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Habeas denied – Assault with ninja swords and a gun barrel butt the the head.

SAMUEL WEAVER, Petitioner,

Case No. 1:11-cv-218


Decided October 5, 2012, opinion by Magistrate Judge J. Gregory Wehrman

Quoting from the Ohio Court of Appeals, Twelfth Appellate District summary of the facts:

{¶2} In April 2007, Michella Eldridge held a yard sale at her home in Hamilton, Ohio. Appellant came to the sale, and at trial, Eldridge testified that she remembered he had driven a white minivan with a steering wheel that had a cover with cherries on it. Eldridge also remembered that he arrived at her yard sale with a female and small child who remained in the vehicle. At the yard sale, appellant showed interest in a handgun that Eldridge’s husband was showing to his father. Although he did not purchase anything at that time, appellant returned later that day and bought a pair of “Ninja” swords.

{¶3} Approximately a week after the yard sale, appellant returned to Eldridge’s house in the white minivan and arrived just as she was cleaning up after another yard sale. Before leaving, appellant purchased a plant from Eldridge.

{¶4} On May 19, 2007, Eldridge was at home with her daughters when she heard the doorbell ring. She went to the back door and saw appellant. Appellant asked her whether she still had the gun he saw at the yard sale. When Eldridge told him she no longer had the gun, he asked her whether she had any other “firearms.” Eldridge explained that they had a “Tech 9,” but that she was not sure her husband wanted to sell it. Appellant then asked if he could see the gun and told her that he would get the money to purchase it.

{¶5} Eldridge told appellant to wait outside, and she pushed the back door almost completely closed. She then went through the house and retrieved the gun from a dresser. She placed the gun on her dining room table. She did not notice appellant was in the room until he reached across her and grabbed the weapon. As Eldridge pleaded with appellant to give the gun back to her, he struck her on the head with the butt of the gun.

{¶6} Appellant smiled after hitting Eldridge the first time and started for the back door, but Eldridge followed him. As she was asking for the gun, appellant’s arm went up to strike her a second time, and Eldridge hit him in the face. He then hit her in the head again with the butt of the gun. Eldridge testified that the blow “dazed” her and “kind of put [her] out.” Appellant then took off out the back door. Eldridge testified that she “shook it off” and chased after appellant.

{¶7} Eldridge caught appellant and grabbed his shirt. She testified that he exclaimed, “Let go of me you fucking bitch,” and he struck her in the head with the butt of the gun three more times. Eldridge was bleeding, and appellant fled. She called 9-1-1 and was taken to the hospital, where she received 28 stitches in her head for a wound deep enough to expose her skull.

The petition for writ of habeas corpus was denied with prejudice.

In this case a writ for habeas relief is granted based on faulty jury instructions. The reference to “ninja” is from the testimony of a seven year old. The court explains that this testimony “certainly could have [been] discredited” by the jury.


No. 07-56756, No. 08-55524


425 Fed. Appx. 617

Filed March 31, 2011

Before Circuit Judges: Fletcher, Berzon and Callahan. Judge Callahan dissented. The majority opinion explains:

key witness for the prosecution was Latrina Walker, Sherrors’s 24-year-old mentally-disabled sister, who testified that she had been drinking and smoking marijuana the evening of the murder. Additionally, Walker’s mother and aunt both testified that she was untruthful and unreliable. In light of these reasons to doubt her accuracy as a witness, the jury well could have chosen not to believe Walker’s account. FN6

FN6- A third witness, who was five years old at the time of the murder and seven at trial, testified that not only did he see blood on Sherrors’s shirt and shoes the night Foth was killed, but that he saw Foth dismembered by men with ninja swords. The jury certainly could have discredited him entirely as well.

No direct evidence linked Sherrors to Foth’s murder.


The dissent suggests that the instructional error was cured by the trial court’s instructions on the particular elements of the crimes charged and the beyond a reasonable doubt standard. See Dissent at 4. But these general instructions simply “could not overcome the misdirection of a specific instruction that permitted the jury to find an element of the crime without considering all the evidence.” Rubio-Villareal, 967 F.2d at 300.


the district court’s conditional grant of Sherrors’s petition for the writ of habeas corpus is AFFIRMED.

This habeas petitioner was conviction by court-martial of murder with a Ninjatō sword and sentenced to life in prison. The federal courts here affirm the military court judgement.

ninja to sword

CURTIS A. GIBBS, Petitioner,
J. E. THOMAS, Respondent.



