Brown v. Polk

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-30

WILLIE BROWN, JR.,

Petitioner - Appellant,

versus

MARVIN POLK, Warden, Central Prison, Raleigh,

North Carolina,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Malcolm J. Howard,

District Judge. (CA-98-774-5-H-HC)

Argued: May 27, 2005 Decided: June 23, 2005

Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed by unpublished opinion. Judge Traxler wrote the opinion,

in which Judge Luttig and Judge Michael joined.

ARGUED: James Donald Cowan, Jr., SMITH MOORE, L.L.P., Greensboro,

North Carolina, for Appellant. Sandra Wallace-Smith, Assistant

Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,

North Carolina, for Appellee. ON BRIEF: Laura M. Loyek, SMITH

MOORE, L.L.P., Raleigh, North Carolina, for Appellant. Roy Cooper,

Attorney General, Barry McNeill, Special Deputy, Raleigh, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

2

TRAXLER, Circuit Judge:

Petitioner Willie Brown, Jr., appeals the district court’s

denial of his petition for a writ of habeas corpus under 28

U.S.C.A. § 2254 (West 1994 & Supp. 2005), which alleged (1) that

his death sentence violates the Eighth and Fourteenth Amendments to

the United States Constitution because the jury was instructed that

it must unanimously find the existence of any mitigating

circumstances; and (2) that his appellate counsel rendered

constitutionally ineffective assistance by failing to argue this

unanimity issue on direct appeal to the North Carolina Supreme

Court. For the following reasons, we affirm.

I.

In November 1983, a North Carolina jury convicted Brown of the

armed robbery and first-degree murder of Vallerie Ann Roberson

Dixon. The facts leading to Brown’s conviction are fully set forth

by the North Carolina Supreme Court in State v. Brown, 337 S.E.2d

808 (N.C. 1985), and by this court in Brown v. Lee, 319 F.3d 162

(4th Cir. 2003). For purposes of this appeal, the following

excerpt will suffice:

At approximately 5:47 a.m. on the morning of March

6, 1983, a Zip Mart convenience store on Main Street in

Williamston, North Carolina, where Ms. Dixon was supposed

to be working as a clerk, was reported empty. A

patrolling police officer had seen Ms. Dixon in the store

less than thirty minutes prior to the report. Money from

the cash register and a store safe was missing, as was

Ms. Dixon’s automobile. A search for Ms. Dixon was

immediately begun.

3

At about 6:20 a.m., a police officer spotted Ms.

Dixon’s automobile traveling on a nearby road. The

automobile was stopped by police officers, and Brown, who

was driving alone in the vehicle, was immediately placed

under arrest and advised of his rights. A .32 caliber

six-shot revolver, a paper bag containing approximately

$90 in cash and change, and a change purse containing Ms.

Dixon’s drivers license and social security card were

found in the automobile. A pair of ski gloves and a

toboggan cap with eye holes cut out of it were found on

Brown’s person. The exterior of the car was partly

covered with fresh mud. According to the police

officers, Brown admitted that he robbed the Zip Mart and

fled in Ms. Dixon’s car, but claimed that Ms. Dixon was

unharmed when he left the store.

At approximately 4:00 p.m. that afternoon, Ms.

Dixon’s body was found on a muddy logging road in a rural

area outside Williamston. Forensic pathology and firearm

tests revealed that Ms. Dixon had been shot six times

with the .32 caliber revolver that police had found in

Dixon’s car at the time of Brown’s arrest.

Id. at 165. In November, 1983, Brown was tried and convicted of

first degree murder and the capital sentencing phase of the trial

began. At the conclusion of the sentencing phase, the jury found

three aggravating circumstances.1 The trial court submitted seven

possible mitigating circumstances for the jury’s consideration, but

the jury found none.2 The jury returned a recommendation that

1

The jury found the following aggravating circumstances: (1)

that Brown had previously been convicted of a felony involving the

use of threat or violence to the person; (2) that the murder was

committed by Brown while he was engaged in the commission of or

flight after committing a robbery; and (3) that the murder was

especially heinous, atrocious, or cruel.

