld tested. 7
theSBI reports indicate that on~ May lt 1976~ Detective Isenhour personally submitted the
follo'Wing items to the SBI for ~estin,g:
a. one plastic bag oontainins/a;g,teentobo!$an;

b. one plastic bag containing a pair ofblack gloves;
c. one plastic bag cQntaining a black leatherjacket;
d. one plastic ·bag containing kna'Wtl·head hair from Mr. Long;
e. one plastic bagocon.tainfu.glcnown pubic hair tzrom· Mr. Long;
f. one glas!) ~t tu~ c.Qntaining ~a,.g?etfi~r~ take~ :ftom the victiln:ts hotne;
g. one glass test tube contai:ning paint from the .scene;
h. one plastic bag containing sU$peot hair from the scene;
1. on~. pla~tic~ eonuumng kn9'Wll head ?tJ,d pubi~ hair from the victi.m;;
7
See the annexed affidavits of Mr. Fuller and Mr~ Adkins.
15
Case 1.; 12~v..:001l9 Doou.ment 1~3 Filed 02/03112 Paae 15 of 47

.............................. -----------
j. one: plastic bag containing matchbooks;

k.. one plastic bag contairiing three partially burned :riurtches; and
l. one _plastic bag containing the Victir.res clothing
(Ex. Q.)
Detective Isenhour requested that the SBI conducta comparison of the· suspect: hair found at
the seene with the haif·sarnples taken from the Mr. Long~ _Examiner Glense' s report indicates.the
following analysis: "Microscopic examin.ation and comparison of th.e h.air found atthe scene ~ •
• showed it to .be different (rom tb·e suspect's hair •••rt (Ex; 0.) The examiner~s notes- further
indicate that the .hairfound .at ~e seen¢ ~Cl$- "mQreredgisJi." witha ''heavier pigmentation~ while Mr.
Long's hair was '~more brownish gray"' Vrith'Hm:ore scattered pigrn.ent.n The medUlla of the hair
found at the crime scene was ''-wide"' while the. medulla QflVft. Lqng'$·hair Wa$ '"nl:ltTow',. '!'be hair
found at the scene was •'more oval'~ wbil~- JY.Tr; Lpng'sharr was ~;(ilatter:..ribbony"' ~ In his repot4 the
e~er speel.llates that tl.le hair found. at .th<! scene ~~ma.ybe negroid or ~{Mongolian)'~. The
exam.iner specifically ·concludedth,at the hair found.. at the scene was '~different. from suspect's hair».
(Ex. 0). 8
Detective Is'etihour also requested an exfm}fuatlon of the Victim~s clothlng for hair and a.
comparison of aJ.:IY ·-hait.-found with the ltair· taken from Mr. Lring. ·Examiner Glense indicates the
folloWing result: ""No bait·or balrftagmtnts similar to the suspect's werefoundin the vietim 1 s
clothing"'" ·(Ex. 0.)
Detective Jserthc:mr further requested that the. tobog~ fue glov~s apd th~ lea'therjf}Cket
eoUected on the day ofMr~ Long:s gre;st"be extm.Uned for the presence e>f-p~int ~d carpet :fibetS: to
'Interestingly* the hair fhund at the sc~ w~ 'l'eddisl;t" whicbJs also-~ color ofthf; hair in_ the tobogg~n t~t t;M
be seen with the naked eye.
16
Case 1: 12-.cv.-00119 Oocument 1-3 FUed 02/03112 Paae 16 of 47

···················································--·······--:----~-----------------------
see if there was a: match to the painf and caqretfibers coUected nom the victim"s home. Examiner
Con~·s report states th:e examinEt-WtlofMr~ Long's.elotlring '~failed to reY~lthe p.resenceof~ny
fibers or paint sim.ilar to those fsubmi(tedf.tt (Ex. Q.)
Dete~tivelsenho:or r~q~J(!steda comparison ofthe rnatches foundatthe crime sc.ene with the
matchbooks allegedly found in Mr. L.ong~scar. Atte~amination ofthe matches "failt:!d tor~ve~J
sufficient identifying tbara-eteristics to allow th.~ ex;s;mltu~r to give a:n (!piniQn with regard to
their origin relative to the.matcbbooks .... /' (Ex. Q.)
According to a separate report {Ex. R.); on that same date (May 11; 1976)t Detective Isenhour
.also submitted to the SBI (a) one sb.oetrackimpression, and. (b) tvvoknownshoetracks on paper.
He requested an examination. and comparison of the impression t~en.from the ctir:ne scene to· the
shoe tracks taken on paper from shoes oo.Uected from Mt. Long on the day ofhis arrest The 'Nritten
SBI shoe print report prepared by Examiner Mi>oney was never provided to trial counseL9 Only the
latentshoeprintfrom. ilieseene (State~sEx. l3}and theshoe>impressionsfrom Mr. Long's shoes.
(State's Ex. 15A & 15B) were introduCed as evideilceatthe triaL However, consistent With the
testimony at trial, the May lQ, 1976 report of Examiner Mooney notes that ··~there were an
insufficient numbetofdistinct ehamct~cs noted by which to effect any identification."· (Ex. R;
see also Trial Tr. 297-99.) Detective Isenhourtestifiedtbeprints found at the sc·ene "could have
beenn made "a month ago'" (meaning a month before the crime occurred). (Trial Tr. 270.)
Th~ is not one scintill:a ofpJ;tys~cal evidepce connecting Mr. Long to this crime. ,None of
the SB!labi:iratory reports wa.,- ever disclosed to trial cdtmse1. 19 Mt. Long's trial attomeys were led
to believe they had received '~open. file discovery." Indeed, tbatbelief continued: on December 16th~
1987 at a hearing on Mr~ Long'.s motion for post~conViction relief, then District Attorney James
17
Case 1:12..cv-G0119 Docume-nt 1..3 Filed 02/03/12 Paae 17 .of 47

-··-·-·---·--·-----·-·-------·-·-··----·---·-·-----·--·----·-----------------------
• "'Bobu Roberts stated tbathls o:ffice,provided "'virtl.lally:an open file for [the] preparation of[tbe]
def~nse." (See pp. 49oi50fm1Il. a transcript ofa 198Shearing on Mr. Long'-s Motion for Appropriate
Relieft annexed hereto as (Ex. S.) However. Mr. BUil1s, tbe.lead investigator for trialcounselt kept
his field file for 31 years and pr.ovidediho@C Law Professor, RichardRosen~ in March of2007. 11
That field file contains a cp.py of the c;omplete discovery :received by tr~al counsel (attached hereto as
(Ex. T) which.def'tnitivelyshows th~ttriat,co:unse:l was .never informed ofthe tasting ofthe eyidePc·e~
much less the attendant results,. by the SBI. Ind~ when comparing a copy of the discovery
produced and contained in the Cabarrus County Clerk:ts OffiCe: file to the discovery keptin Mt~
Burns~ fil~, those di$covery docwn,ents Il1i.itch pag~ for pag~~ word for. word.
ln>additio.n, the· testimony received ~ttri~l was· designed to:affirmatively conceal the fact that
most of the physical' evidence was taken for te!)ting.. Whe11 asked under oa¢. at trial to nan:1e the
items he took with }lim to the SBI qn M~y ll ~ 1976,,, Detective Isenhour testified that be delivered
Mr. Long's shoe~~ the inl,<ed i.m:pressio~ made from those shoes the day b~fore and the latent lift he
had found onthe'banisterrobmrn ofthevictim'shouse, (tria.l1'r.265.} He furthertestifiedt.llat:the
shoe print evidence never left his custody or control (trial Tr. 265). However~ itis dear from the
report of Examiner Mooney tbmth.is evidence was Jeftwith the SBI ·for examination.
More importantly, Detective Isenhour Utterly fuiled.to· disclose any ofthe other items that he
took to the SBI lhe srime dt:jy he took the shoe jtrint evidence. Again; Detective Isenhour led the
defense and the jury to believe that the t&boggatl,; thel¢atherjaekct aml the gloves b~ remained in
his sole custody and corifi'olfrom the time it was cOllected until the dayofthe trial. (Triail Tr. 265,
282" 284-.286,. 288-289.) A.s. op.e example, at-trial De~tive lse1)hour was~~. aboutthe black
leather jacket tak:en from Mr. Long at the p<jlice station on the day of his arrest. On direct
18
Case 1:12:•cv~0.0119 Document 1.:.3: Flled02/03/12 Paoe ra·of47

············································--------------------
• examination, ADA Ron Bowers asked Detective Isenhour~ '~Where has it [the Mack leather Jacket]
been since youreceivedit? 1' He responded, ~"It has been in my custody and control.''" (Trial Tr. 289.)
According to the SBir.eports~ the e'Yidence(includirt,g the jacket) was delivered to the SBlon May
I 1, 1976 arid left there Ull.til atJeast May 19th. The May 19th report ofExtUnirier Glense indicates
''Please.notify Det Isenhotl! ~men resilltsi$ crimplete and be will pick up. evidence~'. (Ex.O~) The
May 19th report also indicates that the evidence was received by Examiner Cone from Detective
Isenhouron.May 11, 1976; that·theevidencevv~ntto EX.aminerGlense fortestingon.May 14)1 l976;
and that the evidence ~vas :returned by Bx:anliner Glense to Examiner Cone on May 17. 1976.
(Ex.Q.)
Sgt. Taylor's testimony at trial also. reveals an effort toavoid disclosure: c&th:e results of the
SBI testing. Onr~cross examlnatitm?' after listing the items that were~llegedlyrecovered ti:om the
• car that Mr. Long drove to the police statio~ Sgt.Taylor was ~ked why the matchbox covers were
taken into evidence. The following ex:cnange fakes· place:
Q. Why were the match box covers received?

A. It was physical evidence we obtained from the $Cene to match with the matches we gotout of
the car~
Q. Could you explain thai I didn't ...
A. We obtained some matches from th~ scene of the crime•. Some matches that had been
struck and lit; and we tQOk; matches·,ofsimiiar nature from his vehicle.
Q. What kind 'Of matches did you find?
A. They were just paper matches.
Q. Did they match? ·
A. I didn't match themt no, sit.
Q. Then they were not matched?
A. to in.y knowletlge, they were :11ot qaatche.d.,
Q. Inntherwords,'tbematchesyou.gotout-oftbe,cwrdonot-matchwiththosefoun:datthescene
ofthe crime? .
MR. BOWERs: Ob~on.
COtiR.T: OVenul~.
THEWITNESS: lcan~ttestifyto:•.tbat.
COb"R.T: I)o you tutve any information thafthey didn't match?
• 19
Case 1:12-cv;..Q0119 Document 1~3 Filed 02/03/12 Paoe 19 of 47

---+-------------~----~----··--------
····-··--·--------:-----------------
THE WITNESS~ Nh, sir, they didn't match.

