John Hardy Rose v.  R. C. LEE, Warden, Central Prison, Raleigh, North Carolina

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 JOHN HARDY ROSE,
Petitioner-Appellant,
v. No. 00-12 
R. C. LEE, Warden, Central Prison,
Raleigh, North Carolina,
Respondent-Appellee. 
 JOHN HARDY ROSE,
Petitioner-Appellee,
v. No. 00-11 
R. C. LEE, Warden, Central Prison,
Raleigh, North Carolina,
Respondent-Appellant. 
Appeals from the United States District Court
for the Western District of North Carolina, at Asheville.
Richard L. Voorhees, District Judge.
(CA-00-20-1-V)
Argued: April 5, 2001
Decided: May 24, 2001
Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed in part and reversed in part by published opinion. Judge
Williams wrote the opinion, in which Judge Michael and Judge Trax-
ler joined.

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COUNSEL
ARGUED: Michael L. Minsker, HIGGINS MINSKER, P.L.L.C.,
Charlotte, North Carolina, for Appellant. Valerie Blanche Spalding,
Special Deputy Attorney General, NORTH CAROLINA DEPART-
MENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON
BRIEF: Roy Cooper, Attorney General of North Carolina, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Caro-
lina, for Appellee.
OPINION
WILLIAMS, Circuit Judge:
A North Carolina jury convicted John Hardy Rose of capital mur-
der for the murder of Patricia Stewart. Following a capital sentencing
proceeding, the jury recommended, and the trial court imposed, a sen-
tence of death. After exhausting all available state remedies, Rose
petitioned the United States District Court for the Western District of
North Carolina for a writ of habeas corpus. See 28 U.S.C.A. § 2254
(West Supp. 2000). The district court ordered that the writ be granted
on the ground that the State habeas court applied the wrong legal stan-
dard to Rose’s ineffective assistance of counsel claim. The remaining
allegations in Rose’s habeas petition were dismissed.
Rose seeks a certificate of appealability granting permission to
appeal the portion of the district court’s order denying Rose’s habeas
relief. The State cross-appeals the portion of the district court’s judg-
ment in which the district court granted the writ and remanded to the
State habeas court for its application of the proper legal standard to
Rose’s ineffective assistance of counsel claim.1 For the reasons that
follow, we reverse the portion of the district court’s judgment grant-
ing the writ, affirm the district court’s entry of summary judgment in
favor of the State as to Rose’s claims, and decline to grant Rose a cer-
tificate of appealability.
1No certificate of appealability is necessary with respect to the portion
of the district court’s judgment from which the State appeals. Fed. R.
App. P. 22(b)(3).
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I.
A.
After receiving a report that Patricia Stewart was missing and find-
ing small drops of blood in and around her apartment, the Graham
County, North Carolina, police department conducted several inter-
views with Rose, who lived with his sister and her boyfriend in the
apartment above Stewart.2 On January 13, 1991, State Bureau of
Investigation (SBI) Agent Mark Nelson performed a consent search
of a blue Pontiac owned by Rose and a yellow Ford owned by his sis-
ter. In the two cars, investigators found a pair of numchucks, a tire
tool, jumper cables, a black sleeveless jacket, and a thermos, all of
which tested positive for blood. The thermos and the trunk of the Ford
contained bloodstains that were consistent with Stewart’s blood type
and inconsistent with Rose’s.
On January 14, SBI Agent Frye met with Rose to discuss the
results of the searches of the two automobiles. Rose told Frye that he
did not want to discuss Stewart’s disappearance "because the situation
surrounding it was too bad to talk about, and he was concerned about
what his family would think of him." State v. Rose, 439 S.E.2d 518,
525 (N.C. 1994). Rose told the officers, however, that "the disposition
of Patricia Stewart was so bad" that they would not be able to find
any of her remains. Id.
On January 15, agents spoke again with Rose, this time in the pres-
ence of his mother. Rose’s mother told Rose that he needed to reveal
any information he had regarding Stewart’s disappearance. Rose
informed the agents that Stewart’s body was located at his grand-
mother’s farm. Agents radioed this information to officers searching
for the victim’s body, who in turn informed the agents that the body
had already been uncovered.
Rose then was arrested and given Miranda warnings for the first
time. Miranda v. Arizona, 384 U.S. 436 (1966). Rose waived his
2These facts are derived from the statement of facts in the Supreme
Court of North Carolina’s published opinion affirming Rose’s conviction
on direct appeal. See State v. Rose, 439 S.E.2d 518 (N.C. 1994).
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Miranda rights and gave an additional statement in which he said he
had been involved in a relationship with Stewart, which Stewart had
been keeping secret. According to Rose’s statement, he was in Stew-
art’s apartment after midnight on Wednesday, January 2. While he
was there, a friend came to visit Stewart, and Stewart asked Rose to
leave and come back later, which he did. Rose smoked marijuana and
drank a quart of whiskey before going to Stewart’s apartment. There,
Rose claims that he told Stewart that he was going back to his girl-
friend in Alabama; Stewart retorted that she would have him arrested
for rape if he tried to leave her. In response to this threat, Rose said
that he "just went crazy," stabbing, beating, and choking Stewart to
death. Rose, 439 S.E.2d at 525.
Rose then wrapped Stewart’s body in her bed linen and put it in the
trunk of his Pontiac, but the car would not start. Rose stated that he
then went back inside and tried to clean up, leaving Stewart in the
trunk. He took the knife that he used to kill Stewart to his apartment,
cleaned it, and placed it in a box in his bedroom. The next evening,
Rose borrowed his sister’s Ford automobile and transferred the body
to the trunk of the Ford. He drove the Ford to his grandmother’s farm,
took the body behind the house, used his grandmother’s hoe to dig a
shallow grave, poured gasoline on the body, set it afire, and walked
away. When the fire went out, Rose returned and covered the body
with rocks, leaves, and tree branches.
Rose’s testimony during the guilt phase of the trial was similar to
his confession, with a few deviations. Rose testified that after he told
Stewart he was going to Alabama, Stewart reached over and picked
up a pocket knife that she had lying on her nightstand beside her bed.