2

The mitigating circumstances submitted to the jury for

consideration were (1) that Brown had no significant history of

prior criminal activity, (2) that Brown was a person of limited

intelligence and education, (3) that Brown was under the age of 21

at the time he committed any previous felonies for which he had

4

Brown be sentenced to death for the murder conviction. On appeal

to the North Carolina Supreme Court, counsel raised seventeen

claims of error, but did not assert that the trial judge erred in

instructing the jury that mitigating circumstances must be found

unanimously. The North Carolina Supreme Court affirmed Brown’s

conviction and death sentence, see Brown, 337 S.E.2d at 830, and

the United States Supreme Court denied Brown’s petition for writ of

certiorari in 1986. See Brown v. North Carolina, 476 U.S. 1164

(1986).

On March 9, 1987, Brown filed a motion for appropriate relief

(“MAR”), seeking state habeas relief. For the first time, Brown

asserted that the trial court had erroneously instructed the jury

that it must unanimously find any mitigating circumstances, in

violation of his rights under the Eighth and Fourteenth Amendments

to the United States Constitution. On November 19, 1987, the MAR

court concluded that, because Brown had been in a position to raise

the unanimity issue before the North Carolina Supreme Court on

direct appeal but had failed to do so, he was procedurally barred

from raising it on state habeas.

been convicted, (4) that Brown had not been convicted of any

criminal offense for 18 years, (5) that Brown surrendered at the

time of his arrest without resistance to law enforcement officers,

(6) that Brown confessed soon after his arrest to robbing the Zip

Mart, and (7) any other circumstances which the jury deemed to have

mitigating value.

5

Six months prior to Brown’s November 1983 conviction, the

North Carolina Supreme Court rejected a claim that it was error for

the trial court to instruct the jury that it must unanimously find

mitigating circumstances. See State v. Kirkley, 302 S.E.2d 144,

156-57 (N.C. 1983). However, on June 6, 1988 (five years after

Kirkley was decided and two years after Brown’s conviction became

final), the United States Supreme Court reversed a death sentence

imposed in Maryland because there was “a substantial probability

that reasonable jurors . . . well may have thought they were

precluded from considering any mitigating evidence unless all 12

jurors agreed on the existence of a particular such circumstance.”

Mills v. Maryland, 486 U.S. 367, 384 (1988). Two years later, the

Supreme Court held that North Carolina’s unanimity requirement

likewise failed to pass constitutional muster. See McKoy v. North

Carolina, 494 U.S. 433, 443 (1990) (holding that the Constitution

requires that “each juror must be allowed to consider all

mitigating evidence in deciding . . . whether aggravating

circumstances outweigh mitigating circumstances, and whether the

aggravating circumstances, when considered with any mitigating

circumstances, are sufficiently substantial to justify a sentence

of death”).

In the wake of these Supreme Court decisions, Brown made a

number of attempts to re-raise the unanimity issue on state habeas

and to obtain reconsideration of the state MAR court’s November

6

1987 order finding the claim to be procedurally barred, but was

unsuccessful. See Brown, 319 F.3d at 166-67. On June 16, 1997,

the state court denied all remaining claims for state MAR relief,

including Brown’s claim that his counsel was ineffective for

failing to raise the unanimity issue on direct appeal, and the

North Carolina Supreme Court denied Brown’s petitions for writ of

certiorari and for reconsideration. See State v. Brown, 505 S.E.2d

879 (N.C. 1998); State v. Brown, 501 S.E.2d 920 (1998). The United

States Supreme Court denied Brown’s petition for writ of

certiorari. See Brown v. North Carolina, 525 U.S. 888 (1998).

On December 24, 1998, Brown filed his petition for habeas

relief in the district court under 28 U.S.C.A. § 2254, raising

eleven constitutional challenges to his conviction and sentence,

including claims that his jury was improperly instructed that it

had to be unanimous in finding any mitigating circumstances, and

that his counsel was constitutionally ineffective in failing to

raise the unanimity claim on direct appeal to the North Carolina

Supreme Court.

