Opinion

Strickland v. Lee

471 F. Supp. 2d 557
2007 U.S. Dist. LEXIS 6743
2007 WL 293575

Court: District Court, W.D. North Carolina
Filed: Jan 30, 2007
Status: Published
Author: Mullen
On the bench: Mullen
Cited by: 5 cases
Authority: More cited than 55.6%

holding in habeas case without citation to any other authority that reference to defendant's declination to provide written statement following oral interview did not violate Doyle because it was not a comment on silence but, rather, reflected defendant's choice not to repeat in writing what he had just said out loud and merely described conclusion of interview and further finding that error, if any, was harmless

How later courts described this case

holding in habeas case without citation to any other authority that reference to defendant's declination to provide written statement following oral interview did not violate Doyle because it was not a comment on silence but, rather, reflected defendant's choice not to repeat in writing what he had just said out loud and merely described conclusion of interview and further finding that error, if any, was harmless
noting that an attempt by counsel to introduce the mitigation they had found would have violated restrictions set by the defendant and possibly provided a ground for claim of ineffective assistance
although state post-conviction court addressed the merits “after finding that this issue was procedurally barred, this Court is bound by the procedural ruling”

Written by the judges who cited it.

The opinion

ORDER

MULLEN, District Judge.

This matter is before the Court upon Petitioner Darrell Eugene Strickland’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 . Petitioner filed the instant Petition on January 25, 2002. Also before the Court are Respondent’s Motion for Summary Judgment, and Petitioner’s Motion to hold this matter in abeyance pending the United States Supreme Court’s decision in

Rompilla v. Beard,

No. 04-5462,

decided sub. nom. Rompilla v. Beard,

545 U.S. 374 , 125 S.Ct. 2456 , 162 L.Ed.2d 360 (2005).

FACTS

On January 23, 1995, Darrell Eugene Strickland (hereinafter “Petitioner” or “Strickland”) was indicted for the first-degree murder of Henry Brown (hereinafter “victim” or “Henry”). The State entered notice of intent to seek the death penalty. Strickland was tried to a jury at the October 16, 1995, Criminal Session of Superior Court, Union County, the Honorable Sanford L. Steelman, Jr., Judge Presiding. Strickland was represented by Harry B. Crow, Jr. and Stephen Goodwin, Jr.

The facts of this case are summarized in the North Carolina Supreme Court’s opinion on Strickland’s direct appeal:

The State’s evidence tended to show

inter alia

that on 1 January 1995, the victim, Henry Brown, went with his wife, Gail Brown, and her six-year-old child to the home of defendant, who lived with Sherri Jenkins and their two-year-old son in Marshville, North Carolina. Mrs. Brown had formerly worked with both Ms. Jenkins and defendant at Cuddy Foods in Marshville and had been “good friends” with Ms. Jenkins for about six years. Ms. Jenkins had been dating defendant for thirteen years, had mothered his two-year-old son, and had been cohabiting with defendant for about six months at the time of the murder.

The Browns arrived at the residence of defendant and Ms. Jenkins at approximately 8:00 p.m. Mr. Brown had been drinking but was not drunk. Mr. Brown and defendant went into the kitchen, while Mrs. Brown and Ms. Jenkins stayed in the living room. The children were sent into the bedroom to play, and the adults began drinking alcoholic beverages. Ms. Jenkins testified at trial that they shared a marijuana joint and that all four adults drank from a half-

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gallon bottle of gin. The four adults continued drinking and talking for several hours. During this time, a shotgun owned by defendant was passed around. Everyone was talking about shooting it and joking about shooting each other, but there were no serious threats. There were two shells in the gun and no other shells in the house. Ms. Jenkins took the gun outside and fired it once.

At approximately 1:30 a.m., Mrs. Brown and Ms. Jenkins were in the kitchen preparing food for everyone to eat. The men were in the living room. Mrs. Brown testified that, while in the kitchen, she looked into the living room, where she saw her husband sitting on an ottoman with his head in his hands. Defendant was standing to the back and side of Mr. Brown with the gun in his hand pointed at Mr. Brown. Mrs. Brown saw defendant’s lips move but could not hear what he said. She then heard the gun being fired, smelled burning flesh, and saw her husband fall over.

Ms. Jenkins testified that she witnessed the victim sitting on the ottoman with defendant standing behind him. The victim was mumbling something that she could not hear. She stepped outside to feed the cats, during which time she heard the gun go off. She came back inside and saw the victim fall over. According to Ms. Jenkins, the victim’s behavior that evening was obnoxious and loud. He was cursing at intervals and drinking alcohol throughout the night.

Immediately following the shooting, defendant left in his truck. He drove to the house of his ex-wife, Ms. Betty Sanders, in Marshville. Defendant asked Ms. Sanders to drive him in his truck to his uncle’s house in Rocking-ham. At approximately 2:45 a.m., Ms. Sanders and defendant were stopped in Rockingham by Officer Poston and Officer Grant of the Rockingham Police Department, which had been notified to be on the lookout for defendant. Officer Grant transported defendant to the Rockingham Police Department.

At the Police Department, after being advised of his constitutional rights, defendant spoke to Special Agent Tony Underwood of the State Bureau of Investigation (SBI) and Detective Bill Tucker of the Union County Sheriffs Department. Defendant told them that he shot Henry Brown because “he pissed me off’ and because “he called me a punk Indian son-of-a-bitch.” Defendant said that no one else had anything to do with the shooting. He said that he “meant to kill” the victim. He denied that alcohol had caused him to commit the murder. Defendant said that he had not planned to kill the victim. He did however say that he had to cock the gun in order to get it to shoot.

Detective Easley of the Union County Sheriffs Department examined the crime scene during the early morning hours of 2 January 1995. Detective Easley found the body of Henry Brown lying on the living room floor on its left side. Blood was coming from the victim’s nose and mouth and a hole in the back shoulder area. There was no weapon on or around the victim’s body. In the gun cabinet, Detective Easley found one Ithaca twelve-gauge pump shotgun which contained one spent Winchester “double aught” buckshot casing in the chamber. He also found one spent “double aught” buckshot shell outside on the ground about eleven inches from the front doorstep.

Michael Gavin of the forensic firearms and tool marks unit of the SBI laboratory tested the shotgun and found that the gun functioned properly. Gerald Long, owner of Long’s Sporting Goods and

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Pawn Shop, testified that he had experience in selling, firing, and repairing Ithaca twelve-gauge pump shotguns. He testified that, in his opinion, the Ithaca shotgun, in the hands of someone not experienced with it, would go off faster than any other shotgun on the market and is susceptible to accident.

State v. Strickland,

346 N.C. 443 , 488 S.E.2d 194 , 198 -199 (N.C.1997).

The jury returned a verdict of guilty of first-degree murder on the basis of premeditation and deliberation. At a separate capital sentencing proceeding, the jury found the aggravating circumstance that the defendant had previously been convicted of a felony involving the use or threat of violence to the person.

See

N.C. Gen.Stat. § 15A-2000(e)(3)(Supp.l994) (amended 1995). The jury did not find the existence of any mitigating circumstances. The jury recommended a sentence of death, and the trial court sentenced defendant accordingly.

PROCEDURAL HISTORY

Strickland filed a direct appeal to the North Carolina Supreme Court, which was denied.

State v. Strickland,

346 N.C. 443 , 488 S.E.2d 194 (N.C.1997). On January 20,1998, the United States Supreme Court denied Strickland’s Petition for Writ of Certiorari.

Strickland v. North Carolina,

522 U.S. 1078 , 118 S.Ct. 858 , 139 L.Ed.2d 757 (1998).

After the appointment of post-conviction counsel, Strickland filed a Motion for Appropriate Relief (hereinafter “MAR”) in the Superior Court of Union County on December 7, 1998. On March 23, 1999, he filed an amendment to the MAR. On September 20,1999, he filed a restated amendment to the MAR, and on December, 2, 1999, he filed a second amendment to the MAR. The State filed its Responses on November 21, 2000.

On May 21, 2001, an evidentiary hearing on Petitioner’s MAR was held in the Superior Court of Union County, William H. Helms, Judge Presiding. Petitioner was represented by post-conviction counsel, Lara Nichols and James N. Freeman, Jr. On June, 31, 2001, Judge Helms entered an Order denying Strickland’s MAR. On December 18, 2001, the North Carolina Supreme Court denied Strickland’s Petition for Writ of Certiorari.

State v. Strickland,

354 N.C. 579 , 559 S.E.2d 551 (N.C.2001).

On January 25, 2002, Strickland filed the instant Petition for Writ of Habeas Corpus (hereinafter “PWHC”). On April 17, 2002, Strickland filed a motion to voluntarily dismiss Claim No. XVI of the Petition, which this Court granted on April 26, 2002.

On July 12, 2002, Respondent filed an Answer and Motion for Summary Judgment. On July 25, 2002, Strickland filed a motion to strike Respondent’s Answer and for an order directing Respondent to file a new Answer specifically admitting or denying the allegations of each of the numbered paragraphs in the habeas petition and setting out affirmative defenses it intended to raise for each claim. On August 15, 2002, this Court entered an Order requiring Respondent to file a new Answer. On September 20, 2002, Respondent filed a new Answer and renewed the Motion for Summary Judgment.

On December 13, 2002, this Court entered an Order on its own motion putting Petitioner and Respondent on notice that it intended to raise the issue of procedural default

sua sponte.

By way of the same written Order, the Court instructed both parties to brief the issue of procedural default with regard to certain of Petitioner’s claims identified in the Order. On January 9, 2003, Petitioner filed a brief addressing the issue of procedural default.

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Respondent filed a brief on January 13, 2003. On October 15, 2003, Petitioner filed a supplement to his brief on procedural default.

Upon Petitioner’s motion, this matter was held in abeyance pending the outcome of

State v. Hunt,

(5A-86-8), which the North Carolina Supreme Court decided on July 16, 2003. 357 N.C. 257 , 582 S.E.2d 593 (2003). On November 5, 2003, Petitioner filed a Brief in Response to the Respondent’s Motion for Summary Judgment.

On October 24, 2004, Petitioner filed a motion to hold this matter in abeyance pending the United State Supreme Court’s decision in

Rompilla v. Horn,

No. 04-5462,

decided sub. nom. Rompilla v. Beard,

545 U.S. 374 , 125 S.Ct. 2456 , 162 L.Ed.2d 360 (2005). On January 27, 2005, Respondent filed a motion seeking to file additional authority in support of its Motion for Summary Judgment.

On June 14, 2005, this Court entered its second Order directing the parties to address the issue of procedural default with regard to additional claims raised in the instant Petition. Both parties filed their briefs on July 25, 2005. These matters are now ripe for review.

LEGAL STANDARDS

A. Standard of Review under The Anti-terrorism and Effective Death Penalty Act of 1996

For those of Strickland’s claims adjudicated on the merits by a North Carolina court, this court’s review is limited by the deferential standard of review set forth in The Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter “AED-PA”), 28 U.S.C. § 2254 , as interpreted by the Supreme Court in

Williams v. Taylor,

529 U.S. 362 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). This court may not grant federal habeas relief unless the North Carolina court’s adjudication of the claim “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254 (d)(1).

Williams ,

the Supreme Court described two ways in which a state court decision will be “contrary to” clearly established Federal precedent within the meaning of § 2254(d)(1).

Williams,

529 U.S. at 405-06 , 120 S.Ct. 1495 . A state court decision will fall under the “contrary to” clause if the state court “applies a rule that contradicts the governing law set forth in [the United States Supreme Court’s] cases” or “confronts a set of facts that are materially indistinguishable from a decision of [the United States Supreme Court] and nevertheless arrives at a result different from [its] precedent.”

Id.

In either of those scenarios, a Federal habeas court would be unconstrained by § 2254(d)(1) because the state court decision would fall within the § 2254(d)(1) “contrary to” clause.

Id.

at 406, 120 S.Ct. 1495 .

A state court decision involves an unreasonable application of clearly established law if the state court “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.”

Id.

at 407-08 , 120 S.Ct. 1495 . The Supreme Court also made it clear that an unreasonable application of federal law differs from an incorrect application of federal law.

Id.

at 410 , 120 S.Ct. 1495 . Thus, “under 2254(d)(l)’s ‘unreasonable application’ clause ... a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.”