2010 U.S. Dist. LEXIS 122152

Decided November 15, 2010, filed November 18, 2010.

Opinion by US Magistrate Judge Sheila K. Oberto:

In the brief there are set forth “[u]ncontested [f]acts” pertinent to the charge, which concerned the premeditated murder of Mrs. Brenda Salomon on August 18, 1989. (Id. at 17.) Petitioner confessed to the killing, revealing that while at the Shipwreck Lounge, he encountered Salomon and then left the lounge. When Petitioner entered his truck, Salomon, who was very drunk, tapped on the window and asked Petitioner to take her out to get something to eat. Petitioner agreed and bought Salomon some fast food. When Salomon passed out several times and failed to tell Petitioner where she lived, Petitioner stopped at a telephone booth and told her to get out of his truck and call someone to come to pick her up. When she called him names, slapped him, and failed to leave the truck, he drove into a wooded area, stopped, and ordered her out of the truck. A physical altercation ensued, and Petitioner pulled Salomon out of the truck. When Salomon removed her shorts, taunted Petitioner, and attacked him as he tried to enter his truck, Petitioner became enraged, hit her repeatedly, retrieved his “Ninja To” sword from the truck, and struck Salomon so hard that the sword’s handle detached from its blade. (Id. at 18, 21-23.) The blow severed her spinal cord and vertical arteries. (Id.)

Petitioner returned to the lounge after retrieving the sword and throwing Salomon’s things out of the truck, and stayed there until closing time. The body was discovered in a wooded area on the Camp Lejeune Marine Corps base, and multiple items of corroborating evidence were found. (Id. at 17-18.)

Petitioner prosecuted as a court martial under military law, impacting this Court’s jurisdiction and scope of review:

In the present case, Petitioner acknowledges that his case was reviewed by both the Navy-Marine Corps of Military Review and the United States Court of Military Appeals. (Pet. 2.)

All of the petitioner’s claims here for habeas relief are denied, some are not ripe because of non-exhausted administrative remedies, regarding alleged prosecutorial misconduct denied because the military court had already looked into it, and no jurisdiction to review military discharge.

This case opinion was affirmed by the Ninth Circuit in January 2012, memorandum opinion before Judges Leavy, Tallman and Callahan.

This 2009 Habeas petition was denied in a strange story that involves a woman convicting in conspiring with mentally ill Renaissance Fair attendees to kill her father with a ninja sword.

Clara Jane Schwartz, Petitioner,
Gene M. Johnson, Respondent.

1:09cv98 (GBL/JFA)


Decided by August 3, 2009 by United States District Judge Gerald Bruce Lee.

Memorandum Opinion and Order

THIS MATTER is before the Court on Petitioner Clara Jane Schwartz’s Petition for Writ of Habeas Corpus for Prisoner in State Custody, pursuant to 28 U.S.C. § 2254. This case concerns the constitutionality of Ms. Schwartz’s conviction in the Virginia Circuit Court for Loudoun County for murder, conspiracy to commit murder, and two counts of solicitation to commit the murder of her father, Dr. Robert Schwartz. The issues before the Court are whether Ms. Schwartz was deprived of her 6th Amendment right to effective assistance of counsel at trial based on her defense counsel’s: 1) failure to timely and properly object to the introduction into evidence of Mr. Hulbert’s written confession and other inculpatory statements (claim A); and 2) failure to request jury instructions on the lesser included offenses of second degree murder and manslaughter and failure to argue alternative defenses based on the facts presented (claim B). Ms. Schwartz requests an evidentiary hearing to resolve the factual dispute as to whether trial counsel’s performance was informed and reasonable. The Court denies Ms. Schwartz request for an evidentiary hearing because there are no factual disputes to resolve. The Court finds that Ms. Schwartz has not demonstrated that the Supreme Court of Virginia applied the Strickland standard unreasonably or based its decision on an unreasonable determination of the facts because this Court has reviewed the records and determined that the court’s analysis is reasonable on both prongs.