Rose claimed that Stewart shook the knife and said, "You ain’t going
nowhere." Id. at 526. Rose testified that he jumped up and hit Stew-
art’s arm, causing the knife to hit her in the head, and immediately
jumped on top of her. Rose testified that he then "heard something
pop, backed up and saw blood coming out of Stewart’s head." Id.
Rose testified that "he did not remember choking Stewart that morn-
ing and that he did not intend to harm her and did not think anything
like that would happen." Id.
A medical examiner testified that Rose stabbed Stewart five times,
with four knife wounds to her body and one knife wound to her head
that was inflicted with enough force to pierce her skull. Id. at 532.
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B.
The jury returned a verdict finding Rose guilty of first-degree mur-
der. Following the return of the guilty verdict, a capital sentencing
proceeding was held pursuant to N.C. Gen. Stat. § 15A-2000 (1999).
At sentencing, the State introduced as aggravating evidence exhibits
related to Rose’s conviction in Mississippi for attempted rape. See
Rose, 439 S.E.2d at 526. As mitigating evidence, Rose testified about
his troubled childhood and upbringing. See id. He testified that his
father was an alcoholic and was abusive to Rose’s mother and sib-
lings. See id. At the age of twelve, Rose and his sister were taken to
live with a relative and told that they were going to be given away.
See id. Rose also described his military service in the United States
Marine Corps and the Army, from which he received honorable dis-
charges. See id. Rose’s mother and sisters also testified, verifying
Rose’s troubled upbringing. See id. at 527. Sheriff’s Department
employees testified that Rose had been a good prisoner, and Rose’s
employer testified that he was a good employee. See id. Based upon
a weighing of these various mitigating and aggravating factors, the
jury recommended, and the trial court imposed, a sentence of death.
See N.C. Gen. Stat. § 15A-2000(b) (2000).
On May 12, 1992, Rose appealed to the North Carolina Supreme
Court, which unanimously found no error in Rose’s conviction or
death sentence. On June 27, 1994, the United States Supreme Court
denied Rose’s petition for a writ of certiorari. Rose filed a petition for
state habeas corpus relief, which is termed a Motion for Appropriate
Relief ("MAR") in North Carolina. After holding an evidentiary hear-
ing, the state habeas court denied Rose’s requested relief.
Rose then petitioned the federal district court for habeas relief,
challenging his conviction and sentence on numerous grounds. The
petition was referred to a United States Magistrate Judge, who recom-
mended that the district court dismiss on summary judgment the
majority of Rose’s claims but grant the writ with respect to Rose’s
ineffective assistance of counsel claim.
After a de novo review, the district court agreed with the magistrate
judge’s recommendation and issued a writ of habeas corpus with
respect to Rose’s ineffective assistance of counsel claim but dis-
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missed Rose’s habeas petition with respect to Rose’s remaining
claims. The district court remanded the ineffective assistance of coun-
sel claim to the state habeas court to determine whether Rose can
establish his claim under the governing legal standard set forth in Str-
ickland v. Washington, 466 U.S. 668 (1984).
Rose seeks to appeal three issues upon which the district court
entered summary judgment in favor of the State: (1) whether his con-
fession was illegally obtained; (2) whether the imposition of the death
penalty in North Carolina unconstitutionally discriminates against the
impoverished; and (3) whether the ex post facto clause bars the appli-
cation of N.C. Gen. Stat. § 15A-1419 to his habeas petition. We will
address each of Rose’s arguments and then turn to the State’s argu-
ment that the district court erred by remanding the ineffective assis-
tance claim to the state habeas court for application of the proper legal
standard.3
II.
To be entitled to a certificate of appealability, Rose must make "a
substantial showing of the denial of a constitutional right." 28
U.S.C.A. § 2253(c)(2) (West Supp. 2000). In Slack v. McDaniel, 529
U.S. 473 (2000), the United States Supreme Court clarified § 2253’s
requirements. To make the required showing, a petitioner must dem-
onstrate that "reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a differ-
ent manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’" Id. at 483-84 (quoting Barefoot
v. Estelle, 463 U.S. 880, 893 & n.4 (1983)).
A. ROSE’S EX POST FACTO CLAIM
Rose filed his MAR on October 4, 1995. On June 21, 1996, the
North Carolina legislature amended N.C. Gen. Stat. § 15A-1419
(1999 & Supp. 2000), which addresses default of claims on state col-
3Rose also argues that the district court made several factual errors
regarding the contents of the record. Without deciding whether the dis-
trict court erred, we hold that the alleged errors are without substantive
effect.
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lateral review. Prior to this amendment, the procedural bars estab-
lished under § 15A-1419 were discretionary. The amendment makes
the procedural bars found therein mandatory rather than discretionary,
unless the petitioner can establish good cause or that the failure to
consider the claim will result in a fundamental miscarriage of justice.
N.C. Gen. Stat. § 15A-1419(b).4
The State habeas court applied the amended version of § 15A-1419
to several of Rose’s claims and held the claims procedurally barred.
Rose argues that the application of § 15A-1419 as amended violates
the Ex Post Facto Clause of the United States Constitution. U.S.
Const. art. 1, § 9, cl. 3. The district court rejected this claim on the
merits. Because the district court rejected the Ex Post Facto claim on
its merits, Rose must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable
or wrong. See Slack, 529 U.S. at 484.
The Supreme Court has recognized four categories of Ex Post
Facto criminal laws. Carmell v. Texas, 529 U.S. 513, 552 (2000). A
law violates the Ex Post Facto Clause when it "punishes as a crime
an act previously committed, which was innocent when done; which
makes more burdensome the punishment for a crime, after its com-
mission; or which deprives one charged with crime of any defense
available according to law at the time when the act was committed,"
Collins v. Youngblood, 497 U.S. 37, 42 (1990) (internal quotation
marks omitted), or "alter[s] the legal rules of evidence, and receive[s]
less, or different, testimony, than the law required at the time of the
commission of the offence, in order to convict the offender," Carmell,
529 U.S. at 551 (internal quotation marks omitted).
Retroactive application of a procedural law such as § 15A-1419
can violate the Ex Post Facto Clause, but only when the procedural
law falls within one of the above four categories. See Collins, 497
U.S. at 46 (holding that "by simply labeling a law ‘procedural,’ a leg-
islature does not thereby immunize it from scrutiny under the Ex Post
Facto Clause."); Carmell, 529 U.S. at 537 (noting that Collins "elimi-
nated a doctrinal hitch that had developed in our cases, which pur-
4The North Carolina legislature amended § 15A-1419 in other
respects, but the other amendments are not relevant to Rose’s claim.
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ported to define the scope of the Clause along an axis distinguishing
between laws involving ‘substantial protections’ and those that are
merely ‘procedural.’").
The amendment to § 15A-1419 making the procedural bars manda-
tory rather than discretionary does not alter the definition of the crime
of first degree murder, of which Rose was convicted, nor does it
change his available defenses to the crime of murder or otherwise
increase the punishment for which he is eligible as a result of that
conviction. Similarly, the amendment does not alter a legal rule of
evidence in a manner that requires less evidence to support a convic-
tion. While it is true that the amendment to the procedural bar provi-
sion worked to Rose’s disadvantage, the Supreme Court explicitly has
held that a law does not violate the Ex Post Facto Clause simply
because it "alters the situation of a party to his disadvantage." Collins,
497 U.S. at 48-49 (emphasis omitted). Instead, the Supreme Court has
emphasized that the Ex Post Facto Clause only prohibits changes in
the law that affect the "scope of a criminal prohibition after the
[unlawful] act is done." Id. at 49. The 1996 amendment to § 15A-
1419 does not affect the scope of Rose’s criminal offense in any of
the ways enumerated by the Court in Carmell. Accordingly, reason-
able jurists could not disagree with the district court’s determination
that the retroactive application of the 1996 version of § 15A-1419
does not violate the Ex Post Facto Clause. Therefore, we deny Rose’s
request for a certificate of appealability as to this issue.
B. PROCEDURALLY DEFAULTED CLAIMS
Rose seeks to appeal the district court’s denial of several claims
pursuant to the district court’s finding that the claims were procedur-
ally defaulted. As established in Slack, to secure a certificate of
appealability on claims that the district court denied pursuant to pro-
cedural grounds, Rose must demonstrate both (1) "that jurists of rea-
son would find it debatable whether the petition states a valid claim
of the denial of a constitutional right" and (2) "that jurists of reason
would find it debatable whether the district court was correct in its
procedural ruling." Slack, 529 U.S. at 484. In conducting our analysis
under this two-prong test, we may proceed first "to resolve the issue
whose answer is more apparent from the record and arguments." Id.
at 485.
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1. Rose’s Confession
Rose first seeks to appeal the district court’s denial of his claim that
his confession was unconstitutionally compelled with a promise of
life imprisonment and then used to secure his death sentence. The dis-
trict court found that Rose’s illegally obtained confession claim was
procedurally defaulted for purposes of federal habeas review because
the State habeas court determined that it was procedurally barred pur-
suant to N.C. Gen. Stat. § 15A-1419(a)(2) (1996).5 To determine
whether Rose is entitled to a certificate of appealability on his confes-
sion claim, we first address "whether jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a
constitutional right." Slack, 529 U.S. at 484.
Before the State habeas court, Rose submitted affidavits from his
mother and sister, both dated January 6, 1998, averring that on Janu-
ary 15, 1991, an agent told them and Rose directly that "things would
go easier on [Rose] if he told them where the body was."6 (J.A. at
769.) The State habeas court noted that the allegations contained in
the affidavits were presented and considered on direct appeal. As
Rose’s counsel acknowledged at oral argument, Rose’s claim is not
one premised upon an alleged violation of Miranda v. Arizona, 384
5North Carolina General Statute § 15A-1419(a)(2) provides that issues
raised in a MAR that were previously decided on appeal are barred from
further consideration in State habeas review. "In the absence of any prof-
fered reason why relitigation of these claims would have been proper, the
superior court is precluded from relitigating issues decided by the
Supreme Court of North Carolina." Smith v. Dixon, 14 F.3d 956, 968 (4th
Cir. 1994) (citing Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 168
(1939) (holding that the decision of a higher court forecloses relitigation
of issues the mandate lays to rest)).
6At oral argument, Rose’s counsel also argued that Rose was told that
he would not get the death penalty if he confessed. In support of this con-
tention, Rose’s counsel points to Rose’s mother’s affidavit, in which she
states, "I asked Special Agent Frye whether the police would seek the
death penalty in the case and [Frye] told Diana and me that the police
would not seek the death penalty." (J.A. at 769.) Nowhere in the affidavit
does Rose’s mother aver that she relayed this promise to Rose or that the
promise was repeated in front of Rose. (J.A. at 769.) Thus, we need not
address the coerciveness of this alleged promise.
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U.S. 436 (1966), but is instead premised upon a promise having been
made in exchange for Rose’s confession.
We measure whether a confession was unconstitutionally coerced
by the totality of the circumstances. See Arizona v. Fulminante, 499
U.S. 279, 285-86 (1991). At one time, the Supreme Court had held
that a confession could not constitutionally be obtained by "any direct
or implied promises, however slight, nor by the exertion of any
improper influence." Bram v. United States, 168 U.S. 532, 542-43
(1897) (internal quotation marks omitted). As the Court in Fulminante
stated, however, "this passage from Bram . . . under current precedent
does not state the standard for determining the voluntariness of a con-
fession." Fulminante, 499 U.S. at 285. Thus, the existence of a prom-
ise in connection with a confession does not render a confession per
se involuntary. See id.; United States v. Braxton, 112 F.3d 777, 780
(4th Cir. 1997) (en banc) ("The mere existence of threats, violence,
implied promises, improper influence, or other coercive police activ-
ity . . . does not automatically render a confession involuntary.").
Here, the investigating agent’s promise that "things would go easier
on Rose" if he confessed did not involve actual physical violence or
"a credible threat of physical violence." Fulminante, 499 U.S. at 288
(holding that a confession was unconstitutionally coerced based upon
the totality of the circumstances and placing special emphasis on the
fact that the interrogating agent promised to protect the suspect from
physical violence from other inmates in exchange for his confession);
see also Payne v. Arkansas, 356 U.S. 560, 564-67 (1958) (holding
that a confession was unconstitutionally coerced because the interro-
gating police officer had promised that if the accused confessed, the
officer would protect the accused from an angry mob outside the jail-
house door). Nor is there any indication that the investigating agent’s
statement "critically impaired" Rose’s "capacity for self-
determination," Braxton, 112 F.3d at 780 (internal quotation marks
omitted), or that Rose’s will "was overborne in such a way as to ren-
der his confession the product of coercion," Fulminante, 499 U.S. at
288; cf. Braxton, 112 F.3d at 782 (noting that "[a]dmonishing a sus-
pect to tell the truth during an investigatory interview" by advising
him of potential consequences of failing to tell the truth "does not
constitute coercive police conduct rendering a statement involun-
tary."). Thus, we decline to hold that the cryptic promise that "things
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would go easier" on Rose if he confessed amounts to unconstitutional
coercion.
Moreover, the circumstances surrounding the confession are replete
with indicia of voluntariness. As the State court noted on direct
appeal, the evidence shows that Rose voluntarily agreed to talk with
law enforcement officers at every juncture leading up to his confes-
sion. State v. Rose, 439 S.E.2d 518, 536 (N.C. 1994). Rose was
repeatedly told he was not under arrest and was free to leave at any
time. See id. At no time was Rose handcuffed, nor was his freedom
of movement otherwise restrained. See id. Additionally, the question-
ing immediately preceeding Rose’s confession, which took place at
the apartment where Rose was staying, occured in a non-custodial set-
ting. See Braxton, 112 F.3d at 783 (holding that an investigatory inter-
view was clearly non-custodial and that the confession was voluntary
when the interview took place in the suspect’s mother’s home, the
suspect freely consented to answer the officers’ questions, and the
suspect was at liberty to terminate the discussion at any time).
Accordingly, the totality of the circumstances does not support a find-
ing that Rose’s confession was obtained in violation of the Constitu-
tion. Because we cannot conclude that "reasonable jurists" would find
the question of whether Rose has established a valid constitutional
claim "debatable," Slack, 529 U.S. at 484, we deny Rose’s request for
a certificate of appealability.7
2. Discrimination Claim
Rose next seeks to appeal the district court’s denial of Rose’s claim
that North Carolina unconstitutionally discriminates based upon eco-
nomics in its imposition of the death penalty. Rose argues that North
Carolina imposes the death penalty only upon poor people, in viola-
tion of the Fifth and Fourteenth Amendments of the United States
7Having concluded that Rose has failed to establish the first prong of
the Slack test, we need not address whether the district court was correct
in its procedural default ruling. See Slack v. McDaniel, 529 U.S. 473, 484
(2000) (noting that when the district court denies a claim pursuant to pro-
cedural grounds, the petitioner must demonstrate both the viability of the
constitutional claim and the correctness of the district court’s procuedu-
ral ruling to be entitled to a certificate of appealability).
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Constitution. The district court declined to address the merits of
Rose’s economic discrimination claim because Rose failed to "fairly
present" the issue to the State courts; thus, the district court held the
claim procedurally barred. (J.A. at 18-19.)
In his Reply Brief, Rose admits that his economic discrimination
claim was not presented to the State courts, although he did present
a racial discrimination claim.8 Because Rose concedes that he did not
present his economic discrimination claim to the North Carolina
courts, we are precluded from addressing the merits of this claim
unless Rose demonstrates cause for his state-court default and preju-
dice resulting therefrom. Edwards v. Carpenter, 529 U.S. 446, 451
(2000).9
On appeal, Rose argues that he has established sufficient cause to
overcome the procedural default of his claim, claiming that the facts
underlying the economic discrimination claim were not readily avail-
able to Rose’s counsel during the State proceedings. Initially, we note
that the record does not reflect that Rose presented any argument with
respect to cause before the district court. (J.A. at 19) (stating that
"[n]owhere does Petitioner show cause as to why he did not raise his
economic discrimination claim in State court"). Thus, Rose’s cause
argument is deemed waived for purposes of this appeal. See Skipper
v. French, 130 F.3d 603, 610 (4th Cir. 1997) (noting the general rule
that theories presented for the first time on appeal will not be consid-
ered).
8Before the district court, Rose argued that a claim of economic dis-
crimination is not fundamentally different from a claim of racial discrim-
ination for purposes of determining whether his economic discrimination
claim was presented to the State courts. On appeal, Rose concedes that
his "new" economic discrimination claim was never presented to the
State courts. (Appellant’s Reply Br. at 13) ("Although this claim was
never raised in the original state proceedings or in the State Habeas Court
. . . .").
9The one exception to the rule requiring cause and prejudice is where
the petitioner is able to demonstrate that the habeas court’s failure to
review his federal claim will result in a fundamental miscarriage of jus-
tice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Rose does not
argue the applicability of the fundamental miscarriage of justice excep-
tion to his discrimination claim.
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Assuming, however, that Rose raised his cause argument below,
we find it inadequate to overcome the procedural default. It is true
that a petitioner can establish cause by showing "that the factual basis
for [the] claim was unavailable to him at the time he filed his state
habeas petition." Breard v. Pruett, 134 F.3d 615, 620 (4th Cir. 1998);
see McCleskey v. Zant, 499 U.S. 467, 493-94 (1991). We made clear
in Murphy v. Netherland, 116 F.3d 97 (4th Cir. 1997), however, that
a petitioner cannot establish cause when the facts underlying the
claim were in existence and were available upon a reasonably diligent
search. Id. at 100.
The statistics underlying the economic discrimination claim were
available to Rose’s counsel upon a reasonably diligent search.10 Coun-
sel’s failure to consider the argument is insufficient to constitute
cause. See Murray v. Carrier, 477 U.S. 478, 488 (1986) (holding that
cause must turn on "whether the prisoner can show that some objec-
tive factor external to the defense impeded counsel’s efforts to com-
ply with the State’s procedural rule").
No appeal is warranted when "a plain procedural bar is present and
the district court is correct to invoke it" to dispose of a claim. Slack,
529 U.S. at 484. Thus, we deny a certificate of appealability on this
issue.
III.
Having determined that Rose is not entitled to a certificate of
appealability on the issues raised in his appeal, we next address the
State’s argument that the district court erred by granting a writ of
habeas corpus with respect to Rose’s ineffective assistance of counsel
claim. The parties agree that the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214,
governs our review of this issue. Pursuant to that statute, a federal
court may not grant a writ of habeas corpus with respect to a claim
10At oral argument, counsel expressed no difficulty in having obtained
the statistics underlying Rose’s racial discrimination claim. Similar to
statistics regarding capital defendants’ race, courts maintain records indi-
cating which capital defendants were represented by court-appointed
counsel and are, therefore, indigent.
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adjudicated on the merits in a state court proceeding unless the state
court’s adjudication: (1) "resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established Fed-
eral law, as determined by the Supreme Court of the United States,"
28 U.S.C.A § 2254(d)(1) (West Supp. 2000); or (2) "resulted in a
decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding." Id.
at § 2254(d)(2).
The district court held that the State habeas court rendered its deci-
sion in a manner contrary to clearly established law when it denied
Rose’s ineffective assistance of counsel claim pursuant to the wrong
burden of proof. Although the district court noted that Rose’s ineffec-
tive assistance of counsel claim is meritless, the district court held that
it could not independently reassess Rose’s ineffective assistance of
counsel claim according to the proper standard; instead, the district
court "remanded"11 the claim to the State habeas court. While we
agree that the State habeas court applied the wrong burden of proof
to Rose’s ineffective assistance claim, we disagree with the district
court’s conclusion that a federal court lacks authority to conduct an
independent review of the claim.
A.
Initially, we note that "clearly established" Supreme Court prece-
dent governs Rose’s ineffective assistance of counsel claim. Williams
v. Taylor, 529 U.S. 362, 390 (2000) (Terry Williams) (holding that an
ineffective assistance of counsel claim is clearly established Supreme
Court precedent within the meaning of § 2254(d)(1)). The Sixth
Amendment, as incorporated by the Fourteenth Amendment, entitles
a criminal defendant to effective assistance of counsel on direct
appeal. See Evitts v. Lucey, 469 U.S. 387, 396 (1985). In Strickland
v. Washington, 466 U.S. 668 (1984), the United States Supreme Court
11While federal habeas courts often use the language of "remand," as
a technical matter, we do not believe that a federal habeas court can "re-
mand" a case to a state habeas court. See Billiot v. Puckett, 135 F.3d 311,
316 n.5 (5th Cir. 1998) (noting that federal habeas courts cannot remand
cases to state courts).
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held that an ineffective assistance of counsel claim has two compo-
nents:
First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
"counsel" guaranteed the defendant by the Sixth Amend-
ment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the defen-
dant of a fair trial, a trial whose result is reliable.
Id. at 687. To establish ineffectiveness, a "defendant must show that
counsel’s representation fell below an objective standard of reason-
ableness." Id. at 688. To establish prejudice he "must show that there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A rea-
sonable probability is a probability sufficient to undermine confidence
in the outcome." Id. at 694.
B.
We next address whether the State habeas court’s ruling was "con-
trary to" the Strickland test. Williams, 529 U.S. at 412. As the State
concedes, the State habeas court’s adjudication of Rose’s ineffective
assistance of counsel claim was "contrary to" the Strickland test
because the State court applied the wrong burden of proof with
respect to the prejudice prong. In its Memorandum Order and Final
Opinion, the State habeas court denied Rose’s ineffective assistance
of counsel claim because the "defendant . . . failed to carry his burden
of proof to show [that the result of the proceeding would have been
different] by the preponderance of the evidence." (J.A. at 285.) In
Williams, Justice O’Connor used as an example this precise error to
define the "contrary to" prong:
If a state court were to reject a prisoner’s claim of ineffec-
tive assistance of counsel on the grounds that the prisoner
had not established by a preponderance of the evidence that
the result of his criminal proceeding would have been differ-
ent, that decision would be "diametrically different," "oppo-
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site in character or nature," and "mutually opposed" to our
clearly established precedent because we held in Strickland
that the prisoner need only demonstrate a "reasonable proba-
bility that . . . the result of the proceeding would have been
different."
Williams, 529 U.S. at 405-06. Thus, we agree with the district court
that the decision-making process by which the State habeas court
adjudicated Rose’s ineffective assistance of counsel claim is contrary
to clearly established Supreme Court law.
C.
Upon recognizing that the State habeas court’s adjudication of
Rose’s ineffective assistance claim was contrary to clearly established
law, the district court held that it lacked the authority to conduct a de
novo review of Rose’s ineffective assistance claim using the proper
legal standard under Strickland. In coming to this conclusion, the dis-
trict court relied upon the magistrate judge’s recommendation that
Williams bars harmless error review of ineffective assistance claims.
Of course, we agree with the district court that, if Rose was denied
the effective assistance of counsel, the error would not be subject to
harmless error review. Williams, 529 U.S. at 375 (reiterating the well-
settled rule that "[t]he deprivation of the right to the effective assis-
tance of counsel" is a structural error to which harmless error review
does not apply). We do not interpret Williams, however, as barring
our de novo review of whether Rose was, in fact, denied effective
assistance of counsel. To the contrary, when we find that a state court
decision is contrary to clearly established federal law, we interpret
Williams as reaffirming the federal habeas corpus courts’ obligation
to review state court judgments independently to determine whether
issuance of a writ is warranted.
In Williams, as in this case, the state court erred in its framing of
the applicable legal standard under the controlling Supreme Court
precedent of Strickland. See Williams, 529 U.S. at 391. After conclud-
ing that the state court applied the incorrect standard, each of the
Court’s three separate opinions embarked upon a de novo review of
the underlying ineffective assistance of counsel claim. See id. at 395-
399 (opinion of Stevens, J.); id. at 415 (opinion of O’Connor, J.); id.
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at 418-19 (Rehnquist, J., concurring in part and dissenting in part).
Thus, rather than call into doubt our authority to conduct a de novo
review of Rose’s ineffective assistance of counsel claim, Williams
conclusively affirms our authority to conduct such a review.
