# Strickland v. Lee

> District Court, W.D. North Carolina · January 30, 2007 · 471 F. Supp. 2d 557

URL: https://www.frixlaw.com/law-library/cases/2530627

## Case

- **Full name:** Darrell Eugene STRICKLAND, Petitioner, v. R.C. LEE, Warden, Central Prison Raleigh, North Carolina, Respondent
- **Court:** District Court, W.D. North Carolina
- **Decided:** January 30, 2007
- **Citations:** 471 F. Supp. 2d 557; 2007 U.S. Dist. LEXIS 6743; 2007 WL 293575
- **Precedential status:** Published
- **Opinion:** Opinion by Mullen
- **Judges:** Mullen
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2530627

## How later opinions describe it (automated extraction)

- 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 …
- 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

## Opinion text

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).
In
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.”
1
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,
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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 Roach v. Angelone,
176 F.3d 210 , 215 n. 3 (4th Cir.1999) (declining to raise procedural default
sua sponte
in part because the petitioner had not been provided an opportunity to address the issue). In that Order, the Court identified a number of Petitioner’s claims that it thought might raise procedural default issues and ordered each side to brief the issue with regard to those claims. Both Petitioner and Respondent filed briefs addressing the issue of procedural default with regard to the claims identified by the Court.
On June 14, 2005, the Court entered a second Order directing the parties to brief the issue of procedural default with regard to additional claims raised in the instant Petition. Both parties filed briefs addressing these claims on July 25, 2005.
A. “Adequate and Independent State Procedural Rule”
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 at 85 . “A state rule is adequate if it is ‘firmly established,’ and regularly and consistently applied by the state court.”
McCarver v. Lee,
221 F.3d 583, 588 (4th Cir.2000) (internal citations omitted). A state procedural rule is independent if it does not “depend! ] on a federal constitutional ruling.”
See Burket v. Angelone,
208 F.3d 172, 183 (4th Cir.2000) (citing
Johnson v. Mississippi,
486 U.S. 578, 587 , 108 S.Ct. 1981 , 100 L.Ed.2d 575 (1988)).
Petitioner argues that when a state court reaches the merits of a claim, the procedural default doctrine does not apply. However, if a state court clearly relies on an adequate and independent state procedural bar and then also finds no federal violation, that suffices to establish procedural default.
See Harris v. Reed,
489 U.S. 255 , 264 n. 10, 109 S.Ct. 1038 , 1044 n. 10, 103 L.Ed.2d 308 (1989);
see also Skipper v. French,
130 F.3d 603, 609 (4th Cir.1997) (“A decision which bases dismissal both on the merits and on an independent and adequate state law ground forecloses federal habeas review.”);
Ashe v. Styles,
39 F.3d at 86 (Where a state court “both addresses the merits of the federal question but also invokes a state procedural bar that is adequate and independent of federal law as an independent ground for decision, a federal court must accord respect to the state ground for decision....”). Thus, although the State courts may have reached the merits of some of these claims, the procedural default doctrine still applies.
B. Failure to Exhaust in State Courts
Absent a valid excuse, a state petitioner must exhaust his remedies in state court before seeking federal habeas corpus relief.
See
§ 2254(b)(1)(A). Generally, a claim will be defaulted on federal habeas review if the claim was not fairly 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 at 378 .
In the instant Petition, Petitioner has raised a number of unexhausted
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claims that would be barred in the state courts if he attempted to raise them now. For its part, Respondent has stated in its September 20, 2002 Answer that “Respondent agrees that petitioner has exhausted the state remedies as required by 28 U.S.C. § 2245 [sic](b)(1)(A).” Because Respondent failed to assert the affirmative defenses of exhaustion and procedural default for any of Petitioner’s claims, Petitioner urges the Court to apply the civil doctrine of “waiver,” which prohibits the Court from considering any claim or defense that the parties failed to raise.
Under the circumstances of this case, the Court does not view the above-mentioned statement by Respondent as an intelligent waiver of the exhaustion requirement.
See
§ 2254(b)(3) (“A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.”). It is apparent from the various filings in this Court that Respondent paid only cursory attention to the claims and arguments raised in the Petition and to the Record in this case when preparing the Answer and Motion for Summary Judgment.
2
Therefore, the Court views Respondent’s “agreement” that Petitioner has exhausted state remedies as merely an erroneous statement of the procedural history in this case.