COURT; They didn't match.
{Tria1Tr.208-209.) NotonewOrdwassaidattrialthattheSBJhadcondu.ctedmatchtests.andfound
the ·evidence to be insufficient to draw any conclusions. (See,. Ex. Q.)
In addition to the hair at'ld shoe samples ~en fh>m. Mr. Long~ the officers.claimed t:bat upon
a search of the car (which .Mr. Lo~g had driven. to the police station when asked to "rome 1o the
station to straighten out this [dism.is$ed] ttes:pt!Ssing wa;rant:~)} they found a green toboggan
underneath ·the ·driver~ s seat. (frial Tr~ 237.) Mr. Lorig has. consistently and persistently denied,
from the .beginning of this case, that the toboggan belonged 19· him and testified he had never seen it.
before. (TrialTr. 218.) Atthe trial, defense coutiSel eticitedfroro $gt'Taylotthat the hairs that can
be seen in the toboggan are light in color. (Trial tr~ J io .) This statement is validated by the SBI
report indicating that the _hair fqund at the scene was ~.'more reddish•' than the hair -of Mr. LOng~
The victim.' s hospital records werenotprovided to trial co:unse.t12 According to the medical
records~ numerous items of physical evidence, including pubic combings and no less than jive
samples .ofthe bodily fluid o.fthe perpetrator, were oollected from the victim. The medical records
show that on. April26,1976, the biOlogical md$ce WaS pi¢;ked upfrorn the hospital by Officer Lee.
There the trail ends. None ofth~ medical evid~ the hospital.coUected wasintroduced at trial nor
wa:Strialcounsei aware it even been cdllected an.d made avail~ble to the inv.estigati~g officers.;. A$ide
from the factthat five samples qfbodily tluitd Wt}te (;t>ll~ frotrtthe vieti.tn, the records also show
that the victim's ''Vv-rists are markedly sore:·and. swpllen ... 6cbtirred when $he was trying to beat her
assailant over the head "With her hands and Wrists"; and tb.at her ufirtgemai1s are all sore and.some of
them have been bent backward which the patienttbinks ooeutted when she was trying to scratch her
assailant and fighqng back''. This· is consistent with the victim's testimony that she fought and
Case 1:t2.-cv~Q119 Document 1--3 Filed02/03112 Paoe20of 47

........ ················----------------------
scuffled witl:4 and scratched ather attacker:. This evidence supports the alibi defense: no one, saw
scratches on. Mr. Long or bisjacket at the party.he attended in Char.loue the night ofthe crime.
Althougl1 the evidence connecting Mr~ JJ)ng·to the crime was quantitatively small, tbe
victim's identification atfP,e triaJ.had a dramati~ impa~t on the j:ury. The victinl. pointed to Mr~ Long
and iden.tifi.ed him as he.r assailant from the witness .stan;d during the trial. (Trial Tr.. 20.) She said
there WS$ no doubtin hennind Whatsoever thatit was him. (frial Tr. 40, 187.) However, it is now
well-established that identificatitm evidence .is suspect. This is especially true in this case. n Had
trial counsel had the benefit of the exculpatory evidence, it i.s likely that evidence would have
affected the out()ome of the trial. The failure to provide· Mr~ Long~s trial coll!tS¢! with critic~
exculpatory evidence violates Mr. Lon;g,s federal .and state constitutional righ.ts.
REASONS·.WHY· THE:MOTIONFORAPPROI'RIATE
. , RELIEF SHOIILD BE GRANTED
1. Mr~ Long's conli·ctionwa$ubtainedin Y:iol3tion otth,eConsdtntion oftheUnitedS~t~

and the Constitution of North Carolina bt that the State ()f North Carolina failed to
disclose exculpat<Jry .mateJ:i~ to the de{eD$~ i.n viol8cfi9:n .of M.r•. Loug"s right to a .lair
trial under the due process elause of the Fifth and Fourteenth Amendments of tbe
United States Cons:titlrtlm-.and Artiele'I, ~eetiqn 19 ofth·e North Carolina Constitution.
A defendantmay seekapproprlate relief when his conviction was obtained in violation. oftbe
federal or state constitutions. N.C. (Ten. Stat. § lSA..l415 (b) (3) (2007). At the :time of his 1987
state petition for post··conViction relief) Mr. Long was :not in a position to raise the constitutional
clainis presented by this motion due to the State's failure to disClose the exculpatory ·evidence in its
I, Section 19 ofth-1! North Carolina Constittititm. Thepn:u~ecution's failure to disclose exculpatory
13
See·disc.ussionbe1aw atpp .. 28~.3·6,
21
Case 1;12--cv-00119 Docume.nt 1~ FUed 02!03112 Paae 21 of 47

.................................-----~--:------------------
• evidence and the resultingp:r:ejudice tO Mr. Long also constitute ~~good cause'~ under N.c. Gen. Stat.
§ lSA-1419 (b){l).
A criminal defendant is entitled to ex:ctilpa.tory evidenceJn the hands ofthe Stat<; and failure
to disclose evidence favorable to the accused violates a defendant~$ ri~t to due process When the
evidence is material either to guilt or to punishment: U.S. Const. Amends. V., XIV; Const. ofN.C.
Art. I,§§ 18, l9J 23; Brady v. Maryland, 313 U.S. 83 (196.3); State v. Canady, 355N.C. 2423 559
S.E.2d 762 (2002);State v. Barber.l.47 N..C. App. 69,554 S.B.2d 413 (20tH); State v. Bates~ 348
N.C. 29,497 S.E.2d 276 (1998).
Under Brady, favorable evidence is material ~'if there is ateasonable probabilitY th~ had the
evidence hee.n disclosed to the defense~ the result bfthe proc.eecling would have been different."'
United States v. ~agley.. 473 U:S. 667~ 682{1985); ~also Muellery. Angelone.. 181 F.3d. 557 (4th
Cir. 1999), cert, deni«l. 527 U.S. 1065 (1999); State: v> CanadY:~ 355 N.C. 2421 559 S.E.2d 762
• (2002). A. "reasonable probability'~ of a. different result is established when the govemmene

. . . s
suppression of evidence ~~undermines tonfidence in thetlutcotne ofthe triaL;,. .Kyles v. Whitlev, 514
U.S.419,434(199S)(citingUnited$tatesv.'Bagley,473U.S.667(19S5));.~_alsoStatev.Johnson.
165 N.C. App. 854; 559 S.E.2d 599 (2004}. In <>rder to eStablish materiality; it iS. not necessary to
demonstrate that disclosure of~ suppressed evidence would have resulted in acquittal nor is the test
for materiality a "sufficiency ofthe evidence') test Kyles~ 514, U.S. at 434; Canady.. 355 N.C. at
252,559S.E.2dat767. •11J.eq"ttestionis··n:otwhetbetthe-defendantwou1dmorelikelythannothave
received a different verdict with the evidimce, bUt whether in its absence :he received a fair trial,
understood as,atrialtesultingin averdict worthy ofconfidence., StriClderv. Greene, 527 U ~s. 2~3,
280 (1999) (citing Kyles v; Whitley. 5 t4 U.S. 419 (1995)). In deten11ining whether undisclosed
evidence is material~ the ootirtmustco.nsiderthe .cumulative effeetofall s~ppressed evidence, raffier
than considering each item ofevi.dence indiY.idualJy; K:xfes) 514 U.S. at 436~ The duty to disclose
•
Case 1:12..:cv..;QOt19 Document 1-3 Filed 02/03112 Paoe 22 of47
----------------------
encompass:es impeachment evidence· as· well as· exculpatory-evidence. United. States v,Bagfey. 473
U.S. 667 (1985); Gislio v. United States, 405 U.S. 150 ( 1972).
The States aff.irrn&ive duty to disclose Brady material extends beyond the prosecntor"s
office to include State investigative agencies, including the police. Kyles> .514 U.S. at 437~438.
See~ also. N.C. Consti. .Art. IV, §18; State V; Sinith. 3.37 N;C. 65:8, 447 S.E.2d 376 (l994)(the fact
that a prosec11tor does notkn9w (Jf the existence of exculp~tozy evidence is irrelevant since the
presence of such evidence is imputed to the prosecution). In State v. Bates, 348 N.C. 29, 38~ 497
S.E.2d 276,281 (l998),the.NQrtl1Carolina.SupremeCouttheJdthe"State'sli?biiity [under Brady]
is 'notlimited tc:rinformation mthe actual possession of the prosecutor and certainly extendsto any
in the possession of state ~gencies sul)ject ·to judicial control." these rules, by extertSion, apply to
records .in the possession of tb~ SSl and are especially critical if local law enforcement had
knowledge of the substance otthe in:t;orrnation poss.essed by the SBI.
The Fifth and Fourteenth .Amendment$ to the United States Constitution and Article I~
Section 19 of the North Caronna Constitutipnprohibitthe State from knowingly presenting false
testimony~ Giglio y. United States, 405 U .S.lSO (1972}; Napue v. illinois. 360 U.S. 264 (1959};
State y. Boykin. 298 N.C. ,()87;; 259 S~E.2d 883 (1979). In Napue'~ the. United States Supreme Court
held that a conviction obtained throu:gh the knowing use of false testimony by the prosecution.
violates due process. Napue,c $60 U.S~ at 269. 'Ibis is true whether the prosecution solicited false
testimony or simplyallowed.suchtestirnonyto pas$ unCQrrected. Giglio, 405U;S.at 153; Napue.

360 U.S. at 269. The Supreme Court has cQnsistentlyheld thattbe~e offulse testimony is material
and violates due process whenthereis "'anyreasonabl¢likelihood thatthe false testimony could have
affected thejudgmentofthejury'~. J<rles v. Whitley,514 IJ.S'. 419~ 433 n.7 (1995) (quotingUmted
States v. Ag~) 427 U~S. :97 (1976)). The defendant does n.ot need to show the prosecuting .attorney
knew the testimony was false. Knowingly faise ·ot misleading teStimony by laW enforcement. is
23
Ca~~ 1:12.-cv-00119 Document 1-3. FUed02/03/12 Paoe 23 of47

• imputed tO the prosecutioa Longworth v. Ozmmt, 371 "F Jd 437 (4th Cir. 2004); Boyd v. French,
147 .F.3d319 (41n Cit. 1998).
A. The Failure to .DiSelos~ Brady material:
Mr. f..ong was convicte4 after a trial ill which. the only direct evidence introduced to link him
to the crime was the identiti~atian. testimony <>fthe victim. It is now dear that the reason for the
paucity of evidence introdUCed at trial is that the teltll;litiliig evidence gathered duriiJ.g the pre~tria1
investigation of this c~ excludes Mr. Lpng as· a· suspe:ct" See McDowell v. Dix911 858 F .2d 945
(4th Cit. I 988) (holding that the defendant w~ denied due process by the nondjsclosure ofevidence
wl:lere the onlydir~ct evidence presented by ~he Stat~ a;ttrial was an eyewitnes~identiticatiqu; tb(!re
Was no evidence of matching fingerprints, bloodstains, body secreti-ons, hair ot fl~rs, and the
withheld evipence was contradictqr:y to the prosecution's C(lSe}; ~ State v. Campbell. 133 N.C.
App. 531. 515 S.E.2d 732(1999), disc. revie.\v denied 351 N; C: llt 540 S~E.2d 370 (1999) (where
court denied Brady claim with respect to bait san:tples that were never tested and defendant
confessed). It is equ~Iy cle~ that, absentdiSGlo.sure Qfthe ex;cu]patocy evi~nce, Mr~ Lo.~ did not
receive a. fair trial and any confidence that might have existed in the verdict has .clearly been
uhdenttined.
Cuttent counseldiscoveredth1tt tb~ Di;§trict Attorney's Office failed to disclose excU.lpatory
evidence in the form ofSBJ laboratory repo.rtstbat were available to the State within days of Mr.
Long's: arrest Over the32 years since the co:pvic.tion was obtained, the State has not only failed to
avail :itselfof numerous opportunities tQ discJ.os~- these rv:ports~ th~ Dh;tri~ Attorney's Office has
affirmatively led Mr. Lon,g and his aitomeys . to believe that all e~isting re<:o:rd$ were disclosed and
t.ha.tthe trialattomey$. had received '"openfilendiscovery pursuant to. the policies ()ffonnerCabarms
County District Attorney James 'Roberts. 14 In B~ v~ Dretke, 540 U.S. 6$8, 692 (20(l4), the United
24
Case 1: 12;;,cv.;;001:19 Document t-.3 Filed 02/03/12 Paae 24 of 47 ·