Our authority and obligation to conduct an independent review of
the substantive constitutional claim is firmly rooted in the underlying
purpose of the writ of habeas corpus, which is to ensure that prisoners
are not held in custody "in violation of the Constitution or laws or
treaties of the United States." 28 U.S.C.A. § 2254(a). As the Williams
Court noted, the writ of habeas corpus is not designed to correct all
constitutional errors, much less all errors of any kind. See Williams,
529 U.S. at 375 ("It is, of course, well settled that the fact that consti-
tutional error occurred in the proceedings that led to a state-court con-
viction may not alone be sufficient reason for concluding that a
prisoner is entitled to the remedy of habeas."); see also id. at 386
(stating that a federal court must "attend with the utmost care to state-
court decisions, including all of the reasons supporting their deci-
sions, before concluding that those proceedings were infected by con-
stitutional error sufficiently serious to warrant the issuance of the
writ.") (opinion of Stevens, J.) (emphasis added). Additionally, in
analyzing § 2254, we must be cognizant of § 2254’s incorporation of
concerns for comity, federalism, and finality. See Williams v. Taylor,
529 U.S. 420, 436 (2000) (Michael Williams) ("There is no doubt
Congress intended AEDPA to advance these [comity, finality, and
federalism] doctrines.").
As Rose concedes, the facts related to his ineffective assistance of
counsel claim have been fully developed by the State habeas court
pursuant to a four-day evidentiary hearing, during which five wit-
nesses testified and several affidavits were introduced, and the State
habeas court resolved all credibility determinations related to Rose’s
ineffective assistance of counsel claim. Despite Rose’s concession, he
contends that issuance of a conditional writ is warranted because the
State court is better suited to apply the Strickland standard to his
claim, insofar as the application of the standard is a fact-intensive
inquiry that depends on the subtleties between varying burdens of
proof. The evidence introduced before the State habeas court, as well
as the court’s factual findings and conclusions therefrom, are fully set
forth in that court’s Memorandum Order and Final Opinion and,
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therefore, are easily accessible to this Court on review, as is the full
record of Rose’s prior state proceedings. Inasmuch as the only task
remaining is application of a legal standard crafted pursuant to federal
law to facts that are readily available to this Court, we consider our-
selves well-equipped to evaluate the merits of Rose’s ineffective
assistance claim.
If, after applying the Strickland standard to the facts developed by
the State habeas court, we determine that Rose actually received
effective assistance of counsel, Rose will have failed to demonstrate
that constitutional error infected his trial or conviction in any way.
Neither Williams nor § 2254(d)(1) requires issuance of a writ before
determining the critical question of whether a prisoner is being held
in violation of the Constitution or laws of the United States. Thus, the
proper interpretation of the role of § 2254(d)(1) in habeas corpus
review is that it establishes a threshold by which we determine
whether we are authorized to issue a writ, but it does not compel the
issuance of a writ once the standard set forth therein has been satis-
fied. See id. at 412 (deeming § 2254(d)(1) a "new constraint" on fed-
eral courts’ power to issue writs and stating that a federal court "may"
issue the writ upon determining that the standards found in
§ 2254(d)(1) are satisfied); see also Weeks v. Angelone, 528 U.S. 225,
237 (2000) (referring to the issue under § 2254(d)(1) as whether
habeas relief is "preclude[d]" or "prohibit[ed]," rather than whether
such relief is mandated). Rather, § 2254(d)(1) must be read in con-
junction with the purpose of the writ, as outlined in § 2254(a), which
is to protect a prisoner from being held in violation of federal law.
Accordingly, following the Supreme Court’s approach in Williams,
we will conduct a de novo review of Rose’s claim to determine
whether Rose is being held in custody in violation of his constitu-
tional right to effective assistance of counsel, using the extensive facts
that the State habeas court has developed.
IV.
Turning to the merits of Rose’s ineffective assistance of counsel
claim, Rose contends that he was denied the effective assistance of
counsel at his death penalty proceeding because his attorneys did not
adequately investigate the events surrounding his prior violent felony
attempted rape conviction that was used by the State as an aggravat-
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ing factor. Had his counsel investigated the events surrounding the
attempted rape conviction, Rose argues, counsel would have discov-
ered significant mitigating evidence relating to Rose’s mental health.
Specifically, Rose argues that his counsel should have requested his
prison records from his prior attempted rape conviction, which con-
tained information indicating that the prison doctors had diagnosed
Rose as suffering from sexual and social disorders. Properly applying
Strickland, the record supports the State habeas court’s ultimate rejec-
tion of Rose’s ineffective assistance of counsel claim.
During the evidentiary hearing before the State habeas court, Rose
introduced testimony pertinent to the mitigating evidence of mental
disorders that he currently says should have been introduced to the
jury. Dr. Brown and Dr. Berlin, both psychiatrists, testified separately
that Rose relayed to them a dramatically different story regarding
Stewart’s death than Rose had relayed to his trial counsel, law
enforcement officers, and the jury.
Dr. Berlin testified that Rose told him that he did not have a rela-
tionship with Stewart, but he had instead been spying on her through
her window on the night of the murder. On this account, Rose waited
until Stewart was asleep before entering her apartment through a win-
dow. Rose went to Stewart’s bed and stabbed Stewart, wounding but
not killing her. Stewart told Rose that if he left without killing her,
Rose would escape punishment because she would not be able to
identify him. Rose placed Stewart’s head in his lap and strangled her
with a nylon strap until he heard several "pops" and "snaps." (J.A. at
76.) Rose then put her body in the trunk of his car and violated her
by inserting numchucks into her vagina. Rose then masturbated by the
car’s back bumper. Rose told Dr. Berlin that he had, prior to trial, told
one of his trial attorneys the truth about Stewart’s death, but the attor-
ney dismissed it.
In addition to relaying this version of Stewart’s murder, Rose told
Dr. Berlin that he had entered as many as 20 homes and stood fanta-
sizing over the bed of the occupants, while holding a knife and having
thoughts of injuring them, and on more than 100 occasions he also
had entered other homes and masturbated over people’s beds. Based
upon Rose’s statements and his prior conviction for attempted rape,
Dr. Berlin opined that Rose had sexual disorders, voyeurism and sex-
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ual sadism, and was mentally impaired respecting his ability to con-
form his conduct to the requirements of law. Rose told Dr. Brown a
similar story about Stewart’s murder, adding that before he assaulted
Stewart’s vagina with the handles of the numchucks, he burned her
vaginal area with a "pencil torch." (J.A. at 259.)
Other evidence of Rose’s disorders included an evaluation from
Dorothea Dix Hospital. Prior to trial, the trial court had ordered that
Rose undergo a psychiatric evaluation at Dorothea Dix Hospital to
gauge Rose’s competence to stand trial. The report issued in conjunc-
tion with that evaluation concluded that Rose suffered from a provi-
sional sexual disorder and a mixed personality disorder, but that Rose
was otherwise competent to stand trial. Rose argues that, in light of
this preliminary evidence of mental disorders, his trial counsel should
have further investigated and presented evidence of his disorders to
the jury to support a statutory mitigating factor.