See e.g., Day v. McDonough,
547 U.S. 198 , 126 S.Ct. 1675, 1684 , 164 L.Ed.2d 376 (2006) (District court had authority to
sua sponte
dismiss habeas petition despite State’s agreement that petition was timely where agreement was based upon miscalculation of time, not intelligent waiver). The Court finds it significant that when twice ordered to address the issue of procedural default, which includes exhaustion issues, Respondent did not assert that it was waiving the exhaustion requirement. In fact, in one of the briefs addressing procedural default, Respondent asserts that the failure to raise the issue of procedural default was inadvertent. (Respondent’s January 13, 2003 Brief)
Additionally, there is a difference between ordinary civil cases and habeas petitions. Rule 4 of the Rules Governing Section 2254 cases states, “If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified.” This rule “differentiates habeas cases from other civil cases with respect to
sua sponte
consideration of affirmative defenses.”
Kiser v. Johnson,
163 F.3d 326, 328 (5th Cir.1999);
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
3
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.
In
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
4
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.
5
Williams v. Taylor,
529 U.S. at 410 , 120 S.Ct. 1495 .
*573
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.
6
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
*574
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 .
7
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.
8
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.
9
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.
10
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.
11
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).
12
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.
13
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.
14
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.
15
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.
16
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.
17
(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.
In
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.
18
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).
19
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,
20
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.
21
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.”
Id
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.
22
(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.
23
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 Felton v. Barnett,
912 F.2d 92, 94 (4th Cir.1990) (noting that certiorari is a form of discretionary review).
Petitioner has failed to exhaust an IAC claim that he was prejudiced at sentencing by counsels’ failure to cross-examine Gail at the guilt phase of the trial. However, if Petitioner now filed a second MAR in state court raising this claim, it would be procedurally barred.
See
§ 15A-1419(a). Petitioner does not suggest that he was unable to raise this claim previously, so it appears that he could indeed have raised it in his first MAR. Moreover, he offers nothing that would constitute cause and prejudice to excuse his procedural default or that would demonstrate that failure to hear this claim would result in a fundamental miscarriage of justice.
See Coleman v. Thompson,
501 U.S. at 750 , 111 S.Ct. 2546 . Therefore, Petitioner’s IAC claim that he was prejudiced at sentencing by counsel’s failure to cross-examine Gail at trial about her conversation with Sherry Strickland is procedurally defaulted on federal habeas review.
*588
CLAIM III: JURY MISCONDUCT
Petitioner claims that members of his sentencing jury read portions of the Bible to two “hold-out” jurors in order to change their votes from life in prison to death. Petitioner claims further that after consulting the Bible, the two “hold-out” jurors changed their votes and recommended a death sentence for Petitioner. Petitioner argues that the Bible is extrinsic evidence when it is not properly introduced into evidence at trial. Petitioner further argues that the jurors read passages of the Bible in order to influence the sentencing verdict of other jurors in violation of his Sixth, Eighth and Fourteenth Amendment rights under the U.S. Constitution.
24
As the U.S. Supreme Court noted in
Irvin v. Dowd,
among the protections guaranteed by the Sixth Amendment is the right to an impartial jury that determines its verdict “based upon the evidence developed at trial.” 366 U.S. 717, 722 , 81 S.Ct. 1639 , 6 L.Ed.2d 751 (1961);
see also Turner v. Louisiana,
379 U.S. 466, 472-73 , 85 S.Ct. 546 , 13 L.Ed.2d 424 (1965) (“[T]he evidence developed against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.” (internal quotation marks omitted)). An impartial jury necessarily is one free from extraneous, prejudicial influence, whether it comes from inside or outside the jury room.
See Mattox v. United States,
146 U.S. 140, 149 , 13 S.Ct. 50, 53 , 36 L.Ed. 917 (1892) (holding admissible the testimony of jurors describing how they heard and read prejudicial information not admitted into evidence);
Parker v. Gladden,
385 U.S. 363, 363-65 , 87 S.Ct. 468, 470 , 17 L.Ed.2d 420 (1966) (finding habeas petitioner was deprived of his right to an impartial jury because of prejudicial remarks made to the jury by a bailiff);
Remmer v. United States,
347 U.S. 227, 228-230 , 74 S.Ct. 450, 450-452 , 98 L.Ed. 654 (1954) (allowing juror testimony about a bribe offered to juror);
Stockton v. Virginia,
852 F.2d 740, 743-46 (4th Cir.1988) (granting habeas relief where jurors were subject to prejudicial remarks of a non-juror).
To support his claim, Petitioner relies solely upon the affidavits of Maria Van Zant and Marion Hohn, two University of North Carolina Law students volunteering for the Center for Death Penalty Litigation, who interviewed one of the sentencing jurors several years after the trial. (Pet/s Exhs. 85
&
86) The first affidavit was executed by Ms. Van Zant and describes a conversation Van Zant had with Kenneth Taylor, one of the jurors in Strickland’s case. (Pet.Exh.85) According to the affidavit, Mr. Taylor indicated that during sentencing deliberations a few female jurors initially did not want to vote for a sentence of death; Mr. Taylor indicated that the jurors were religious people and that there was a Bible in the jury room; Mr. Taylor told Van Zant that some of the jurors in favor of the death penalty took some verses out of the Bible and read them to the hold-out jurors; Mr. Taylor indicated that after the Bible verses were read, the jurors changed their minds and voted for a sentence of death. Also according to the affidavit, Mr. Taylor refused to sign an affidavit setting out what he had told Van Zant in the interview.