• States Supreme Court held that a defendant is entitled to rely upon the State'.s reptesel1tation that the
State follows an "open file'' discovery policy in fulfillment of the .defendant's statutory and
constitutional rights to pretrial. discovery, including Btctdy material. The Banks. decision held
defense counsel reasonably relied on the prosecutor's assertion. that '~e prosecutor's files were
opeil' and "there was no need for aformhl motion.'\ Banks arp. 692. See also. Stricker v. Gteene,
527 U.S. 263, 283-284 (1999). Because of the stated Hopen tile'~ policies of the DistrictAttorn~y~s
office,· Mr. Long's trial attorneys did not file a pre..tria! discovery motion. They relied upon the
prosecutor's assurances that all· evidence cqllected had been disclosed to them at)d. that all
evidentiary documents had been provided to them. In addition, the prosecution's ongoing failure to
disclose the exculpatory test results p~evented Mr. Lo11g from raising this issue·~ part pfhis '987
Motion :for Appropriate Relief.
In addition, the results of the SBllahorato:ry analysis were divided into distinct and separate
•
reports~ none of which. was disclosed to trial counseL While the latent sliDe print ~g was testified
to at trial by Examiner Mooneyt there was.no disJ~losure before or during the trial about an:y of the
other evidence that was defivered to the SBl th!!, very same ll.ay~ leading Mr. Long's trial attorneys
and the jurors to believe the .shoe print items ·Were the only evidence submitted for testing. In fact1
when asked under oath at trial to name the items he took with him to the SBI on May 11. I 976~
Detective Isenhour testified that he delivered MJ:.. Long's sl;toes~ -the inked impressions made :from
those shoes the. day before and the latent lift he had found on the banister column of the victim's
house. (frialTr. 264..265.) Deteetive!setihout did not mention any ofthe: o-th~r items he took tctthe
SBithdt same day. Based on that testimony~ the jury and defense counsel were clearly lead to
believe, that all ofthe other kno_wn evidence (thetcfbogg~.glo.ves.and the jacket) wa~ always in the
possession· and control of Detective lsenhout. (frial Tr. 255~293 .)
What Sgt. Taylor did nottell the jury was that the matches werealso.sentto the SBI~ leading
them to believe the matches were nottested~ His testimony indicates he didn't match 1hem. He
• 25
Case 1:12~~0119 Document 1-3 Filed 02103/12 Paoe 25 of47·

never told the jury tbe SBI could not Jn.atqh thern, Even.though he· stated they didn~t m.atch, his
omlssion of how he knew there was no match l<ept trial counsel frotn finding out that other items
were sent tQ the SBL Both fue testimony and the supposed ''open file discove.cy'" received by Mr.
Long's attorneys ~ed them to believe there was orilyo:n,etesfoonducted. Thist ofcourse:t was not
true.
Had 'MI. Long's trial. attomeys been awa:re of :the evid~nce cqllected and known of the
favorable testresults, they would :have presented it, along with Mr. Long's alibi defense't at triaL 15
Not only would this evidence have helped Sl.tPPPrtthe alibi defense, it would have greatly aided the
defense's position that the victim was mist.aken.m her id.ent1fication gf:Mr. Long as the perpetrator.
It could also have been used to ·gUide the pre-triiil investigation .conducted by the trial. teatn.
Taken together,the undisclosed SBire{»rts are powerful evi<:letnce supportive ofMr. Long's
~laim of innocence. ·While each c1fthe test results corita~ material favorable to Mt. Long~ the hair
comparison is particularly poi~t in light, ofthe ~;s tesijmqny at triahegarding theattacker' s
~n color .and in. light of the .()rangelre44ish ~. that can be seen in the tob:Jggan. The victim
described the attacker as ''light:-skinrie~"· '•yellow,"• ''notarealblackmlih."(TrialTr. 11, 122,31 0).
The SBI report iQdicates .~t the non-cau~~anhair found at the very spot in the home where ·she
was attacked i~did not :belong to ·Ronnie Longt~; the hair w~ ''p<)ssibly negroid or ~
(Mongolian)''; and i.lmore reddisht''than the hair'ofMr. Long. (Ex. 0.) maddition to supporting Nfr.
Long~s alibJ and calling into question th¢aoour.acy of the victim's identification~ the ·ha.ir analysis
report contained crucial information that could have led: tbedefens.e investigation to other possible
suspects who fit the description ofa "yellow-looking"' bl}lC:k; triax:n¥ith '~reddish hair?~ -a description
that clearly d0¢8 not fit Mr. Long. This evidence: also .al!pports ,Mr. Long~ s .assertion tb.at the
toboggan was not his.
26
Case 1:12-cv-00119 Document 1..3 FUed02103112 Paoe 26 of47

• The victim:.s testi.m:ony at trial established that she struggled and fought her attaCker in a
violenfaud physical scene. (Trial Tr. 71~724 She also testified that she did not have oceasionto
''visitin the-hotnes ofblackpeoplet',or to have "btack:svisitiDg ui [her}home.'~ {Trial Tr. 132-33.)
In light of her testimony that she ·did. not.inViteblack people into her home, it is reasonable to
assume that·the·hair found at the base ofthe stairs ~l~mged•to her attaqker. It is al$Q a reasonable
assumption that the attacker would have left hair behind on ·the victim or. her clothing~ The
undisclosed report establishes that the :hairfound at the scene did not belang to ,Mr. Long. {Ex. 0.)
The report further establishes that none of Mr. Lon,g~s hair was found on the victim ~s clothiQ:g.
The State alleged at trial that thepetpetratorirwearing blackg\oves and a blackleather}acket;

entered the victim'l:s home by scaling the painted covered porch banister (where the shoe print was
lifted) and crawling 'through an op~n secQ:nd story window. {rrial Tr. 277~79.) The paint was
described as Hbroken.:».(Trial Tr. 264.) None of theitern~;tak~n from !vir. Long containt}d&"ly traces
ofthe paint or carpet n&ers tak~n from the victim~s home. When vic(wed.together with the lab
reports, Mr. Long's black glovesandb.lackj.acketlookless like-the ''perpettat'Pr' s clothes~ and more
like the African-American teenager '~style ofthe timesn that they were. (Trial Tr. 314-.3'15, 318~ 324,
331-332.)
Examin{!I' Mooney Wfl.S unable tQ conc1ud~tbat Mr. Long's shQeS were the same one~ that
made the shoe track impression at ihe crime scene. Detective Isenbour,s incomplete testh:nony
rega;rdin,g what evidence he took to the. SBI clearly left tbejury with the impression that the shoe
print' was -the only piece of evidertee found at ,the .scene. That; cqupled with Officer Moon:eys
testimony ibat· "State's Exhibit Nuttiber Thirteen. [latent lift] could have been made by Stateis
Ex:hi\>its Fifteen..A or Fitleen:-.B (Mr. Long's shoes]" (Trial Tr. 29:7-98); makes the shoe track
impression a much more pQwetful piece:of ~videnee than it would have been ifit had been coupled
with all of the n~gativete.stresultstftat: were withheld by the State. In.addition to the misleading
27
Case 1:12-cv~119 Pooumeot 1-3 Filed 02/03/12 Paae 27 .of 47

·············································--------------------
testimony elicited at trial, the prosecution's closing arguments were designed to leavejurors with the
mish~llding impression that tbe only physical tvidence found at the S<::ene was that latent shoe print
they clahned provided a physical link between :Mr~ Long and the crime.
As the only party aware of the: evidence rltat was undisclose~ the prosecutor was respon~-:tole
for evaluating the c1unulativeeffect ofth~ suppressed,evidence and bad a d~ty to learn O:f any
favorable evidence known to others acting on the government's behal:f. The-District Attorney's
office knew or .should have kn.own aboutthe existence: o.ftheSBI reports. They had a duty to learn
ofthem andto disclose themto the defense. The District Attorney failed to tum over the reportst and
even worse_, affirmatively ledthejll:t'y to believe at closing argument that they did·not exist.. The
testimony offered by the prosecution, when atleast one oftheinvenigatingofficersknew ofcontrary
evidence of which the defense was unaware, was false and mis[eading. Since Detective Isenho.ur, the
chief evidence coU¢e1:0rattd evidence custod~, knew that h~ had taken other physi¢.al evidence. to
the BBI for testing, the State is deeme<I under n:-rady to have had knowledge of that infonnationas
welL The prosecution was obligated to disclose this evidence.
The proS;ecutiQn's failure to provide exculpatory evidence, v..ihich trial coJ.IDSel unequivocally
states would have heen brought to thejuty'sattention hadcollhSelknown:fu.enwhatwe bow now, is
a direct and abhorrent violation ofMt. Long,s constitutional rights that has resulted in actual
prejudice to Mr... Long. It bas deprived him ofhis: oonstitutianal right to due process and ultimately it
.has deprived'him ofhls freed01:n, It is s:qbmitted that the, resultof'his tria! would have hyeJJ different
if this-exculpatory evidence had been made available to the defense and presented to the jmy,
28
Case 1:12..cv-.00119 Document 1-3 Filed 02/03/12 Paae 2'8 of 47

Br The Identification Evidence:
Scientific research ~ow proves that iden:tifioatiort testimony is one of the most unreliable
types of evidence.16 The only direct evidence introduced at trial was the victim~ sidentificati<m of
Mr. .Lpng a~ her:artaeker~ Given that the attacker was a st.ra.nger to the victim, the Ul1disclosed lab
reports could have directlychaUe:nged.the accuracy ofth¢ideritifieation by the victim vvho said u.he's
tb~one"'.
Nlan.y psychological research studies of erron~us con~victio-ns have shown that. mistaken
eyewitnes$ldentification is the singlelargest caus~ oferroneous convictions. 17 Professor Elizabeth
.Loftus; a renowned identification re~~her,.~v~red mher2004studyof eligibleJurors thatthey
failed to understand the unre1iabilityoffactors tbatinfluence·eyewit:rleSs identification.18 In l996,the
United States Dq>:artment of)ustice; Office. and the National Institute ofJustice rele~ fi,. report
detailing 2Kcases in which individuals convicted ofvatious crimes w~te later exonerated by DNA
testing~ The report stated '~In the maJority QT the cases. given. the absence ofDNA evidence at the
trial, eyewitness testimony was the most compelling evidence. Clearly, however, those eyewitne$s
identifica~ons were wrong;'. 19 By 2000. attorney Barry. Sheck and his colleagues, with the, use of
DNA, identified •62 erroneQUsly convicted citizens~ including eight whc l¥td been sentenced to
death?0A total of77 eyewitnesses had made confident but mistaken identification of 52 oftbe 62
unfort.unate in.diviouals. Unfortunately. in this. case, DNA evidence CJmnQ.t be locate<L
Ie Th.is·body of knowledge was not available at the time ofM,r. tong's trial not 'Wa$ most of it fivailable. at the time
ofbi$ 1987 MAR bearing.
t? SEre there~nmoo list of~es included ~t tb~e.n.d ()tthi:s m~o~wl\ich setS· forth tb.e full referen.~ cites referred
to inth.is secti{»l.
it See, LoftiJs,liToole &: EasterlY
The~ is titl~ UConvicted tlyl~$~.Bx~p~l>y $ci~e: C• SAfdiesirrr,he Use ofDNA Evidenee.to
19
Estzililish Innocence .A.fter Trial", Pub~ lJy ~¢United States.D.epanment ofJustice Office of JustiCe· Programs
and the Natiooal Institute ofJristice•.
·ZD ~~.Sheck, Neufeld.&: Dwyer.
Case 1::12..cv-00119 Document 1-3 Filed 02103/12 Pane 29of 47