On February 25, 2002, the district court granted the State’s

motion for summary judgment, denied Brown’s motion for summary

judgment, and dismissed Brown’s habeas petition. With regard to

the unanimity claim, the district court concluded that it was

precluded from reviewing the merits of the claim because the state

court procedurally barred Brown from raising it on state habeas

7

under an adequate and independent state law ground. The district

court also rejected Brown’s claim that his appellate counsel was

constitutionally ineffective for failing to raise the unanimity

claim on direct appeal. Brown’s subsequent motion to alter or

amend the judgment was also denied.

In May 2002, Brown filed an application for a certificate of

appealability, seeking, inter alia, to appeal the district court’s

conclusion that it was procedurally barred from considering the

unanimity claim, including the finding that counsel’s failure to

raise the issue on direct appeal did not constitute cause to excuse

the procedural default. The district court granted Brown’s

application for a certificate of appealability as to the unanimity

claim. See 28 U.S.C.A. § 2253 (West Supp. 2005).

On February 14, 2003, we reversed the district court’s holding

that it was precluded from considering the merits of Brown’s

unanimity claim under the doctrine of procedural default because

North Carolina “[had] not regularly and consistently applied its

procedural default rule . . . to claims challenging unanimity

instructions.” Brown, 319 F.3d at 177. Because our precedent at

the time was that the unanimity holdings in Mills and McKoy were

exceptions to the general rule that “new rules” of constitutional

procedure do not apply retroactively to cases on collateral review,

see Williams v. Dixon, 961 F.2d 448, 453 (4th Cir. 1992), we

remanded the unanimity claim to the district court for

8

consideration on the merits, see Brown, 319 F.3d at 168, 177. And,

because remand for a determination on the merits was in order, we

found it unnecessary to address Brown’s claim that his appellate

counsel was ineffective for failing to raise the unanimity issue on

direct appeal to the state court. See id. at 175 n.4.

After our decision was issued remanding the case for a

decision on the merits, the Supreme Court granted certiorari in the

case of Beard v. Banks to address the question of whether Mills v.

Maryland announced a “new rule” under Teague v. Lane, 489 U.S. 288

(1989), not applicable retroactively to cases on federal habeas

review. See Beard v. Banks, 539 U.S. 987 (2003). Because this

directly impacted our decision in Williams and the propriety of the

district court’s examination of the merits of the unanimity claim

on remand, the district court issued an order on January 7, 2004,

holding Brown’s case in abeyance pending a decision by the United

States Supreme Court in Beard.

On June 24, 2004, the Supreme Court issued its decision in

Beard, holding that McKoy announced a new rule of law that did not

fall within either of the Teague exceptions to the general rule of

nonretroactivity, effectively overruling our decision in Williams.

See Beard v. Banks, 124 S. Ct. 2504, 2515 (2004). Accordingly,

under the Supreme Court’s directive in Beard, federal habeas courts

are precluded from applying the unanimity rules of Mills and McKoy

9

retroactively to state death penalty cases that became final before

the rule was announced. See id.

On August 25, 2004, the district court issued an order

granting the state’s motion for summary judgment with respect to

Brown’s unanimity claim. Because the United States Supreme Court

had denied Brown’s petition for a writ of certiorari on June 2,

1986, well before the Supreme Court issued its decisions in Mills

or McKoy, the district court concluded that Brown was not entitled

to a writ of habeas corpus. The district court denied Brown’s

subsequent motion to alter or amend the judgment.3

In November 2004, Brown filed an application for a certificate

of appealability with the district court, seeking to appeal the

district court’s finding that Teague and Beard prohibit application

of the rule in Mills and McKoy to Brown’s case, as well as the

district court’s prior ruling that Brown’s appellate counsel was

not ineffective for failing to raise the McKoy error in Brown’s

direct appeal to the state court. The district court granted

Brown’s application for a certificate of appealability as to the

unanimity claim, and we granted Brown’s application for a

3

Because the merits of the unanimity claim were never

addressed by this court, and there is no dispute that the

controlling legal authority regarding Teague’s application changed

dramatically after our remand, the “mandate rule” did not prevent

the district court from denying the claim on the basis of Teague.

See United States v. Bell, 5 F.3d 64, 66-67 (4th Cir. 1993).