Ms. Hohn’s affidavit states that she accompanied Van Zant and was present dur
*589
ing the interview with Mr. Taylor. (Pet. Exh.86) Hohn’s affidavit, with one or two minor exceptions, is identical to Van Zant’s.
The MAR Court dismissed this claim on procedural grounds and conducted a merits review.
25
The court dismissed the claim on procedural grounds “because it is not supported by a proper affidavit or other documentary evidence as required by N.C. Gen.Stat. § 15A-1420(b)(1).”
26
(Pet.Exh.109, pp. 20-21) The MAR court thus asserted a state procedural rule barring consideration of the claim for failure to comply with the procedural statute.
As noted previously, a claim generally will be procedurally defaulted on habeas review if a state court has expressly found that review in that court is barred by an adequate and independent state procedural rule.
See Ashe v. Styles,
39 F.3d at 85 . The Fourth Circuit has held that § 15A-1420(b)(1) is an adequate and independent state procedural rule.
See Richmond v. Polk,
375 F.3d 309, 323-24 (4th Cir.2004) (citing
Weeks v. Angelone,
176 F.3d 249, 270 (4th Cir.1999);
see also State v. Ware,
125 N.C.App. 695 , 482 S.E.2d 14, 16 (1997);
State v. Payne,
312 N.C. 647 , 325 S.E.2d 205, 219 (1985);
State v. Parker,
61 N.C.App. 94 , 300 S.E.2d 451, 453 (1983)). However, it appears that the MAR court’s rejection of the two affidavits on procedural grounds may constitute a novel application of § 15A-1420(b)(1).
See Bacon v. Lee,
225 F.3d 470, 476-77 (4th Cir.2000) (A statutory procedural rule may not be “adequate” when applied in a novel manner).
While the MAR court acknowledged that Petitioner submitted two affidavits with the MAR, it dismissed the claim on procedural grounds because it was not supported by “proper” affidavit or other documentary evidence as required by § 15A-1420(b)(1). It appears that because the affidavits are made up almost entirely of hearsay and are inadmissible as substantive evidence in a MAR evidentiary hearing,
see State v. Adcock,
310 N.C. 1 , 310 S.E.2d 587, 608 (1984), the MAR court concluded that they were not “proper” affidavits under § 15A-1420(b)(l). However, this Court, in an independent review of North Carolina cases, could find no North Carolina appellate court decision holding that an MAR must be supported by “proper” (i.e.admissible) evidence under § 15A-1420(b)(1).
See also, Robinson v. Polk,
438 F.3d 350, 367 (2006) (Referring to lack of clarity regarding whether North Carolina rules require an MAR be supported by admissible evidence, and noting that “whether inadmissible evidence can be used
at an evidentiary hearing
is a different question from whether inadmissable evidence can support a claim for
entitlement to an evidentiary hearing.”
(emphasis in original));
Conaway v. Polk,
453 F.3d 567, 584 (2006) (No authority under North Carolina law requiring that affidavits and documents submitted under § 1420(b)(1) constitute admissible evi
*590
dence). Therefore, it appears that the MAR court may have applied § 15A-1420(b)(1) in a novel manner to procedurally bar this claim.
27
Despite the apparent novelty of its application of § 15A — 1420(b)(1) as a procedural bar, the MAR court relied upon a well-established evidentiary rule to strike the affidavits in its merits review of this claim. Citing
State v. Adcock,
the MAR court struck the two affidavits from consideration because they “are based on inadmissible hearsay.” (MAR Order, p. 21) In
Adcock ,
the North Carolina Supreme Court upheld an MAR court’s ruling barring introduction at an evidentiary hearing of an affidavit as substantive evidence because the affidavit “was clearly hearsay and inadmissible.” 310 S.E.2d at 608 . The Supreme Court stated that in an evi-dentiary hearing for appropriate relief, “adherence to the rudimentary rules of evidence is desirable.... ”
Id.
Under North Carolina rules of evidence, “[h]ear-say is not admissible except as provided by statute or by [the rules of evidence].” NC R. Evid. 802. An evidentiary hearing for appropriate relief is not one of the proceedings exempted by statute from compliance with the rules of evidence.
See
NC R. Evid. 1101(b) (listing proceedings in which the rules of evidence do not apply).
Because the MAR court held an eviden-tiary hearing to review all of Petitioner’s claims, it was required to apply the rules of evidence to its proceedings. This Court is unaware of, and Petitioner has failed to point to, any statute, rule of evidence or exception to the hearsay rule that required the MAR court to consider affidavits based solely on hearsay as substantive evidence.