As the State habeas court noted, however, Mr. J.K. Coward, Jr.,
Rose’s lead trial counsel, testified that Coward and his co-counsel,
Marcellus Buchanan, were fully aware of the diagnosis of the disor-
ders in the Dorothea Dix report, but they had decided not to pursue
a defense that included Rose’s sexual disorders because they felt that
introducing "further bad elements into the case" would mean that they
"would have no chance whatsoever with the jury." (J.A. at 248.) Cow-
ard testified that introducing any testimony regarding Rose’s sexual
disorders during the sentencing phase "would eliminate the chance for
any kind of leniency." (J.A. at 248.) Additionally, Coward and
Buchanan felt constrained not to introduce evidence of Rose’s sexual
disorders because Rose explicitly had instructed them not to present
any evidence that would expose Rose’s children to adverse publicity.
Instead of pursuing Rose’s mental disorders as a defense or a miti-
gating factor, counsel attempted to avoid any of the sexual content of
Stewart’s murder, which they succeeded in doing. Additionally, coun-
sel attempted to engender sympathy for Rose by focusing on his trou-
bled upbringing, good character, and strong work habits.
Our review of relevant excerpts from the transcript of the evidenti-
ary hearing and the findings of the State habeas court conclusively
establishes that Rose’s trial counsel acted in an objectively reasonable
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fashion by declining to pursue a defense based upon Rose’s sexual
disorders. Rose’s trial counsel made a strategic decision to keep any
evidence of Rose’s sexual disorders out of the trial because they
determined that any such evidence was contrary to the express order
of their client to protect his children and would decrease their chances
of success. See Turner v. Williams, 35 F.3d 872, 904 (4th Cir. 1994)
(holding that where there is a conceivable strategic advantage to the
decision not to introduce certain evidence, that choice is virtually
unassailable on collateral review), overruled on other grounds by
O’Dell v. Netherland, 95 F.3d 1214 (4th Cir. 1996). When counsel
make a reasonable strategic choice based upon an investigation of the
facts, this Court must defer to that strategic choice. Bunch v. Thomp-
son, 949 F.2d 1354, 1364 (4th Cir. 1991) ("Trial counsel is too fre-
quently placed in a no-win situation with respect to possible
mitigating evidence at the sentencing phase of a capital case. The fail-
ure to put on such evidence, or the presentation of evidence which
then backfires, may equally expose counsel to collateral charges of
ineffectiveness. The best course for a federal habeas court is to credit
plausible strategic judgments in the trial of a state case."). In light of
their strategic choice to keep sexual content out of the trial, Rose’s
counsel was entirely justified to decline to further investigate Rose’s
prison records related to his Mississipi conviction for attempted rape
in an attempt to uncover additional information about Rose’s sexual
disorders. Thus, Rose has failed to overcome the "strong presumption
that counsel’s conduct [fell] within the wide range of reasonable pro-
fessional assistance." Strickland v. Washington, 446 U.S. 668, 689
(1984).
Nor has Rose established that any alleged constitutional deficiency
in the performance of his counsel was prejudicial, that is, that there
is a "reasonable probability" that Rose would have been spared the
death penalty if his counsel had conducted more extensive investiga-
tion into his mental health. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. at 694.
Assuming arguendo that Rose’s counsel should have further investi-
gated Rose’s sexual disorders, Coward testified that full knowledge
of the disorders only would have bolstered his strategic decision to
veer away from evidence related to Rose’s sexual disorders. Addition-
ally, Coward testified that the additional evidence of Rose’s sexual
disorders, including Rose’s alternate version of Stewart’s murder,
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would only have further impaired Rose’s likelihood of obtaining an
acquittal because the evidence would convince the jury "that Rose
was a sexual predator as well as a murderer." (J.A. at 79, 250.) Cow-
ard further pointed out that Rose’s original version of Stewart’s mur-
der allowed Coward to obtain jury instructions on second degree
murder, voluntary manslaughter, self defense, and accident — none
of which would have been available had he presented Rose’s second
version of the murder.
Nevertheless, Rose argues that but for his counsel’s failure to
uncover additional evidence about his sexual disorders, there is a rea-
sonable probabilty he would have been spared the death penalty. In
support of his argument, Rose points to an affidavit of Samuel Kent
Chapman, one of the jurors from Rose’s trial, which stated that, if
Chapman had found that "Rose suffered from some mental health
problem or disorder, [Chapman] would have voted to give him a life
sentence rather than a death sentence because [he] do[es] not believe
that a person who doesn’t appreciate or understand what he is doing
needs to be executed."12 (J.A. at 477-78.)
Chapman’s affidavit is too vague to undermine our confidence in
the outcome of the death penalty phase of the proceeding. Chapman’s
affidavit does not indicate that he was aware of Rose’s proffered dis-
orders when he averred that a certain type of mental disorders would
have influenced his decision to impose the death penalty. Rather,
Chapman indicates that when a person has a mental disorder render-
ing him incapable of appreciating the nature of his conduct, he would
be inclined to vote against the imposition of the death penalty. Rose’s
evidence regarding his mental disorders does not establish that Rose
was incapable of appreciating the nature of his conduct. To the con-
trary, Dr. Berlin opined that Rose was capable of appreciating the
criminal nature of his conduct but was incapable of conforming his
conduct to the requirements of the law. Similarly, Dr. Brown opined
that Rose was fully able to premeditate and deliberate at the time he
murdered Stewart; "he knew what he was doing and he knew it was
12The State did not object pursuant to Federal Rule of Evidence 606(b)
to our consideration of the Chapman affidavit. Thus, to the extent Rule
606(b) is applicable, the State has waived the argument that the affidavit
fits within the prohibition of Rule 606(b).
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wrong." (J.A. at 262.) Thus, Chapman’s affidavit simply does not
address whether Chapman would have voted against the death penalty
if Chapman possessed full knowledge of Rose’s particular mental dis-
orders and the alternate version of the events surrounding Stewart’s
murder. Accordingly, we do not believe that Chapman’s affidavit is
probative of whether Rose has demonstrated a reasonable probability
that he would have received life imprisonment had the jury been pres-
ented with evidence of Rose’s particular mental disorders.