Id.

at 411 , 120 S.Ct. 1495 .

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In deciding whether a state court’s application of clearly established federal law is unreasonable within the meaning of § 2254(d), a federal habeas court should ask whether the state court’s application of clearly established federal law was “objectively unreasonable.”

Williams,

529 U. S. at 409, 120 S.Ct. 1495 .

B. Summary Denial by State Courts

The North Carolina Supreme Court summarily denied most, if not all, of the claims Strickland raised as preservation issues on direct appeal. A summary denial constitutes an adjudication on the merits, and the deferential standard of review outlined in § 2254(d)(1) still applies.

See Bell v. Jarvis,

236 F.3d 149, 158 (4th Cir.2000) (citing

Wright v. Angelone,

151 F.3d 151, 156-57 (4th Cir.1998)). Therefore, in those cases where the State court summarily denied a claim, the Court will conduct an independent examination of the record and the clearly established Supreme Court law while still applying the deferential standard required by § 2254(d)(1).

See id.

(citing

Bacon v. Lee,

225 F.3d 470, 478 (4th Cir.2000)).

C. Harmless Error Analysis

If the Court finds that trial error rising to the level of a constitutional violation occurred, the error must then be evaluated under the standard articulated in

Brecht v. Abrahamson,

507 U.S. 619, 637-38 , 113 S.Ct. 1710, 1722 , 123 L.Ed.2d 353 (1993). Under the

Brecht

standard, a reviewing court must determine whether the constitutional error had a “substantial or injurious effect or influence in determining the jury’s verdict.”

Id.

at 637 , 113 S.Ct. 1710 (quoting

Kotteakos v. United States,

328

U.S. 750, 776, 66 S.Ct. 1239, 1253 , 90 L.Ed.1557 (1946)). The

Brecht

standard is rooted in the federal harmless-error statute, 28 U.S.C. § 2111 .

Brecht,

507 U.S. at 638 , 113 S.Ct. 1710 . Under the

Brecht

standard, “habeas petitioners obtain plenary review of constitutional claims”, but cannot receive habeas relief based on trial error unless they establish that the error resulted in “actual prejudice.”

Id.

(citing

United States v. Lane,

474 U.S. 438, 449 , 106 S.Ct. 725, 732 , 88 L.Ed.2d 814 (1986)).

PROCEDURALLY DEFAULTED CLAIMS

Ordinarily a federal habeas court will not review a claim that is procedurally defaulted, absent a showing of cause and prejudice or a fundamental miscarriage of justice to excuse the procedural default.

Fisher v. Angelone,

163 F.3d 835, 844 (4th Cir.1998) (citing

Coleman v. Thompson,

501 U.S. 722, 731-32 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991)) (holding that a claim dismissed on a state procedural rule is procedurally barred on federal habeas review). Generally, a claim will be defaulted if a state court has expressly found that review is barred by an adequate and independent state procedural rule,

see Ashe v. Styles,

39 F.3d 80, 85 (4th Cir.1994), or if the claim was not presented to all appropriate state courts and an adequate and independent state procedural rule would now bar review,

see Clagett v. Angelone,

209 F.3d 370, 378 (4th Cir.2000),

cert. denied

530 U.S. 1285 , 121 S.Ct. 1 , 147 L.Ed.2d 1026 (2000).

Procedural default is an affirmative defense that must be raised by the state if it is not to lose the right to assert the defense thereafter.

Gray v. Netherland,

*568

518 U.S. 152, 165-66 , 116 S.Ct. 2074, 2082 , 135 L.Ed.2d 457 (1996). In this case, Respondent has not asserted a procedural default defense to any of Strickland’s claims. However, the Fourth Circuit has held that a federal habeas court has the discretion to raise the issue of procedural default

sua sponte

despite a state’s failure to preserve or present the issue properly.

Yeatts v. Angelone,

166 F.3d 255, 261 (1999).

Both parties were notified in a December 13, 2002 Order that the Court might raise the issue of procedural default

sua sponte. See id.

at 262;

see also Hill v. Braxton,

277 F.3d 701, 705 (4th Cir.2002). As the Fourth Circuit noted in

Hill ,

“[ajctions brought pursuant to § 2254 implicate considerations of comity, federalism, and judicial efficiency to a degree not present in ordinary civil actions.” 277 F.3d at 705 . “These interests eclipse the immediate concerns of the parties and provide federal habeas courts the discretionary authority to raise affirmative defenses that have not been preserved by the state.”

Id.

(citing

Yeatts v. Angelone, supra,

166 F.3d at 261 ).

Under the circumstances presented in this case, the Court believes it is appropriate to address the issue of procedural default notwithstanding Respondent’s failure to assert that defense. First, the instances of procedural default are numerous. Second, to consider Petitioner’s unexhaust-ed claims would contravene the intent of Congress which mandated in the AEDPA that a petitioner exhaust state court remedies before seeking habeas review of con

*570

stitutional claims. Finally, federal habeas review would amount to a windfall for Petitioner. He would win plenary review of claims that he did not present to the North Carolina courts, whereas habeas petitioners who properly presented their claims to state courts first would be entitled only to the extremely narrow review mandated by section 2254(d).

DISCUSSION

CLAIM I A:

BRADY V. MARYLAND

CLAIMS

Prior to trial in this case, Gail Brown, the State’s key eye-witness, had three conversations with law enforcement officers in the days following the shooting of her husband, Henry Brown. None of the officers’ reports containing these conversations was turned over to petitioner’s trial counsel. During post-conviction discovery, the State turned over to Strickland’s post-conviction counsel: 1) the Incident/Investigation Report of Ted Keziah, the first officer to respond to the scene of the shooting (Pet. Exh.82); 2) a statement made by Gail Brown to SBI Special Agent Tony Underwood on January 2, 1995 (Pet.Exh.83); 3) a statement made by Gail Brown to Agent Underwood on February 7, 1995 (Pet. Exh.84); and 4) a typed synopsis of the ease made for the SBI by Agent Underwood on February 22, 1995 (Pet.Exh.88). Strickland asserts that those documents should have been turned over to his trial counsel under

Brady v. Maryland,

373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), because they contained exculpatory evidence, impeaching materials and prior inconsistent statements made by Gail Brown to investigators. Strickland claims that the prosecution’s failure to comply with

Brady

deprived him of his right to confront witnesses, to a reliable guilt phase and sentencing phase proceeding and to due process, in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

Brady v. Maryland,

the United States Supreme Court held that the prosecution deprives a criminal defendant of due process when it suppresses evidence that is “favorable to an accused ... where that evidence is material either to guilt or punishment....” 373 U.S. at 87 , 83 S.Ct. 1194 . There are three elements that Petitioner must establish in order to prove a

Brady

violation: (1) the evidence must be favorable to Petitioner, “either because it is exculpatory, or because it is impeaching”; (2) “that evidence must have been suppressed by the State, either willfully or inadvertently”; and (3) the evidence must be material,

i.e.,

“prejudice must have ensued.”

Strickler v. Greene,

527 U.S. 263, 282 , 119 S.Ct. 1936, 1948 , 144 L.Ed.2d 286 (1999). In order to establish the “prejudice” component, Petitioner must show that “there was a reasonable probability” that the result of the trial would have been different if the suppressed evidence had been disclosed to the defense.

Strickler,

527 U.S. at 263 , 119 S.Ct. 1936 . In other words, the question is whether “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”

Kyles v. Whitley,

514 U.S. 419, 435 , 115 S.Ct. 1555, 1566 , 131 L.Ed.2d 490 (1995).

1) Officer Keziah’s Incidentllnvestigation Report

(Pet.’s Exh. 82)

Officer Ted Keziah was the first law enforcement officer to talk to Gail Brown about what happened on the night of the

*571

shooting. Among other notations, his brief Incident/Investigation Report contains the following sentence: “Gale [sic] stated they were fixing them something to eat and Henry and Eugene were running there [sic] mouths at one another and Eugene Strickland got a shotgun out of the cabinet and shot Henry.” Strickland argues that Gail Brown’s comment that the two men were “running their mouths at one another” was exculpatory because it tended to negate the first-degree murder elements of premeditation and deliberation. Strickland argues further that this comment could have been used to impeach Gail Brown’s trial testimony that the two men were not arguing or fighting prior to the shooting.

Strickland raised this claim in his Restated Amendment to his MAR. (Pet. Exh. C, p. 6, ¶ 238(a)) The MAR court held that the State’s failure to disclose Gail Brown’s comment to Officer Keziah that Strickland and Henry Brown had been “running their mouths” at each other was not a violation of

Brady

because Gail Brown had made no mention to Officer Keziah that the two men were fighting or threatening each other. (MAR Order, Claim V, p. 17) Because the MAR court correctly identified the governing legal standard as that set forth in

Brady v. Maryland,

373 U.S. at 87 , 83 S.Ct. 1194 , this Court’s review is limited to the question of whether that court’s application of

Brady

was “objectively unreasonable.”

See Williams,

529 U.S. at 409 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 .

The MAR court’s determination that “running their mouths at each other” meant something other than “fighting or threatening each other” is a finding of fact. A finding of fact by a State court is presumed to be correct, and Petitioner bears the burden of rebutting that presumption “by clear and convincing evidence.” 28 U.S.C. § 2254 (e)(1).

Despite Strickland’s presumption that “running their mouths at each other” means arguing or fighting, the expression is ambiguous. It could mean arguing or fighting. It also could mean a kind of “one-upsmanship.” In fact, there was evidence from both Gail Brown and Sherry Jenkins Strickland

that the two men were engaging in “one-upsmanship” throughout the evening. Gail testified that Strickland, Henry and Sherry were joking around about the shotgun and telling each other they should get the gun and shoot each other. (Tpp 968-69) Sherry testified that on a few occasions during the evening, Strickland and Henry discussed “whipping each other’s tails,” and “who was the baddest.” (Tp 1235) Detective Bill Tucker, who interviewed Sherry in the aftermath of the shooting, testified on rebuttal for the State that Sherry had told him that the two would then “hug and laugh,” and that she never took what they were saying seriously. (Tp 1332) During the MAR evi-dentiary hearing, Sherry even equated running their mouths at each other with “one-upsmanship”:

Prosecutor:

And you told Mr. Crow that they were discussing whipping each others tails, who was the baddest, back and forth?

Mrs. Strickland:

That’s at the very beginning of the night when they first came in.

Prosecutor:

So they were just running their mouths at each other?

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Mrs. Strickland:

In the very beginning, yes.

(MAR Tp 101)

Contrary to Petitioner’s assertion that the shooting occurred “after hours of verbal arguing” (PWHC ¶284), no one who testified at trial used the words “arguing,” “fighting” or “threatening” to describe Strickland and Henry Brown’s behavior toward one another. Although Sherry testified that Henry was “[o]bnoxious at times, very loud” (Tp 1252) and that she was nervous “that he might start an argument that would end up being a serious conflict” (Tp 1236), she did not testify that she witnessed or heard any argument take place. She did not describe the men as arguing, yelling at each other, or even raising their voices at each other. Nor did she testify that the men appeared angry at one another. In fact, Detective Tucker testified that Sherry told him that the two men had been “picking and joking” with each other all night and that she “never heard anyone threaten the other.” (Tp 1332)

Significantly, both Gail Brown

and

Sherry Strickland testified that they could not hear what the two men were saying to each other in the minutes before the shooting. For some period of time before the shooting, both women were in the kitchen cleaning the table and heating up food, while Strickland and Henry were in the living room. The kitchen of the trailer home in which the Stricklands lived was separated from the living room by a counter top/bar, not a wall. (Pet. Exh. 83; Tp 972) That arrangement allowed someone in the kitchen to see what was going on in the living room and

vice versa.

(Pet. Exh. 83, Tp 972) In fact, Gail testified that she witnessed the shooting as she was standing in the kitchen looking into the living room. (Tpp 972-73) As noted earlier, Gail testified at trial that she could not hear what the two men were saying before the shooting. This is consistent with Sherry’s version of events. Sherry, who was in the kitchen with Gail, told Detective Tucker that when she and Gail were in the kitchen, Strickland and Henry were in the living room “just talking” but that she and Gail could not hear what they were saying. (Tp 1332) Sherry testified that as she headed to the door to take a plate of scraps to the cats outside, she saw Henry mumbling something but could not hear what he was saying. (Tp 1260) She testified further that she was outside for “five seconds at the most, if that long” when she heard the shot. (Tp 1249) If the two men were arguing, they were quiet enough about it that Sherry could not hear them.