10

certificate of appealability as to the ineffective assistance of

counsel claim.

II.

We begin with Brown’s claim that his rights under the Eighth

and Fourteenth Amendments were violated, and that he is entitled to

a new sentencing hearing, because he was sentenced pursuant to the

jury instruction requiring unanimity for the consideration of

mitigating circumstances. The district court held that the claim

was barred by Teague. We agree.

In Teague, the Supreme Court held that “[u]nless they fall

within an exception to the general rule, new constitutional rules

of criminal procedure will not be applicable to those cases which

have become final before the new rules are announced.” Teague, 489

U.S. at 310. “[T]he determination whether a constitutional rule of

criminal procedure applies to a case on collateral review involves

a three-step process.” Beard, 124 S. Ct. at 2510. We must (1)

“determine when the defendant’s conviction became final,” (2)

“ascertain the legal landscape as it then existed, and ask whether

the Constitution, as interpreted by the precedent then existing,

compels the rule,” i.e., “decide whether the rule is actually

‘new,’” and (3) if so, “consider whether [the new rule] falls

within either of the two exceptions to nonretroactivity” set forth

in Teague. Id. (internal quotation marks and citations omitted).

The exceptions to nonretroactivity are limited; “the bar does not

11

apply to rules forbidding punishment of certain primary conduct or

to rules prohibiting a certain category of punishment for a class

of defendants because of their status or offense” or to “watershed

rules of criminal procedure implicating the fundamental fairness

and accuracy of the criminal proceeding.” Id. at 2513 (internal

quotation marks and alterations omitted).

In short, Teague’s “nonretroactivity principle prevents a

federal court from granting habeas corpus relief to a state

prisoner based on a rule announced after his conviction and

sentence became final,” unless the rule falls within one of the two

limited exceptions. Caspari v. Bohlen, 510 U.S. 383, 389 (1994).

“[T]he nonretroactivity principle is not jurisdictional in the

sense that federal courts must raise and decide the issue sua

sponte,” but “if the State does argue that the defendant seeks the

benefit of a new rule of constitutional law, the court must apply

Teague before considering the merits of the claim.” Id. (internal

quotation marks and alterations omitted).

In this case, the State preserved its argument that the rule

in Mills and McKoy should be viewed as a new rule not applicable

retroactively to Brown’s conviction; they raised the precise issue

in response to Brown’s prior appeal. And, in Beard, the Supreme

Court held that Mills did indeed announce a “new rule” regarding

unanimity which does not fall within either of the two exceptions

to Teague, effectively overruling our decision in Williams. See

12

Beard, 124 S. Ct. at 2515. There is also no dispute that Brown’s

conviction became final before the “new rule” of Mills and McKoy

was announced -- the North Carolina Supreme Court affirmed Brown’s

conviction and sentence on December 10, 1985, and the United States

Supreme Court denied Brown’s petition for a writ of certiorari on

June 6, 1986. See Caspari, 510 U.S. at 390 (“A state conviction

and sentence become final for purposes of retroactivity analysis

when the availability of direct appeal to the state courts has been

exhausted and the time for filing a petition for a writ of

certiorari has elapsed or a timely filed petition has been finally

denied.”). Indeed, Brown concedes that his conviction and sentence

became final prior to the Supreme Court’s decision in Mills.

Nevertheless, Brown claims that he should receive the benefit

of the Mills/McKoy rule (even though his conviction became final

before either case was decided) because the state court never

adjudicated the merits of his unanimity claim. Brown did not raise

the unanimity issue on direct appeal, and the state MAR court did

not reach the merits of the claim because it concluded that the

claim was procedurally barred. Where the state court has failed or

refused to render an adjudication on the merits of a constitutional

claim, Brown contends that the limitations in Teague and Beard

simply do not apply and “there is no basis for denying criminal

defendants the benefit of new constitutional protections” to upset

13

a final state court conviction. Brief of Appellant at 11. We

disagree.