Based upon information. undersigned counsel .has gathered .from two nationally prominent
identification experts, Dr.,Gary \Veils o:flowa State University and Dr. Brian Cutler, formet!y the
Chairman oftbe Department ofPsychologyat UNC~Chadotte (who has recently moved to Canada),
there are a number of critical f11etors present ih this case which make the identification highly
su,s..pect. The 'specific factors··:ate. as foll't>wsi
(A) The Courtroomidentifieation Procedure: C{)ntrolled studies indicate that when an

investigator knows the identity of the Sllli1'ect, there is the possibility the investigator will advertently
or inadvertently convey the susp~t'sidentity to the eyewitness. Cues from the investigator serve as
a form of oonfunmtion f'ortbe eye-witness and create witness certainty~ 21 The North Carolma Actual
Innocence Commission has adt>pted guidelines for linec-ups and photo arrays which. require thattbe
individual conducting the idooti:fictltion pr<lcedure not know which member of the array is the
!;Uspect. One of the recomme.miations released by the :t.nuooence.Comrrtissioncontains the following
provisions:
b. Use an independent administrator. The individual co.niiucting the photo or live

lineup should be someone who does 'ntJt 'know whiCh member ofthe lineup is the
saspect When. it is not possible: to conduct a lineup with an iiu:lependent
irrvestigator~ the primary investigator fiti.IS.t exercise extreme caution to avoid
inadvertentsignaling to ·the witness ofthe Fcor:rect" respon$e. ,Teclmtllog.icai toQls,
such as computer progr{lms that can run photo lineups ami record witness
identifications 1t'ithout the pti!sence qf an investigator, may asS,ist agertc:ies with
resource constraints. Additionally, agencypersonnei can be trained to assist with
identifiCiltio'fl procedures... ti There sho:ulilnot becmyonepresent during the lineup
procedure who kn:ows the suspett'si:dtntity; except cou11Sel. a3 required by law.
Studies abo show that once an eyeWitness has identified someone, any further identification
is likely t~> be reinforced by the first idetittficatiQn~,Pithas als<t been silo\\~ that rtten:lory decays with
ll ~.· e~,.• Bradfield &. Welf:si Cutler & Fi,sber; Cutler & Penrot:I; Malpass & Devitt~; and. Steblay, Dys~ Fuleto &
Lindsay. ·. . . · . . ..·· .. . . .·. .·. .•
~ ~·) Bflldfield & Wells,; Stel:Jlay>: l)~.FulerC,J. ~Lip.dsay; 'Mlrl Wagenaar: & IAftus.;
22
30
-..... Ca$e 1:t2-cv;.Q0119 Document1~3 Filed 02/03/12 Paoe 30 of 47

-------------~----······-·---········--··········-···········---···········-----··---·-·-··
time and the longer between the time of the crime and the identification, the less reliable the
identificationbe,comes.23
In this case, the initial identincationprocedl.lre in no way resembled tod:ay's best

practices, such as $ose erabodioo:in the recent l~gislation.from tb~ 2007 North Carolina legislativ~
session (Eyewitness Identification ReformAci) or those published by the Departmentof.Justice. 'The
police did not use either a ca:re:fully crafte4 line-up or photo array prqcedlJ(e. ~ essence, the
courtroom identificati~n procedure ~· at'show-up~'. The police did not give clear instructions to
the victim indicating that the per:pefi'atqr migllt not he pres·en.t in the courtfoo111. They also failed to
use '':filler$~- other persons known, to be innocent butwho resemble·tile.perpetratorin physical
appearance and who fit the initial description given by the vi9tim. Jnste,~d, the police utilized.a
highly unusual and S\lggestive pro~dtl!e in an uncop.troUed er1vironment with great potential for
The victim did notidentify Mr. Longuntill5 days ~er the crime occurred? She
4
was a8ked to go to court by the investigating officers, who told her they had reason to believe there
might be spmel>ody in the oo.urtl:ltnxs:e she could recognize. She testified that in hermind she knew
why she was asked tp gQ to court that day~ The victim was escorted to the courtholJSe on a day
sele~ by the same investigating <;>ffic.ers. She looked.ar®nd fot a lor1gtime- an hour to an hour
and a half- but did not identify Mr. Long during thaf.entire time~ She testified there was no one in
the courtroom who re~m:bled Mr. l..Qng, In fact, am:ongthe~s~so .people in the.courtr®m:thatday,
only about t 2 were black an.d of those bla<;ks, the victim noticed several with ~(afros~' and one who
~ taU and srooped QVer. Sgt~ taylQr and U. Vogl:er were $itting in the· jury box as the victim.
iooked around the courtroom. Sgl Taylor observed where Mr. Long was sitting in the courtrootr4
n ~:,Shapiro &'Penrod;
14
and l<.rab.& ~nrod.
The Court isrupectMly r~f'e,m,d to the Statemg:nt q,f'Facts a(pp. 9 tp 12 with regard to factual statements
contained in this section of iiunnotion;
• 31
Ci;lse 1;12-cv.;.001t9 Document 1w3 F'Ued 02/03/12 Paoe 31 9f47

and noticed thafhis father was .sittingbeside him. Sgt. Taylor was also observing the victim. The
investigatorsl sitting within the victim's purvicv;.Jcnew thatMr. Long waf) their prime suspect. It
was only when .Mr. Long's name was called and he approached the bench as a criminal defendant
that she pointed. him, out.
Immediately thereafter at the p<>Hce·station, the victim Wa$ shown 6~8 photographs,
including one of f\.1r. Long. That the victim identified ~r. Long from the photo array is not
surprising. She had justidentified him in court. Further~ the photo array she was sho'V\Ill is suspect
She testified that one ofthe people in the p~oto arraY ~ppeared to be a woman. More iJnpo~tly,
.Mr. Long was the onlyperson.in the photo array Who w;s·wearing a leather jacket, the clothing she
described as being wom by her assailant. She testified that she· recognized Mr. Long 'because of the
"identicaln leatherjooket She also wavered in her testimony about whet:hetornof she had beerttold
the name of Mr. .Long before she $aw hi¢ J.n the courtroom or picked qut his photo. The
identification procedures used in this case not only fiy in 'the face ofproper procedures which are
necessary to protect ~me against being wrc;>ngly aec;us.ed ofa crime, they make it highly likely that the
victim's identification is erroneous:~
(B) Cross Racial Identificati(Jn.: Experimen~ have confirmed that cross-racial

, identification i$ one of the lPJ)St unreliable. Researchers have concluded, across aU studies~ that
witnesses are. more likely to correctly id~nti:fy s9meone from their own race, while· witnesses are
more likely to falsely identify som~one from a different race. 25
The victim"'s initiiil description to the police does not match Mr. Long. There was no
descri_ption of facial features~ facial hair or skin color other~ "blackn. However, at trial~. victim
testified the perpetrator? s complexion Wll$ "yeUowlopk:ing,.; as opposed to ~'a real blue black mann.
(Trial TL 11, 122) Sll.e also t~fied th:;it when she ideJ}1):fied Mr. Long in the courtroom he .had
32
Case 1:12-cv--00119 Docurnentl-3 Filed02/03/12 Paae32of47

........................, ________________________
• facial hair and was wearing a leather jacket. Then, IS minutes-later,. at the police station she was
presented a photo array £:Qntaining a picfi,lre of ~fr..Long with facial hair and wearing a leather
jacket Clearly, the victim matched wbat . she observed about Mr. Long during the courtroom
identification with the picture ofhim in the-photo array, and. for the first time., at trial~ she said the
perpetrator mtd- facial ~.
Tile victim admitted she never visited in bl:lCk people's holl)es (Trial Tr. 130,.131); di.d not
ever have black people ever visit in her home (Trial Tr. 131); and said she did not know very mimy
black people and did not _have ml1Ch ex,p~en.ce 'with them (Trial Tr. 131~133}. In view of the
scientific studies proving the unreliability ofcrqss-racial identifications, itis likcly this victim made
an erroneous identification.
(C). Confidence & AcclU"acy; Research, detnonstrates that ·witness confidence, though
believed by laypeople to be strQngly predjctive ofthe accuracy ofeyewitnessidentifica~ions; is not a
strong predictor of id.en:ttiication accu,racy?·6 The studies show that . .suggestive identification
procedures actyallyint;r~ the witness 1 q:o:trfi4~ntfe leveland cause it to 'become inflat~ regardless
of accuracy. After making an identification, the physical loo-k of the- person identified tends to
~"become'" the witness,smenll)ry ofthe pen;pn~
In this case~ the victitn t~ified cortfidentty many t~ ·t1Jat she was po~itive about her
identification. It was 15 dayS after 'the crime ·that she made her identifieation ofMt. Long in the
courtroom, followed l5 minutes late:tbyaphoto may contabring :M:r~ LQng"s picture. Additional
bolstering occurred when .--she·- p~~ him out ill the cou.rtroom at the triaL Given the- events
surrounding her identificationst it is not surprising the victim became confident that she bad pick~
th.e "right)? triaD; and that Mr. Long wa$J indee~ f®. p~tpettator. Jtven though her description qftb.e
u ·see, e.g., Sporer &Penrod; Wetis; CUtter, Penrod&. Maitens;Cutter&·Penrqd; O;Routke& Penrod; and·l4ftus
&O•Toole.
33
Case 1: 12,..cv-00119, Document t-3 Filed 02/03112 Paoe 33 of47