Petitioner has failed to show by clear and convincing evidence that the MAR court’s finding was incorrect. 28 U.S.C. § 2254 (e)(1). There was ample evidence to support the state court’s determination that “running their mouths at each other” meant something other than arguing and fighting.

Under the MAR court’s finding, which this Court must accept as correct, Gail Brown’s remark to Officer Keziah was neither exculpatory nor impeaching. The MAR court’s holding that Officer Keziah’s report was not

Brady

material was not an unreasonable application of established Federal law.

Williams v. Taylor,

529 U.S. at 410 , 120 S.Ct. 1495 .

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2) Gail Brown’s January 2, 1995 Statement to Agent Underwood (Pet.Exh.83)

Gail Brown was interviewed by SBI Special Agent Tony Underwood on January 2, 1995. (Pet.Exh.83) Strickland claims that this statement should have been turned over to his trial counsel under

Brady v. Maryland

because it contained exculpatory evidence, impeaching materials and inconsistent statements. 373 U.S. at 87 , 83 S.Ct. 1194 . However, this claim is procedurally defaulted because Petitioner failed to fairly present it to all appropriate state courts, and it would be procedurally barred in the state courts if he attempted to raise it now.

See Clagett v. Angelone,

209 F.3d at 378 .

Petitioner raised a

Brady

claim concerning Exhibit 83 for the first time as Claim V C(l) in his Restated Amendment to the MAR. (Pet.Exh. C) In her January 2, 1995 statement, Gail told Agent Underwood that her husband had assaulted her in the past. (Pet.Exh. C, p. 6, ¶ 238(b)) Petitioner asserted that this was exculpatory evidence that should have been disclosed to him pursuant to

Brady .

This was the only portion of the January 2, 1995 statement alleged in the MAR to be

Brady

material. However, during the MAR hearing, post-conviction counsel identified three additional portions of the January 2, 1995 statement that they argued should have been disclosed to defense counsel under

Brady .

Specifically, Gail told Agent Underwood, 1) that she had told her husband on several occasions on the night of the murder that she wanted to leave the Stricklands’ home; 2) that the two men did not use drugs on the night of the murder; and 3) that she could not hear what the two men were saying prior to the shooting, but they were not arguing or yelling. (MAR Tpp. 39-41)

After the MAR court denied all of the claims raised in his MAR, Petitioner filed a Petition for Writ of Certiorari to the North Carolina Supreme Court seeking discretionary review of the MAR court’s Order. (Pet.Exh.E) In Claim I of his Petition for Writ of Certiorari, Petitioner states only that the January 2, 1995 statement (Pet. Exh.83) was “relevant, material and favorable to Petitioner,” because it “contradicted important parts of Gail Brown’s trial testimony” and that it should have been turned over to trial counsel under

Brady .

(Pet. Exh. E, pp 8-9) However, Petitioner failed to identify for the North Carolina Supreme Court’s

any

portion of the January 2, 1995 statement that he believed was either exculpatory or that impeached Gail’s testimony.

In order to fully exhaust a claim in the state courts, a petitioner must fairly present his claim to the state’s highest court.

See Matthews v. Evatt,

105 F.3d 907, 911 (4th Cir.1997). “Fair presentation” requires that a petitioner present “both the operative facts and the ‘controlling legal principles’ ” underlying the claim.

Id.

(citations omitted). While it is clear that Petitioner cited the controlling legal principles, he did not present the North Carolina Supreme Court with the operative facts to support a claim that the January 2, 1995 statement (Pet.Exh.83) should have been disclosed under

Brady .

Petitioner argues that he fairly presented a

Brady

claim with regard to the Janu

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ary 2, 1995 statement (Pet.Exh.83) when he referred to the statement in the body of the Petition for Writ of Certiorari, argued that it was relevant, material and favorable to Petitioner because it “contradicted important parts of Gail Brown’s trial testimony,” and attached copies of the statement, the MAR, the MAR hearing transcript and portions of the trial transcript to the Petition. Petitioner argues that “fair presentation” of a claim requires nothing more.

As this Court understands Petitioner’s argument, if the North Carolina Supreme Court wanted to determine what claim was being raised, all it had to do was read the MAR, the MAR hearing transcript and Gail’s trial testimony and compare those documents to her six (6) page January 2, 1995 statement to determine which portions of it Petitioner might consider exculpatory or impeaching evidence. However, the flaw in this argument becomes apparent when one considers the

Brady

claim raised in the instant Petition for Writ of Habeas Corpus.

In the instant Petition, Petitioner alleges that in addition to the four portions of the January 2, 1995 statement identified in the MAR and MAR hearing transcript as

Brady

material,

six

additional portions of the January 2, 1995 statement are exculpatory or impeaching evidence under

Brady .

Under Petitioner’s “fair presentation” argument, the state Supreme Court should have recognized that these additional portions were part of the

Brady

claim raised in the Petition for Writ of Certiorari even though it would have found no reference to them anywhere in the Petition or in the attached documents

except

in the January 2, 1995 statement. Taking Petitioner’s argument to its logical conclusion, all that is required then to fairly present a

Brady

claim is a general reference to a document and the document itself because the state court on its own is capable of reading that document and determining for itself what the petitioner considers to be exculpatory and/or impeaching.

Such a reading of the “fair presentation” requirement cannot be supported. It is not the state court’s responsibility to determine for itself what claim is being raised.

Instead, “fair presentation” of a

*575

claim requires that a petitioner present the state courts not only with his “legal theory as to why his constitutional rights have been violated, but also the factual predicate on which the legal theory rests.”

See Landano v. Rafferty,

897 F.2d 661, 670 (3rd Cir.1990).

In this case, Petitioner failed to identify for the North Carolina Supreme Court any portion of Gail’s January 2, 1995 statement that allegedly was either exculpatory or impeaching. As such, Petitioner failed to present the “operative facts” or “factual predicate” of a

Brady

claim with regard to the January 2, 1995 statement (Pet. Exh.83). Therefore, Petitioner failed to exhaust his

Brady

claim with regard to the January 2, 1995 statement to Agent Underwood (Pet.Exh.83). Furthermore, Petitioner would be barred in the State courts from bringing this claim if he attempted to do so now.

See

N.C. Gen.Stat. § 15A-1419(a); N.C. R.App. P. 21.

Petitioner has failed to demonstrate cause and prejudice to excuse his failure to fairly present this claim to the North Carolina Supreme Court. Furthermore, he has failed to show that a fundamental miscarriage of justice would occur if the Court refused to address this claim on the merits. Therefore, this claim is procedurally defaulted.

See Fisher v. Angelone,

163 F.3d at 844.

3) Gail Brown’s February 7, 1995 Statement to Agent Underwood (Pet.Exh.84)

Strickland argues that Gail Brown’s February 7, 1995 statement (hereinafter “February statement”) to Agent Underwood QPet.Exh.84) contains evidence supporting his defense at trial that the shooting was an accident. Gail told Agent Underwood that she called Sherry after the shooting to ask her about rumors that she had been hearing. Gail informed Agent Underwood that her brother-in-law, James Massey, had told her that “Squeaky” was saying that the gun had gone off by accident.

The MAR court denied this claim on the merits and held that it was procedurally barred by N.C. Gen.Stat. § 15A-1419(a)(2) because Strickland had raised the substance of the claim on direct appeal.

Because the MAR court invoked a state

res judicata

rule in declining to review this claim, the relevant decision for federal ha-beas purposes is that of the North Carolina Supreme Court on direct review.

See Goins v. Angelone,

226 F.3d 312, 320 (4th Cir.2000)

abrogated on other grounds by, Bell v. Jarvis,

236 F.3d 149 (4th Cir.

*576

2000);

Ramdass v. Angelone,

187 F.3d 396, 402 (4th Cir.1999).

The record shows that during pre-trial discovery, the State disclosed to defense counsel that Strickland had told an individual that the gun had gone off by accident, but the State did not disclose James Massey’s name or the fact that the information was given by Gail to Agent Underwood. (Pet. Exh. 34, Attachment: Substance of Oral Statements made by defendant Darrell Eugene Strickland) Trial counsel made several motions to require the State to disclose the name of the person to whom Petitioner had said that the gun had gone off accidently, but the trial court ruled that the State had complied with the statutory discovery procedure by providing Strickland with the substance of all oral statements made by him.

On direct appeal, Petitioner claimed error on the part of both the State and the trial court and argued that pursuant to

Brady v. Maryland,

he was entitled to the name of the person to whom he allegedly had stated that the gun had gone off acci-dently. (Defendant-Appellant’s Brief to the North Carolina Supreme Court (Pet. Exhibit A), Issue VI, pp. 65-69) The North Carolina Supreme Court rejected Petitioner’s

Brady

claim on the merits.

State v. Strickland,

488 S.E.2d at 201-202 . Of paramount importance to the court was the fact that Strickland was aware of the substance of the statement and that it was made by him.

See id.

at 202. The court held that Strickland “is presumed to know to whom he spoke about the murder.”

Id.

Additionally, the court concluded that the substance of the statement was not material because the overwhelming evidence presented at trial showed that Strickland shot Henry Brown intentionally.

See id.

Therefore, the court determined that it was not reasonably probable that the outcome of the trial would have been different had the prosecution disclosed the name of the individual to whom Strickland allegedly spoke.

See id.

In determining whether the North Carolina Supreme court’s adjudication of Petitioner’s

Brady

claim was “objectively unreasonable,”

see Williams,

529 U.S. at 409 , 120 S.Ct. 1495 , this Court need not reach the issue of materiality.

Brady

“does not compel the disclosure of evidence available to the defendant from other sources, including diligent investigation by the defense.”

Stockton v. Murray,

41 F.3d 920, 927 (4th Cir.1994) (citing

United States v. Wilson,

901 F.2d 378, 380 (4th Cir.1990)). If evidence available to the defendant from other sources falls outside of

Brady

then, by extension, evidence actually known to the defendant also must fall outside the

Brady

rule.

See Fullwood v. Lee,

290 F.3d 663, 686 (4th Cir.2002). In

Fullwood ,

the prosecution failed to disclose an oral statement Fullwood had made to a detective in which he admitted killing the victim but claimed he had been using cocaine and had lost control.

Id.

at 685 . Fullwood argued that this statement was material under

Brady

because it would have afforded him a diminished capacity defense and mitigated his crime from first to second-degree murder. The Fourth Circuit held that the State did not suppress the information that came out during the conversation between Fullwood and the detective because “Fullwood, better than anyone, knew about his cocaine use on the night prior to the stabbing and knew that he had recounted this fact to Detective Robinson.”

Id.

at 686.

The State disclosed that Strickland had told at least one person that the shooting was an accident. Strickland is presumed to know, better than anyone, to whom he spoke about the shooting.

See id.

Petitioner cannot show that the State suppressed evidence that he had told

*577

someone that the gun went off accidently.

See Strickler v. Greene, supra,

527 U.S. at 282 , 119 S.Ct. 1936 . Therefore, the North Carolina Supreme Court’s conclusion that

Brady

did not require disclosure of the name of the person to whom Strickland allegedly stated that the gun had gone off accidently was not an unreasonable application of established Federal law.

See

§ 2254(d)(1).

In the instant Petition, Strickland also argues that there was evidence in Gail Brown’s February statement that she herself was a suspect, thereby giving her a motive to lie. Gail told Agent Underwood that “there was not a conspiracy between her, Sherry Jenkins, and ‘Squeaky’ to kill Henry,” and that she was willing to submit to a polygraph examination at the Union County Sheriffs Department. (Pet. Exh.84) Petitioner raised this portion of his

Brady

claim in state court by way of his Restated Amendment to the MAR (p. 7, ¶ 238(c)) and during the MAR hearing (MAR Tpp 26; 39-41).

The MAR court did not address this portion of Petitioner’s claim; therefore, this Court’s review is

de novo.