As an initial premise, we note that Brown has pointed to no

authority for this purported “third” exception to the application

of Teague. Brown has uncovered no cases in which a court has

refused to apply Teague because the state court had not considered

the merits of a claim that ultimately led to the creation of a “new

rule” in an unrelated case, and the cases that have been referenced

suggest that no such exception was contemplated. See Lambrix v.

Singletary, 520 U.S. 518, 521, 539-40 (1997) (holding that

petitioner’s constitutional claim, which the state court had

rejected without consideration of the merits on the ground that it

was procedurally barred, was based upon a “new rule” barred by

Teague); Burch v. Corcoran, 273 F.3d 577, 584 (4th Cir. 2001)

(applying Teague to bar Apprendi claim that had been raised for the

first time in the petitioner’s effort to obtain federal habeas

relief); Fisher v. Texas, 169 F.3d 295, 304 (5th Cir. 1999)

(holding that Teague bar applied to federal habeas claim that was

neither procedurally barred nor adjudicated on the merits by the

state court); Daniel v. Cockrell, 283 F.3d 697, 702, 705 (5th Cir.

2002) (same). And, as pointed out by the district court, we

indicated to the contrary in Green v. French, 143 F.3d 865, 874

(4th Cir. 1998), abrogated on other grounds by Williams v. Taylor,

529 U.S. 362, 409 (2000) (“[T]he anti-retroactivity principles of

14

Teague would appear applicable in contexts where the limitations of

section 2254(d)(1) are not, such as where a habeas petitioner’s

constitutional claim is not properly raised in state court and

therefore not adjudicated on the merits in State court, but where

a court may nonetheless conclude that the failure to properly raise

the claim in state court is not excused (or perhaps, excused but

Teague-barred) because the claim relies upon a new rule of

constitutional law not made retroactive on collateral review.”)

(internal quotation marks and citation omitted)).

Nor do we view the rationales of the “new rule” doctrine as

supporting such an exception. Brown asserts that “[a] primary

justification for Teague’s limitation on retroactive application of

new constitutional rules is comity between state and federal

courts,” and that “[t]his justification is inapplicable in cases

where the state court has not issued an adjudication on the

merits.” Brief of Appellant at 15-16. The “new rule” doctrine of

Teague, however, respects the interests of comity to state court

adjudications and the finality of criminal judgments. See Lockhart

v. Fretwell, 506 U.S. 364, 372 (1993) (noting that Teague “was

motivated by a respect for the States’ strong interest in the

finality of criminal convictions, and the recognition that a State

should not be penalized for relying on ‘the constitutional

standards that prevailed at the time the original proceedings took

place’”) (quoting Teague, 486 U.S. at 306)); Teague, 489 U.S. at

15

306 (“‘[T]he threat of habeas serves as a necessary additional

incentive for trial and appellate courts throughout the land to

conduct their proceedings in a manner consistent with established

constitutional standards. In order to perform this deterrence

function, . . . the habeas court need only apply the constitutional

standards that prevailed at the time the original proceedings took

place.’”) (quoting Desist v. United States, 394 U.S. 244, 262-63

(1969) (Harlan, J., dissenting)); id. at 308 (noting that “the

scope of the writ” had never been defined “simply by reference to

a perceived need to assure that an individual accused of crime is

afforded a trial free of constitutional error,” but rather by

recognition “that interests of comity and finality must also be

considered” (internal quotation marks omitted)).

Under Brown’s suggested exception to the application of the

Teague doctrine, however, the “finality” of a state court

conviction and sentence would not be respected unless the state

court actually considered and rejected the very claim that the

Supreme Court later found meritorious. Indeed, a state court

judgment could never truly be “final,” because it would always be

subject to collateral attack on the basis of a claim not presented

and rejected on the merits by the state court but which resulted in

a “new rule” upon presentation to the Supreme Court. Such

uncertainty contravenes the very basis for respecting the finality

of a state court judgment. See Teague, 489 U.S. at 309 (“[T]he

16

principle of finality . . . is essential to the operation of our

criminal justice system. Without finality, the criminal law is

deprived of much of its deterrent effect.”); id. (“‘No one, not

criminal defendants, not the judicial system, not society as a

whole is benefitted by a judgment providing a man shall tentatively

go to jail today, but tomorrow and every day thereafter his

continued incarceration shall be subject to fresh litigation.’”