Mr. Alexander McCoy, who attempted to be certified as a "mitiga-
tion specialist," also testified during the evidentiary hearing. The State
habeas court declined to accept McCoy as an expert but accepted his
testimony and opinions relating to capital trials. McCoy opined that
Rose’s trial counsel erred by failing to introduce evidence to support
a mental health instruction. McCoy admitted, however, that if counsel
had introduced Rose’s alternative version of Stewart’s murder to the
jury, it would not have been helpful and would have further supported
the statutory aggravating factor. Additionally, he admitted that he
knew of no case in which evidence presented to the jury that the
defendant suffered from a mental illness that caused him to want to
murder, rape, and torture women was found to be persuasive in
choosing life over death. (J.A. at 245.) As McCoy admits, his opinion
that introduction of such evidence would have been beneficial to Rose
amounts to pure speculation.
The only other evidence offered to support a finding of prejudice
is that of Mr. David Belser, an attorney who testified as to the proper
standard of care. Belser testified that Coward should have ignored his
client’s wishes and introduced evidence of the sexual disorders. Bel-
ser further testified that there was a reasonable probability that intro-
ducing such evidence would have changed the jury’s verdict. Belser
also admitted, however, that he had never tried a capital case in Hay-
wood County, had never put on a defense such as the one proposed
by Rose’s post-conviction counsel, and knew of no instance where
such a defense actually had averted a death sentence. Thus, Belser’s
opinion is wholly speculative and is unsupported by the evidence in
the record.
Far from undermining confidence in either phase of the State trial,
after considering all of the evidence introduced related to Rose’s inef-
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fective assistance of counsel claim, the State habeas court determined
that the evidence adduced at the evidentiary hearing constituted a
"considerably more shocking version of events" that "would virtually
have assured conviction of first degree murder" if offered at trial.
(J.A. at 266-67.) Additionally, the State habeas court noted that intro-
duction of Rose’s second version of Stewart’s murder, along with
Rose’s testimony that he had entered over one hundred other homes
and masturbated over people’s beds, would have supported the sub-
mission of the aggravating factor in N.C. Gen. Stat. § 15A-
2000(e)(11), that applies when the murder is part of a course of con-
duct. Moreover, the State habeas court concluded that, if the jury had
been presented with this "repellent" type of sexual disorder evidence,
"including as it does rape, torture and murder," the jury "would have
been even more likely to recommend a death sentence." (J.A. at 275-
76). We agree that introducing evidence of Rose’s sexual disorders
would have contributed equally, if not more, to the statutory aggravat-
ing factors than it would have contributed to any statutory or non-
statutory mitigating factors.13 The alleged mitigation value of intro-
13In evaluating whether to recommend death, the jury was instructed
that although the jury must unanimously agree that the government
established the existence of an aggravating factor beyond a reasonable
doubt, the jury could consider a mitigating factor in its weighing process
so long as one juror found that Rose established its existence by a pre-
ponderance of the evidence.
The following statutory mitigating factors were submitted at sentenc-
ing and were not found by any members of the jury: (i) Rose has no sig-
nificant history of prior criminal activity; (ii) the murder was committed
while Rose was under the influence of mental or emotional disturbance;
(iii) the capacity of Rose to appreciate the criminality of his conduct or
to conform his conduct to the requirements of the law was impaired; and
(iv) any other circumstances arising from the evidence.
The following non-statutory mitigating factors were submitted and
were found by one or more member of the jury: (i) Rose was reared until
at least his twelfth birthday in the home of his father and mother, the
father being a chronic alcoholic who was abusive both physically and
mentally to Rose’s mother in the presence of Rose; (ii) Rose is the prod-
uct of a broken home; (iii) Rose received an honorable discharge from
the United States Army; (iv) Rose received an honorable discharge from
the United States Marine Corps; (v) Rose was a good and obedient pris-
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ducing Rose’s voyeurism and sexual sadism could not possibly out-
weigh the detrimental effect that would accompany such evidence
because the evidence necessarily introduces components of rape and
torture into Stewart’s murder. Thus, we cannot say that a reasonable
probability exists that the unpresented evidence would have resulted
in a different sentencing decision or that Rose’s counsel’s failure to
investigate further into Rose’s sexual disorders constitutes ineffective
assistance of counsel. See Satcher v. Pruett, 126 F.3d 561, 572-73
(4th Cir. 1997) (holding that petitioner did not establish ineffective
assistance of counsel based upon counsel’s failure to further investi-
gate defendant’s mental disorders when counsel introduced other
types of mitigating evidence and further investigation into mental
health would have produced damaging evidence). Accordingly, we
reverse the district court’s issuance of a writ of habeas corpus on
Rose’s ineffective assistance of counsel claim.
V.
Because Rose has failed to make a substantial showing of a denial
of a constitutional right, we deny his request for a certificate of
appealability on the claims rejected by the district court. Moreover,
because we hold that Rose has failed to establish that he was denied
oner in the Graham County jail for 15 months, and at no time caused any
problem with the jailer or other personnel of the Sheriff’s Department or
with any other inmates confined there; (vi) Rose was a good and obedi-
ent prisoner in Haywood County jail for 12 days; (vii) Rose cooperated
with agents of the SBI and members of the Graham County Sheriff’s
Departments when he, at their request, agreed to take and did take a
polygraph test at a time when he was not in custody and was free to
come and go as he pleased; (viiii) Rose had been a good and reliable
employee of Tuckaseegee Mills for a substantial period of time prior to
January 1, 1991; and (ix) Rose had a good character and reputation for
truth and veracity in the work community of his place of employment.
The following statutory aggravating factors were presented to the jury
and were found unanimously to be applicable beyond a reasonable doubt:
(i) Rose has been previously convicted of a felony involving the use or
threat of violence to another person; and (ii) the facts surrounding Stew-
art’s murder were particularly heinous, atrocious, or cruel.
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his Sixth Amendment right to effective assistance of counsel, we
reverse the portion of the district court’s judgment granting a writ of
habeas corpus with respect to Rose’s ineffective assistance of counsel
claim.
AFFIRMED IN PART AND REVERSED IN PART
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