On February 19, 2003, Ms. Schwartz was convicted in the Circuit Court of Loudoun County of murder, conspiracy, and two counts of solicitation to commit murder and sentenced to forty-eight years of imprisonment

In 2001, Ms. Schwartz attended James Madison University as a sophomore. (Trial Tr. 224.) Ms. Schwartz lived in Loudoun County with her father, Dr. Robert Schwartz prior to going to college. (Trial Tr. 204-05.) The Commonwealth presented testimony from Ms. Schwartz friends, Mr. Patrick House and Ms. Kate Inglis, that Ms. Schwartz hated her father, Dr. Schwartz, told her that her father tried to poison her, that she wished he were dead, that he tried to drown her in a pool, that he attempted to molest and kill her, and that she stood to inherit hundred of thousands of dollars upon his death. (Trial Tr. 224, 306-08, 313, 333, 421, 424 430, 498, 553, 714.) In August 2001, Ms. Schwartz began dating Mr. House, and made statements to Mr. House about her desire for him to kill her father. (Trial Tr. 311, 322, 417-18, 427-30.) Ms. Schwartz gave Mr. House a book containing information about poisoning and her collection of journals chronicling the abuse she endured from her father over the years. (Trial Tr. 421, 427.) Mr. House testified that Ms. Schwartz and he had multiple conversations about when he would kill Ms. Schwartz’s father. (Trial Tr. 430-32.)

In September 2001, Ms. Schwartz, Mr. House, Ms. Inglis, and Mr. Michael Pfohl met Mr. Kyle Hulbert at a Renaissance Fair in Maryland. (Trial Tr. 322-23.) Mr. Hulbert was carrying a two-foot sword and dressed in a cat costume. (Trial Tr. 323.) Ms. Schwartz and her friends became friends with Mr. Hulbert. Ms. Schwartz told Mr. Hulbert that her father had abused her and continued to abuse her. (Trial Tr. 286-87.) Ms. Schwartz told Mr. Hulbert that she and her father were planning on going to the Virgin Islands and her father was going to make sure she never came back. (Trial Tr. 288.)

In November 2001 Mr. Hulbert, Ms. Inglis, and Mr. Pfohl visited Ms. Schwartz at college where she further told them how her father abused and poisoned her. (Trial Tr. 332-33.) Ms. Schwartz showed Mr. Hulbert her journals, picking out specific pages for him to read. (Trial Tr. 332-33.) Ms. Schwartz told her friends that she would inherit a substantial amount of money from her father when he died, that she was afraid her father would cut her out of the will, and that she wanted to take a semester off from school, but that her father opposed it. (Trial Tr. 313, 424-27.) At the end of the weekend visit, Ms. Schwartz said to Ms. Inglis, “maybe he [Mr. Hulbert] can help me with my father,” and commented that, if her father died while she was in college, she would take a semester off. (Trial Tr. 350.)