.................................. _______________________
• p~rpetrator did not inclu9-e, hlm havit'lg fa¢itil hair, once she identifled}Vfr. Lenig, who hadfaqial hair~
her {,iescdption changed and hi~ physicalapp¢arallc~ 4 'became"' hermf3mOry;. The studies show that
a victim ~s ~~ertamtY' has little, if any, probative value.
(D) Stress Experienced by Witness: Eyewitnesses claim that ememe stress* experiented
as the resUlt of an excessively violentcrime,_heighte11S and :fooilitates their·"'accurate' memory. In
stark con~ research sh<>ws that extreme stress has a dehilitat1ve effect and negative impact on
identification accuracy.~7 Here, the Vic:tim was undet a tremendous amount of stress duritlg the
attack~ She testified ''I was so frightened J couldn~tstand it" (!'rial Tr. 6~ 9; 12~ 13, 42~ 44, 116) and
that she '~had no idea I'd ever get out alive~ \Ttialtr. 13~ 16~ 42~ 116). Given. that the victim w.as
undera·tremeridoti.s runount ofsttess dut.ingthe crime, that stress was likely to have a signifi<tant and
detrimental effecton the accttracy afher identification.
(E) Weapon Focus: There ate many studies indicating that when a weapon. is present
• during the crime, the weapon_ draws the victim's attention away from the ,{'e.tpetratoes
cbaracteristicst and creates a greater potential for mistakes inidentificirtion. 2s The :victim testified
the perpetrator ~~put a knife at:my-.throatbefote be thtewme do:wn [on the floorofthe deD.]'i (Trial Tr,
9, 40,73, 113) ru1d toldherifshe did not stop screaming, nhetd cut my throat" (Trial Tr. 9) 40, 69,
73). She described the knife as bein,g 5...6 incbeslong, and.thatme shiny blade was all·she saw (Trial
Tr. 75;,;76). She testified sh_efelfit in her throat and was terrified (Trial Tr. 76). All oftlili; suggests
the victim was focused ort.the knife !llld not on :the perpetratot1s face.
(:F) .Hairline Cue§: Studies show that eyewitnesses are more likely to make false
identifications when attempting to identify perpetrators who wore hats?9 'The victim described the
perpetrator a$ wearing a darktob<)ggan that was HpUJ.lea ddWll()V~this'earS'~ but claimed :the hat did
~ See, Q, Defreribaohet& :Somstein;. Morgan & liazlett; Cutlet & Penrod; andLoft:LtS & O'Toole.
1
zs · See, y., Steblay; o~.Rouike&Penrod; Cutlet & Pen.rOd;, and Loftus & O'Toole.
29
See. e~g.. Cutler & Penrod; and Cutler, Penrod & Martens•
• 34
Case 1:12-cv-00119 Document1-3 Ftfed02/03J1:2 Paae 34of47

not obscure the face. (Trial Tr. 10). However, she also testified that she could only see the ~'vvhites
ofhiseye.s·underneath~'thehat (FdalTr.12). Cleatly,·the toboggan:obscured>theperpetratot S face· 3
end mad~ M acctttate identification difficult. ifnot impossible~
· In 1984t Jennifer Thompsotr was raped at knitepoin.t. In an article sbe wrote for the New
York Times entitled I Was Certain, But I Was Wrong~ 1l Y. Times~ 1Ul1e 1.8. 2000, M::>. Thompson
wrote of her experience:
I studied. every single detail qn. the .rapist1s face. I looked at his
hairline; I looked for scars, for tattoos. for anything that would help
me identify him. When and if I survived the attack~ I was going to
make sure that he was put in prison and he was going to ro-L
In a photo spread and:~ }at~r, a lineu.p, ?Vh.· Thonfpson identified Romild Cotton as her
attacker. She wrote~ !'I knew thiS was the man. I was completely confident. l was sure.n Id~ Later,
when another Jl'lal:4 Bobby Pooiet was aUeged to have chtin.ted that he raped Ms. Thompso~ Mr.
Poole was brought. to Ms. Thompson; who told p(!lice, "I have never seen him in my life. Ibave no
idea who he is. •• Id. Eleven years after her rape~ howevert DNA testing proved that Bobby Poole~
and not Ronald Cott()~ had raped Jt::nnifer Thompsoa
In summarY~ be,<:ause "there. is nothingmore~nyincit:J.gthan alive human being who

takeS the stan~ points a :fmger atthe defendan4 and says, 'That's the one!~nr \Valkinsv. Sowden>, 449
U.S; 341, 352 (Bretman,J~, dissenting), therevanP81ittle doubtth~t fhis evid~nce carried eno,rmous
weight with the jury?0 The identification procedures usedin·tbis case were highly irregUlar and
woUld notpass muster tmder to®y;s standat""d.s. The victim's eyewitness identificati9n testimony is
ofquestionable: reliability inlight ofsigulllC$)tscientinc research. and is directly contradicted. by the
~vidence withheld fro01 tb.e defense. There c~be ttO confidence in the ve~dict rendered in this case.
Se~ e.g.. ~~ ~g that n[t]oJurors.:.~ctl ~ ey.~wi1Jless bas picked out t.he defendan4 that evidence
30
an
dictates a ~h:y verdier;; Scliedc. N(!'uf~Id & [)wyet; ~d Loftus {estimating that half of wrongful convictions
are .caused. by ~·:ey~ssi~entifi<~atian); ·
35
Case t:12-cv-OQ119 Document 1..3 Filed 02/03/12 Pt1oe 35 of47

The suppression offavorable evidence critical to the defense deprived Mr. Long ofthethlrttialhe. is
guaranteed under the constituti.ans ofbotb the United State~ and North Carolina. His conviction
should be vacated.
2. N'ew·evid.ence is available whlch. was un!mown.or unavailable to the. defendant at the

time oftriaJ; which could.n,ofwJtb ~u.e. diljgenee have beeJI diseov~red at that time and
which has a directan.d material bearing upon Mr~ Long}s guilt or imtoeence..
As described above, at the time ofhi.s 1987 state'petition for post~convicti(m relief, Mr. Long
was not ina position to raise the claims presented by this motion due to the State~s failure to disclose
the exculpatory evidence in its:possessi:oninviolation ofthe $th and 14m Amendments to the United
States ConstitutionandArticle l, Section 19 oftheNorthCarolinaConstitution. N~C. Gen. Stat.§
1S:A,.l415(c}permits a defendant,.at anytime after verdict,·to move· for ~propriate relief on. the
grq1md ~'that. evidence is available which was unknown or unavailable to the defendant at the time of
trial, which could not withdu.e diligence have be~ discovered or made available att.1tat time ...• and
which has a direct andmat~riai bearin:g upon •.•. the defendailt1s guilt or innocence"'• N.C. Gen. Stat
§ 15A-1415(c) (2007).
In order to prevail upon a motion for appropriate relief on . the ground of newly .discovered
evidence, a defe!,ldant.mus.t establish: (1) that the witness or witnesses will give newly discovered
evidence;(2) thatS'uch newly discovered evidence is probably true; (3) that it is competent, material
and relevant; (4) that due dili~ence was used and propel' means were employed to procure the
testimony at tri~:tl; (5) that the n~Wly discovereQ..evidence.is not merely cm:n:uJative; (6) tha:t it.does
not tend omy to contradict a former witness or to impeach: ot discredith.im; and(7} thatitis of such a
nature as to show that-on another trial a differentresultwill ptobablybe.reached and that the right
will prevail. N.C. Gen. Stat.§l$A.. i415(c.}(2-0o7).;Sta.tev.Brltt, 12.0NC 705 1 712-13,360 S.E.2d
660 {1987); State v~ Stukes. 153 N.C. App. 770, 57iS:E.2d 241 (2001). The decision whether to
grant a new trialin a criminal case on the .ground of newlydiscO'Vered evidence i$ witlrin th:e: trial
court's discretion and is not subjeCt tO. review absent ~:r.showmg o:fan abuse of discretion. State v.
• 36
C~se 1:12~v...0011 S Document 1•3 Filed 02103/12 Paae 36 of 47

• Wiggins, 3:34N.C. 18,431 S.E.2d 755(1993); Statev.Sttilces~ 153 N.C. App. TiO, 571 S.E~2d241
(2002).
In State v~ Jones, 296 N.C. 75i24~ S.E2d 858 (1978); the Sup:reme Court granted the
defendant a new trial based on the State;s fail11re to provide an SBI report with potentially
exculpatory mat~rlal. The States evid¢nce at trial eo!l$isted offue. testimony ofthe victim. and the
testimony ofU:e ar.resting officer who .said he noted the odor of kerosene when speaking with the
defendant. The defendant's clothing wasa:na1yzeq by the SBI for the presence ofkerosen.e or other
flammables which were found to be absent. The Jone:s Court coosid~red the foUowirig factors in
holding ~at the 8]31 report l'lad a direct ~dma,.terial bearing on the. defendant's guilt or innocence:
L both the defenda.nfs version ofthe events and the State's version were believable ott
their face.;
2. the credibilityofthe victim\s·testimonywas bolstered by the arresting officer's

testimony;
• l.
4.
the SBlreport could tend to show the arresting, officer was n1istaken;
the SBI re:portcould undercut the credibility ofthe only eviden.ce upon which the
defendant was e:onvicte(t
Applyfugthestatutory f.actotspresenthere; the 8Blreports wcrerlotavailableto Mrc. Long at
the tifue ofhls triaLand were only di8c9vered thirty-one years later; The due diligence element is
satisfied.in that Mr. ·Long and. hlsattom~ys,teaso.nably relj.ed,on the State·"srepres.entation.that they
provided "open file'' discovery. In13anks -v~ Dretke, 540 U.S. 66$, 695 (2004), the UnitedStates
Supreme Court stated:
In light of the State~~ ()pen fil~ poijcy . ·~ . <itt$ e.$pe¢ia~.ly unlikely

that counsel woUld have sus,pectedthat additional impeadrlng evidence
was being withhel<i' ·Oqr declsioliS lend no. support to the notion that
defendants trittSt scavenge for ·blnts oftindisc1osed Brady material
when the pros'¢cution represents tb:a;t: all such material•has .been disclosed.
As we obser'V¢ in. ~tricklq~ de(et15e ccn~fiel has no p~u~ ()bligatipn
to .assert constitutional error on the. basis ofmere suspicion that some
• 37
Case1:t2~cv-Q0119 Document1~3 Fifed0.2/03i12 Paae 37 of47

prosecutorl;d mi.~t~p may have occurred .. ~ The Stat~ here nevertheless
w;ge~ in effect, that the prosecutiOn can lie and coneeaL and the prisoner
~till has the bUl"den tom . discover.thyevicl~~ce~ so.longas the potenti~
existence of a prosecutor:W misconduct claim. might have been detected~
A rule thus declaring prosecutQt;' .maY hlde, defenf.iant must seek, is not
tenable in a systen1 constitutionaJly bound to accord defendants
due process.'")Banlcs at 695.
The newly discovered. evidence - testing. conducted by the $BI - is ~~probal)Jy true''. See,
State v. Acklin, 317 N.C. ·577~ 346 S.E.2d 481 (19&6) (stating that S:BI lab reports contained
adequate assurances of trustworthines~ ~given tbe impartiality of the SBI chemists, and right to
examine and cross examine witnesses for pwposes of admissibility under Rule 803(c))~
The SBI reports are competen4 mat~al and relevant to this: ·case: The credibility of the
victim's testimpny ·was supported by little physipal evidence. The SBI reports ·undercut the
c;redibility ofthat fWiden(;e. Not only do the $Blreports. tend to contradict the victim but that
evidence is of high probative v~ue as it is exculpatory in nature.
Tbe newly disoov~red SBI reports a.re notmerelycumul#tive~ They analyze critical evidence
collected at the crime scene that exclude-s ]vfr.U>ng as a suspect While ·trial cQ;uns~l presented
testilnony supporting Mr. Long,s alibi defens~~ the SBl.repons demonstrate ~tMr. Long was not
present at the sceneof the crime. The undisclosed SBlreports tend to show that the victim was
mistaken .in her identific£tti.on. Tbe SBl reports .are material and relevant in that they contain.
exculpatory evidence that,. hadjtbeen available atthe time of trial~ woule;thave been used in support
ofMr. Lol:lg'"s alibi ~fen,se and as evidenc4} :that the victbnw.as:mistakeJ:l in her i4entification ofMr,.
Lo~g as her attacker. Finally, the reports are of such. a nature as to show that at another trial a
different .result wiUpr<;)bably be reaehedcand that~ right verdict will prevail.
3~ Mr.. Lo•il'$ -Juclgments and COmmitments sb.ould be corrected and amended to

speeifieaUy state that Mr~ L6)lgshan~~ itJlprisoJ:ted itlt- a t~(Dl of80 years in the S~te"·s prison~
in accordance With N~C. Gen. Stat, ·§ 14,..2 whiCh was in meet on both the date of the offense
· (Apri125, 1976) and at the tiJne tbathe was senten~ (October l, 1976)..
Case 1:12-o.r..00119 Document1-3 Filed 02/03/12 Paoe.38of47