Petitioner fails to articulate how or why this information was either exculpatory or impeaching evidence. It certainly is not exculpatory because any evidence of a conspiracy between Gail, Sherry and Petitioner would put Petitioner’s shooting of Henry Brown squarely and unquestionably in the category of first-degree murder. Nor is it clear how this evidence impeaches any of Gail’s testimony. For example, Petitioner fails to put forth any argument explaining what Gail would have been motivated to lie about if she was viewed as suspect. While it can be argued that the implication that Gail Brown might have been a suspect in the murder could have caused the jury to question her credibility, that still does not undermine the Court’s confidence in the jury’s verdict.

See Strickler v. Greene,

527 U.S. at 282 , 119 S.Ct. 1936 .

As the North Carolina Supreme Court and the MAR court noted, evidence against Strickland was “overwhelming.”

Strickland,

488 S.E.2d at 202 . Undermining Gail Brown’s credibility does not call into question that Strickland shot Henry Brown in the back while Brown was seated. Sherry Strickland testified that after the shot, Henry fell sideways off the ottoman on which he was seated (Tpp 1248-49), and the medical examiner determined that Henry was shot in the back by someone standing over him while Henry was seated and slouched forward. (Tp 1081) Undermining Gail Brown’s credibility does not change Strickland’s statements to the police that he had shot Henry because

*578

Henry had “pissed him off,” had called him a “punk-ass Indian son-of-a-bitch,” and that he “meant to kill him.” (Tp 1210) Nor does it undermine Strickland’s statement to law enforcement that he stood close to Henry when he shot him because he didn’t want to miss him, and that he had to cock the gun to get it to shoot. (Tp 1210)

The jury was given instructions for First-Degree Murder, Second-Degree Murder, Voluntary Manslaughter and Involuntary Manslaughter. Among the evidence before it, the jury had the manner in which Henry had been shot, as well as Sherry’s testimony of obnoxious, offensive behavior by Henry and Strickland’s explanation to police that he shot Henry because Henry had used a racial slur. The jury also heard evidence that both men had been drinking and using drugs in the hours before the shooting. In fact, the jury heard that Henry’s blood alcohol content was .18 at the time of the shooting. (Tp 1080) The jury returned a verdict of First Degree Murder. This Court cannot say that undermining or completely discrediting Gail Brown’s testimony would have “put the whole case in such a different light as to undermine confidence in the verdict.”

Kyles v. Whitley,

514 U.S. at 435 , 115 S.Ct. 1555 . The MAR court’s holding that the State’s failure to disclose Gail Brown’s February 7, 1995 statement (Pet.Exh.84) was not prejudicial to Strickland’s trial was not an unreasonable application of established Federal law.

Penalty Phase

This Court likewise finds that Strickland’s claim that the State’s failure to disclose Officer Keziah’s report (Pet.Exh.82) and Gail Brown’s February statement (Pet.Exh.84) prejudiced the outcome of his sentencing to be without merit.

Strickland argues that he raised this claim in his Restated Amendment to the Motion for Appropriate Relief, and that the MAR court failed to address it on the merits.

Therefore, Strickland argues, this Court must review the claim

de novo.

The Court notes that to the extent that the MAR court did not address the

Brady

issue as it applied to the penalty phase, the blame can hardly be laid at the feet of the court. First, it is less than clear that Strickland raised this

Brady

claim during his collateral attack.

Second, the MAR court asked post-conviction counsel several times if Petitioner’s

Brady

claim applied

only

to the guilt/innoeence phase, and each time the answer was in the affirmative.

However, giving Peti

*579

tioner the benefit of the doubt about whether he fairly presented a

Brady

claim relating to the penalty phase of the trial, this Court finds that the State’s failure to disclose Officer Keziah’s report and Gail Brown’s February statement (Pet.Exh.84) did not violate the requirements of

Brady v. Maryland

as it is applied at sentencing.

As an initial matter, this Court is not required to review Petitioner’s claim

de novo

because, for the most part, the MAR court’s analysis of Petitioner’s

Brady

claims applies equally to the guilt/innocence and the sentencing phases of the trial. The MAR court made a factual finding that Gail Brown’s remark to Officer Keziah that the two men were “running their mouths at each other” meant something other than arguing or fighting. Therefore, the remark was neither exculpatory nor impeaching evidence, and the State was not required to disclose it under

Brady,

373 U.S. at 87 , 83 S.Ct. 1194 . The MAR court’s finding of fact applies equally to the guilt/innocence and penalty phases of the trial. In other words, “running their mouths at each other” would not have meant one thing at the trial and something else at sentencing. Thus, if the remark was not exculpatory or impeaching evidence for the purposes of the trial, it was not exculpatory or impeaching evidence for the purposes of the sentencing proceeding.

With regard to Gail Brown’s February statement, the MAR court concluded that Gail’s revelation to Agent Underwood that James Massey had told her that Strickland was saying that the gun had gone off by accident was not suppressed by the State because the identity of the man to whom Strickland spoke about the shooting was available from other sources, including Strickland himself.

(MAR Order, p. 18) Although this conclusion addressed Petitioner’s claim regarding the guilt/innocence portion of the trial, it applies equally to the penalty phase.

See Fullwood,

290 F.3d at 686 ;

Stockton,

41 F.3d at 927 . In this case, whether the State suppressed the evidence is not dependent upon which phase of the trial is at issue; either the State suppressed the evidence or it did not, and in this case, it did not. If the State did not suppress the evidence, there is no

Brady

violation.

See Strickler v. Greene,

527 U.S. at 282 , 119 S.Ct. 1936 .

All that remains for the Court to address, then, is Petitioner’s assertion that Gail’s February statement (Pet.Exh.88) contained evidence that she herself was a suspect. As noted previously, Petitioner fails to articulate how or why this information was either exculpatory or impeaching evidence. Nor does he indicate how this information was material to his case at sentencing. The Court notes that Gail did not testify at the sentencing phase of the trial. However, assuming as before that this information raises an issue with regard to Gail’s credibility, the Court concludes that the State’s failure to disclose this information did not prejudice the outcome of the penalty phase of the trial.

See id.

During the penalty phase, the State offered one aggravating circumstance — that Strickland previously had been convicted of a felony involving the use of violence to the person.

See

§ 15A-2000(e)(3). Jurors

*580

heard evidence that Strickland had been convicted of voluntary manslaughter for shooting a man outside a bar. Jurors also heard evidence that Strickland had been convicted of assault with a deadly weapon inflicting serious injury for cutting a man down the back with a knife. Jurors unanimously found as an aggravating circumstance that Strickland previously had been convicted of a felony involving the use of violence to the person. The jury did not find any mitigating circumstances.

Undermining Gail Brown’s credibility would not have called into question or impacted the strength of the State’s aggravating factor. Furthermore, in addition to the evidence of Strickland’s prior acts of violence against others, the jury had all of the evidence from the trial to consider. The jury heard evidence that Strickland got up from a seated position, walked past Henry Brown to his gun cabinet, opened it, took out the shotgun and cocked it. Then, because he did not want to miss, he stood at close range behind Henry Brown and shot him in the back as he sat slouched forward with his coat over his knees. The jury also heard Petitioner’s confession to Agent Underwood that he had shot Henry because Henry had “pissed him off’ by calling him a “punk-ass Indian son-of-a-biteh.” (Tp 1210) Additionally, Sherry Strickland testified that she saw Henry’s lips moving as she passed through the living room seconds before the shooting. While the jury easily could have concluded that Henry Brown said something to anger Petitioner, the uncontroverted evidence showed that from the time Strickland stood up until the time he shot Henry Brown, Brown did not stand up or turn around. Thus, there was no evidence that the two men were involved in any kind of physical confrontation at the time that Petitioner shot Henry in the back. The jury heard this evidence from witnesses other than Gail Brown.

The fact that Gail Brown might have been a suspect, however briefly, does not “put the whole case in such a different light as to undermine confidence” in the sentence.

Kyles v. Whitley,

514 U.S. at 435 , 115 S.Ct. 1555 . Therefore, the State’s failure to disclose Gail Brown’s February 7, 1995 statement to Agent Underwood (Pet.Exh.84) was not a violation of

Brady,

373 U.S. at 87 , 83 S.Ct. 1194 .

CLAIM IB:

NAPUE V. ILLINOIS

CLAIMS

1) Officer Keziah’s Report (Pet. Exh.82)

Petitioner claims that Gail Brown testified untruthfully at trial and that the prosecution knew she testified untruthfully but failed to correct her false testimony in violation of

Napue v. Illinois,

360 U.S. 264, 269 , 79 S.Ct. 1173 , 3 L.Ed.2d 1217 (1959). Specifically, Petitioner alleges that Gail’s trial testimony that Strickland and Henry Brown did not argue or fight on the night of the shooting was false in light of her comment to Officer Keziah that the two men were “running their mouths at each other” before the shooting. (Pet. Exh. 82; 88) Petitioner claims that the State’s failure to correct Gail’s false evidence deprived him of his Sixth, Eighth and Fourteenth Amendment rights.

Napue v. Illinois,

the U.S. Supreme Court held that under the due process clause of the 14th Amendment, a State may not knowingly use false evidence to obtain a conviction. 360 U.S. 264, 269 , 79 S.Ct. 1173, 1177 , 3 L.Ed.2d 1217 (1959) (citations omitted). This applies equally to situations where the State deliberately elicits false testimony and where the State, although not soliciting false evidence, allows it to go uncorrected.

Id.

(citations omitted). Nor does the rule “cease to apply merely because the false testimony

*581

goes only to the credibility of the witness,” rather than directly to the guilt of the defendant.

Id.

However,

Napue

and its progeny do not automatically require a new trial whenever “a combing of the prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict....”

Giglio v. U.S.,

405 U.S. 150, 154 , 92 S.Ct. 763, 766 , 31 L.Ed.2d 104 (1972); (citing

U.S. v. Keogh,

391 F.2d 138, 148 (2nd Cir.1968)). Instead, a new trial is warranted if “the false testimony could ... in any reasonable likelihood have affected the judgment of the jury....”

Napue,

360 U.S. at 271 , 79 S.Ct. at 1178 .

The MAR court found Strickland’s false evidence claim to be without merit for the same reason it rejected Strickland’s

Brady

claim with regard to Exhibit 82. In its adjudication of Petitioner’s

Brady

claim, the court made a factual finding that Gail’s use of the term “running their mouths at each other” did not mean that the two men were arguing or fighting. Therefore, the court concluded that Gail’s testimony that there was no arguing or fighting between the two men did not contradict her comment to Officer Keziah that Strickland and Henry Brown were “running their mouths” at each other. There being no contradiction between her testimony and her comment to Officer Keziah, the court concluded there was no

Napue

violation. Because the MAR court correctly identified the governing legal standard as that set forth in

Napue v. Illinois,

360 U.S. at 269 , 79 S.Ct. 1173 , this Court’s review is limited to the question of whether that court’s application of

Napue

was “objectively unreasonable.”

See Williams,

529 U.S. at 409 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 .

For the reasons articulated in the section of this Order addressing Strickland’s

Brady

claim with regard to Exhibit 82, this Court concludes that the MAR court’s holding with regard to this claim was not an unreasonable application of clearly established Federal law.

See

§ 2254(d). As previously noted, “running their mouths at each other” is an ambiguous expression. There is ample evidence in the record to support the MAR court’s determination that the expression meant something other than arguing or fighting.

Although he does not put forth any argument regarding how he was prejudiced at sentencing, Petitioner does cite the Eighth Amendment in this claim, thereby implying that he is raising a claim regarding sentencing. As explained in the previous section of this Order, the MAR court’s holding in this claim applies equally to the trial and sentencing proceedings. If Gail Brown’s testimony was not false at the trial, it also would not have been false at sentencing. Therefore, to the extent that Petitioner is raising a

Napue

claim with regard to sentencing, the MAR court’s adjudication of this claim was not an unreasonable application of clearly established Federal law.

See

§ 2254(d)(1).

2) Gail Brown’s January 2, 1995 Statement to Agent Underwood (Pet.Exh.83)

Petitioner alleges that Gail Brown’s trial testimony contradicted a number of things she told Agent Underwood during her January 2, 1995 interview (Pet.Exh.83) and that the prosecution knew she testified untruthfully but failed to correct her false testimony in violation of

Napue ,

360 U.S.

*582

at 269, 79 S.Ct. 1173 . Specifically, Petitioner alleges that Gail Brown’s testimony contradicted the following comments that she made in her January 2, 1995 statement:

Henry Brown and Strickland were talking but she could not hear what they were saying. They were not arguing or yelling.