After that visit, Mr. Hulbert and Ms. Schwartz began to exchange instant messages and to speak on the telephone almost daily. (Trial Tr. 710.) Ms. Schwartz arranged for Ms. Inglis to drop off Mr. Hulbert to camp out in the woods surrounding the Schwartz family home during Thanksgiving weekend in 2001. (Trial Tr. 338.) The next day, Mr. Hulbert visited the Schwartz’s residence and introduced himself to Dr. Schwartz and Ms. Schwartz sister Michelle Schwartz. (Trial Tr. 227.) Mr. Hulbert wore a long black trench coat and showed them his sword. (Trial Tr. 226-28.) Soon after that visit, Mr. Hulbert requested that Ms. Schwartz send him $ 60 for gas, a “do-rag”, or head covering, and gloves so that he would not leave any hairs or evidence at the scene. (Trial Tr. 487.) Ms. Schwartz sent Mr. Hulbert the $ 60 check via overnight delivery. (Trial Tr. 340-41, 687-99.) On December 7, 2001, Mr. Hulbert, Ms. Inglis, and Mr. Pfohl used the check to open a bank account for Mr. Hulbert at First Virginia Bank. (Trial Tr. 340-41, 686-87.) On December 8, 2001, Mr. Pfohl and Ms. Inglis gave Mr. Hulbert a ride back to the area near Dr. Schwartz’s home near the same location where they had previously camped. (Trial Tr. 288, 343.) Mr. Hulbert had his sword strapped to his side. (Tr. Tr. 344.) As Mr. Hulbert began to walk in the direction of Dr. Schwartz’s home, he pulled his sword out of its sheath. (Trial Tr. 343.) Mr. Hulbert stabbed Dr. Schwartz over 30 times with the sword. (Trial Tr. 680-81.) When Mr. Hulbert returned to the car he told Mr. Pfohl and Ms. Inglis that he ran him [Dr. Schwartz] through with his sword. (Trial Tr. 345.) On December 9, 2001, Mr. Hulbert called Ms. Schwartz, and told her that he had killed her father. (Trial Tr. 351.) The next day a neighbor found the victim’s body. (Trial Tr. 207-08.) That evening, Loudoun County Investigator Greg Locke traveled to James Madison University to notify Ms. Schwartz and her sister Michelle of their father’s death. (Trial Tr. 470.) Ms. Schwartz provided investigator Locke with information about Mr. Hulbert, Mr. Pfohl, and Ms. Inglis. (Trial Tr. 475-76.) On December 11, 2001, Mr. Hulbert was arrested. (Trial Tr. 300, 302.) At the time of his arrest Mr. Hulbert was carrying a three-page typewritten document that Ms. Schwartz had prepared detailing Dr. Schwartz’s alleged abuse of her. (Trial Tr. 204-05 299, 303, Commonwealth Ex. 35.) Authorities found Mr. Hulbert’s sword at the home of Ms. Inglis and Mr. Pfohl. (Trial Tr. 293-94.) On December 12, 2001, Ms. Schwartz told investigators that she knew Mr. Hulbert was going to kill her father. (Trial Tr. 482-83.) The next day, investigators searched her dorm room and found several journals that were identical to the ones found on Mr. Hulbert at the time of his arrest. (Trial Tr. 504-05, 628, 632-33, 641.) On February 1, 2002, Ms. Schwartz was arrested for the murder of Dr. Schwartz. (Trial Tr. 720.) After her arrest, Ms. Schwartz admitted to fellow inmate Tammie Fitts that her friend Mr. Hulbert had killed her father with a ninja sword. (Trial Tr. 720-22.) Ms. Schwartz also told Ms. Fitts that the plan was for Mr. Hulbert to take the blame for the murder because he was mentally ill. (Trial Tr. 722-23.)

Pre-trial, on June 28, 2002, the Commonwealth filed a motion seeking a ruling on the admissibility of Mr. Hulbert’s written confession. The state habeas court noted that counsel filed a 12-page, “very detailed” and “scholarly” memorandum opposing the Commonwealth’s use of Mr. Hulbert’s written confession. (Tr. Mar. 14, 2008 at 83, 86.) At a hearing on July 10, 2002, defense counsel withdrew their objection to the admission of the statement to allow the admission of the full unredacted confession pursuant to a stipulation with the Commonwealth personally signed by Ms. Schwartz. (Mot. Hr’g Jul. 10, 2002 at 6.) Ms. Schwartz stipulated to the admission of the written confession despite the condition that Mr. Hulbert would not testify and be subject to cross-examination at trial. (Trial Tr. 282-83.) The court noted that the Commonwealth had not satisfied Lilly v. Virginia, which stands for the proposition that a nontestifying accomplice offering statements against the penal interest of the defendant must be allowed to be confronted by the defendant pursuant to the confrontation clause of the 6th Amendment, but there was no objection to the admission of the written confession. (Id.) Mr. Hulbert’s written confession was admitted at trial. (Id.) At a hearing on July 24, 2002, counsel advised the trial court that the defense needed mental health records for Mr. Hulbert to attempt to demonstrate that Mr. Hulbert misunderstood Ms. Schwartz. (Tr. Hr’g Jul. 24, 2002 at 14.) Defense counsel sought to demonstrate Mr. Hulbert’s actions as those of a psychotic individual throughout the trial. (Trial Tr. 193-96, 775-800, 801-43, 842-49.) The court instructed the jury in Instruction 14A that if the jury had a reasonable doubt that Mr. Hulbert had the “mental capacity to understand the nature and consequences of any agreement to commit a crime at the time of the agreement,” the jury must acquit Ms. Schwartz of the conspiracy. (Jury Instruction 14A.) Throughout the closing argument, defense counsel argued extensively about Mr. Hulbert’s mental illness. (Trial Tr. 974, 980-83, 990-92.) On February 19, 2003, Ms. Schwartz was convicted in the Circuit Court of Loudoun County for murder, conspiracy, and two counts of solicitation to commit murder and sentenced to forty-eight years of imprisonment. Ms. Schwartz’s direct appeals were denied. The Virginia Court of Appeals denied her appeal on April 19, 2005. Schwartz v. Johnson, 45 Va. App. 407; 611 S.E.2d 631; 2005 Va. App. LEXIS 156, R. No. 0577-03-4 (Va. Ct. App. Apr. 19, 2005.) The Virginia Supreme Court denied Ms. Schwartz’s appeal on October 6, 2005. Schwartz v. Johnson, R. No. 051072 (Va. Oct. 6, 2005). On October 6, 2006, Ms. Schwartz filed a petition for a writ of habeas corpus in the Circuit Court for Loudoun County challenging her conviction two grounds. Schwartz v. Johnson, R. No. 42813 (Oct. 6, 2005). Specifically, Ms. Schwartz alleged that: (1) she was deprived of her 6th Amendment right to effective assistance of counsel at trial because her defense counsel failed to timely and properly object to the admission into evidence Mr. Hulbert’s written confession and other inculpatory statements; and (2) because her defense counsel failed to request jury instructions on the lesser included offenses of second degree murder and manslaughter and failed to argue alternative defenses based on the facts presented.

On March 14, 2008, a habeas corpus motions hearing was held. At the conclusion of the hearing, the court ruled that the habeas petition should be denied. The order of dismissal was entered April 23, 2008. Ms. Schwartz appealed to the Virginia Supreme Court, which denied the petition for appeal by order dated November 3, 2008. Schwartz v. Johnson, R. No. 081416, 2008 Va. LEXIS 132 (Va. Nov. 3, 2008).



The Court dismisses Ms. Schwartz’s Federal Habeas Petition for Writ of Habeas Corpus for Prisoner in State Custody because the state court’s denial of her claims was not contrary to, or an unreasonable application of, clearly established federal law, and was not based on an unreasonable determination of the facts. Ms. Schwartz has failed to demonstrate that her trial counsel was ineffective under the Strickland standard and the Virginia Circuit Court of Loudoun County did not apply the standard unreasonably nor did it base its decision on an unreasonable determination of the facts. Defense counsel’s trial tactics cannot form a basis for a habeas petition. There is no constitutional violation of Ms. Schwartz’s rights in the Virginia Circuit Court of Loudoun [*23] County to give rise to a writ of petition of habeas corpus in this Court.

For the foregoing reasons, it is hereby

ORDERED that the Petitioner Ms. Clara Jane Schwartz’s Motion for Petition for Writ of Habeas Corpus For Prisoner in State Custody pursuant to 28 U.S.C. § 2254 is DENIED.

The Clerk is directed to forward a copy of this Order to counsel.

Entered this 3rd of August, 2009

Gerald Bruce Lee
United States District Judge
Alexandria, Virginia

This 2009 habeas petition was denied by United States Magistrate Judge Robert C. Mitchell. The opinion quoted four uses of the word “ninja” from the lower court and from petitioner’s arguments. These refer to a “ninja sword and nunchucks” and a “black ninja outfit”.

Michale J. Anderson, an inmate at the State Correctional Institution at Houtzdale has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not conclude that a reasonable basis for appeal exists, a certificate of appealability will be denied.

MICHALE J. ANDERSON, BH-9234, Petitioner,
SUPERINTENDENT BRITTON, et al., Respondents.


Civil Action No. 09-113
2009 U.S. Dist. LEXIS 45455

Decided June 1, 2009

The background to this prosecution is set forth in the February 3, 2000 Memorandum of the Superior Court:

In the early morning hours of October 27, 1989, Anderson took a taxicab to the home of the victim, Karen Hurwitz (“Hurwitz”). On his way to Hurwitz’s home, Anderson had the cab stop in the Highland Park area where he retrieved a bag containing various weapons. After arriving at the Hurwitz residence, Anderson removed a Ninja sword and nunchucks from his bag and placed them at the side of the house. Anderson also placed another weapon inside his jacket. Anderson then went into the Hurwitz home.

After speaking with Hurwitz for a few moments, Anderson and Hurwitz agreed to continue their conversation outside so as not to awaken Hurwitz’s parents. Once outside, Anderson picked up the Ninja sword and walked with the victim to a gazebo in her yard. As the two conversed, Anderson struck the victim in the head with the ninja sword and repeatedly stabbed her in the torso. When the victim stopped moving, Anderson went into the Hurwitz home, took the keys to the Hurwitz’s automobile, and drove away in the vehicle.

The next morning, Anderson voluntarily accompanied police officers from his high school to police headquarters. Upon arriving at headquarters, Anderson confessed to the aforementioned crimes.


In his post-conviction petition to the Superior Court, the petitioner framed this issue as follows:

At Mr. Anderson’s trial Katherine Berlin testified that she was the girlfriend of Mr. Anderson (TT.222-223). Berlin saw Mr. Anderson on a nearly daily basis in the months prior to Hurwitz’s killing (TT.224-225). Mr. Anderson began sleeping at Berlin’s residence albeit without the knowledge of Berlin’s parents (TT.223). Berlin’s bedroom was on the first floor and her parent’s on the second floor (TT.225). Mr. Anderson brought various packaged personal items in bags and boxes, which Berlin kept, under her piano.

At trial Berlin was shown 3 boxes belonging to Mr. Anderson, one of which had marked on it: “mixed stuff, don’t touch”. Berlin never opened the box (TT.227). According to Berlin, Mr. Anderson came to Berlin’s residence on October 26, 1989, changed his clothing and put them in a bag under the piano (TT.233).

At trial Detective Terrance P. O’Leary testified that he had recovered a black ninja suit from Mr. Anderson’s backpack located at Berlin’s residence (TT.303). He also recovered stars and literature from boxes at Berlin’s residence (TT.303). Three of Mr. Anderson’s boxes recovered from Berlin’s apartment contained Mr. Anderson’s clothing and personal items (TT.305). Found also in the boxes were three American Flags: Exhibits 65,66, and 67; On Exhibit 65 was hand printed: “Niggers, spics, Jewish pigs will rape America no more. These will not be the first”; On Exhibit 66 was written: “Long live the white. Fuck the Jews. These will not be the first.” TT.307. The Commonwealth argued that the seized items in question went to Mr. Anderson’s state of mind and were thus admissible (TT.307).

As post-conviction appellate counsel argued, at trial the admissibility of this evidence was argued, but counsel never asserted the petitioner’s Fourth Amendment rights regarding these articles. Additionally, it is argued that no warrant was secured for these items; Anderson had not given his consent for their seizure and the items were delivered to the police by Ms. Berlin’s father who had no knowledge that the petitioner was residing in his house. Thus, the question was whether or not petitioner enjoyed a reasonable expectation of privacy in these items and as a result whether his Fourth Amendment rights were violated.


An appropriate Order will be entered.


AND NOW, this 1st day of June, 2009, for the reasons set forth in the foregoing Memorandum, the petition for Michael J. Anderson for a writ of habeas corpus is dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability is denied.

/s/ Robert C. Mitchell

United States Magistrate Judge

This case relates back to NinjaLaw post “Dungeons and Dragons Ninja Assassin insanity defense” about co-perpetrator Mark Edward Thompson. Mr. Thompson was sentenced to multiple life sentences but Mr. Meyer has been sentenced to death.

JEFFREY KARL MEYER, Petitioner-Appellant,
GERALD J. BRANKER, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.

No. 06-26; 506 F.3d 358
September 25, 2007, Argued
November 13, 2007, Decided

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge Shedd joined:

Nearly twenty years ago, Jeffrey Karl Meyer pled guilty to two counts of first degree murder for fatally stabbing an elderly couple during the commission of a robbery. Since then, three separate capital juries have sentenced him to death, and the North Carolina Supreme Court has twice vacated his sentence on direct appeal due to irregularities in the sentencing proceedings. Throughout this time, Meyer’s guilt has never been in doubt, and he has never argued that he did not commit the crimes in question.

Meyer now challenges his third capital sentence, raising claims relating to the effectiveness of his counsel, his awareness of the consequences of his plea, and the sentencing court’s refusal to admit potentially mitigating evidence. These claims have been heard and rejected by the same state courts that twice vacated Meyer’s earlier death sentences. We have reviewed Meyer’s claims with care, and we affirm the district court’s dismissal of Meyer’s federal habeas petition.

Summarizing the evidence:

On December 1, 1986, Jeffrey Karl Meyer and Mark Thompson broke into a home owned by Paul and Janie Kutz. At the time, Meyer and Thompson were heavily armed and dressed in the clothing of “ninja” warriors: “oriental assassins from feudal times, highly trained in martial arts and stealth.” State v. Meyer, 330 N.C. 738, 741, 412 S.E.2d 339, 341 (1992). Meyer and Thompson, soldiers stationed at Fort Bragg, North Carolina, had been planning to rob the elderly Kutzs for some time.

Upon entering the house, Meyer and Thompson encountered the sixty-eight year-old Mr. Kutz. Meyer initially shot Mr. Kutz with a blow gun, a martial arts weapon that launches sharp darts from a hollow tube. After Mr. Kutz continued to advance, Meyer stabbed him with a butterfly knife. Meyer and Thompson proceeded to stab Mr. Kutz above the left eye, above the right collar bone, across the neck, twice in the upper left chest, in the rib cage, above the left elbow, four times in the back of his chest, and to the left and right of his spine. In addition, defensive wounds were found on Mr. Kutz’s left hand, demonstrating an attempt to fend off an attacker. Testimony at trial indicates that Mr. Kutz may have remained alive and conscious for between thirty seconds and five minutes after the stab wounds were inflicted.

Meyer and Thompson then proceeded to stab and kill the sixty-two year-old Mrs. Kutz with butterfly knives. Mrs. Kutz, who was found in a bedroom down the hallway from Mr. Kutz, was stabbed approximately twenty-five times. She also displayed defensive wounds on her hands. Due to the fact the autopsy found Mrs. Kutz’s lungs markedly expanded with trapped air and blood, it is likely that Mrs. Kutz remained alive after receiving the stab wounds.

Overwhelming evidence linked Meyer and Thompson to the crimes. First, in the early morning hours after the killing, a military police officer, Robert Provalenko, intercepted Meyer and Thompson, dressed in “ninja” pants and boots, as they drove through a restricted area of Fort Bragg. In their car, Officer Provalenko found jewelry, a TV, and credit cards that were later found to be stolen from the Kutzs’ house, as well as a significant arsenal of weaponry, including butterfly knives, nunchucks, and a blowgun.

Second, forensic evidence placed Meyer and Thompson at the scene of the crime. A police investigation found footprints consistent with ninja boots in the dirt around the house, as well as on a dining room chair. Human blood consistent with the type of both victims was present on the butterfly knives recovered by Provalenko, and fibers found on one or both of the knives were consistent with the upholstery of the chair in which Mr. Kutz’s body was found, a blue blanket found with Mrs. Kutz’s body, and the pink nightgown worn by Mrs. Kutz at the time of her death. Fibers from the blanket and sheets in the Kutzs’ bedroom were also found on the “ninja” clothing worn by both Meyer and Thompson on the night of the murders.

Third, Dale Wayne Wyatt, a soldier stationed at Fort Bragg waiting to appear in court on a worthless-check charge, testified that he met Meyer on December 3, 1986 in a holding facility during his detention. According to Wyatt, Meyer confessed to shooting Mr. Kutz with a blowgun and then stabbing him. Meyer also told Wyatt that he had been dressed as a “ninja” at the time of the crime.

On February 2, 1987, Meyer was indicted on one count of burglary, two counts of armed robbery, and two counts of first degree murder. On May 12, 1988, Meyer pled guilty to the robbery and burglary charges. Four days later, Meyer pled guilty to two counts of first degree murder. The trial judge accepted the murder pleas and, in open court, confirmed that Meyer had discussed the charges with counsel, understood what they meant, and knew he would be sentenced to either life imprisonment or death on each count. The pleas were accepted and recorded the next day after the State’s presentation of their factual basis.


At his 1988 sentencing hearing, Meyer introduced testimonial evidence from two psychiatrists. First, Dr. Selwyn Rose testified that Meyer was obsessed with Dungeons and Dragons, a role-playing game set in medieval times, and that this obsession caused “defendant to retreat into a fantasy world of Ninja warriors.” Meyer, 412 S.E.2d at 342. Second, Dr. Thomas E. Radecki testified that Meyer “was so out of touch with reality . . . I don’t think that he really appreciated that he was really killing people. I think that he was living out a game, living out a fantasy . . . . I really don’t think he appreciated really seriously what he was doing. He’s a very sick man . . . .” Id.

This appeals court affirms the district court denial of habeas corpus peitition. Writ of certiorari was denied, and petition for rehearing also denied. Meyer awaits execution in a North Carolina federal prison.