• Should .the CQurt deny Mr. Long's ·reql]est for relie:funder parts I. & 2 of this motio.n~ his
J11d:gments and Com~tments (collective)y; Ex. U}should beoorrect(;!d and amended tQ specifically
state that his term of imprironment is 80 years~ the statutory definition ofa ulife sentence·· _under
N.C. Gen. Stat §14-2 at the time he wa5 ·sentenced iri October ofl976. At present, his Judgments
and Commitments state thathls sentence is ''life imprison.rnent'' and the Department of Correction
(DOC) has.not distinguished between his life sentence (of SO years) and a lifesentenee undertodaf s
Structured Sentencing Law (natural life) forpmposes of calculating a projected release date.
A. The dea.r and unambigutnls language of N.C. Gen.. Stat § 14~2

requires· ·that. Mr.. Longs' eoo~teat· s¢tttenc.es be amended to· a
term> ofbnp.dson:ment of eigbty (30) years. ·
M:r. Long~s Judgments and Com.tliitmen.ts should be amended to reflect a sentence of

imprisonment of eighty years in accordance with the clear l:ru.-\guage ofN.C. Gen. Stat..§ 14.-2 which
was in effect on April25, 1976, the date of the: offense and at the· time that he was sentenced on
• October 1,1976. According to :the Editor's Note in the 1977Cumulative Supplemenl: prior to AprilS,
1974, N.C. Oen. Stat.§ 1+2 :teadasfollow$:
Every person who shallhe convicted <?fanyfelony fo:rv..tichno specific punishmentis

prescribed by statute s:baU be ·p1lili®able l>y fine, by .irn.prisom:nen.t for a term not
m
exceeding lO years~ tit both,c the diScretion ofthe court.
See Exhibit V{Editor~s llote!J N.C~ Gen; Stat§ 14-2 (1977 Cum. Supp.)). fu 19731 the Legislature
amended N.C. Gen. St~ § 1+2 bych£!ngin.g~e word "'punis~le'' to ,.~unishexf" and by addhtgthis
second ~levant sentenc.e:
.A sentence ofiifo imprlsonmeril shall be consideredasasimlence ofimprisortment for

a term of8fJyearsJtt the·&ate ·s prisofl:. (emphasis added)
•
Case 1:12--cY-001.19 Document 1-3 FUed 02/03/12 Paae 39 of 47 -

-· See Ex. W(SessionLawsl973,cb.T20l, § 6);seeal'soExbibitV; N~c.oen:.stat~ § l+2(l977Cum.
Supp.). The amendmentto § 14-2 became ,effective onApri18,1974 and was applicable to aU offenses
cQ:tlmlitted. th~reaftcr. See Exhibit W (Session LaW's 1973, .cJL 1201, § 8).
The eighty year statutory term for a life sentence remained in effect until July 1, 1978 when the
above provision was deleted by the legi.sla~e? 1 Although Sessionl.awsl977) eh. 711 § 39 indicates
that it applies ''without regard •to wflen a defendant's guilt was established or when Judgment was
entered against him~'~· to retroactively apply the· removal of the eighty;..year life term. would ·be a clear
violation of tbe constitutional prohibitions against enactment of ex post facto laws. ,See, State v.
Robinson.335NC 146) l47(l99l)fquotmgU.S. Cons., Art:~§ 10; N.C, Const. art. I§ 16; andCal.det
''· Bull. .JlJ.S.. 386, 1 L. Ed. 648 (1798}.. The,goaJ ofthe statue was-to set the length ofa life sentence
in-a speeific tenn of yeats,. to wit, &O<years; Mr. Longis entitled to avail himself oft,hi,s statue which
was in effectVvilen.the was sentenced in 1976.
• It is well established that the intento:fthe legislature coi.ltr'ols the interpretation of a criminal
statute, Statev. Hearst 356 N.C.132" 567S.E.2dJ24 (1002); Statev.llmt287N.C. 76,213 S.E.ld
291 (197 5)~ ~'The legislative intent ofastattttemayfitst be,ascerttfu:ied through examining thelanguage
of the statute, and then by examining the statute's legislative bisiory, the.spirit ofthe statute~ and the
goal that the statute seeks to accomplish/' State v, Jones. 358 N.C~ 473, 479, .598 S.E.2d 125, 129
(2004).
When the lan.guage of a statUte is clear .an& Un.ambiguous, there is no ro<ml for Judicial
construction.. The courts.mustgive tbe sta.;ute.itsptair!•and~definite·meaniilg, and are 'Without ptiwerto
intetp<;late or superinlposeptovisi().ns and Jitnitatioris oot oontained th,¢rcla State v~·ca.rn,p. 286 N.C.
148., 209 S.Ji2d 754 (1974).ltis' an elementary ruJ.ethatac.tiritinal statute must be striCtly ¢0ti$tnled,
and any doubt on this point Will be resohiedinfavor ofthe deforidant. State v. Hill~ 272 N.G, 439~ 158
ll See Ex. X.S~ionLawsl917. ca 111. §§15&:39.
• 40
Case 1: 12-cv"-00119 Document 1"-3 Filed 02103112 Pace 40 of 47

·······································-··---------------
.S.E.2d 329 {1968) (empha.sis a{lded). ~1t iS the General Assei1lbly·wllich is to define crimes and ordain
their punishment.h Id. at 443, 158 S.E.2d at 332 (~itation omitted).
The language ofN.C.Gen. Stat. § ·14-2 isc;tystal clear and unambiguous. Th~ is no· room for
judi:(;i(ll construction and this Court is required to give tllestatute its plain and definite meanfug, i.e.,
this Court should find that Mr~ Long is ·¢ntitled to ~ am.ep;drne~t ofbis Judgme11ts andComrnitments
to reflect a specific term ofitnprisonmento.feighty years. .
The language ofN.C. Gen. Stat § 14-2 ..is not only clear and unambiguous" it is also mandatory.
It states that '~[a] sentence oflife imprisonment shan beeonsid~ereda.s a sentence ofimprisonment fora
tetmof80 years in the St.ate'sprison.'' Ordinarily, the words "musf, and ''shall",. as used in a statute,
are deemed to indicate a legiSlative inW.iltto mfi:ke the provision df>fue.statttte mandatory, and a
failure to observe, ids fatal to the validity oftbep·utported action. State v. BQSt:On. 165 N.C. App.
214, 598 S.E.2d 163 (2004). In State v. Hottse,_295N;C; 189~244 S.E.2d 654 (197&). the North
Carolina Supreme Court stated:
In deten:nining the ~tory or directory nature of a statute, the importance of the

provision involved may be t~ken into q.oqside~ation. GenentllY spealcing, those
provisions which area mere matter offc)nn, or which are riot material~ do not affect
any substantial right, and -do nat ~late to the essence ofthe thing to be done so that
compliance is a .matter of col)\renience ra,ther than substallc;e, are considered to be
directory .'f' To the same effec4 see: 32 C.J.S., Statutes~ §§ 376; 380; 12 Strong~ N ;C.
Index 3d~ Statutes, § 5.3.
Id at 203, 244 S~E.2d at 661~62 (quoting 7-3 'Am~ Jur. 2d, Statutes, § 19),
fu addition to. thecrearand rmambigubu5 language o(the ~pplicable statute~ tlie North Carolina
Supreme Court has used the ~tu.tocy eigl:tty~yet¢ f~Wl. to caic~ate an inmateJs tptal sentence for
purptises ofapplyingjflil cr~t.ln State v~ Ric~on, 295 NC 3 ()9~ 118 (1978) f4e Sup~me Court
usedth:eeighty~yearlifeten:ntocalcu1atethedden,dant'stota1sentenceforptll'p0sesofd~iningjail
credit 1be d~fendant iriRiphar@l~iyed.tfu,e~ cqnseeutive sente.nces: a life senteooeforr~;·tert
41
Case 1:12·cv~00119 Document 1-3 Filed 02/03/12 Paae 41 of 47

.. ················································--········-··--·----------------------------
years for felony breaking and ·entering~ ·and ten years ft)rCJ.'irne againstnafure. The S\ipreme Court
applied N.C. Gen. StaL § 14-2 and concluded that "defendant received one sentence of 100 yeats for
purposes. ofdetermiriing credit for pre-conviction i..nearc.eration.n !d. Liket.V:ise) in State. v. Williams.
295 NC 655 {1978), the Supreme Court used the eighty~year·Ufe tem1 in N.C. Gen. Stat §14~2 to
calculate a defendant"s total sentence for purposes ofevalu.ating .his claim that the sentence imposed
upon hhn co~·tituted cruel and u:rtusual pl.mishment.
In the. case .at bar: the use ·of the word ~Asball"' indicates the LegislatUre's intent to. make
N.C.G..S. §14..2 mandatory. To interpret the statute in ..question .here other than to require the
imposition of a specific sentence ofi:tnprisonmentfor a term ofeightyyears would be to ignore tbe

express language and obvious intent ofthe sta.tut~. Furtnermqre; it affects a substantial right ofJVfr.
Long' st i.e. , tberightto have his sentence considered·£tS.aterrtl of eighty years, thetebyrequiring the
Department ofCorrectionsto calculate a. projectedrelease datefor him. Thedirecttve.ofthls stafu.te

is .not a matter of convenience.tatherthansubstance. Anydoubt on this point must be reso!Vedin:M:r.
Long's favor. HisJudgmentS arerequired.tobe amended.toreflect a specific tem.i. ofimprisonmentof
eighty years. Only then will Mr. Long's Judgments and··Commitments be in compliance with the plain
and·definite meaning ofN~e. Oen; Stat. ·~ 14:·2 and the attendant case law of this state~
B. The p.rovbion ofN.C. Gen. Stat. § J.4,..2 which requires a lift ·sentence tribe
considered as an eigbty~yeat.term ttf iinprisonmeot ~oes: not relate to parole eligibility.
The amendment of N:C•. Gen. Stat § 144:· in 1974~ adding the sentence that a life sentence
' .
"shall be considere<l ~ a sentence ·Ofimprlsontllent t'ot a term of 80 years~·, should not be seen as
relating to parole provisions. This am.en:dment was ·nQt rc:.qu.ired in Qtder· to aive any parole statute
effect N.C. Oen. Stat.§ 148..58 suiliciendyand$p00inca1lycovered the tt-1rt1S ofparote eligibilitY and
no :further provision was necessary,, especially in the unrelated ~'General Provisions~) subchapter of
Chapter 14.
42
Case 1: 12..cv..001'19 Document1-3 Filed 02/03{12 Paoe 42 of 47