(quoting Mackey, 401 U.S. at 691 (Harlan, J., concurring in

judgments in part and dissenting in part))).

Brown asserts that “the application of new constitutional

protections cannot undermine the state’s efforts to apply then-

existing precedent, and no friction is generated by the application

o[f] new constitutional rules on collateral review” if the state

court has not “adjudicat[ed] . . . the merits of a defendant’s

constitutional claims.” Brief of Appellant at 18. But, such an

approach to finality would no less result in the “understandabl[e]

frustrat[tion]” of state courts that have “faithfully appl[ied]

existing constitutional law only to have a federal court discover,

during a habeas proceeding, new constitutional commands” that

Teague set out to eliminate except in the most narrow of

exceptions. Teague, 489 U.S. at 310 (alteration and internal

quotation marks omitted). It also renders the “new rule” doctrine

dependent upon individualized determinations of the facts and

procedural history of each case. If defense counsel raises the

17

constitutional claim before the state court and it is rejected, the

defendant cannot obtain federal habeas relief based upon a contrary

Supreme Court decision issued after the conviction became final.

But if defense counsel fails to raise the constitutional claim

before the state court, or the state court otherwise has no

occasion to consider the claim on the merits (or refuses to

consider the claim on the merits due to a procedural bar), the

defendant can obtain federal habeas relief based upon a later

Supreme Court decision.

As noted in Teague, our “relevant frame of reference” in

federal habeas review “is not the purpose of the new rule whose

benefit the defendant seeks, but instead the purposes for which the

writ of habeas corpus is made available.” Id. at 306 (alteration

and internal quotation marks omitted).

Habeas corpus always has been a collateral remedy,

providing an avenue for upsetting judgments that have

become otherwise final. It is not designed as a

substitute for direct review. The interest in leaving

concluded litigation in a state of repose, that is,

reducing the controversy to a final judgment not subject

to further judicial revision, may quite legitimately be

found by those responsible for defining the scope of the

writ to outweigh in some, many, or most instances the

competing interest in readjudicating convictions

according to all legal standards in effect when a habeas

petition is filed.

Id. (quoting Mackey, 401 U.S. at 682-83). We find nothing in the

language of Teague that would make the concerns for comity and

finality dependent upon whether the state court had occasion to or

otherwise adjudicated the constitutional issue on the merits, and

18

no indication that a third “exception” to the nonretroactivity

principle was ever contemplated by the Court. On the contrary, the

Court noted at the outset of Teague the lack of “a unifying theme”

in prior cases and the need to “clarify how the question of

retroactivity should be resolved for cases on collateral review.”

Id. at 300. Had such an exception for the applicability of Teague

been in order, we think the Court would have made that equally

clear.

We also reject Brown’s contention that the language of 28

U.S.C.A. § 2254(d), as amended by the AEDPA, compels a holding that

Teague only applies to cases in which the petitioner has received

an adjudication on the merits of his constitutional claim.

Specifically, Brown asserts that the application of Teague in his

case “is contrary to the limitation on federal court review

established by the federal habeas statute, 28 U.S.C. § 2254(d),

which explicitly codifies the principle that habeas review should

be restricted only in cases involving an adjudication on the

merits.” Brief of Appellant at 16. We disagree.

The amendments to the AEDPA modified the standard of review

that courts apply to claims which are reviewable on federal habeas.

Before the amendments were adopted, federal habeas courts reviewed

such constitutional claims de novo. Under the amendments, federal

habeas courts review such constitutional claims under the

deferential provisions set forth therein, i.e., we may only grant

19

habeas relief based upon a constitutional claim adjudicated on the

merits by the state court if the state court adjudication is

contrary to or an unreasonable application of clearly established

Supreme Court precedent.

The language of § 2254(d), however, does not engraft upon

Teague’s general rule of nonretroactivity a requirement that the

state court must have adjudicated the merits of the constitutional

claim that ultimately resulted in the “new rule.” Contrary to

Brown’s contention, we view the more deferential standard of review

on federal habeas which was implemented by the amendments to

§ 2254(d) as consistent with the traditional application of Teague

to “new rule” cases. If a constitutional claim has been

adjudicated on the merits by the state court, we may not grant

federal habeas relief unless that adjudication is contrary to or an

unreasonable application of “clearly established” Supreme Court

precedent, i.e., an “old rule” under Teague jurisprudence. If the

state court adjudication is contrary to or an unreasonable

application of “clearly established” Supreme Court precedent, then

§ 2254(d) is no bar to relief, but habeas relief is not required;

rather, the federal court reviews the merits of the claim under the

pre-AEDPA de novo standard, no longer constrained by the deference

required under § 2254(d). See Moody v. Polk, No. 04-21, 2005 WL

1118275 (4th Cir. May 12, 2005). Under Teague jurisprudence,

however, “new rules” may not be applied to upset a state court

20

conviction, regardless of whether there has been a state court

adjudication on the merits of the claim, unless one of the two

narrow Teague exceptions exists. The constitutional claim is

simply not “reviewable” on the merits by the federal habeas court

in the first instance.

In this case, the North Carolina state courts “conduct[ed]

their proceedings in a manner consistent with established

constitutional standards,” i.e., those “constitutional standards

that prevailed at the time the original proceedings took place.”

Teague, 489 U.S. at 306 (internal quotation marks omitted).

Indeed, just six months before Brown’s trial, the North Carolina

Supreme Court confronted the unanimity issue and ruled that the

requirement was constitutional. See Kirkley, 302 S.E.2d at 156-57.

Upsetting the state court’s judgment in Brown’s case, based upon a

new Supreme Court rule that contradicted the settled law in North

Carolina at the time Brown’s conviction and sentence became final,

would strike at the very heart of the concerns for finality and

comity expressed in Teague and, we believe, would directly

contravene the directives laid down in Teague and Beard.

Accordingly, we affirm the judgment of the district court denying

habeas relief based upon Brown’s unanimity claim. Because “Mills

announced a new rule of constitutional criminal procedure that

falls within neither Teague exception,” the “rule cannot be applied

21

retroactively” to Brown on federal habeas review. Beard, 124 S.

Ct. at 2515.

III.

Brown next contends that he is entitled to habeas relief

because his appellate counsel rendered constitutionally ineffective

assistance in failing to argue on direct appeal that the unanimity

instruction violated his constitutional rights. We disagree.

The Sixth Amendment requires that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence,” U.S. Const. amend. VI, and

that such assistance be effective, see Strickland v. Washington,

466 U.S. 668, 686 (1984). In order to establish an ineffective

assistance of appellate counsel claim before the state court, Brown

was required to demonstrate “that his counsel was objectively

unreasonable in failing” to identify and argue the unanimity issue,

and “a reasonable probability that, but for his counsel’s

unreasonable failure . . ., he would have prevailed on his appeal.”

Smith v. Robbins, 528 U.S. 259, 285 (2000) (citation omitted); see

Hudson v. Hunt, 235 F.3d 892, 895-96 (4th Cir. 2000). “Unless

[Brown] makes both showings, it cannot be said that the . . . death

sentence resulted from a breakdown in the adversary process that

renders the result unreliable.” Strickland, 466 U.S. at 687. The

burden is a high one.

22

In applying th[e] [Strickland] test to claims of

ineffective assistance of counsel on appeal . . .,

reviewing courts must accord appellate counsel the

“presumption that he decided which issues were most

likely to afford relief on appeal.” Pruett v. Thompson,

996 F.2d 1560, 1568 (4th Cir. 1993). Counsel is not

obligated to assert all nonfrivolous issues on appeal, as

“[t]here can hardly be any question about the importance

of having the appellate advocate examine the record with

a view to selecting the most promising issues for

review.” Jones v. Barnes, 463 U.S. 745, 752 (1983); see

also Smith v. South Carolina, 882 F.2d 895, 899 (4th Cir.

1989). Indeed, “‘[w]innowing out weaker arguments on

appeal and focusing on’ those more likely to prevail, far

from being evidence of incompetence, is the hallmark of

effective appellate advocacy.” Smith v. Murray, 477 U.S.

527, 536 (1986) (quoting Jones, 463 U.S. at 751); see

also Smith, 882 F.2d at 899 (counsel’s failure to raise

a weak constitutional claim may constitute an acceptable

strategic decision designed “to avoid diverting the

appellate court's attention from what [counsel] felt were

stronger claims”). Although recognizing that

“[n]otwithstanding Barnes, it is still possible to bring

a Strickland claim based on counsel’s failure to raise a

particular claim” on direct appeal, the Supreme Court has

recently reiterated that “it [will be] difficult to

demonstrate that counsel was incompetent.” Robbins, 120

S. Ct. at 765. “‘Generally, only when ignored issues are

clearly stronger than those presented, will the

presumption of effective assistance of counsel be

overcome.’” Id. (quoting Gray v. Greer, 800 F.2d 644,

646 (7th Cir. 1986)).

Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (en banc).

Because Brown’s Sixth Amendment claim was adjudicated on the

merits by the North Carolina state court, Brown’s claims are

subject to the deferential standards set forth in the amendments to

28 U.S.C.A. § 2254(d). We are precluded from granting habeas

relief unless we conclude that the state court’s adjudication of a

claim “resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

23

determined by the Supreme Court of the United States” or “resulted

in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C.A. § 2254(d); see Williams, 529 U.S. at 412.4

Under Strickland, Brown was required to demonstrate that it

was objectively unreasonable for his counsel to fail to raise a

unanimity claim on direct appeal in 1985 and that, but for his

counsel’s deficient performance, there is a reasonable probability

that his appeal would have succeeded. Noting that “[a]t the time

that the defendant’s case was tried, the North Carolina Supreme

Court had upheld the jury instruction that required the sentencing

jury to be unanimous in the finding of a mitigating circumstance

[in Kirkley] and that “the Supreme Court did not reverse that

opinion until 1990,” J.A. 1853, the state MAR court concluded that

appellate counsel’s “[f]ailure to anticipate a new rule of law

d[id] not constitute ineffective assistance of counsel.” J.A.

4

Brown argues that we must evaluate the prejudice prong of

Strickland de novo because the state MAR court, when evaluating the

second prong of Strickland’s test, i.e., the “prejudice” prong,

required a showing that the result “would have been different,”

instead of only a “reasonable probability” that the result “would

have been different.” Brief of Appellant at 38-39 (internal

quotation marks omitted); see Moody v. Polk, No. 04-21, 2005 WL

1118275 (4th Cir. May 12, 2005). Because we conclude that the

state court’s determination that appellate counsel’s performance

was not deficient is neither contrary to nor an unreasonable

application of the first prong of Strickland, we do not reach the

prejudice inquiry and express no opinion as to what standard of

review would be appropriate to apply to the second prong of the

Strickland inquiry.

24

1854. The state court also concluded that Brown had “failed to

prove that the failure of counsel to raise any of the alleged

errors enunciated in this claim was not within the range of

competence demanded of attorneys in criminal cases or such that the

defendant’s appellate counsel was not functioning as counsel as

guaranteed by the Sixth Amendment of the United States

Constitution.” J.A. 1854. The district court, on federal habeas

review, agreed:

[Brown’s] evidence is simply not sufficient to overcome

the strong presumption that counsel’s performance fell

within the wide range of reasonable professional

assistance. It is of no consequence whether counsel’s

failure to raise the claim was an intentional tactical

choice or an inadvertent omission, for [Brown] has failed

to establish that the prevailing professional norm in

1985 required appellate counsel to challenge the

unanimity requirement. The Sixth Amendment does not

require counsel to recognize and raise every conceivable

constitutional claim.

J.A. 2094 (internal quotation marks omitted). Accordingly, the

district court concluded that the state MAR court’s determination

that counsel’s performance was not constitutionally deficient was

neither contrary to nor an unreasonable application of Strickland.

We agree with the district court’s determination that Brown is not

entitled to habeas relief on this basis as well.

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IV.

For the foregoing reasons, the judgment of the district court

is affirmed.

AFFIRMED

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