28
Petitioner did not call any witnesses or introduce any evidence at the MAR hearing to support this claim. Instead, he relied upon the pleadings. Having no substantive evidence before it to support the claim, the MAR Court dismissed it. (MAR Order, p. 21, “The Court notes that no testimony on this claim was offered at the evidentiary hearing. As a result, this claim is dismissed.”)
In federal habeas actions, the court does not sit “to review the admissibility of evidence under state law unless erroneous evidentiary rulings were so extreme as to result in a denial of a constitutionally fair proceeding.”
Burket v. Angelone,
208 F.3d 172, 186 (4th Cir.2000)
*591
(citations omitted) (refusing to consider on habeas review two affidavits struck by the State post-conviction court on evidentiary grounds). As demonstrated above, the MAR court’s evidentiary ruling was not erroneous under North Carolina law.
Even if the MAR court’s evidentiary ruling was erroneous, the ruling was not so extreme as to result in the denial of a constitutionally fair proceeding. On the contrary, the MAR court held an eviden-tiary hearing during which Petitioner presented evidence on a number of claims. Petitioner did not offer any evidence on this issue during the hearing. Although he called witnesses to testify on various other issues, he did not call Mr. Taylor or any other jurors to testify as to the allegations in this claim. Instead, Petitioner chose to rely on the pleadings, which consisted only of the two unsubstantiated hearsay affidavits. Both affidavits were executed in February,1999. The MAR evi-dentiary hearing was held in May, 2001. Petitioner had more than two years in which to gather evidence to substantiate this claim but failed to do so.
Because the MAR court’s decision to strike the affidavits on evidentiary grounds was not erroneous, and because the ruling did not result in the denial of a constitutionally fair proceeding, this Court may not consider these affidavits in its review of Strickland’s claim.
29
See Burket,
208 F.3d at 186 . This Court has no evidence before it that substantiates or supports Strickland’s claim that jurors consulted the Bible during sentencing deliberations.
30
There being no factual basis to support this claim, it is dismissed.
CLAIM IV: INEFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING
During the sentencing phase of his trial, the state presented one aggravating factor to the jury — -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). Defense counsel called three witnesses to testify at sentencing — Dr. Mark Worthen, Officer James Clemmons and Grant Davis. The trial court instructed the jury on two non-statutory mitigating circumstances — that “the defendant is the father of three children” and that “the defendant has great personal pride and belief in the values of his Native American Heritage” — and one statutory mitigating circumstance — the catch-all “any other circumstance arising from the evidence which the jury deems to have mitigating value,” N.C.Gen.Stat. § 15A-
*592
2000(f)(9). The jury deliberated for less than two hours and did not find the existence of any mitigating circumstances.
Petitioner has pointed to a number of alleged failings on the part of counsel. The Court has separated and rearranged these claims into three sub-sections. The first deals with procedurally defaulted claims. The second covers Petitioner’s claim that counsel were ineffective for failing to present evidence to mitigate the State’s aggravating factor. The third covers Petitioner’s claims that counsel were ineffective for failing to present readily available mental health and substance abuse mitigating evidence to the jury.
A. Procedurally Defaulted Claims
Failure to Tender Dr. Worthen as an
Expert
31
Petitioner claims that trial counsel were ineffective for failing to tender defense mental health expert, Dr. Mark Worthen, as an expert in psychology during his testimony at the sentencing hearing. Petitioner raised this claim as Claim V 3(a) of his MAR. The MAR court found that it was procedurally barred pursuant to N.C. Gen.Stat. § 15A-1419(a)(3) because Petitioner could have raised this claim on direct appeal but did not.
32
Section 15A-1419(a)(3) generally bars collateral review in the State courts of claims that could have been brought on direct appeal but were not. The Fourth Circuit has recognized that § 15A-1419(a)(3) generally is an independent and adequate state procedural bar.
McCarver v. Lee,
221 F.3d at 589 . However, the fact that § 15A-1419(a)(3) is generally an adequate and independent state procedural bar does not end the reviewing court’s inquiry.
See Brown v. Lee,
319 F.3d 162, 170 (4th Cir.2003) (citing
Bacon v. Lee,
225 F.3d 470, 476-77 (4th Cir.2000),
cert. denied
532 U.S. 950 , 121 S.Ct. 1420 , 149 L.Ed.2d 360 (2001);
McCarver,
221 F.3d at 589 ). Where § 15A-1419(a)(3) has not been consistently and regularly applied by the state court to a particular type of federal constitutional claim, it cannot be considered an adequate state law ground barring federal court review of the merits of that claim.
See Brown,
319 F.3d at 170 . Therefore, the reviewing court must determine whether § 15A-1419(a)(3) is regularly and consistently applied to claims of the type raised by the petitioner.
Reid v. True,
349 F.3d 788, 805 (4th Cir.2003). The relevant inquiry concerns the procedural posture of the defaulted claim: “The question we must ask ... is whether the particular procedural bar is applied consistently to cases that are procedurally analo
*593
gous — here, cases in which the particular claim raised could have been raised previously but was not.”
See id.
(quoting
McCarver,
221 F.3d at 589 ).
In his brief addressing the issue of procedural default, Petitioner argues that § 15A-1419(a)(3) is not regularly and consistently applied to IAC claims. (Jan. 9, 2003 Brief on Proc. Dflt.) However, the Fourth Circuit has recognized that North Carolina courts have applied § 15A-1419(a)(3) to bar IAC claims that could have been brought on direct review but were not.
See McCarver,
221 F.3d at 589 C‘[W]e reject McCarver’s attempt to treat ineffective assistance claims as categorically different from other kinds of claims that can be barred under section 15A-1419(a)(3)”). In order to demonstrate that § 15A-1419(a)(3) is not consistently and regularly applied to IAC claims, Petitioner would need to cite a “non-negligible number of cases” in which an IAC claim could have been brought on direct review but was not, and in which the collateral review court nonetheless failed to bar the claim under § 15A-1419(a)(3) because it was an IAC claim.
See Reid v. True,
349 F.3d at 805 (quoting
McCarver,
221 F.3d at 589 ).
Petitioner has failed to cite any cases that meet the above criteria. Instead, he cites seven (7) cases in which defendants brought IAC claims on direct appeal, and the North Carolina Courts found that an MAR proceeding was a more appropriate avenue for asserting those claims because the claims could not be determined solely from the record on appeal.
33
(Pet.’s Jan. 9, 2003 Brief on Proc. Dflt., pp. 24-25) Not only has Petitioner failed to cite any cases in which an IAC claim could have been brought on direct review but was not,
“and
in which the collateral review court nonetheless failed to bar the claim under § 15A-1419(a)(3) because the claim was an ineffective assistance of counsel claim,”
McCarver,
221 F.3d at 589 , the cases he has cited clearly show that the North Carolina courts distinguish between IAC claims that can be determined from the record on appeal and those that cannot. Thus, the cases he has cited lend no support to an argument that a defendant is not required to raise on direct appeal
*594
those IAC claims that are apparent from the record. For the foregoing reasons, Petitioner’s argument that § 15A-1419(a)(3) is not an adequate and independent state procedural bar to this claim is without merit.
The trial record was more than sufficient to enable Petitioner’s appellate counsel to advance this IAC claim on direct appeal. Indeed, during the MAR proceedings, the only evidence Petitioner offered to support this claim was from the trial transcript.
34
Petitioner has failed to show cause and prejudice or that a fundamental miscarriage of justice would occur to excuse the procedural default.
See Coleman v. Thompson,
501 U.S. at 750 , 111 S.Ct. 2546 . Therefore, this claim is proeedurally defaulted in this Court.
Failure to Present Testimony of Doris Perkins Lee during
Sentencing
35
As noted previously, during Petitioner’s sentencing trial, the prosecution presented 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 Richmond County in 1993 and assault with a deadly weapon inflicting serious injury for stabbing Todd Kendall in 1994. Petitioner claims that trial counsel were ineffective for failing to present the testimony of Doris Perkins Lee, who testified during the voluntary manslaughter trial that Petitioner drew his gun and shot at Skipper only after Skipper shot at and wounded Petitioner in the leg. Petitioner complains that the MAR court failed to address his IAC claim regarding Doris Perkins Lee and that this Court, therefore, is required to conduct a
de novo
review of the claim.
36
The fact that the MAR court did not address an IAC claim regarding Doris
*595
Perkins Lee is not surprising considering that her name does not appear anywhere in Petitioner’s IAC claim. (MAR Claim V A(3), pp. 59-64) In his MAR, Petitioner claims that counsel were ineffective because they,
214 (f) Failed to elicit any testimony from Officer Clemmons, or provide testimony from any other witness to show that Defendant was shot in the leg and had a gun drawn on him first as set forth specifically above in the altercation which resulted in Defendants’ 1998 conviction for voluntary manslaughter in Richmond County. (See Paragraphs 145-147 supra; Exhibits “71” and “72”).
“Fair presentation” of a claim to a state court “mandates that the federal claim ‘be presented face-up and squarely- Oblique references which hint that a theory may be lurking in the woodwork will not suffice.’ ”
Baker v. Corcoran,
220 F.3d 276, 289 (quoting
Matthews v. Evatt,
105 F.3d at 911 (internal quotation marks omitted)). Rather, “both the operative facts and the controlling legal principles must be presented to the state court.”
Id.
In this case, the “operative facts” of the claim were not presented “face-up and squarely.” Doris Perkins Lee was not mentioned in the claim. Additionally, paragraphs 145-147 appear in the procedural and factual history section of the MAR, not in the section of the MAR where Petitioner asserted his IAC at sentencing claims. (MAR, Sect. III D, pp. 40-41) Paragraph 145 refers to Officer Clem-mons; paragraph 146 refers to “any witnesses in the tavern on the night in question.... ” Paragraph 147 refers to Doris Perkins Lee.
37
Thus, in order for the MAR court to have addressed an IAC claim regarding Doris Perkins Lee, it would have had to recognize that Petitioner’s reference in paragraph 214(f) to “any other witness” was an allusion to Doris Perkins Lee, and Doris Perkins Lee only. The MAR court did not make any such connection; it only addressed Petitioner’s IAC claim regarding Officer Clemmons, the only person actually named in the claim. (MAR Order, pp. 13-14)
Furthermore, in order to “fairly present” a claim in state court, a petitioner “must explain how these alleged events establish a violation of his constitutional rights.”
Mallory v. Smith,
27 F.3d 991, 994 (4th Cir.1994) (citations omitted). In his presentation of his IAC claim before the MAR court, Petitioner makes the con-clusory statements that counsel’s failure to present evidence that Strickland was shot in the leg and had a gun drawn on him first in the Richmond County shooting constituted ineffective assistance of counsel and that he was prejudiced thereby. However, he fails to explain how or why counsel were ineffective for failing to elicit this evidence from Officer Clemmons or “any other witness.” (MAR, Claim V A(3), pp. 59-64) He certainly does not state how or why Perkins Lee’s testimony at the voluntary manslaughter trial was in any way relevant to his sentencing in this case, or how counsel’s failure to present it rose to the level of a constitutional violation. In short, he failed to give any sort of legal argument to support his conclusory statement that counsel were ineffective for fail
*596
ing to present evidence from “any other witness” that Petitioner was shot in the leg and had a gun drawn on him first. As a result, the MAR court was not alerted to the fact that Petitioner was raising an IAC claim with regard to Doris Perkins Lee’s testimony in the prior case.
38
For the foregoing reasons, the Court concludes that Petitioner failed to “fairly present” an IAC claim with regard to Doris Perkins Lee’s testimony to the MAR court. Therefore, this claim was not exhausted in the State courts and would be proeedurally barred if Petitioner attempted to raise it now.
See
§ 15A-1419(a). Petitioner has failed to show cause and prejudice or that a fundamental miscarriage of justice would occur to excuse the procedural default.
See Coleman v. Thompson,
501 U.S. at 750 , 111 S.Ct. 2546 . Therefore, the claim is proeedurally defaulted on habeas review.
B: Ineffective Investigation and Presentation of Mitigating Evidence Related to the Prosecution’s Aggravating Factor
Failure to Present Richmond County Hospital Records at
Sentencing
39
Petitioner also claims counsel were ineffective for failing to present evidence from his Richmond County medical records that he was shot during the 1993 altercation with Derrick Skipper. Had counsel presented this evidence, Petitioner argues, the jury would have realized that he was acting in self-defense and would not have sentenced him to death.
The MAR court found Petitioner’s claim that trial counsel was ineffective for failing to present medical records from Richmond Memorial Hospital to the jury to be without merit. As its reasoning, the MAR stated that Petitioner had refused to allow trial counsel access to his medical records and instructed trial counsel not to offer mitigating evidence. The MAR court did not reach the prejudice prong of
Strickland.
This Court finds that the MAR court’s conclusion is based upon an unreasonable determination of the facts in light of the evidence.
See
§ 2254(d)(2). Evidence presented at the MAR hearing showed that Petitioner did not refuse to allow trial counsel access to his medical records. (Pet. Exhibits 94-97; MAR Tpp 55-56; 78) In fact, he signed several blank medical release forms so that his counsel could obtain his medical records. (Pet. Exhibits 96 & 97) While it is true that Petitioner refused to allow counsel to put on what is commonly considered a “mitigation defense” (i.e. evidence put forward to mitigate a defendant’s culpability for the crime at issue), there is no evidence that he was opposed to offering evidence to mitigate the state’s aggravating factor. (MAR Tp 94) In fact, trial counsel presented testimony from Officer James Clemmons and Grant Davis for that very purpose. Nevertheless, Petitioner’s claim is meritless.
Contrary to Petitioner’s assertions, the Richmond Memorial Hospital records do not indicate that he was shot while trying to defend himself during a shooting. The records merely state that on June 6, 1993, Petitioner appeared in the emergency
*597
room at Richmond Memorial Hospital with a gunshot wound to the right thigh. (Pet. Exh.73) There are no details provided in the records about how he received that wound. More importantly, there is nothing in the records to indicate that Petitioner was involved in a shootout during which he was shot first and only returned fire to protect himself.
40
Evidence that Petitioner was treated for a gunshot wound on the same day that he killed Derrick Skipper does not “tend[] logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value.”
McKoy v. North Carolina,
494 U.S. 433, 440 , 110 S.Ct. 1227 , 108 L.Ed.2d 369 (1990) (internal quotation marks omitted). Therefore, these records have no mitigating value, and counsel were not deficient for failing to present them.
See Strickland,
466 U.S. at 687 , 104 S.Ct. 2052 .
C: Insufficient Investigation and Presentation of Mitigating Factors
41
Failure to Question Mental Health Expert on Relevant Mitigating Circumstances Regarding Petitioner’s Mental Health
Failure to Obtain and Present Hamlet Hospital/Sandhills Mental Health Records and Opinion Testimony Thereon
Failure to Inform Dr. Worthen of Relevant Testimony from Gail Brown and Sherry Jenkins
Failure to Supply Necessary Mental Health and Intoxication Evidence to Dr. Worthen
Petitioner’s trial counsel retained one mental health expert, Dr. Mark Worthen, a clinical and forensic psychologist, to assist them in preparing Petitioner’s mitigation defense. Dr. Worthen was retained approximately one month before the start of Petitioner’s trial, and to assist him, trial counsel provided him with Petitioner’s mental health records from Dorothea Dix Hospital (hereinafter “Dorothea Dix” or “Dix”), a forensic psychiatric hospital, and from the North Carolina Alcohol and Drug Abuse Center in Butner, North Carolina (hereinafter “Butner”). (Pet. Exhs. 104
&
105) In addition, Dr. Worthen had a brief evaluation session with Petitioner, consisting of questions regarding his family history and his mental status at the time of the offense. (State’s Exh. D; State’s MAR Exhibit 6, p. 1, ¶ 1) However, Dr. Worthen was unable to conduct further interviews or psychological testing because Petitioner refused to continue with the evaluation. (State’s Exh. D; State’s MAR Exhibit 6, p. 1,¶1)
Dr. Worthen testified only during the sentencing phase of the trial. Dr. Worth-en told the jury about the amount of alcohol that Petitioner had reported consuming on the night of the shooting, and about Petitioner’s pride in his Native American heritage. However, counsel did not elicit any testimony from Dr. Worthen regarding Petitioner’s medical and mental health history. (Tpp 1474-77)
Petitioner asserts that had counsel laid a proper foundation for Dr. Worthen’s testimony regarding medical and mental health issues or made an offer of proof as to the contents of the testimony he was attempting to elicit from Dr. Worthen, or intro
*598
duced into evidence Petitioner’s medical records from Dorothea Dix and Butner, the trial court would have been required to submit to the jury the statutory mitigating circumstance that the murder was committed while the Defendant was under the influence of a mental or emotional disturbance.
See
N.C. GemStat. § 15A-2000(f)(2). Furthermore, post-conviction counsel provided Dr. Worthen with Petitioner’s medical records from Hamlet Hospital/Sandhills Mental Health Clinic (Pet’s Exh. 106), Petitioner’s education records (Pet’s Exh. 107) and trial testimony of Gail Brown and Sherry Strickland regarding alcohol and drug use on the night of the murder. Petitioner asserts that had this information been provided to Dr. Worthen prior to sentencing, Dr. Worth-en’s subsequent testimony would have required submission of the statutory mitigating circumstances that the murder was committed while the Defendant was under the influence of a mental or emotional disturbance,
see id.,
and that the Defendant’s ability to appreciate the criminality of his conduct was impaired at the time of the murder,
See
§ 15A-2000(f)(6).
The MAR court rejected these claims on the merits.
42
The court concluded that counsel were not deficient because Petitioner did not want to put on a mitigation defense and refused to allow Dr. Worthen to fully evaluate him. The court also found that Petitioner refused to allow full access to his medical records and medical history. With one exception, the MAR court did not address the prejudice prong of
Strickland.
The MAR court’s finding of fact that Petitioner refused to allow trial counsel full access to his medical records is clearly erroneous.
See
§ 2254(e)(1). The record, as it was established at the MAR hearing, shows that Petitioner granted his trial counsel full access to his medical records. He signed medical release forms for the specific purpose of obtaining his mental health records from Dorothea Dix and Butner. (Pet. Exhibits 94 & 95) He also signed two blank, general release forms so that his trial attorneys could obtain medical records from other medical facilities.
43
(Pet. Exhibits 96
&
97) The records from Hamlet/Sandhills could have been discovered easily by counsel because Petitioner’s Dorothea Dix records refer to Petitioner’s admittance to Hamlet and his referral to Sandhills. (Pet. Exhibit 104, 1994 Discharge Summary).
Additionally, the MAR court based its conclusion that counsel were not deficient on an incomplete analysis of the facts.
*599
The MAR court’s conclusion was based solely on the. actions of Petitioner. The court did not actually assess
counsels’
actions. ‘‘Simply because a defendant objects to the development of evidence, ... does not necessarily absolve his lawyers from gathering that evidence.”
Frye v. Lee,
235 F.3d 897, 904 (4th Cir.2000).
In this case, Strickland refused to cooperate with development of a mitigation defense from the beginning. Attorney Goodwin testified at the MAR hearing that Petitioner told counsel not to talk to his family and that he would not allow them to testify at trial. (MAR Tp 93) Goodwin also testified that Petitioner did not want counsel to present his family or social background for the purposes of mitigation. (MAR Tp 94) However, counsel did not completely give up hopes of a mitigation defense in the face of Strickland’s refusal to involve his family, usually a source of potentially mitigating evidence. They convinced him to submit to an evaluation by Dr. Worthen, although they had to “beg” him to do so. (MAR Tp 78) Additionally, they convinced him to sign some release forms to obtain mental health records that Dr. Worthen had requested.
44
(Pet. Exhs.94-97) These were logical and reasonable steps for counsel to take, especially in light of Petitioner’s refusal to allow access to his family.
Strickland, however, quickly cut off this avenue, as well. Dr. Worthen testified at sentencing that he met with Strickland one time and that after talking about his heritage and how much he had to drink on the night of the shooting, Strickland told Dr. Worthen that he did not want to continue with the evaluation. (Tpp 474-75) In fact, his discussion with Strickland was so brief that Dr. Worthen was unwilling to characterize it as an evaluation. (Tp 1477)
At the MAR hearing, attorney Goodwin testified that in addition to refusing to be evaluated, Strickland restricted the mitigating evidence counsel could get in through Dr. Worthen. (MAR Tpp 89; 94) Dr. Worthen wrote in a pre-trial letter to counsel, dated October 22, 1995, that he had reviewed Petitioner’s records from Dorothea Dix and Butner and that those records indicate that Petitioner has a history of alcohol and drug abuse and a history of becoming violent when drinking. (State’s PWHG Exhibit D; State’s MAR Exhibit 6) Additionally, Dr. Worthen wrote that the records indicate that Petitioner reported a history of a rough childhood, fighting, legal trouble, early onset of drinking (age 10), suicidal threats and diagnoses of alcohol dependence and antisocial personality disorder. However, Goodwin testified that Petitioner had restricted counsel’s ability to elicit most of this evidence through Dr. Worthen. Specifically, Petitioner prohibited introduction of evidence regarding his family, his social and developmental history, and any mental health history that might indicate that Petitioner was mentally ill. (MAR Tpp 89-90; 94) Goodwin testified that he and attorney Crow had other mitigating evidence available, but they did not introduce it because Petitioner did not want it introduced. (MAR Tp 90) Additionally, Goodwin testified that he went over with Petitioner the pros and cons of not offering the mitigating evidence that they had and let Petitioner make the decision on how to proceed. (MAR Tpp 89; 93)
Having flatly refused to allow counsel to speak to his family about possible mitigating evidence and having stymied counsel’s
*600
attempts to present mitigating evidence through Dr. Worthen, Petitioner now complains that counsel were ineffective for failing to conduct an adequate mitigation investigation and for failing to introduce the mitigating evidence that they had. However, this is not a situation in which counsel “completely gave up in response to reluctance or defeatism that ambiguously telegraphed the client’s uninformed wishes.”
Frye v. Lee,
235 F.3d at 905 . Strickland consciously and against counsel’s advice closed off one avenue of potential mitigation, and when counsel attempted another route, Strickland threw up road blocks to that, as well. In light of Strickland’s continued recalcitrance, his refusal to cooperate with Dr. Worthen and the restrictions he placed on evidence that could be presented through Dr. Worthen, it was not unreasonable for counsel not to continue their mitigation investigation.
See Strickland,
466 U.S. at 691 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (“The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.... In particular, what investigation decisions are reasonable depends critically on such information”);
see also, Frye v. Lee,
235 F.3d at 904-05 ;
United States v. Wellington,
417 F.3d 284, 288-89 (2nd Cir.2005);
Wallace v. Davis,
362 F.3d 914, 919-20 (7th Cir.2004).
Furthermore, had Goodwin attempted to introduce the “mitigating evidence that they had,” he would have violated the restrictions set by his client.
See Wallace,
362 F.3d at 920 (Had counsel presented evidence against defendant’s instructions, there would have been a solid ineffective assistance argument, but by respecting defendant’s wishes, counsel abided by ethical requirements as defendant’s agent);
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.
45
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,
46
*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.
47
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.
48
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.
49
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 st

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2530627. Public record. Not legal advice.