.................. ----···----~------
• Acc()rdingto·thedeclsit>ninCarverv~ Carver, 3lON.C. 669,674,314 S.£.2d739, 742(1984),
only statutes which are applicable to the sarrte. mattet are to be "constru.ed together in orderto ascertain
legislative intent "'The parzy1e .statutes are found in-.Article 4, ''Parolesnin. Chapter 148 entitled ~·state
Prison System. "" N.C. Gen. Stat. §<l4..2isfound'in.Article 1, ''Felon:iesandMisdemeanors;•~ contained
within Subchapter 1, «GeneralProvisionst in Chapter 14, ~'C:timinal Law~ t' Thus, N.C. Gen., Stat §
14-2 should not be consid¢~ by this 'Court a;s a duplication Qf the parole statute in deternrining the
legislative intent Such duplication is completely unn.ecessruy. The parole .statutes are not ~'in pari
materia",. Le., they certainly do notrelate to the same matter or 5tlbject at issue in this ease. See Ca:rver,
31 ON.G. at674. 314 S.E.2d at 742. The purpo:se oftheenactm(:ntofth.e parole statute, N.C. Gea Stat
§ 148;.;58, \\tas to specifically set outthe period .ofimprisonrnent \¥hieh. a defendant sentenced.to life
imprisontnefit was to serve before bemg~idered for the privilege ofparole. On tbl!<otber hand, the
purpose ofenacting N.C. Gen. Stat.. § 14.2 was to set out the precis~ pl;nli$hrne1lts qffelonie&. In fayt
the title sentence of N.C. Gen•. Stat. § 14-'2 is ''PtJP..i.shmentq{felonies: wha.tooJJ..~titute$, life sentence/'
• while the title sentence of the parole statute, N.C. C1en. Stat § 148·58~ is ''~Time of eligibility of
prisonerS to have cases considered.» See Exhibits V & Y. These are two entirely differ:entmatter$ and
are in no way related. 'therefore, they should not be considered together in determining: thelegislative
intent in this case.
The clear, unambiguous, and 1nandatory language ofN..:C. Gen. Stat. § 14~2. states ¢'what
constitutes life sentence'' and thatis "a term ofSOyears in the State<tsprison." Mr. Long is entitled,
as a<matter of mandatozy law, to have his sentence converted to an-80 year te:mt To deny this relief
to Mr. Long wou.ld be to ignore the plain and definite meaning of the statute and contravenes
legislative intent.
4.. The set.ttenee impos~d f»l-Mr. Long is invalid as· a matt~r of lawdne to significant
~hanges in North Carolina's' se:n,ten~in.g law.
•
Case 1:t2:-cv-Q0119 Document 1-3 Filed02f03l12 Paoe 43 of47

Under the lawsin effeet afthe time of Mr•. Long•s- convictio~ the sentences imposed on him
for frrst degree rape and burglary exceed the maximum sentenc~ he could have received for tho$C
charges under the StructUred Sentencing Act of 1994. ( the ''Structured Sentenci:ng Act").. On
October 1~.·1976, Mr. Long\>vas ~enteneed to twq concurrent terms ofimprisonmcnt Hfor th:e>res:t of
his natural life). (Ex. U.) :M:r· Long has now been in continuous cu$tociy for over 32 ye~s~ In
contrast, under the:Stmctured·Sentcilcing Act, the longest sentence Mr. Long cou.ld·r~ive on the
rape charge v.tith his Prior Record Level II is impris<:mment forJ60 months (30 y~) to 441.montbs
(36years and I month} Fo:rfue·burglaryCharge.atPriorRecord Levef'fltbe longe.stserttence Mr.
Long could receive is.ilnprisonrnentfor 95·months(7 years and 11 months) to 123 months (l 0 years
·and 3 months). In Short'} with the concummtsemencess: Me Long has<already been imprisoned for
alntoSt as lorig as1 if not longer, than he could possibly serve under the Structured Sentencing Act
Wb.en the General Assembly enacted tht~<Sttuctitred Sentencing Act, it determined ~t the
appropriate sentences •for rape a,nd burglary were sribstantially leSs than the life sentence Mr. Long
received. More specifically(!' it determined that an individual at 'Mr. Long's Pdor Record Level
should not be sentenced to life imprisonmenl fot the crimes of which he was convicted. In other
words, tbe Structured Sentencing Act serves as anauthorlnttive yardstick of proportionality for
sentence~in.Norlh Carolina. The enactmentofth~Structured Sen.tencing Act shows tb.atasam;atter
of~'evoJving standards of decency'~ Ul'lder the Eighth Amendment, Trop v. Dulles. 356 U.S. 100
(1958), Mr. Long's contin'll¢d incar®r.ation ~der a sentence· oflif'e hnprisomnent is grossly
disproportionate to the maxitni:ml sentenoo·he cowd.reeeive ~oday~
Four major decisions. t)ytheU~tedS~tes S11p~me Court,:~port Mr. Long~ s position~ 1:n
Lockyear v. Andrade. 538 U.S. 63 (2f}Q3)~ antfEwing v. California 538 U.S. 11 (2003), theSupreme
Courtaclhered to itstraditioi.l1\l precede!ttrequiringootms to ~nsidetEighthAmendmentchallenges
of non..capital sentences on a pa8e->Qy..case basis. See also State v. Todd, 31.3 N.C.ll 0, 326 S..E.2d
249· (1985); State v~ Garci~ 309 :r•tC. 7SO~ 309 S..E2d436 (19:83); State v~ Parks. 146 N~C. App.
44
Case 1;12-cv--00119 Oocum:ent 1-3 FUed02/03/12 Paae44of47

···················--·---~-------------------
• 5 68,. 553 S.E.2d 695 (2{)0 l) (stating that a trial j¢ge has authority to decide yvhether a particular
sentence in a particular case complies with the Eighth Amendm.ent).
InRoper v. Simmons, 543 U.S. 551) 561 (2005)~ the U.S. Supreme Court relied on itS
landmark decision ofTrop v. '[)uUe~ in explaining that it is ne~sa:ry to refer to "'evQlvmg standards
ofdec.en-cy' to detemiine whether a punishment isS() disproportionate~ to be ·cruel and unusual.·~ lrl
Roper, the Supreme Court uSed legislative ·enactments as. objective evidence of such evolving
standards of decency. Roper al$o shows that a sentence that~ valid under the law in effect at the
time it was i~posed may subsequently be deemed constitutionally invalid dueto evolving standards
ofdecency. The murder at· issue in Roper was colmnitt.ed by a 17-year-old .defendant in 1993. At
tile time he was convicted. ~d sentenced to death 1n 1994, Stanf<>rd v, Kentuc~., 492 U:S. 361
(1989), provided that the Eighth Amendment did notprohibitthe execution ofadefendailt who was
betv.r.een 16 and 18 yearS old at the time of the 'lliUider. Nevertheless,: in Roper" the Supreme Court
held 'that as a result of -evolvirig $taridards of decency between 1994 and 2005, the Eighth
• Amendment no longer permitted Ropee s death sentence.
This Court should notethatoh the basis of Roper:. Superior Courts in North Carolina in at
least twt> cases have granted motions for apptoprlate·reliefto vacate death sentencesfor defendants
who were younger than 18 at the time oftll~ir crimes,, even though those cases had become final.
State v .. Golphin. 97 Cl{.S 041312 (Super. Ct. CUlllbeiland County(Year)) (Mot. for Appropriate
Relief~d on December 12, 2005); and State v. Adams, 88 CRS 010457 (Super~ Ct. Iredell
County (Year)} {Mot. for Appropriate: Relief~ on May ·9y 2005).
As in Row. _legjslt\tion - in this case, the enactment of the Structured Sentencing Act ~
serves as an objective index-of~e evqlving standat'd,s ofQ.e~cytelevant to this ease. li1li@t offhe
StructtLred Sentencing Act~ Mr. Long~s life sentence is now grossly disproportionate to the offense
and~ the:refore:t his continued custody under tllat ientenoe violates the Eighth Amendment. Mr.
• 45
Case 1:12"-cv..OOtt9. Document 1~3 Ated 02103112 Paae 45 of 47

Long's ~976 life sentences shoUld be va~ and he ,' .onld 'be ie-"Settt!mced to a. term mat is
propott.ionate.to the~ senten.ce herould.recel'v,; under the Structured Sentencing Act, and
fur a term ofincaroomtion no gteater than the time he baS aheady served
This. Court bas the authority tore-sentence l\1r.l,ong~ Under N.C. ,Gen. S~. §l5A... 1415(b)
(8)~ a superi£lr court judge. has authority to ~t a motion fl)rrappropriafe relief on the grpmtd tba.t··
lt.ftJbe sootenee imposed .. ~is 9fue..TWi.i;emvalid •fiS a matter of law." N~C. (rea Stat §l5A-I415(b)
{3)(2007). maddition,. §1415{b){1) gives .&·superior court judgethe authority to gmnt amotion for
appropriate reUefift'[t]hetehas: been a·sigmfieanfcbange in the law • ~ . and retroaclive application
of the standard is ~uired}" N.C. Gen~ Stat. §i5A.-.141S.(b)(~ {200?). .Mr. Long~s sentence is
in:v1}lld as· a matter of~w mthat it is gro$slyd.igproportionate to th~ maxi,T.Oum, sentence he could
req;:ive today and as such is 'Violative of the 8th Amendment prohibition against t~cruei and unusual
p'Ullishment."' '1\(r. Long,s $ell~nce sl't..:ol:dd be recalculated in acoprdance with the StnJctured
-sm:ttenclng Act
Mr. Long liDS ·nem deprived far t)Vet thirty O!le years: of hils ~tutional rights due tQ ··til¢
vvitbhtilding of exculpatozy evi~ by th~ Conoord Ponce Department and the DistriCt Atromey,'s
office. He basclalmed bis.~ooe ftom:~e.~ of this ~auer. ff:isfamily bas stood behfudJrim
fur over 31 ,years, It is l~g past 'time fQI' the trUth to cpme to lightand for justice to pre:v·ail~ !vii
Long's conViction should be v~ as a,~ o:fla,w. · .
Mr..Long is entitled to an am~t of his Judgment and Cornrrritme.rrt to provide for a
~c tcrm.ofim~G!t ()!eighty.·~· uriderN.C. ~~ 14---2. AJt~vely, this Court

shoBJd e1:1ter a separate otder sP¢omea!l!Y ~the Nort!t !:arolina D~~nt qf Co~tiQrl to
•
Cas.e t:12;,.cv;.()0119 :Document 1.-3 Filed 02/03112 Paoe 46 of47
-···················---------:-----------
• consider hislife sentence ~.:as a sentence of'impriso.nment t(lr a term oi80years in the Statetsprisoni• in
cal(;Ula;t:ing aprojected rel~ed~tefor 1\fr~ Lo~g. s:ucJ_lc~tcl.llationto jnclude:anY and all oreditfor good
time. gain func,. and meriftime which he.may have ac~ as well as<pretrlal credit granted by the trial
_judge.
.f;t-
This the ~ 1. _.day of August, 2008.
0J_£.~
.•· 0 /}
Donna E. Bennick, Esq._
NCBar ID No. 18561
~J
D;ia1liil:E$7
NC- Bar ID No. - · :39
OfCounsel to the UNC School. ~fLaw
NC Center on Actual Innocence Van Hecke.-Wettach Hall
Law Offices ofDo:nna E. Bennick, P.C. Campqs Box-•3380
1829 East Franklin Stree~ Bldg~ 600 Chapel RiU, NC 27599-.3380 .
Cha;pel.Hill~- North Carolina 27Sl4 (919) 9624068
{919) 968wQft83
47
Case 1:12-'C\1~.00119 Document 1~3 Filed 02/03112 Paae 47of-47