She had been trying to get her husband to leave on and off all evening because she did not want to spend the night at someone else’s house.

To her knowledge, Henry and Strickland were drinking gin but were not using drugs.

Henry was shot in the right side of his body.

Henry and Strickland have used marijuana together in the past but they were not using it on the night of the shooting. She did not think Henry had any drugs on him.

(PWHC, pp. 77-78

citing

Pet. Exh. 83)

Petitioner complains that the MAR court failed to address his

Napue

claim with respect to the January 2, 1995 statement (Pet.Exh.83).

The MAR court did not address this claim for the very simple reason that Petitioner failed to fairly present a

Napue

claim with regard to the January 2,1995 statement.

In Claim V C(2) of his Second Amendment to his MAR, Petitioner stated the following:

[A]s more fully set out above in Defendant’s Restated Amendment in Paragraphs 247 through 254, the failure of the State to correct the false evidence offered by Ms. Brown at trial as evidenced by Exhibits 80, 82, 83, 84, 88 and 89, violated Mr. Strickland’s rights under

Napue v. Illinois,

360 U.S. 264 , 79 S.Ct. 1173 , 3 L.Ed.2d 1217 (1959), the Eighth and Fourteenth Amendments to the United States Constitution and Article I §§ 19 and 27 of the North Carolina Constitution.

(Pet.Exh.D, ¶ 281) A review of paragraphs 247-254 of Petitioner’s Restated Amendment to the MAR reveals that the only “false evidence” allegation in those paragraphs refers to the comment Gail Brown made to Officer Keziah (Pet. Exh.82) that Henry Brown and Strickland were “running their mouths at each other.”

In his July 25, 2005 brief on procedural default, Petitioner acknowledges that he did not raise a

Napue

claim with regard to Gail Brown’s January 2, 1995 statement anywhere in his MAR pleadings. However, he argues that he supplemented his pleadings during the MAR hearing by referring to

Napue v. Illinois

in conjunction with his arguments on his

Brady

claims. Even if the Court was to accept Petitioner’s argument that this was sufficient to “fairly present” a

Napue

claim with regard to the January 2, 1995 statement,

such an argument would apply only to Gail Brown’s statements that she had been trying to get her husband to leave off and on all eve

*583

ning; that the two men were drinking but not using drags on the night of the murder; and that the two men were not arguing or fighting before the shooting because those were the only portions of the January 2, 1995 statement identified as

Brady

material by post-conviction counsel during the MAR hearing. (MAR Tr. pp. 39-41)

Regardless, Petitioner did not fairly present a

Napue

claim with regard to any portion of the January 2, 1995 statement (Pet.Exh.83) in his Petition for Writ of Certiorari to the North Carolina Supreme Court, a fact which Petitioner acknowledges. (July 25, 2005 Brief on Proc. Dflt.) Indeed, Claim II of the Petition for Writ of Certiorari makes no mention whatsoever of Gail Brown’s January 2, 1995 statement to Agent Underwood (Pet.Exh.83). (Pet. Exh.E, pp. 10-11) The only allegation of “false evidence” in Claim II involves Gail Brown’s comment to Officer Keziah (Pet. Exh.82) that Henry Brown and Strickland were “running their mouths at each other.” Thus, Petitioner failed to present the North Carolina Supreme Court with the “operative facts” or “controlling legal principles” of a

Napue

claim with regard to the January 2, 1995 statement (Pet.Exh.83).

See Matthews v. Evatt,

105 F.3d at 911 .

Petitioner’s

Napue

claim as it applies to the January 2, 1995 statement (Pet. Exh.83) has not been exhausted in the State courts. Furthermore, Petitioner would be barred in the State courts from bringing this claim if he attempted to do so now.

See

N.C. Gen.Stat. § 15A-1419(a); N.C. R.App. P. 21.

Petitioner has failed to demonstrate cause and prejudice to excuse his failure to fairly present this claim to the North Carolina courts. Furthermore, he has failed to show that a fundamental miscarriage of justice would occur if the Court refused to address this claim on the merits. In fact, Petitioner acknowledges that this claim was not exhausted and is procedurally barred in this Court. (July 25, 2005 Brief on Proc. Dflt., p. 16) Therefore, Petitioner’s

Napue

claim with regard to Gail Brown’s January 2, 1995 statement to Agent Underwood is procedurally defaulted.

See Fisher v. Angelone,

163 F.3d at 844.

3) Gail Brown’s February 7, 1995 Statement to Agent Underwood (Pet.Exh.84)

Petitioner has not raised a Napue claim in the instant Petition with regard to Gail Brown’s February statement to Agent Underwood (Pet.Exh.84).

CLAIM II: INEFFECTIVE ASSISTANCE OF COUNSEL AT GUILT/INNOCENCE PHASE

Petitioner claims that trial counsel were ineffective at the guilt/innocence phase of the trial for failing to question Gail Brown about statements she allegedly made to Sherry Strickland indicating that she did not actually see the shooting and that she was being pressured by Henry Brown’s family not to testify in a way that would benefit Petitioner. Petitioner claims that trial counsel’s failure to cross-examine Gail on these two points violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution.

Petitioner raised this claim in his MAR (Claim A 2(a)) and in his Petition for Writ of Certiorari to the North Carolina Su

*584

preme Court (Claim V). The MAR court denied the claim on the merits. (MAR Order p. 5-7) Because the MIAR court correctly identified the governing legal standard as that set forth in

Strickland v. Washington,

466 U.S. 668, 687-88 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), this Court’s review is limited to the question of whether that court’s application of

Strickland

was “objectively unreasonable.”

See Williams,

529 U.S. at 409 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 .

The

Strickland

court articulated a two-pronged test to determine whether “counsel’s assistance was so defective as to require reversal of a conviction or death sentence.” 466 U.S. at 686-87 , 104 S.Ct. 2052 . Petitioner must first show that counsel’s representation was deficient and must next show that counsel’s errors prejudiced the defense so seriously “as to deprive the Defendant of a fair trial, a trial whose result is reliable.”

Id.

at 687 , 104 S.Ct. 2052 . “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial can not be relied on as having produced a just result.”

at 686, 104 S.Ct. 2052 .

Under the

Strickland

standard of review for determining whether trial counsel’s performance was deficient, this court’s scrutiny of trial counsel’s performance must be highly deferential.

Id.

The test is not whether petitioner’s new lawyers, with the benefit of hindsight, would have acted differently, but whether “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Strickland,

466 U.S. at 687 , 104 S.Ct. at 2064 . “ ‘Deficient performance’ is not merely below-average performance; rather, the attorney’s actions must fall below the wide range of professionally competent performance.”

Griffin v. Warden,

970 F.2d 1355, 1357 (4th Cir.1992).

Even if a court concludes that counsel’s performance was deficient, the court may not set aside a verdict or sentence if the error “had no effect on the judgment.”

Strickland,

466 U.S. at 691 , 104 S.Ct. at 2066 . “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.”

Id.

at 693 , 104 S.Ct. 2052 . Instead, the claimant must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Id.

at 694 , 104 S.Ct. 2052 . A reasonable probability is “a probability sufficient to undermine confidence in the outcome.”

Id.

During the MAR hearing, Sherry Strickland testified that prior to trial she told Petitioner’s trial attorney, Harry Crow, that when she stepped back inside the trailer immediately after the shooting, she heard Gail asking, “What happened? What happened?” (MAR Tp 98) Additionally, Sherry testified that a few weeks before trial she met Gail for dinner and that they talked about what Gail would say at trial. (MAR Tp 99) According to Sherry, “[Gail] didn’t know what happened.” (MAR Tp 99) Sherry also testified that Gail told her that she was afraid of Henry-Brown’s family and that, “[t]hey were kind of threatening her to not even sit near [Petitioner] in the courtroom,.... So that she wouldn’t seem like she was trying to help him in any way.” (MAR Tp 100). The MAR court admitted all of this hearsay evidence, not for its truth, but solely for the purpose of showing that Sherry had told attorney Crow about the conversation she had with Gail.

(MAR Tpp 98-99)

*585

For his part, Harry Crow testified at the MAR hearing that he recalled Sherry telling him prior to trial that Gail had told her that she did not see what had happened the night of the shooting. (MAR Tp 47) He also testified that he recalled Sherry telling him that, “Gail had told her she was fearful that Mr. Brown’s family might do something to her if she testified for the defendant.” (MAR Tp 47) Mr. Crow did not — nor was he asked to — explain why he did not question either Gail or Sherry at trial about Gail’s statements to Sherry.

The MAR court held that counsel’s failure to question Gail at trial regarding these two issues was not ineffective. (MAR Order p. 6) The court stated that Crow properly cross-examined Gail at trial. The court also held that even if counsel’s performance was deficient, it was not prejudicial because “the record reflects that Gail Brown testified at trial that she did not see defendant shoot her husband, but that she observed the victim fall over after she heard the gunshot.” (MAR Order p. 7)

As noted previously, a finding of fact by a state court is presumptively correct absent clear and convincing evidence to the contrary. § 2254(e)(1). In this matter, the MAR court’s finding that Gail Brown testified at trial that she did not see Petitioner shoot her husband is clearly erroneous.

See id.

The record reflects that Gail testified that she

did

see Petitioner shoot her husband. Under direct examination, Gail testified that she was in the kitchen and that when she turned around to face the living room she saw her husband sitting on an ottoman with his head in his hands. (Tp 974) Petitioner was standing to “the back side” of her husband. (Tp 974) Petitioner was pointing a shotgun at her husband. (Tp 974) She could not hear what Petitioner was saying but could see his lips moving. (Tp 974) “Then it was just boom, you know. It was over just as quick as I turned around and looked.” (Tpp 974-75) When asked what she saw happen when the gun fired, Gail responded that she smelled burning flesh and saw her husband fall over. (Tp 975) On cross-examination, Gail testified that from the kitchen, she could see Petitioner’s lips moving right before he shot her husband but could not hear what he was saying from that distance. (Tp 1004)

Gail Brown’s trial testimony was that she was looking at Petitioner and her husband when the shooting occurred. Thus, the MAR court’s determination that Petitioner was not prejudiced because Gail did not testify that she saw the shooting was based upon an unreasonable determination of the facts in light of the evidence.

See

§ 2254(d)(2). However, Petitioner is not entitled to relief. The MAR court’s ultimate conclusion that there was no prejudice was not unreasonable under

Strickland.

During Petitioner’s trial, Sherry Strickland testified on direct examination that when she reentered the trailer after hearing the gunshot, Gail was looking out of the kitchen window, not into the living room where the shooting took place. Sherry testified that Gail then turned around and “hollered,” “What happened?” (Tp 1249) Thus, the jury heard evidence that contradicted Gail’s testimony that she was looking at the two men when Petitioner shot the victim. However, even if the jury questioned Gail’s credibility based on Sherry’s testimony, the independent evidence of Petitioner’s guilt was overwhelming. The uncontroverted evidence shows that as Sherry went towards the door of the trailer home, Henry was seated on the ottoman looking straight ahead, and Petitioner was walking beside the ottoman. (Tp 1248) Sherry was outside for “five

*586

seconds at the most, if that long” when she heard the shot. (Tp 1249) As she stepped back in the trailer she saw “Henry ... sitting on the edge of the ottoman and he was falling over to his left.” (Tp 1249) She testified that when she glanced back up at Strickland, he was shutting the case where the gun was kept. (Tp 1250)

It is clear from Sherry’s testimony that Henry had not moved from his seated position on the ottoman between the time she stepped out of the trailer and the time that he was shot. Sherry also testified that on her way out, she saw Henry mumbling something but could not hear what he was saying. (Tp 1260) The medical examiner testified that Henry was shot in the back by someone standing over him while Henry was seated and slouched forward. (Tp 1081)

Whether Gail actually saw the shooting or whether she was pressured to testify in a way that did not favor Petitioner would not have influenced how the jury viewed Strickland’s own damning statements to law enforcement. Strickland told Agent Underwood and Detective Tucker that he had shot Henry because Henry had “pissed him off,” had called him a “punk-ass Indian son-of-a-biteh,” and that he (Strickland) had “meant to kill him.” (Tp 1210) Strickland also told them that he stood close to Henry when he shot him because he didn’t want to miss him, and that he had to cock the gun to get it to shoot. (Tp 1210) When asked if Henry had a gun or knife on him, Strickland responded, “Not that I know of.” (Tp 1209)

Based upon the overwhelming evidence of guilt that either corroborated Gail’s testimony or existed separate and apart from her testimony, the Court concludes that Petitioner was not prejudiced by trial counsel’s failure to cross-examine Gail Brown about whether she actually saw the shooting or whether she had been threatened by the victim’s family not to testify in a way that was favorable to Petitioner. Therefore, the MAR court’s rejection of this ineffective assistance of counsel (hereinafter sometimes “IAC”) claim was not an unreasonable application of established Federal law.

See

§ 2254(d)(1).

Penalty Phase

At one point in his presentation of this claim, Petitioner cites the Eighth Amendment. Later, he asserts that counsel’s failure to cross-examine Gail Brown during the guilt/innocence phase regarding whether she in fact witnessed the shooting of the victim and whether the victim’s family was pressuring her to testify a certain way prejudiced the outcome of the sentencing phase of his trial. To the extent that Petitioner is raising an IAC claim alleging prejudice at sentencing when counsel failed to cross-examine Gail Brown during the guilt/ innocence phase of the trial, such a claim is procedurally barred on federal habeas review.

It does not appear that Petitioner fairly presented an IAC claim to the MAR court alleging that he was prejudiced at sentencing by counsel’s failure to cross-examine Gail Brown at the guilt/innoeence phase of the trial.

As Petitioner acknowledges in the instant Petition, “[t]his claim was raised in the MAR, as an ineffective assis

*587

tance of counsel during the guilt phase issue.” (PWHC, p. 87, ¶ 372,

citing

Pet. Exh. B,

Motion for Appropriate Relief,

¶ 198(a)) A review of the MAR indicates that Petitioner raised his IAC claim under the heading “Ineffective Assistance of Counsel during Guilt Phase,” argued only that the outcome of the

trial

would have been different but for counsel’s ineffectiveness, and sought only vacation of his

conviction

and a new

trial.

(Pet. Exh. B, Claim V A(2), pp. 54; 56 ¶200; 59 ¶ 211) Nowhere does Petitioner argue that he was prejudiced at sentencing by counsel’s failure to cross-examine Gail during the guilt phase of the trial about her conversation with Sherry and her fear of the victim’s family.

Furthermore, Petitioner raised a number of IAC claims in the MAR under the heading “Ineffective Assistance of Counsel during Sentencing Phase” in which he argued that but for counsels’ errors the outcome of the

sentencing hearing

would have been different and in which he sought vacation of his

sentence of death

and a new

sentencing hearing.

Petitioner does not raise a claim under this section alleging that he was prejudiced by counsels’ failure to cross-examine Gail at the guilt phase of the trial about her conversation with Sherry and her fear of the victim’s family. By way of contrast, Petitioner’s claim that counsel were ineffective for failing to inform their mental health expert of Gail and Sherry’s trial testimony regarding Petitioner’s alcohol and drug consumption appears under

both

IAC sections in the MAR. (Pet. Exh. B, p. 55 ¶ 198(b) and p. 60 ¶ 214(d), respectively). Thus, had Petitioner intended to raise an IAC claim that he was prejudiced at sentencing by counsels’ failure to cross-examine Gail during the guilt phase of the trial, he would have raised the claim in both IAC sections of his MAR.

The fact that Petitioner arguably did raise a claim in his Petition for Writ of Certiorari to the North Carolina Supreme Court that he was prejudiced at sentencing by counsels’ failure to cross-examine Gail does not cure his failure to raise the same claim before the MAR court. The rule of exhaustion requires that the substance of the claim be fairly presented to

all

appropriate courts.

See O’Sullivan v. Boerckel,

526 U.S. 838, 845 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (1999). A defendant cannot satisfy the exhaustion requirement by presenting a claim to the state’s highest court in a petition for discretionary review after failing to raise the claim in prior proceedings.

See Castille v. Peoples,

489 U.S. 346, 351 , 109 S.Ct. 1056 , 103 L.Ed.2d 380 (1989);

see also, Lovitt v. True,

403 F.3d 171, 179 (4th Cir.2005) (Because “capital sentencing proceedings do not set at naught the basic principle of attorney-client relations: namely that counsel ... remain in the end the agents of the one most intimately affected,” counsel were not ineffective for incorporating their client’s wishes into their professional judgment). As it was, counsel did elicit testimony through Dr. Worthen about Petitioner’s interest and pride in his Native American heritage, a subject that apparently was not off-limits.

Counsel also attempted — unsuccessfully— to turn Petitioner’s refusal to mount a mitigation defense into a form of mitigation by requesting the court to submit to the jury the non-statutory mitigating circumstance that “defendant feels that he owes it to his children and his people to refuse any kind of mitigating defense and instead to be a good strong Indian.”

See State v. Strickland,

488 S.E.2d at 207 .

Petitioner counters that counsel intended to elicit evidence from Dr. Worthen about the mental and developmental history contained in the Dorothea Dix and But-ner records and that counsel’s failure to do so was because he did not lay the proper foundation for its admission, not because of any decision by Petitioner. While the Court is inclined to agree that counsel’s examination of Dr. Worthen was inept,

*601

the record does not indicate that Goodwin intended to violate Petitioner’s restrictions by questioning Dr. Worthen about Strickland’s developmental and mental health history. (MAR Tp 89) Dr. Worthen had indicated in his October 22, 1995 letter that he could testify about Petitioner’s history of substance abuse, which arguably falls outside Petitioner’s mitigating evidence restrictions.

There is nothing in the record to suggest that Goodwin was attempting to elicit anything other than that when he began to question Dr. Worth-en about the Butner records, which, the Court notes, cover Petitioner’s voluntary commitment for substance abuse treatment in 1994. For the foregoing reasons, the MAR court’s conclusion that counsel were not deficient in their preparation and presentation of a mitigating defense was not “objectively unreasonable.” See § 2254(d)(1).

Furthermore, even if counsel’s conduct could be considered deficient, Petitioner has failed to show that but for counsels’ ineffectiveness, he would have been entitled to jury instructions on the (f)(2) or (f)(6) mitigating circumstances. More importantly, he has failed to show that the mitigating evidence contained in his mental health records outweighs the aggravating evidence in this case.

See Wiggins v. Smith,

539 U.S. 510, 534 , 123 S.Ct. 2527, 2542 , 156 L.Ed.2d 471 (2003). He, therefore, is unable to show that he was prejudiced under

Strickland. See id.

Under North Carolina law, a trial court must submit only those statutory mitigating circumstances that are supported by substantial evidence.

See State v. Chandler,

342 N.C. 742 , 467 S.E.2d 636, 644 , cert.

denied,

519 U.S. 875 , 117 S.Ct. 196 , 136 L.Ed.2d 133 (1996). In considering when the (f)(2) mitigating circumstance may be submitted, the North Carolina Supreme Court has stated that “the central question is a defendant’s mental and emotional state

at the time of the crime.” State v. Gainey,

355 N.C. 73 , 558 S.E.2d 463, 482 (N.C.2002) (citations omitted) (emphasis added). At the MAR hearing, Dr. Worthen testified that based on the medical records he had before trial and the medical records he received from post-conviction counsel, it was his professional opinion “to a reasonable degree of professional certainty, [that] a person with [Petitioner’s] background, developmental and mental health history, would — there’s a good likelihood that he would have been under the influence of a mental or emotional disorder at the time of the crime to some extent.” (MAR Tpp 138-39). The Court does not find this testimony credible.

In his October 22, 1995 letter to trial counsel, Dr. Worthen stated that the Dorothea Dix and Butner records indicate that Petitioner has a history of alcohol and drug abuse and a history of becoming violent when drinking. (State’s PWHC Exhibit D; State’s MAR Exhibit 6) However, Dr. Worthen also informed trial counsel that,

Because

Mr. Strickland did not permit me to conduct a thorough evaluation I

*602

would not be able to state with a reasonable degree of professional certainty

whether or not he suffers from any of the above disorders or others ...;

to what extent he may meet the statutory mitigating circumstances in capital sentencing cases;

or any pertinent information about his development or life circumstances, other than what has been listed in this letter.

(State’s PWHC Exhibit D; State’s MAR Exhibit 6) (emphasis added) It is clear from Dr. Worthen’s letter that his inability to render an opinion regarding whether Strickland met any statutory mitigating circumstances was not because he lacked sufficient records or documentation; it was because Strickland refused to allow him to conduct a full psychological evaluation. (MAR Tpp 145-46) There was no evidence presented at the MAR hearing that Strickland had submitted to a full psychological evaluation by Dr. Worthen since the imposition of his sentence. In the absence of such evidence, this Court is unconvinced by Dr. Worthen’s testimony six years after Petitioner’s trial that access to additional medical records would have enabled him to render an opinion regarding mitigating circumstances.

Having discounted Dr. Worthen’s MAR opinion testimony, the Court is left with a fact pattern similar to that found in

State v. Gainey.

558 S.E.2d at 482 . In

Gainey ,

the defendant’s expert witness, a clinical psychologist, testified that the defendant had a chronic mild depressive condition, a mixed personality disorder with paranoid and schizoid features and a learning disorder. 558 S.E.2d at 482 . Nevertheless, the trial court refused to submit the (f)(2) mitigating factor to the jury. On appeal the defendant contended that the expert’s testimony regarding his low intelligence and mental illness was sufficient to link his mental and emotional state to the time of the murder. The North Carolina Supreme Court disagreed. The court noted that the expert, a Doctor Noble, admitted that his findings were in doubt because the defendant made a conscious decision not to participate in the evaluation, and Dr. Noble was unable to perform all of his standard tests. Dr. Noble did not testify that it was his opinion that the murder was committed while the defendant was under the influence of any mental or emotional disturbance. In fact, he testified that because of the defendant’s failure to cooperate in the evaluations, he did not have enough information to provide an opinion as to the defendant’s state of mind at the time of the murder. The court found that the evidence defendant presented was not sufficient to warrant submission of the (f)(2) mitigating circumstance.

Gainey, 558

S.E.2d at 482.

Like Gainey, Petitioner refused to permit Dr. Worthen to conduct a thorough evaluation. (State’s PWHC Exhibit D; State’s MAR Exhibit 6) As a result, Dr. Worthen, like Dr. Noble, was unable to state with a reasonable degree of professional certainty that Petitioner suffered from any of the disorders diagnosed by medical personnel at Dorothea Dix and Butner. (State’s PWHC Exhibit D; State’s MAR Exhibit 6) Nor was there evidence offered at the MAR hearing that

*603

Dr. Worthen was able to state with a reasonable degree of professional certainty that Petitioner suffered from any of the disorders diagnosed by medical personnel at the Hamlet and Sandhills facilities. (MAR Tpp 149-50) Also like Dr. Noble, Dr. Worthen was unable to give an opinion as to whether the murder was committed while Petitioner was under the influence of any mental or emotional disturbance. (State’s PWHC Exhibit D; State’s MAR Exhibit 6) Thus, Petitioner has failed to show that the trial court would have been required to submit the (f)(2) mitigating circumstance to the jury had Dr. Worthen had the opportunity to testify regarding the mental health and developmental history contained in the Dorothea Dix, Butner, Hamlet and Sandhills records.

Gainey,

558 S.E.2d at 482 (“The evidence defendant submitted was not sufficient to warrant the trial court’s submitting the (f)(2) mitigating circumstance.”).

Even if the Court was to credit Dr. Worthen’s MAR testimony that additional records were sufficient to enable him to render an opinion regarding mitigating circumstances, Dr. Worthen’s opinion testimony on the

(f)(2)

factor was tentative, at best. Dr. Worthen did not testify that it was his professional opinion that Petitioner

was

under the influence of a mental or emotional disturbance; he testified that there was “a good likelihood” that he was under the influence of a mental or emotional disturbance “to some extent.” (MAR Tpp 138-39) Furthermore, when Dr. Worthen was informed that after the murder Petitioner told law enforcement officers that alcohol consumption may have caused Henry Brown to run his mouth and get himself killed and that he meant to kill Brown because Brown called him a “punk Indian son-of-a-bitch,” Dr. Worthen stated he was no longer comfortable with the opinion he had given regarding Petitioner’s mental and emotional state at the time of the murder. (MAR Tpp 149, 150-151) Dr. Worthen stated that he would be more tentative about his opinion. (MAR Tp 151) For the foregoing reasons, Petitioner’s claim that he was prejudiced by counsel’s failure to discover evidence that would have secured submission of the 15A-2000(f)(2) mitigating circumstance is without merit.

The MAR court did address Petitioner’s argument that had Dr. Worthen had access to the additional medical records and Gail Brown and Sherry Strickland’s testimony about alcohol and drug use on the night of the murder, Dr. Worthen’s subsequent testimony would have warranted submission of the (f)(6) mitigating circumstance. At the MAR hearing, Dr. Worth-en testified that based on the medical records he had before trial and the medical records he received from post-conviction counsel, it was his professional opinion,

to a reasonable degree of professional certainty, a person with [Petitioner’s] background who had consumed as much as was reported by [Gail Brown and Sherry Jenkins] most likely would have been impaired as to ability to appreciate the criminality of his actions, most likely would have been impaired at least to some extent.

(MAR Tp 137)

The United States Supreme Court has held that a sentencer “may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence.”

Buchanan v. Angelone,

522 U.S. 269, 276 , 118 S.Ct. 757, 761 , 139 L.Ed.2d 702 (1998) (citations omitted). However, as long as a state’s capital sentencing scheme permits the defendant to present all relevant mitigating evidence and does not preclude the sentencing jury from considering that evidence, the state is

*604

free to shape and structure the manner in which a jury may consider mitigating evidence.

See Kansas v. Marsh,

— U.S. -, 126 S.Ct. 2516, 2523 , 165 L.Ed.2d 429 , (2006) (citations omitted). To the extent that statutory mitigating circumstances are used “to shape and structure the jury’s consideration of mitigation” in a state capital sentencing scheme, they are creatures of state law.

See Buchanan,

522 U.S. at 275-76 , 118 S.Ct. 757 (no constitutional requirement that trial court issue instructions on particular mitigating factors). Because there is no constitutional requirement that mitigating evidence be submitted in the form of statutory mitigating circumstances, whether a defendant is entitled to submission of a particular statutory mitigating circumstance is governed by state law.

The MAR court concluded that Petitioner would not have been entitled to submission of the (f)(6) mitigating factor even if Dr. Worthen had known of Gail Brown and Sherry Strickland’s testimony regarding alcohol and drug consumption on the night of the murder because Petitioner had told Dr. Worthen that he had consumed about six beers and three whisky drinks but that he was not out of control.

Citing

State v. Golphin,

352 N.C. 364 , 533 S.E.2d 168 (2000), the MAR court stated that the (f)(6) mitigating circumstance is not available where a defendant was in control of his actions.

A state court’s decision on a question of state law is binding in federal court.

See Roach v. Angelone,

176 F.3d 210, 217 (4th Cir.1999);

Wright v. Angelone,

151 F.3d 151, 158 (4th Cir.1998). As such, the MAR court’s conclusion that Petitioner would not have been entitled to submission of the (f)(6) mitigator based upon Dr. Worthen’s testimony at the MAR hearing is not subject to review by this Court.

See Estelle v. McGuire,

502 U.S. 62, 68 , 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991) (A federal habeas court’s review is “limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”). Because Petitioner could not have been prejudiced by counsels’ failure to secure a statutory mitigating circumstance to which he was not entitled under state law, Petitioner’s claim that counsel were ineffective for failing to secure the (f)(6) mitigator is without merit.

The Court now turns to the issue of whether Petitioner was prejudiced by trial counsel’s failure to discover and present evidence from his mental health, substance abuse, and school records that might have warranted submission of non-statutory mitigating circumstances at sentencing. The United States Supreme Court has held that the only way to determine whether a defendant was prejudiced by his counsel’s failure to offer certain mitigating evidence at sentencing is to reweigh the aggravating evidence against

all

of the mitigating evidence adduced both at trial and in the post-conviction proceedings.

See Wiggins,

539 U.S. at 534 , 123 S.Ct. at 2542 . The MAR court rejected almost all of Petitioner’s IAC claims under the first prong of

Strickland.

The court did not address the broader issue of whether counsels’ failure to present evidence from the mental health and substance abuse records was ineffective, separate and apart from whether that evidence would have supported specific statutory mitigating circumstances. Because the MAR court did

*605

not analyze Petitioner’s claims under the prejudice prong of

Strickland,

the Court is unconstrained by the deferential standard of § 2254(d)(1).

See id.

Like trial counsel before them, post-conviction counsel did not elicit testimony about Petitioner’s “life history,” his “developmental and mental health history,” “mitigating evidence from his childhood,” or “his state of mind in the past” (Brief in Resp. to Resp.’s Mot. For Sum. Judgmt., p. 57) from Dr. Worthen, or any other witness at the MAR hearing. All post-conviction counsel presented was two tentative opinions from Dr. Worthen on mitigating circumstances and Petitioner’s school and mental health and substance abuse records.

While Petitioner repeatedly criticizes trial counsel for failing to gather Petitioner’s school records, he fails to point to any mitigating evidence contained in them. In fact, Petitioner has failed to put forth any argument as to their significance at all.

Additionally, by failing to elicit testimony from Dr. Worthen regarding the significance of the information in Petitioner’s mental health and substance abuse records, post-conviction counsel has left it to the Court to determine for itself what might be considered “mitigating” evidence in those records. By having presented his evidence in such a way, Petitioner also has exposed the Court to the wealth of aggravating evidence contained in the records.

Indeed, the aggravating evidence in this case was overwhelming. Not only could the jury consider the evidence of Petitioner’s two prior convictions for violent felonies, it also could consider evidence presented during the guilt/innocence phase of the trial.

See

§ 15A-2000(a)(3).

As already noted, the prosecution submitted one aggravating factor for the jury’s consideration — that the defendant had been previously convicted of a felony involving the use or threat of violence to the person.

See

§ 15A-2000(e)(3). To support this aggravating factor, the prosecution presented evidence that Petitioner had been convicted of voluntary manslaughter for shooting Derrick Skipper in 1993 and convicted of assault with a deadly weapon inflicting serious injury on Todd Kendall in 1994. To prove Petitioner was convicted of the 1993 shooting, the prosecution read to the sentencing jury the indictment, the verdict, and the judgment in that case. The State’s evidence showed that Petitioner was indicted for murder but was found guilty by a jury of voluntary manslaughter. That was all of the evidence that the prosecution relied upon to prove that conviction.

For its part, trial counsel called Officer James Clemmons who testified that a gun with four spent rounds was found at the scene of the shooting and that witnesses had reported to him that it had been in Derrick Skipper’s possession. (Tp 1484) From this the jury could infer that Skipper was armed at the time of the shooting and that the gun had been fired.

However, evidence that the victim in the 1993 shooting may have shot at and even wounded Petitioner would not have mitigated the fact that Strickland shot Skipper

*606

“several times, including firing the gun while standing directly over Mr. Skipper after he had fallen in the street.”

State v. Strickland,

488 S.E.2d at 205 . Furthermore, such evidence would have done nothing to mitigate the damaging evidence that the State introduced to prove Petitioner’s other previous felony conviction involving the use or threat of violence — the stabbing of Todd Kendall. The State’s evidence showed that Kendall was unarmed and that Petitioner attempted to slash Kendall across the stomach with a knife. When Kendall turned and attempted to run, Petitioner slashed him down the back, opening him from shoulder to belt. Kendall’s wife testified that when she saw the wound she was certain her husband was dead and that it took over 800 stitches to repair his back. She also testified that after he cut her husband, Petitioner attempted to run him over with his truck. When arrested for the murder of Henry Brown, Petitioner bragged to law enforcement officers about cutting Todd Kendall. (Tp 1455)

Petitioner’s mental health and substance abuse records, likewise, are of questionable mitigating value. In fact, the information in the medical records speaks more to aggravation than to mitigation.

The records indicate that Petitioner was raised in a two-parent household by his mother and step-father. He denied any physical or sexual abuse by his parents but reported severe physical fighting between himself and his two half-brothers. During one altercation when he was in the sixth grade, he cut one of his brothers. He attended school through the tenth grade and got his GED while in a youth offenders camp. His school records show he was an average student. He started drinking around nine or ten years of age (fourth grade), when an alcoholic uncle got him drunk and sent him to school intoxicated. He reported that he started getting out of control in the seventh grade and started having legal troubles. He was sent to youth offenders camps when he was 17 years old and again when he was 19 years old for larceny and assault. It was there that he began using marijuana and LSD.

The records indicate that beginning in 1993, after the Derrick Skipper shooting, Petitioner had multiple commitments and diagnoses of alcohol dependence and behavioral and mental disorders. In October, 1993, three months after he killed Skipper, Petitioner was admitted to Dorothea Dix after he threatened to kill himself. He was diagnosed as having alcohol dependence and antisocial personality disorder. (Pet. Exhibit 104)

On March 16, 1994, he was admitted to Hamlet Hospital/Sandhills Medical Clinic for homicidal ideation and alcohol abuse. He had been drinking and had decided to get even with an enemy of his. While in the process of collecting his guns, he became sick due to drinking while on Anta-buse and his enemy got away before Petitioner could harm him. After drinking for several more days, he checked himself into the hospital stating that he needed treatment for his alcoholism and that he was fearful that he might harm someone. Petitioner’s attending physician made the following observations subsequent to a mental status examination: “[Petitioner] admits to recent homicidal ideation, but states that he is glad at this point that he did not end up harming someone and possibly getting himself in further trouble .... He comes from an environment which seems to be extremely violent and has a history of violent acts himself with frequent gun fights.”

Petitioner was re

*607

leased two days later with a diagnosis of alcohol dependence and paranoid personality disorder. (Pet. Exhibit 106)

On April 4, 1994, Petitioner was admitted to Butner for treatment for his alcohol dependence. He reported that he “has a severe alcohol problem and he becomes extremely violent to the point that he is shooting at people and tearing up things.” Petitioner remained in treatment until April 18, 1994, when he received a three-day pass to attend his biological father’s funeral. He did not return to complete his treatment. His discharge diagnosis was alcohol dependence and psychotic disorder. (Pet. Exhibit 105)

On May 16, 1994, Petitioner was referred to Dorothea Dix on an involuntary commitment because of depression and suicidal thoughts while awaiting trial for killing Derrick Skipper. During this commitment he tested positive for marijuana. He was discharged seven days later with a diagnosis of major depressive episode, alcohol abuse and antisocial personality disorder. (Pet. Exhibit 104)

On February 23, 1995, Petitioner was committed to Dorothea Dix for an evaluation of his capacity to proceed to trial for the murder of Henry Brown. He was diagnosed with antisocial personality disorder and alcohol dependence.

The psychiatrist who evaluated Petitioner determined that he was capable of proceeding to trial and that he did not have a mental disease or defect which would have prevented him from understanding the difference between right and wrong at the time of the alleged offense. (Pet.Exh.104)

There is nothing in these records that would have led the jury to conclude anything other than that Petitioner is an extremely dangerous and violent person, who becomes even more violent when he is under the influence of drugs or alcohol. It is not reasonably probable that the jury would have been swayed toward a life sentence by the knowledge that Petitioner had had multiple commitments for alcohol dependence and homicidal or suicidal episodes and was therefore on notice that he had the tendency to become violent when under the influence of alcohol and drugs. In fact, it is more likely that the jury would have concluded that Petitioner was acting in conformity with previous behavior when, after voluntarily consuming alcohol and drugs, he shot Henry Brown in the back over a racial slur.

Furthermore, Petitioner’s own medical expert’s testimony was limited by Petitioner’s refusal to allow a complete evaluation. Prior to trial, Petitioner had had five separate commitments and had been diagnosed with three different disorders. As Dr. Worthen explained in his pre-trial letter to counsel, he was unable to confirm that Petitioner suffered from

any

mental disorder because of Petitioner’s refusal to cooperate with an evaluation. (Def. Exh. D; MAR Exh, 6) Additionally, any opinion that Dr. Worthen could have given regarding Petitioner’s mental state on the night of the murder would have been, by his own admission, tentative at best. The Court finds it significant that at the MAR hearing, there was no testimony that Petitioner actually suffered from a mental disorder at the time of the shooting.

Finally, the aggravating evidence from the guilt/innocence portion of the trial was overwhelming. The uncontroverted evidence shows that Petitioner shot Henry

*608

Brown, who Petitioner had no reason to believe was armed (Tp 1209), in the back while Brown was seated. Additionally, the jury heard Petitioner’s own damning statements about the murder. Petitioner told Agent Underwood and Detective Tucker that he had shot Henry because Henry had “pissed him off,” had called him a “punk-ass Indian son-of-a-bitch,” and that he “meant to kill him.” (Tp 1210) Strickland also told them that he stood close to Henry when he shot him because he didn’t want to miss him, and that he had to cock the gun to get it to shoot. (Tp 1210) From this evidence, it was reasonable for the jury to conclude that Petitioner was angry but not out of control when he shot Brown, and that there was nothing interfering with Petitioner’s capacity to understand his actions and their implications.

For the foregoing reasons, Petitioner has failed to show that he was prejudiced by trial counsel’s failure to discover some medical records or their failure to present mitigating evidence contained in those records.

See Wiggins,

539 U.S. at 534 , 123 S.Ct. at 2542 . Petitioner’s claims of ineffective assistance of counsel at sentencing are denied.

CLAIM V: JURY SELECTION ISSUES

A: Restriction of Jury Voir Dire Concerning Juror Note

Petitioner claims that the trial court’s refusal to permit him to question prospective jurors about their submission of a note to the trial court deprived him of his Sixth, Eighth and Fourteenth Amendment rights. In the note submitted at the conclusion of the first day of jury selection, one or more prospective jurors asked whether “the Defendant keep[s] his notes about jury and names.” (Pet.Exh.47) When trial counsel attempted to question prospective jurors about the note, the Court sustained the State’s objections. (Tp 384) The trial court then conducted a bench conference, at which “[t]he court heard arguments from both sides concerning the admissibility of the note and at the conclusion of that sustained the State’s objection to the questions pertaining to the note, which were asked by the defendant.” (Tpp 397-98) Consequently, Petitioner argues, the trial court unduly restricted the scope of his questioning and prohibited him from obtaining information about any biases or preconceived fears held by prospective jurors.

Petitioner raised his Sixth and Fourteenth Amendment claims on direct appeal before the North Carolina Supreme Court as Issue No. I in the Defendant-Appellant’s Brief. (Pet.Exh.A) The North Carolina Supreme Court found that the trial court permitted Petitioner to question prospective jurors in detail about any biases they may have had against him, and that the trial court, therefore, did not abuse its discretion in limiting Petitioner’s questions concerning the circumstances that gave rise to the prospective jurors’ note.

See State v. Strickland,

346 N.C. 443 , 488 S.E.2d 194, 200 (1997). The North Carolina Supreme Court’s rejection of this claim was not contrary to or an unreason

*609

able application of established Federal law. § 2254(d).

The Sixth and Fourteenth Amendments “guarantee[] a defendant on trial for his life the right to an impartial jury.”

Morgan v. Illinois,

504 U.S. 719, 728 , 112 S.Ct. 2222, 2229 , 119 L.Ed.2d 492 (1992). Voir dire plays an essential role in guaranteeing a criminal defendant’s right to an impartial jury.

See Rosales-Lopez v. United States,

451 U.S. 182, 188 , 101 S.Ct. 1629 , 68 L.Ed.2d 22 (1981) (plurality opinion). Voir dire “enablfes] the court to select an impartial jury and assist[s] counsel in exercising peremptory challenges.”

Mu’Min v. Virginia,

500 U.S. 415, 431 , 111 S.Ct. 1899, 1908 , 114 L.Ed.2d 493 (1991).

How the voir dire is conducted, however, is committed to the sound discretion of the trial court.

See Ristaino v. Ross,

424 U.S. 589, 594 , 96 S.Ct. 1017, 1020 , 47 L.Ed.2d 258 (1976). Accordingly, the Supreme Court generally has declined to dictate the form and content of voir dire questions.

See Mu’Min,

500 U.S. at 425 , 111 S.Ct. at 1905 (questions about the content of publicity to which jurors were exposed was not constitutionally required). Instead, the issue is one of fairness.

See Morgan,

504 U.S. at 730 , 112 S.Ct. 2222 (citing

Aldridge v. United States,

283 U.S. 308, 310 , 51 S.Ct. 470, 471-72 , 75 L.Ed. 1054 (1931)). In other words, in order for certain questions, or a certain line of questioning, to be constitutionally compelled, “it is not enough that such questions might be helpful. Rather, the trial court’s failure to ask these questions must render the defendant’s trial fundamentally unfair.”

Mu’Min,

500 U.S. at 425-26 , 111 S.Ct. at 1905 (citing

Murphy v. Florida,

421 U.S. 794, 799 , 95 S.Ct. 2031, 2036 , 44 L.Ed.2d 589 (1975)).

The trial court and the attorneys for the defense conducted an extensive voir dire. Prospective jurors were questioned in detail regarding sources of potential bias against Petitioner. Prospective jurors were asked whether they knew Petitioner, the victim, the attorneys, or any of the potential witnesses in the trial. They were asked about any relationship they or family members had with law enforcement. They were asked whether they or any family members had been victims of a crime and about any experiences they had had serving on a jury. They were asked repeatedly by the defense about any exposure they may have had to pre-trial publicity:

“Before today had any of you heard anything at all about the case?” (Tp 344)

“Those of you who did hear something about it or read about it, uh, did you form an opinion at that time, whether you still have it or not, but did you form an opinion at that time about the guilt or innocence of the person that you read about in the paper at that time?” (Tpp 346, 388)

“Have you been present when you heard anybody else discussed any aspect of the case?” (Tp 347)

They were asked a similar question by the trial court, “Can each of you who read something about this case, lay aside whatever you may have read about this matter and decide this case solely based upon the evidence which is introduced at this trial?” (Tpp 380-81)

After the trial court sustained the state’s objection to questions regarding the note, trial counsel asked a number of questions regarding any discussions jurors may have had amongst themselves:

“Have you discussed any aspect of this case with any other jurors up until now?” (Tp 383)

“Was there any discussion of the case among any of you as you waited while

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we were going through the jury selection process for the others to come in the jury room?”

Id.

“We went through a process where each were questioned individually about the death penalty aspect and the rest of you waited in the jury room. Was there any discussion among those that waited in the jury- room about that that you recall?”

Id.

The trial court allowed the defense to ask, over the state’s objection, whether Petitioner’s race would be a factor: “My client is an American Indian. Uh, do any of you feel like that that [sic] might have any impact on how you would see this case?” (Tp 383)

The voir dire allowed by the trial court was sufficient to probe the prospective jurors for bias and partiality. Therefore, the trial court’s refusal to allow Petitioner to question jurors about the note did not render his trial fundamentally unfair. The North Carolina Supreme Court’s decision was neither contrary to nor an unreasonable application of clearly established Federal law.

See

§ 2254(d)(1).

B: Jurors Removed as a Result of Reservations About the Death Penalty

During jury selection, the State challenged for cause prospective jurors Kathy Privette, Judy Frick and Donna Kierce based on their responses to its questions regarding the death penalty. The trial court granted the State’s challenges and excused the jurors for cause. Petitioner claims that these jurors were improperly excused for cause and that as a result he was denied his Sixth, Eighth and Fourteenth Amendment rights to a fair and impartial jury comprised of a fair cross-section of the community, his right to be free from cruel and unusual punishment, and his right to due process of law.

The North Carolina Supreme Court denied this claim in summary fashion based upon its prior holdings.

See State v. Strickland,

488 S.E.2d at 208-209 . The court’s summary denial constitutes an adjudication on the merits, and the deferential standard of review outlined in § 2254(d)(1) still applies.

See Bell v. Jarvis,

236 F.3d at 158 . Therefore, this Court will conduct an independent examination of the record and the clearly established Supreme Court law while still applying the deferential standard required by § 2254(d)(1).

See id.

The United States Constitution does not prohibit a state from “death qualifying” a jury in a capital case.

See Lockhart v. McCree,

476 U.S. 162, 173 , 106 S.Ct. 1758, 1764 , 90 L.Ed.2d 137 (1986). A prospective juror may be excluded for cause when his or her views on the death penalty would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’”

Wainwright v. Witt,

469 U.S. 412, 424 , 105 S.Ct. 844, 852 , 83 L.Ed.2d 841 (1985) (quoting

Adams v. Texas,

448 U.S. 38, 45 , 100 S.Ct. 2521, 2526 , 65 L.Ed.2d 581 (1980)). This standard does not require that a juror’s bias “be proved with ‘unmistakable clarity.’ ”

Witt,

469 U.S. at 424 , 105 S.Ct. 844 . As the

Witt

Court noted, “many veniremen simply cannot be asked enough questions to reach the point where their bias has been made ‘unmistakably clear’.”

Id.

at 424-35 , 105 S.Ct. 844 . Therefore, the question of challenge for bias is a “factual issue,” and a trial judge’s determination of juror bias is presumed to be correct under § 2254(e)(1).

See id.

at 429-31, 105 S.Ct. 844 . Petitioner may rebut this presumption of correctness with clear and convincing evidence. § 2254(e)(1).

Petitioner claims that prospective jurors Privette, Frick and Kierce were

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improperly excused for cause. Petitioner argues that jurors Privette and Frick stated that they could follow the law, but that it would be difficult for them to do so. As for juror Ejerce, Petitioner asserts that she was unable to state whether she could follow the law as instructed because she had never been placed in that position before and therefore did not know what she would do.

Contrary to Petitioner’s assertions, juror Privette told the court that she would be unable to recommend the death penalty under any circumstances:

THE COURT: As I understand what you’re saying, you could not return a recommendation that the death penalty be imposed in this case no matter what the evidence and the facts were?

KATHY PRIVETTE: Yes, sir.

(Tp 308) The trial court then granted the State’s challenge for cause.

As for jurors Frick and Kierce, after extensive questioning by the prosecution, the defense and the court, both women admitted that their views on the death penalty would “ ‘prevent or substantially impair’ the performance of [their] duties as juror[s].”

Wainwright v. Witt,

469 U.S. at 424 , 105 S.Ct. 844 .

THE COURT: Do you feel your views on capital punishment would prevent or substantially impair your ability to vote or to impose the death penalty?

JUDY FRICK: Yes, I do.

(Tp 583)

THE COURT: Do you feel that your personal views about capital punishment would prevent or substantially impair the performance of your duties as a juror in accordance with your instructions and oath?

DONNA KIERCE: Yes, sir, I do.

(Tp 629) The court granted the state’s motion to excuse each woman for cause.

Petitioner has failed to show that the trial court erred in excusing prospective jurors Privette, Frick and Kierce for cause. All three indicated by their answers, either directly or indirectly, that their feelings about the death penalty would prevent or substantially impair their ability to follow the law and their oaths as jurors. (Privette: Tp 308; Frick: Tpp 575, 583; Kierce: Tp 629) Therefore, the State court’s adjudication of this claim was neither contrary to nor an unreasonable application of established Federal law.

See

§ 2254(d)(1).

C: Juror Exposure to Newspaper Article

Petitioner alleges that the jurors who heard his case were exposed to newspaper articles that informed them that Petitioner “had been previously convicted of a shooting in 1993, had recently been convicted of another offense of voluntary manslaughter and was on parole when he committed the acts that were the subject of the trial.”

(PWHC, p. 141) Petitioner argues that this exposure amounted to prejudicial misconduct on the part of the jury, thereby depriving him of his rights to a fair and impartial jury, a reliable sentencing hearing, freedom from cruel and unusual punishment and due process of law as guaranteed by the Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution.

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Petitioner raised this claim on direct appeal before the North Carolina Supreme Court as Issue No. XXX in the Defendant-Appellant’s Brief.

(Pet.Exh.A) The North Carolina Supreme Court denied the claim in summary fashion based upon its prior holdings.

See State v. Strickland,

488 S.E.2d at 208-209 . Therefore, this Court will conduct an independent examination of the record and the clearly established Supreme Court law while still applying the deferential standard required by § 2254(d)(1).

See Bell v. Jarvis,

236 F.3d at 158 .

As the U.S. Supreme Court noted in

Irvin v. Dowd,