Opposition Brief — John Edward Burr, Petitioner v. Denise Jackson, Warden

No. 21-8016

_______________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

________________________________________

JOHN EDWARD BURR,

Petitioner,

v.

DENISE JACKSON,

Warden, Central Prison, Raleigh, North Carolina,

Respondent.

________________________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

________________________________________

BRIEF IN OPPOSITION

________________________________________

JOSHUA H. STEIN

ATTORNEY GENERAL

Kimberly N. Callahan

Special Deputy Attorney General

*Counsel of Record

North Carolina

Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602

(919) 716-6500

kcallahan@ncdoj.gov

-iCAPITAL CASE

QUESTION PRESENTED

Is this case the proper vehicle to determine whether a federal court is required

to conduct de novo review of a claim under Brady v. Maryland, 373 U.S. 83 (1963),

during a federal habeas proceeding pursuant to 28 U.S.C.S. § 2254(d)(1), when new

evidence that purportedly supports that claim was not discovered by the State until

after the state postconviction court adjudicated the claim on the merits, where the

Fourth Circuit explicitly declined to resolve this legal question and instead assumed

for argument’s sake that it was proper to consider both the old and new evidence, and

rejected Petitioner’s Brady claim on the merits because he failed to meet his burden

of demonstrating materiality?

-ii-

TABLE OF CONTENTS

QUESTION PRESENTED ................................................................................. ii

TABLE OF CASES AND AUTHORITIES ..................................................... iii

INTRODUCTION ..................................................................................................1

STATEMENT OF THE CASE ............................................................................3

REASON FOR DENYING THE PETITION .................................................12

THIS CASE IS AN EXCEPTIONALLY POOR VEHICLE TO CONSIDER

THE QUESTION PRESENTED ...................................................................12

A.

The question presented was neither pressed by Petitioner nor

passed upon by the Fourth Circuit ......................................................12

B.

Resolution of the question presented is not outcome

determinative .......................................................................................14

CONCLUSION .....................................................................................................17

- iii TABLE OF CASES AND AUTHORITIES

CASES

Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (2001) ...................................... 12

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

Burr v. Jackson, 19 F.4th 395 (U.S. 4th Cir. 2021) .................................................. 2, 4

Burr v. Jackson, 2020 U.S. Dist. LEXIS 52580 (M.D.N.C. Mar. 26, 2020) ................. 4

Burr v. Lassiter, 513 F. App’x 327 (4th Cir. 2013) ....................................................... 4

Cullen v. Pinholster, 563 U.S. 170 (2011) ............................................................... 2, 16

Cutter v. Wilkinson, 544 U.S. 709 (2005) .................................................................... 12

Duignan v. United States, 274 U.S. 195 (1927) .......................................................... 12

Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997) ......................................................... 14

State v. Bates, 497 S.E.2d 276 (N.C. 1998) ................................................................... 7

State v. Burr, 461 S.E.2d 602 (N.C. 1995) ................................................................ 4, 7

State v. McHone, 499 S.E.2d 761 (N.C. 1998) ............................................................... 7

United States v. Wells, 519 U.S. 482 (1997) ................................................................ 12

STATUTES

28 U.S.C.S. § 2254(d) ..................................................................................... ii, 1, 11, 16

No. 21-8016

_______________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

________________________________________

JOHN EDWARD BURR,

Petitioner,

v.

DENISE JACKSON,

Warden, Central Prison, Raleigh, North Carolina,

Respondent.

________________________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

________________________________________

BRIEF IN OPPOSITION

________________________________________

INTRODUCTION

Petitioner presents the question of how federal courts should consider a Brady

claim during habeas review pursuant to 28 U.S.C.S. § 2254(d)(1) where additional

evidence that was not previously disclosed was discovered after the state

postconviction court adjudicated the claim on the merits. This case is an exceptionally

poor vehicle to address the question presented for several reasons. First, Petitioner

did not argue to the Fourth Circuit that the appropriate standard of review in this

procedural posture was for the court to consider both the old and newly alleged Brady

-2evidence de novo without any deference to the state MAR court’s findings. Instead,

he proceeded on a different argument below, asserting only that the state

postconviction court’s findings were unreasonable in light of the record evidence and

that the court unreasonably applied the holding of Brady to the facts of this case.

Petitioner failed to press the question he now presents below.

Second, the Fourth Circuit posed the question of whether it could consider a

transcript of a witness’s statement discovered by the State in 2015 during federal

habeas proceedings when it was not part of the record before the state postconviction

court which adjudicated the Brady claim on the merits, notwithstanding the rule

established in Cullen v. Pinholster, 563 U.S. 170 (2011). The Court also sua sponte

raised the question of how considering this newly alleged Brady evidence would affect

the appropriate standard of review during federal habeas proceedings.

However, the Fourth Circuit expressly declined to resolve these legal issues.

While the Fourth Circuit noted this case raised “numerous fascinating questions”

about how this Court’s decisions in Brady and Pinholster intersect, it ultimately

concluded: “we need not resolve these questions because, even if we consider the

transcript, it does not alter our analysis.” Burr v. Jackson, 19 F.4th 395, 416 (U.S.

4th Cir. 2021). Accordingly, this case is not worthy of certiorari review because the

question presented was not passed upon below and this Court would have to

adjudicate the novel issue of whether there is a Brady exception to the rule

established in Pinholster in the first instance.

-3Finally, the question presented is not outcome determinative. Even if this

Court granted certiorari review and agreed with Petitioner concerning the

appropriate standard of review to apply to his Brady claim, he would still not be

entitled to habeas relief. The Fourth Circuit assumed for argument’s sake that it

could properly consider the entirety of the evidence cited to support Petitioner’s Brady

claim and then correctly held, even under de novo review, he failed to meet his burden

of showing any of the statements at issue were material to his defense. The Fourth

Circuit’s straightforward application of Brady to the particular facts of Burr’s case

does not warrant this Court’s review.

The State of North Carolina respectfully requests this Court deny the petition

for writ of certiorari.

STATEMENT OF THE CASE

I.

The Murder of Four-Month-Old Susie O’Daniel

Tarissa Sue O’Daniel (“Susie”) was four months old when she was murdered

in an especially heinous and cruel manner. (USCA4 Joint Appendix “JA” 1003) She

died from head injuries that resulted from a combination of violent shaking and blunt

force trauma so great it was analogized to being ejected through a windshield as a

vehicle going sixty miles an hour hit a tree. (JA 2842, 2876, 2916, 2982-83) Both of

Susie’s arms and thighs were broken “completely through” and in different stages of

healing; there were bruises on her neck and face that resembled a handprint; and

other bruising covered her body. (JA 1229, 2696-97, 2812, 2964) Medical experts and

-4her treating physicians unanimously agreed Susie’s injuries were non-accidental and

inflicted as a pattern of child abuse. (JA 2819, 2915, 2980, 2985)

The facts surrounding the murder of Susie have been thoroughly detailed by

multiple state and federal courts. See Burr v. Jackson,19 F.4th 395 398-400 (4th Cir.

2021); Burr v. Jackson, No. 1:01CV393, 2020 U.S. Dist. LEXIS 52580, at *3-11

(M.D.N.C. Mar. 26, 2020); Burr v. Lassiter, 513 F. App’x 327, 329-39 (4th Cir. 2013)

(per curiam); State v. Burr, 461 S.E.2d 602, 606-11 (N.C. 1995). In addition, the

transcript of Petitioner’s 1993 jury trial was included in the Joint Appendix in the

United States Court of Appeals for the Fourth Circuit. (JA 1892-4534) The evidence

relevant to the issue brought forward here can be succinctly summarized as follows.

On April 1, 1991, Susie was born to Lisa Bridges and her then-husband John

Wesley O’Daniel. (JA 1931, 1934) Several weeks later, Bridges began having an affair

and engaging in a sexual relationship with Petitioner. (JA 1972-73) Petitioner moved

into Bridges’ trailer at the end of June 1991. (JA 1975) Petitioner quickly became

physically abusive towards her. (JA 1980, 1982)

At approximately 6:00 p.m. on Saturday, August 24, 1991, Susie’s eight-yearold brother, Scott Ingle, tripped over an extension cord while he was carrying her and

fell on a gravel driveway. (JA 2013) Bridges checked Susie for any injuries and found

only slight redness on her arm where Scott was holding her when he fell. (JA 201415) Several other witnesses also observed Susie just after the fall and opined that she

was uninjured, including Petitioner himself. (JA 2370, 2449-50, 2521, 2539, 3190-91)

-5Later that evening, Bridges walked next door to her sister-in-law’s residence

to help wash dishes. (JA 2041) Susie was asleep in her baby bed, and Bridges’ sons,

Scott and Tony, were asleep in their bedroom. (JA 2039-40, 2768) Scott subsequently

awoke to “hammer noises” and heard Susie crying. (JA 2769) Scott was scared and

did not leave his bedroom. (JA 2770) After forty-five minutes, Bridges returned home

and found Susie in her swing in the living room. (JA 2044) Petitioner was standing

next to the door, pacing the floor. (JA 2045) Susie was non-responsive and her eyes

did not “look right.” (JA 2046) She had bruises on her ears, arms, legs, and neck. (JA

2046) Those bruises were not present when Bridges left the home less than an hour

earlier. (JA 2047) Petitioner insisted that some of the bruising was merely grease.

(JA 2045) It was not. (JA 2048)

Bridges asked Petitioner to take her to the hospital and he refused, saying

nothing was wrong with Susie. (JA 2049) He finally relented after Bridges threatened

to call an ambulance. (JA 2052-53) They arrived at the county hospital around 3:00

a.m. the next morning and Susie was immediately admitted into the emergency room.

(JA 2811) Susie was unconscious, shaking, and her eyes were rolling back into her

head. (JA 2811-12) She appeared to be having intermittent seizures. (JA 2812)

Swelling and bruising covered her entire body. (JA 2812) Susie presented with a

bulging fontanel which indicated swelling inside of her head. (JA 2812) Susie’s arms

and legs also appeared to be fractured. (JA 2813) When the emergency room doctor

observed the extent of Susie’s injuries, he asked Bridges pointblank “has this child

-6been abused” and she responded in the negative. (JA 2813) Nevertheless, the doctor

had such a high suspicion of abuse that the Alamance County Sheriff’s Department

and Social Services were contacted immediately. (JA 2818)

Susie was transported to the pediatric intensive care unit in Memorial Hospital

at the University of North Carolina in Chapel Hill. (JA 2816) A CT scan showed that

Susie had a depressed skull fracture, multifocal intercranial injuries, and bilateral

retinal hemorrhages. (JA 2840) Despite medical intervention, Susie’s brain continued

to swell and she ultimately became brain dead on the evening of August 27, 1991. (JA

2863, 2866) Susie’s manner of death was listed as homicide. (JA 1004-05)

II.

State Court Proceedings

Petitioner was arrested for Susie’s murder and tried by a jury. (JA 1892)

Overwhelming medical evidence demonstrated that Susie’s injuries and death were

caused by physical abuse so much so that defense counsel for Petitioner acknowledged

that she was a battered child and was unlawfully killed. (JA 4029, 4021, 4044) During

closing argument, defense counsel repeatedly conceded that Susie did not die from

the accidental fall with her brother Scott earlier that evening. (JA 4018, 4020, 4042,

4054) The central issue for the jury to determine was who inflicted Susie’s fatal

injuries and defense counsel strenuously attempted to shift the blame towards

Bridges. (JA 4022-23, 4028, 4059-60) The jury found Petitioner guilty of first-degree

murder in addition to other crimes and he was sentenced to death. (JA 4200-01, 4529)

-7Petitioner’s convictions and death sentence were upheld on direct appeal to the

North Carolina Supreme Court. Burr, 461 S.E.2d at 631. This Court denied

Petitioner’s petition for writ of certiorari. Burr v. North Carolina, 517 U.S. 1123

(1996). Petitioner subsequently filed a 100+ page motion for appropriate relief (MAR)

in the Superior Court of Alamance County, alleging numerous grounds for relief. (JA

697-975) The state postconviction court entered an order summarily denying

Petitioner’s MAR. (App. 543-694; JA 1368-1483) Petitioner filed a petition for writ of

certiorari to the North Carolina Supreme Court and it was allowed for the limited

purpose of remanding the case to superior court for reconsideration of his MAR in

light of the decisions in State v. Bates, 497 S.E.2d 276 (N.C. 1998), and State v.

McHone, 499 S.E.2d 761 (N.C. 1998), cases which governed the interpretation of the

newly-enacted postconviction discovery statute and whether a criminal defendant

was entitled to an evidentiary hearing on his MAR, respectively. (App. 542)

During postconviction discovery pursuant to section 15A-1415(f) of the North

Carolina General Statutes, the State turned over audio tapes and two transcribed

statements of Lisa Bridges and Scott Ingle taken in February 1993 just before the

trial commenced, neither of which were previously disclosed to Petitioner. (App. 845905) The District Attorney averred that he did not believe these interviews contained

any Brady material and he also considered the interviews to be work product. (App.

394) Petitioner filed an amendment to his MAR and alleged his due process rights

were violated under Brady v. Maryland, 373 U.S. 83 (1963), based on the State’s

-8failure to disclose these statements. (App. 399-440) The state postconviction court

again filed an order summarily denying Petitioner’s amended MAR. (App. 321-388)

With regard to the denial of Petitioner’s Brady claim, the state postconviction court

found, among other things, that (1) any inconsistencies between the trial testimony

of the two witnesses and their pre-trial comments to the prosecutors were of “de

minimis significance;” and (2) there was no reasonable probability that had the 1993

interviews been disclosed the result of the trial would have been different. (App. 362)

Petitioner’s petition for writ of certiorari was denied by the North Carolina Supreme

Court. (App. 320)

III.

Federal Court Proceedings Below

On April 12, 2001, Petitioner filed an application for writ of habeas corpus

pursuant to 28 U.S.C.S. § 2254 in the United States District Court for the Middle

District of North Carolina, alleging twenty-four grounds for relief. (App. 220-319) For

the next decade, the parties conducted extensive discovery and litigated Petitioner’s

ineffective assistance of counsel claim through all levels of federal court. (App. 143219) In 2013, the Fourth Circuit ultimately decided that his IAC claim did not merit

issuance of the writ of habeas corpus and this Court denied Petitioner’s petition for

writ of certiorari. (App. 143, 219) The case was returned to the district court for

determination of Petitioner’s remaining claims, including his argument that the

State violated Brady based on the undisclosed 1993 statements of Bridges and Ingle.

(App. 11)

-9In 2015, the State discovered an additional recording of a conversation between

Bridges and law enforcement officers which occurred in December 1992. (App. 11)

Petitioner moved to expand the record before the district court pursuant to Rule 7 of

the Rules Governing Section 2254 Proceedings to include a copy of this transcript and

the State indicated it had no objection. (App. 139-40) The district court granted

expansion of the record. (App. 138) On March 26, 2020, the district court issued its

Memorandum Opinion, denying the remainder of Petitioner’s grounds for relief,

including his Brady claim. (App. 49-137).

After reviewing the trial testimony and cross-examination of Bridges and

Ingle, as well as the transcripts of their 1993 interviews, the district court found no

evidence to undermine the state postconviction court’s factual conclusions. (App. 78)

The district court held (1) Petitioner had not provided clear and convincing evidence

that the state postconviction court’s findings were incorrect; and (2) the state court’s

conclusion that the undisclosed evidence was not material under Brady was not an

unreasonable determination of fact or clearly established federal law. (App. 78-79)

Petitioner appealed, and the Fourth Circuit granted a certificate of appealability.

(App. 48)

On November 30, 2021, the Fourth Circuit affirmed the district court’s decision

to deny the petition for habeas relief. (App. 4-46) The Court first rejected Petitioner’s

argument that state postconviction court factually erred in concluding Susie had a

depressed skull fracture. (App. 21) The Court noted that all the experts agreed that

- 10 Susie’s skull had an indentation on the left side associated with brain injuries and

that there was only disagreement concerning whether the bone was actually

fractured at the site. (App. 22) The Court held that there was no evidence that this

minor discrepancy would have changed the opinions of the medical experts that Susie

was a victim of child abuse. (App. 23)

The Fourth Circuit next rejected Petitioner’s argument that the state

postconviction court’s decision involved an unreasonable application of Brady. (App

24) Petitioner contended that Bridges and Ingle’s credibility was absolutely essential

to the case because “evidence about whether the fall could have caused the injury . .

. was literally the entire case.” (App. 26) The Court rebuked such an assertion based

on “overwhelming” medical evidence that Susie was a victim of child abuse and that

she died from that abuse based on the extent of her injuries; eyewitness testimony

who observed the fall and examined Susie after; and medical testimony that Susie

would have immediately been unwell after sustaining the head injury that ultimately

killed her. (App. 27) The Court reviewed the statements in the 1993 interviews which

Petitioner cited as material to his defense; it held that those statements mostly

amounted to cumulative evidence to that provided at trial and what remained was

too insignificant to pose a realistic possibility of altering the outcome of the

proceeding. (App. 27-34)

After rejecting the arguments briefed by Petitioner, the Fourth Circuit posed

one final question:

- 11 We have concluded that the MAR court did not base its opinion

on unreasonable determinations of fact or unreasonably apply

clearly established federal law based on the record the court had

before it in 2000. But what are we to make of the suppressed

transcript of a 1992 conversation with Bridges that was not fully

turned over to Burr until 2015—decades after trial and fifteen

years after the proceedings before the MAR court wrapped up?

May we consider this transcript, even though it was not part of

the record before the MAR court?

(App. 38) The Court explained why these questions were difficult in light of 28

U.S.C.S. § 2254(d) and the decision in Pinholster. (App. 38-42) The Court then posited

that it was left was a “plethora of unanswered questions,” one of which was if it could

properly consider new Brady evidence, “what would that mean for [the] standard of

review?” (App. 42) The Court concluded that it did not need to resolve these questions

because, even if the 2015 transcript was considered, it did not alter the analysis. (App.

38, 44)

Although the Fourth Circuit noted that earlier in its decision it paid due

deference to the state postconviction court, it explicitly stated that its analysis would

not change if it were to consider the evidence de novo. (App. 44-45) The Fourth Circuit

ultimately held that “Burr has not come close to establishing that the jury would not

have found him guilty had the defense been aware of the suppressed transcripts,

which would have provided at most cumulative or tangential impeachment

opportunities.” (App. 45) The Court also noted that Petitioner’s counsel conceded

below that the “new” Brady evidence (or the 1992 transcript discovered in 2015) was

largely duplicative of evidence already in the record. (App. 45)

- 12 The Fourth Circuit denied rehearing en banc with no judge requesting a poll

under Fed. R. App. P. 35. (App. 1)

REASON FOR DENYING THE PETITION

This Case is an Exceptionally Poor Vehicle to Consider the Question Presented.

A.

The question presented was neither pressed by Petitioner nor

passed upon by the Fourth Circuit.

This Court’s traditional rule is that it will not grant certiorari to review a

question presented which was “not pressed [in] or passed on” by the court below.

United States v. Wells, 519 U.S. 482, 488 (1997) (quoting United States v. Williams,

504 U.S. 36, 42 (1992)). This is so because this Court sits as a court of review, “not of

first view.” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005); see also Adarand

Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001) (per curiam) (“[T]his is a court

of final review and not first view”). Of course, this Court has discretion to make

exceptions to this traditional rule; however, it generally does so only in exceptional

cases. Duignan v. United States, 274 U.S. 195, 200 (1927). This is not one of them.

Petitioner did not argue to the Fourth Circuit that it was required to consider

his Brady claim de novo without any deference to the state MAR court’s findings

because new evidence which purportedly supported this claim was discovered during

federal habeas proceedings and was not considered by the state postconviction court.

Instead, Petitioner asserted only that “the state postconviction court’s conclusion that

there was no Brady violation was a decision based on an unreasonable determination

- 13 of facts and contrary to established law as set forth in Brady.” (USCA4 No. 20-5, DE

10 pp 39-40) In arguing such, Petitioner simply presupposed that the statement

discovered in 2015 could be considered in this analysis, notwithstanding the rule

established in Pinholster, because the district court expanded the record to include it.

(USCA4 No. 20-5, DE 10 p 47 n.10) Petitioner did not advocate for the Fourth Circuit

to conduct a de novo review of his Brady claim. Accordingly, Petitioner did not press

the question he now presents in his petition below in the Court of Appeals.

In addition, the Fourth Circuit did not pass upon this question and instead

expressly declined to resolve it. While the Fourth Circuit sua sponte posed the issue

of whether it could properly consider Bridges’ 1992 statement (which was discovered

in 2015) in its analysis and, if so, how that would affect the standard of review, the

Court ultimately concluded: “We need not, and do not, resolve this question today.

Even assuming, purely for the sake of argument, that we may consider the entirety

of Burr’s Brady claim de novo, we would still affirm the denial of Burr’s petition.”

(App. 44) In closing, the Fourth Circuit stated that it was leaving “the questions

surrounding the Brady exception to Pinholster for another day when the issue has

been more squarely presented and more thoroughly briefed.” (App. 47)

Because the Fourth Circuit did not resolve the question presented, this Court

should not entertain it in the first instance. That the question presented was neither

pressed in nor passed upon below is, by itself, a sufficient basis to deny certiorari.

- 14 B.

Resolution of the question presented is not outcome

determinative.

Certiorari review should also be denied because resolution of the question

presented makes no difference to the outcome of the case. See Stephen M. Shapiro et

al., Supreme Court Practice § 4.4(f) (11th ed. 2019) (if resolution of a question “is

irrelevant to the ultimate outcome of the case before the Court, certiorari may be

denied.”); cf. Klehr v. A.O. Smith Corp., 521 U.S. 179, 192 (1997) (declining to resolve

a question where it would not affect the case’s outcome). The question presented here

relates only to how federal courts should review a Brady claim in a very specific

procedural posture, not whether Petitioner has met his burden of demonstrating he

is entitled to habeas relief. Indeed, the Fourth Circuit correctly held that even

considering the entirety of the evidence, both old and new, under a de novo standard

of review, Petitioner could not satisfy Brady because he did not even “come close to

establishing that the jury would not have found him guilty had the defense been

aware of the suppressed transcripts, which would have provided at most cumulative

or tangential impeachment opportunities.” (App. 45, 47)

Petitioner argued to the Fourth Circuit and now to this Court that the State’s

case against him rested “entirely” on proving that Susie’s fall with her brother Scott

earlier that evening could not have caused her fatal head injury and that the only

basis supporting that theory were the descriptions of the fall at trial by both Bridges

and Ingle. (USCA4 No. 20-5 DE 10 p 37; Pet. 33-34) Petitioner contended that the

- 15 information in the undisclosed statements materially undermined that testimony

and therefore those statements were material to his defense under Brady. (USCA4

No. 20-5 DE 10 p 39; Pet. 34-36) Petitioner’s primary contention was that the

undisclosed statements demonstrated that Bridges and Ingle “mischaracterized” his

fall with Susie. (App. 27; Pet. 37) To be sure, there were some inconsistencies in the

evidence concerning whether Scott dropped Susie on the gravel driveway, fell on top

of her, or cradled Susie so she did not touch the ground. Yet, defense counsel was

aware of these inconsistencies and they were also known to the jury. (JA 2012-13,

2176, 2262, 2758-59, 2811, 3063, 3398, 3415, 3425-26, 3617, 3779; App. 909, 928-29)

This is apparent not only from the evidence presented at trial, but also a portion of

defense counsel’s closing argument:

Scott told the officers, told Brownlee Bryant, I didn’t drop the

baby, and a bit later was interviewed by Sheriff’s Department by

the officer and said, I did drop the baby, he’s in [the courtroom]

now and he shows he very carefully fell and didn’t drop the baby.

Again, it doesn’t matter whether he dropped the baby or not .

. . the injury that killed her did not come from that fall.

(JA 4054) Therefore, the new statement from Bridges that was discovered in 2015 in

which she stated that Scott “dropped” Susie, and that Scott had “fallen” with her was

merely cumulative of the evidence presented at trial. (App. 776, 779-80)

Furthermore, as the Fourth Circuit observed: “The problem with Burr’s

[Brady] argument is that the State’s case was not so entirely reliant on Bridges and

Scott, or on their descriptions of the fall, as he suggests.” (App. 26) Indeed, there was

- 16 “overwhelming medical evidence” that Susie was a victim of child abuse; the evidence

of the types of injuries she suffered—her head injury, fractures of the limbs, retinal

hemorrhages, and hand-shaped bruise on her neck—were all consistent with abuse

rather than an accidental fall; there was testimony from several individuals that after

the fall with Scott, Susie appeared to be uninjured; and there was medical testimony

that Susie would have clearly been in distress after sustaining the head injury that

killed her. (App. 27) In light of this evidence, the Fourth Circuit correctly held that

Petitioner failed to satisfy Brady or, in other words, he failed to show that there was

a reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.

As a final note, Petitioner criticizes the Fourth Circuit’s analysis, asserting

that it did not actually conduct a full de novo review. (Pet. 31) Petitioner insists that

the Court failed to consider relevant medical evidence developed during the course of

federal habeas proceedings which showed there was not a fracture in Susie’s skull.

(Pet. 31) However, that evidence was developed in discovery in conjunction with

Petitioner’s ineffective assistance of counsel claim prior to the issuance of this Court’s

decision in Pinholster. (App. 183-91) This evidence was not made part of Petitioner’s

Brady claim and the Fourth Circuit correctly held that “Pinholster squarely precludes

our consideration of this evidence.” (App. 20 n.9) See Pinholster, 563 U.S. at 180-81

(holding habeas review under 28 U.S.C.S. § 2254(d)(1) is “limited to the record that

was before the state court that adjudicated the claim on the merits.”).

- 17 CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted , this the 1st day of July, 2022.

JOSHUA H. STEIN

ATTORNEY GENERA]

Kimberly N. Callahan

Special Deputy Attorney General

*Counsel of Record

North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602

Telephone: (919) 716-6500

kcallahan@ ncdoj.gov