EXtiiBIT
~t
STATE OF NORTH CAROLINA )
)
) AFFIDAVIT QF DONNA E.
) BENNICK
ORANGE COUNTY )
NOW COMES Donna E. Bennick, who, being duly sworn, deposes and says the following:
1. I am an attorney admitted to practice law in the State ofNorth Carolina since

November 08, 1991. Prior to being admitted to the bar in North Carolina, I practiced
law in New York State. I was licensed in New York in 1985.
2. From August 2004 through August 2014, I represented Ronnie Wallace Long in his
efforts to obtain post-conviction relief from his sentence of life in prison. Mr. Long
was sentenced to two concurrent life terms following his convictions in September
1976 for rape and burglary. Mr. Long has maintained his innocence since the time of
his arrest and, through the course of my representation of him, I became a firm
believer in his innocence as well.
3. As part of my representation of Mr. Long, I filed a Motion for Location and

Preservation of Evidence in Cabarrus County Superior Court. On May 23, 2005, the
Superior Court issued an order directing the District Attorney's Office, the Concord
City Police Department ("CPD"), and the State Bureau of Investigation to locate and
preserve all physical evidence connected to the investigation leading to Mr. Long's
arrest. These agencies were also ordered to inform me and my co-c9unsel, J anine
Zanin, whether any physical evidence remained in their custody. ·
4. On June 13, 2005, the Superior Court held a hearing related to its Order to Locate and
Preserve evidence. Ms. Zanin and I appeared on Mr. Long's behalf. At the hearing,
the State specifically represented to the Court that no physical evidence could be
located by the CPD. Specifically, the State said that the CPD spent 25 man hours
searching for evidence and none was found. It also put on the testimony of CPD
Sergeant Robert Ledwell who said that the only thing he was able to locate was the
master case file. He said that the case file co~tained paperwork and no physical
evidence. He also said that no property control forms were located for evidence
collected in the case. The Court ordered the State to provide me access to the CPD's
master case file. Ms. Zanin and I reviewed the file shortly after the June 2005
hearing.
5. After reviewing the master case file, to our great surprise Ms. Zanin and I discovered
that a number of items were sent to the North Carolina State Bureau of Investigation
laboratory for testing. Finally, we located the written test results/reports generated by
the SBI which indicated no match or connection to Mr. Long of any items collected
from the crime scene and tested by the SBI. We were unable to locate some of the
actual physical evidence tested, including but not limited to the victim's clothing,

hairs collected from the victim and Mr. Long, hairs collected from the crime scene
and carpet fibers from the victim's home.
6. On August 27, 2008, I filed a Motion for Appropriate Relief ("MAR") on behalf of
Mr. Long. The motion claimed that the State violated Mr. Long's constitutional
rights by failing to disclose material, exculpatory evidence to defense counsel before
Mr. Long's trial. The Superior Court held an evidentiary hearing over three days in
November and December 2008. In February 2009, the Superior Court denied Mr.
Long relief.
7. After Mr. Long's MAR was denied and the North Carolina Supreme Court upheld the
lower court's MAR decision in a 3-3 decision (with the seventh Supreme Court
justice mysteriously refraining from voting), I referred his case for investigation by
the North Carolina Innocence Inquiry Commission, which is a state agency that
investigates post-conviction innocence claims.
8. On September 10,2015, Ms. Zanin and I met with two lawyers currently representing
Mr. Long, Jamie Lau and Theresa Newman. At that time, they disclosed to us that
the CPD had located latent fingerprints collected from the crime scene. In addition, I
learned that the fingerprints of six people, whose names were never disclosed to me
during the course of my representation of Mr. Long, were compared to the latent
fingerprints from the crime scene. Mr. Lau and Ms. Newman said that they learned
this information from the North Carolina Innocence Inquiry Commission.
9. I was shocked and, quite frankly, very upset to learn that physical evidence in Mr.
Long's case existed that was not disclosed before Mr. Long's 2008 MAR hearing.
The failure to disclose these latent lifts was in direct violation of the Superior Court's
Order dated May 23,2005. Additionally, the State and Sergeant Ledwell of the CPD
affirmatively stated to the Court that no physical evidence was located in this case by
the CPD after 25 man hours were used to search for evidence. Those representations
raise serious questions about the efficacy of the search to locate evidence and/or the
State's candor to the court.
10. At no time before the 2008 MAR evidentiary hearing did the State reveal to me or
Ms. Zanin that it had in its possession latent fingerprints collected from the crime
scene. Ms. Zanin and I have never been told by the State that it has physical evidence
in Mr. Long's case, and the first time we learned about the latent lifts and other
potential suspects was when Mr. Lau disclosed to me that the latent prints had been
found.
11. The latent fingerprint lifts would have been material to the claims raised in Mr.
Long's 2008 MAR, as they are further favorable evidence that was not disclosed to
Mr. Long, his 1976 trial counsel and his MAR counsel.
12. I believe that these latent lifts may prove Mr. Long's innocence. The victim was not
sure whether her attacker was wearing gloves when she was first interviewed by a

CPD investigator. Additionally, the case file reveals that the CPD believed these lifts
to be probative, as it compared the lifts to suspects throughout its investigation, with
neither piece of probative evidence ever being provided to any lawyers representing
Mr. Long since his conviction in 1976.
('.~·-···
~L&
Further your affiant sayeth not. I
Donna E. Bennick
~ .
Subscribed and sworn to before me this ?f) day of December, 2015.
Notary PubliUJ\g.D~
M_A,tiDl ATKINS .
Notfit~;\Jbjic, North Ca rollna
Granville CountY.
My commission expires: <Gl @/'()() .\ () MV Commission Exp~res
August 02. 2017
I

Appeal: 16-295 Doc: 6-1 Flied: 05/24/2016 Pg: 1 of 1
EXHIBIT FILED: May 24, 2016

b UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-295
In re: RONNIE WALLACE LONG
Movant
ORDER
Movant has filed a motion under 28 U.S.C. § 2244 for an order authorizing
the district court to consider a second or successive application for relief under 28
U.S.C. § 2254.
The court grants the motion.
Entered at the direction of Judge Gregory with the concurrence of Judge
Niemeyer and Judge Harris.
For the Court
/s/ Patricia S. Connor, Clerk

Ronnie Long Writ of Habeus Corpus Petition

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Ronnie Long Writ of Habeus Corpus Petition

Uploaded by

Copyright:

Available Formats

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

RONNIE WALLACE LONG, )

Case 1:16-cv-00539-CCE-LPA Document 1 Filed 05/26/16 Page 1 of 82

TABLE OF CONTENTS ............................................................................................i

TABLE OF AUTHORITIES .................................................................................... ii

INTRODUCTORY STATEMENT ........................................................................... 1

STATEMENT OF THE FACTS ............................................................................. 11

SUMMARY OF ARGUMENT ............................................................................... 31

GROUNDS FOR RELIEF ....................................................................................... 33

I. LONG’S CREDIBLE CLAIM OF ACTUAL

II. THE STATE VIOLATED PETITIONER’S

SUPPORTING MATERIALS ................................................................................. 72

PRAYER FOR RELIEF .......................................................................................... 73

CERTIFICATE OF SERVICE ................................................................................ 76

Case 1:16-cv-00539-CCE-LPA Document 1 Filed 05/26/16 Page 2 of 82

Brady v. Maryland, 373 U.S. 83 (1963) .......................................................... passim

Giglio v. United States, 405 U.S. 150 (1972) ..........................................................56

House v. Bell, 547 U.S. 518 (2006) .........................................................................34

Kyles v. Whitley, 514 U.S. 419 (1995) ........................................................... passim

Lindsey v. King, 769 F.2d 1034 (5th Cir. 1985) .....................................................54

Long v. Dixon, No. C-89-278-S (M.D.N.C. May 3, 1990) ...................................2, 7

Love v. Johnson, 57 F.3d 1305 (4th Cir. 1995) .......................................................49

Magwood v. Patterson, 561 U.S. 320 (2010)...........................................................10

McQuiggin v. Perkins, 133 S. Ct. 1924 (2013) .......................................................34

Perry v. New Hampshire, 132 S. Ct. 716 (2012) .....................................................34

Schlup v. Delo, 513 U.S. 298 (1995) .................................................................. 5, 33

State v. Bowden, 367 N.C. 329, 755 S.E.2d 53 (2014) .............................................9

State v. Henderson, 27 A.3d 872 (N.J. 2011) ..........................................................35

State v. Long, 365 N.C. 5, 705 S.E.2d 735 (2011) ................................................5, 9

Case 1:16-cv-00539-CCE-LPA Document 1 Filed 05/26/16 Page 3 of 82

State v. Long, 689 S.E.2d 137 (N.C. 2009) ...............................................................9

Strickler v. Greene, 527 U.S. 263 (1999) ................................................... 49, 64, 71

United States v. Hodges, 515 F.2d 650 (7th Cir. 1975)...........................................34

Walker v. Kelly, 589 F.3d 127 (4th Cir. 2009)........................................................49

Wolfe v. Johnson, 565 F.3d 140 (4th Cir. 2009) .....................................................37

Woodson v. North Carolina, 428 U.S. 280 (1976) ....................................................6

28 U.S.C. § 2244 (2015) ................................................................................. 10, 33

28 U.S.C. § 2254 (2015) ............................................................................. 1, 37, 48

Avraham M. Levi, Are Defendants Guilty if They were Chosen in a

Bradbury, M. D., & Williams, M. R., Diversity and citizen participation:

Christian A. Meissner, John C. Brigham, Thirty Years of Investigating the

Case 1:16-cv-00539-CCE-LPA Document 1 Filed 05/26/16 Page 4 of 82

Gary L. Wells & Deah S. Quinlivan, Suggestive Eyewitness Identification

Gary L. Wells, Elizabeth F. Loftus, Eyewitness Memory for People and

Jonathan M. Fawcett, Emily J. Russell, Kristine A. Peace, Joh Christie, Of

Kenneth. A. Deffenbacher, Brian. H. Bornstein, Steven D. Penrod, E.

Kevin Krug, The Relationship Between Confidence and Accuracy: Current

Nancy K. Steblay, Gary L. Wells & Amy B. Douglass, The Eyewitness

Sarah M. Greathouse & Margaret B. Kovera. Instruction Bias and Lineup

Kenneth. A. Deffenbacher, Brian. H. Bornstein, E. Kiernan. McGorty,

Case 1:16-cv-00539-CCE-LPA Document 1 Filed 05/26/16 Page 5 of 82

National Research Council of the National Academies, Identifying the

Case 1:16-cv-00539-CCE-LPA Document 1 Filed 05/26/16 Page 6 of 82

year-old black cement mason and the father of a two-year-old son.

results. Additionally, as described below, the victim’s identification of Long ten

circumstances of the trial further undermine confidence in the verdict. An all-

victim’s spouse, and a racially polarized atmosphere existed.

Case 1:16-cv-00539-CCE-LPA Document 1 Filed 05/26/16 Page 7 of 82

innocence is persuasively reinforced by newly discovered exculpatory evidence,

Dixon, No. C-89-278-S (M.D.N.C. May 3, 1990).

attention in 2015 after the North Carolina Innocence Inquiry Commission

Case 1:16-cv-00539-CCE-LPA Document 1 Filed 05/26/16 Page 8 of 82

The evidence withheld from defense counsel at trial includes: