Henry Lee Hunt v.  R. C. LEE, Warden, Central Prison, Raleigh, North Carolina

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 HENRY LEE HUNT,
Petitioner-Appellant,
v. No. 01-28 
R. C. LEE, Warden, Central Prison,
Raleigh, North Carolina,
Respondent-Appellee. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CA-97-873-5-HC-BO)
Argued: April 3, 2002
Decided: May 23, 2002
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge King and Judge Gregory joined.
COUNSEL
ARGUED: D. Stuart Meiklejohn, New York, New York, for Appel-
lant. Gerald Patrick Murphy, Special Deputy Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee. ON BRIEF: Steven L. Holley, Richard C.
Pepperman, II, Brent J. McIntosh, New York, New York; James R.
Parish, Fayetteville, North Carolina, for Appellant. Roy Cooper,

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Attorney General of North Carolina, NORTH CAROLINA DEPART-
MENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
In 1985, Henry Lee Hunt was convicted in the Superior Court of
Robeson County, North Carolina, of two counts of capital murder for
the contract killing of Jackie Ransom and the witness-elimination kill-
ing of Larry Jones.
On appeal from the district court’s denial of his petition for a writ
of habeas corpus, brought under 28 U.S.C. § 2254, Hunt contends (1)
that he received ineffective assistance of counsel during the sentenc-
ing phase of his state-court trial because his counsel failed to present
any mitigating evidence and because his counsel’s closing argument
was inadequate, essentially requesting jury nullification, and (2) that
the state failed to turn over police notes of an interview with Jones,
the victim of the second murder, in violation of Brady v. Maryland,
373 U.S. 83 (1963), which requires the state’s disclosure of exculpa-
tory information. Because we conclude that the state court’s post-
conviction decision rejecting these claims was neither contrary to
clearly established federal law, as determined by the United States
Supreme Court, nor involved an unreasonable application of that law,
we affirm the district court’s judgment based on the same conclusion.
I
At Hunt’s state-court trial, the state prosecutor presented evidence
that Dottie Ransom and her husband, Rogers Locklear, hired Elwell
Barnes for $2,000 to kill Jackie Ransom, Dottie Ransom’s other hus-
band. (Dottie Ransom married Jackie Ransom without divorcing
Locklear.) Dottie Ransom’s motive was to obtain the $25,000 pro-
ceeds from a life insurance policy that she purchased on Jackie Ran-
som’s life so that she could buy a trailer home. Barnes recruited
Henry Lee Hunt to help in the murder, and on September 9, 1984,
Hunt advised Locklear that he had killed Jackie Ransom "last night"
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and demanded the $2,000 payment. Hunt threatened to kill Locklear
and Dottie Ransom if Hunt was not paid within 30 days.
The next day, Hunt heard that Larry Jones, an acquaintance and a
first cousin of Hunt’s girlfriend, Bernice Cummings, was "running his
mouth" by talking to the police about who had killed Jackie Ransom.
Hunt told Cummings that "he was going to put a stop to [Jones’]
damn mouth" and, on a separate occasion, that he was going to "kill
that water-headed, ratting son-of-a-bitch Larry Jones."
During the evening of September 14, 1984, Hunt, Barnes and
Jerome Ratley picked up the unsuspecting Jones and drove him to a
deserted spot where Hunt shot Jones several times, point blank, telling
him, "You don’t eat no more cheese for no damn body else. I’ll meet
you in heaven or hell, one." When the three men dragged Jones out
of the truck, he was still alive, so Hunt shot Jones again in the head.
After the bodies of Jackie Ransom and Jones were later discovered,
one in Lumberton, North Carolina, and the other in Fairmont, North
Carolina, 10 miles away, Hunt was indicted for two counts of capital
murder and two counts of conspiracy to commit murder in connection
with the murders of Jackie Ransom and Jones. The state court
appointed two attorneys to represent Hunt, and he was tried jointly
with Barnes. Following trial, the jury convicted Hunt on both counts
of capital murder.
At sentencing, Hunt’s counsel elected not to put on any mitigating
evidence, concluding that the risk of revealing more about Hunt’s
criminal background outweighed the benefit that could be obtained
from the evidence. For his argument to the jury, counsel asked the
jury, as an act of mercy and conscience, to spare Hunt’s life. While
briefly alluding to the fact that Hunt had a family and was not perfect
and recognizing that aggravating factors existed, counsel rested his
argument principally on the barbarism of the death penalty and the
moral progress that would be made by sparing Hunt’s life. The jury,
answering special interrogatories, sentenced Hunt to death on each
count of capital murder.
On direct appeal, the Supreme Court of North Carolina affirmed
both Hunt’s convictions and his sentences. North Carolina v. Hunt,
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373 S.E.2d 400 (N.C. 1988). The United States Supreme Court, how-
ever, vacated the North Carolina Supreme Court’s judgment and
remanded the case for a harmless-error review of an instruction given
during the sentencing phase, in light of the Supreme Court’s interven-
ing decision in McCoy v. North Carolina, 494 U.S. 433 (1990). Hunt
v. North Carolina, 494 U.S. 1022 (1990). On remand, the North Caro-
lina Supreme Court found that any McCoy error was harmless and
reinstated its previous judgments. North Carolina v. Hunt, 411 S.E.2d
806 (N.C. 1992). The United States Supreme Court then denied
Hunt’s petition for a writ of certiorari. Hunt v. North Carolina, 505
U.S. 1226 (1992).
With new counsel, Hunt filed a post-conviction Motion for Appro-
priate Relief ("MAR") in North Carolina state court, requesting relief
based on numerous violations of the United States and North Carolina
constitutions. Following extensive hearings lasting five weeks, at
which Hunt’s original counsel testified about their trial strategy, the
state court granted the state partial summary judgment. After a hear-
ing on the remaining claims, the state court made findings of fact and
conclusions of law, rejecting the remainder of Hunt’s claims. The
North Carolina Supreme Court denied Hunt’s petition for a writ of
certiorari from both the summary judgment and the state court’s deci-
sion on his remaining claims. North Carolina v. Hunt, 447 S.E.2d 436
(N.C. 1994); North Carolina v. Hunt, 485 S.E.2d 304 (N.C. 1997).
The United States Supreme Court also denied Hunt’s petition for a
writ of certiorari. Hunt v. North Carolina, 522 U.S. 861 (1997).
On April 10, 1998, Hunt filed a petition for writ of habeas corpus
in the district court under 28 U.S.C. § 2254, alleging that he received
ineffective assistance of counsel during both the guilt and sentencing
phases of his trial on several grounds. He also claimed that the state
failed to disclose exculpatory evidence in violation of Brady v. Mary-
land, 373 U.S. 83 (1963). Finally, he alleged six other miscellaneous
violations of the United States Constitution. The district court granted
the state’s motion for summary judgment, rejecting all of Hunt’s
claims. This appeal followed. The district court granted a certificate
of appealability as to Hunt’s ineffective-assistance-of-counsel claim
at the sentencing phase of trial and denied his claim based on the
state’s failure to comply with Brady v. Maryland. We granted a certif-
icate of appealability on that claim.
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II
In making his principal argument, Hunt contends that he received
ineffective assistance of counsel during the sentencing phase of his
trial because his counsel "failed to present any mitigating evidence
whatsoever and conceded the existence of aggravating circumstances,
relying instead on a jury nullification argument based on general
moral opposition to the death penalty." He argues that his counsel’s
performance denied him the right to have the effective assistance of
counsel for his defense as guaranteed by the Sixth and Fourteenth
Amendments.
Ruling on Hunt’s post-conviction MAR in a detailed 110-page
opinion, the Superior Court of Robeson County considered every
argument that Hunt now presents and evaluated it against the standard
for ineffective-assistance-of-counsel claims, as set forth in Strickland
v. Washington, 466 U.S. 668 (1984). Following a detailed analysis of
the claims, the court then concluded:
[Hunt’s counsel’s] decision to not present evidence at pen-
alty phase was reasonable. Hunt had rejected utilizing a psy-
chiatrist. Neither Hunt nor his family members wanted to
testify. Hunt’s criminal record was significant and the
details of the offenses had not come out. [Hunt’s counsel]
were confronted with putting on reluctant family members
many of whom were linked to attempts to destroy evidence
and intimidate witnesses. These problems were caused by
Hunt. Moreover, Hunt’s record contained prior bad acts
which were not the subjects of convictions and the attorneys
knew from discovery the State was going to try and link
Hunt to other murders. They were concerned about opening
the door. [Hunt’s counsel’s] performance at sentencing
phase was not deficient. Any arguable errors did not preju-
dice Hunt.
Continuing its summary with respect to Hunt’s challenge of his coun-
sel’s closing argument to the jury, the state court concluded:
The Court has reviewed [counsel’s] closing argument and
finds it contains many conventional arguments often heard
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in death penalty cases. [Counsel] connected himself with
Hunt telling the jury he was "proud to be in a position . . .
that I can speak to save somebody." He acknowledged the
sorrow of the victims’ loved ones but point[ed] out Hunt
also had a family and the jury could exercise its choice to
let him live. [Counsel] argued life imprisonment was sub-
stantial punishment and that any aggravating circumstances
the jury may find simply were not substantial enough to
warrant the death penalty.
* * *
While [counsel’s] argument clearly questioned whether cap-
ital punishment had any place in a civilized society, his
argument was far from an all out attack on the death penalty.
In the context of this case, [counsel’s] argument was profes-
sionally reasonable and incorporated conventional subject
matter often used in capital cases. . . . Hunt has failed to
prove [counsel’s] argument was either deficient or prejudi-
cial.
On Hunt’s federal habeas petition, the district court reviewed the
state court’s decision against the standard prescribed in 28 U.S.C.
§ 2254(d). With respect to these claims, the district court concluded
that "Hunt has not established that the state court’s adjudication of
this claim was contrary to, or involved an unreasonable application of,
clearly established federal law, or that the state court’s findings are
unreasonable in light of the evidence presented." Our review is de
novo, applying the same standard applied by the district court. See
Savino v. Murray, 82 F.3d 593, 598 (4th Cir. 1996).
The law that Hunt seeks to apply respecting ineffective assistance
of counsel was, at the time of his convictions, clearly established. See
Strickland v. Washington, 466 U.S. 668 (1984) (setting forth the stan-
dard for establishing ineffective-assistance-of-counsel claims). Under
Strickland, Hunt must demonstrate (1) that his counsel’s performance
was "deficient" in that it "fell below an objective standard of reason-
ableness" and "outside the wide range of professionally competent
assistance," id. at 687-90, and (2) that the deficient performance "prej-
udiced the defense" in that, "but for counsel’s unprofessional errors,
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the result of the proceeding would have been different," id. at 687,
694.
A court’s evaluation of counsel’s performance under this standard
must be "highly deferential" so as not to "second-guess" the perfor-
mance. Id. at 689. To eliminate the distortions of hindsight, a court
must evaluate counsel’s performance "from counsel’s perspective at
the time." Id. Because of the difficulty of making this inquiry in the
context of the wide range of reasonable strategic approaches, "a court
must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circum-
stances, the challenged action might be considered sound trial strat-
egy." Id. (internal quotation marks and citation omitted).
The question, therefore, is whether Hunt can demonstrate that the
state court’s rejection of his ineffective-assistance-of counsel claim
was contrary to those clearly established principles or involved an
objectively unreasonable application of them. See 28 U.S.C.
§ 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 409 (2000). This
standard is more stringent than reviewing for error or incorrectness.
On habeas review, it is not sufficient in meeting the § 2254(d)(1)
standard merely to find the state court’s decision erroneous or incor-
rect; we must also find it unreasonable. Williams, 529 U.S. at 411.
In this case, Hunt does not challenge the state court’s factual find-
ings as unreasonable in light of the evidence presented. See 28 U.S.C.
§ 2254(d)(2). Rather, he contends it was error to apply Strickland to
conclude that he received effective assistance of counsel when his
counsel "failed to present any mitigating evidence whatsoever and
conceded the existence of aggravating circumstances, relying instead
on a jury nullification argument based on general moral opposition to
the death penalty."
Hunt maintains that there were over 20 mitigating circumstances
that could have been presented and that some witnesses were ready
and willing to testify at Hunt’s sentencing hearing. These mitigating
circumstances fall into five general categories relating to (1) Hunt’s
impoverished and violent childhood, (2) his role as a supportive and
giving father, (3) his service as a dependable and hardworking
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employee, (4) his good behavior in prison, and (5) his existing emo-
tional and mental disturbances. At the state MAR hearing, Hunt’s
counsel testified that there were reasonable, strategic reasons for not
introducing this evidence. They explained generally that after they
"reviewed" an extensive list of possible mitigating factors, they spoke
to several of the potential mitigating witnesses, such as Hunt’s sisters
Aggie Nora and Betty, Hunt’s father, Sam Hunt, and Hunt’s
employer, discussing Hunt’s "family background" and his job perfor-
mance. Counsel found that many potential witnesses were "scared" to
talk about Hunt because of threats made to them. Although counsel
did not interview every possible mitigating witness or track down
every piece of potentially mitigating evidence, they became familiar
with the nature, scope, and availability of mitigating evidence. Upon
evaluating the potential mitigating evidence, counsel made a strategic
decision not to put on any mitigating evidence because the damaging
evidence that could have been elicited through cross-examination and
from rebuttal witnesses would have outweighed any benefit to be
claimed from the mitigating evidence. In addition, Hunt himself
refused to subject himself to any psychiatric tests or interviews.
Specifically, with respect to Hunt’s impoverished and violent
childhood, Hunt’s counsel could have shown that his father was an
illiterate and violent alcoholic who was extremely abusive to Hunt
and his 14 siblings, as well as to Hunt’s mother. There was evidence
that his father would have the children fight each other for his
"amusement." Hunt’s mother had an affair with Hunt’s father’s best
friend and deserted the family in 1964, leaving them with nothing.
She too was physically abusive to the children. The family was poor,
and Hunt dropped out of school in the sixth grade. This evidence
could have been presented either through Hunt himself or through one
of his siblings, such as Aggie Nora, who discussed Hunt’s childhood
with Hunt’s counsel during their 10-15 interviews. If counsel had pro-
ceeded to put Hunt or his sister on the stand, however, either could
have been cross-examined about Hunt’s prior criminal acts and crimi-
nal record. That record was extensive and included the unindicted
murder of Wyles Jacobs, several armed robberies, Hunt’s dynamiting
of his mother’s house, and a drug offense. Hunt’s counsel were also
concerned that Aggie Nora would testify about "other family mem-
bers being involved in trying to suppress or intimidate witnesses."
There were indications that Hunt was trying to "get people to dispose
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of evidence . . . or to threaten people to be quiet" while he was in
prison. One of Hunt’s brothers, Wilbert, had passed a gun to Bernice
Cummings, Hunt’s girlfriend, so that she could kill a potential witness
to the Wyles Jacobs murder. Thus, counsel concluded that revelation
of this violent and criminal background would have undone whatever
benefit would have been gained from the evidence.
Hunt also argues that his counsel could have presented the testi-
mony of Bernice Cummings about Hunt’s role as a supportive and
giving father. But putting Cummings on the witness stand also risked
damaging revelations. For example, she had been kept in a protective
custody program from the time of the murders until the time of trial
because of her fear that Hunt would kill her and her fear of Hunt’s
family. Moreover, Cummings herself was involved in witness intimi-
dation and obstruction of justice, as discussed above.
Hunt contends that his counsel should also have offered testimony
at sentencing about Hunt’s successful employment and his perfor-
mance as a "willing, dependable, and responsible worker." But after
speaking to Hunt’s employer, Hunt’s counsel concluded that such tes-
timony would be decidedly double-edged. While the employer liked
Hunt and felt that he was a good worker, he added that Hunt was "a
man’s man," meaning he was "scared of Mr. Hunt" and "no one
would cross him." Hunt’s counsel decided that if this evidence about
good employment were introduced, it would also open the door to
rebuttal testimony that Hunt’s coworkers were afraid of him because
of his various actions and to questions about whether the employer’s
view would be different in light of Hunt’s criminal history.
Hunt also argues that counsel should have introduced testimony of
prison guards who could have testified about Hunt’s rehabilitation
and good behavior in prison. But again, the evidence would have been
double-edged. One of Hunt’s prison guards testified at the post-
conviction MAR hearing about an incident in which Hunt "hit
[another prisoner] with a shank in the pit of his stomach . . . [and] his
intestines was coming out." This testimony might also have provided
an opening to the introduction of other violent conduct in Hunt’s past,
negating the positive aspects of the guards’ testimony.
Finally, Hunt asserts that his counsel should have introduced evi-
dence from a psychiatrist about the fact that he was "neurologically
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impaired" in a way that "affected his ability to appreciate the crimi-
nality of his conduct." But during the trial, Hunt refused to be inter-
viewed or examined by a psychiatrist. He was, however, interviewed
by a psychiatrist after the trial, who concluded that Hunt did have a
neurological impairment. Additionally, Hunt’s counsel testified at the
post-conviction MAR hearing that because Hunt had consistently
maintained during the guilt phase that he had not committed the
crime, such psychiatric evidence was irrelevant; it would have been
relevant only on the implied assumption that Hunt had committed the
murders.
The state court considered these matters at length and in greater
depth than is summarized here and concluded that counsel’s investi-
gation of Hunt’s social history "was clearly reasonable and suffi-
ciently complete to support his strategic decision not to present social
history evidence at the sentencing phase." And our review of the state
MAR record confirms the district court’s conclusion that not only
were the factual determinations reasonable in light of the record, but
also that the state court’s determination was neither contrary to Strick-
land nor an unreasonable application of its principles. See 28 U.S.C.
§ 2254(d).
Hunt argues nonetheless that the Supreme Court’s decision in Wil-
liams v. Taylor, 529 U.S. 362, supports his contention that it is an
unreasonable application of Strickland to conclude that counsel can
provide effective assistance when they fail to put on any available
mitigating evidence. But neither the Supreme Court nor this court has
ever held that it is per se ineffective assistance of counsel not to intro-
duce mitigating evidence at sentencing. Indeed, in Burger v. Kemp,
483 U.S. 776 (1987), the Court held that because the potentially miti-
gating evidence about the defendant’s troubled family background
was "by no means uniformly helpful to [the defendant] because they
suggest violent tendencies," it was not objectively unreasonable not
to introduce that evidence. Id. at 793. Where defense counsel had
interviewed "all potential witnesses who had been called to his atten-
tion" and had a "reasonable basis for his strategic decision that an
explanation of [the defendant’s] history would not have minimized
the risk of the death penalty," his actions were reasonable and not
constitutionally deficient. Id. at 794-95. And the decision in Williams
v. Taylor does not suggest otherwise. There, the Court found it to be
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ineffective assistance of counsel only where counsel "failed to con-
duct an investigation that would have uncovered extensive records
graphically describing [the defendant’s] nightmarish childhood." 529
U.S. at 395. Thus, it was the failure to investigate, not the failure to
present, mitigating evidence that led to the conclusion that the defen-
dant had been denied effective assistance of counsel.
In this case, counsel had conducted a sufficient investigation to
make the tactical decision that it would be more harmful to Hunt to
present mitigating evidence than it would be not to present it. Thus,
this case is more analogous to Burger and to our decision in Bunch
v. Thompson, 949 F.2d 1354 (4th Cir. 1991). In Bunch, we held that
counsel did not render ineffective assistance when he failed to intro-
duce sentencing testimony of the defendant’s psychiatrist because,
even though some of the evidence would have been "beneficial," there
were also "risks involved if the psychiatrist had taken the stand." 949
F.2d at 1364. Some "harmful evidence would have emerged on cross-
examination [sic]" that could have "reenforce[d] all the negative
aspects of [the defendant’s] self-destructive behavior." Id.
In short, the state court did not make an unreasonable application
of Strickland in concluding that Hunt’s counsel engaged in a reason-
able investigation into possible mitigating factors and then made a
reasonable strategic choice in not offering evidence of those factors
because to do so would have opened the door to more damaging
cross-examination or rebuttal evidence. Indeed, the state court was
not even in error — a less demanding standard than "reasonableness"
— in concluding that this legitimate and often-used trial strategy,
based on a full investigation, did not constitute ineffective assistance
of counsel. See Burger, 483 U.S. at 795; Bunch, 949 F.2d at 1365.
Hunt also contends that his counsel provided ineffective assistance
in making a closing argument to the jury that relied "on a jury nullifi-
cation argument based on the supposed immorality of the death pen-
alty." By presenting no mitigating evidence and acknowledging the
existence of aggravating factors, Hunt claims, "the jury had no choice
but to conclude that aggravating circumstances outweighed mitigating
circumstances" and was essentially forced to choose to impose a sen-
tence of death. The state court concluded that not only was this argu-
ment not deficient, it was "often heard in capital cases."
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While North Carolina law does require the jury to weigh aggravat-
ing and mitigating circumstances, it nevertheless authorizes the jury,
based on this weighing to decide ultimately "whether the defendant
should be sentenced to death or to imprisonment in the State’s prison
for life." N.C. Gen. Stat. § 15A-2000(b)(3). Consistent with this stat-
ute, the state trial judge submitted to the jury the special verdict inter-
rogatory: "Do you unanimously find, beyond a reasonable doubt, that
the aggravating circumstance or circumstances found by you is or are
sufficiently substantial to call for the imposition of the death penalty
when considered with any mitigating circumstance or circumstances
found by you." It was on the discretion given to the jury through
§ 15A-2000(3) and this interrogatory that counsel for Hunt focused
during his closing argument.
Hunt’s counsel pointed out to the jury that the prosecutor had "talk-
[ed] to you about death. I will talk to you about life." He then turned
to the larger philosophical, moral and religious questions about life
and death and requested the jury, in answering issue four on the ver-
dict form, to find for life: "[The prosecutor], in all his grandeur,
would suggest to you that Henry Lee Hunt should receive the death
penalty and with equal grandeur, I will ask the question, ‘Should he?’
and I suggest to you that the answer is a resounding no . . . You know,
I understand that with all of life’s human failures, and recognize, that
with all of life’s human short comings that to impose such a penalty
of death is cruel and unnecessary." Hunt’s counsel then appealed for
mercy for Hunt and his family: "Both Jackie Ransom and Larry
Jones, I’m sure, left loved ones with tears and with sorrows. . . . You
know, Henry Lee Hunt has a family, and, you know, today, Henry
Lee Hunt doesn’t have a choice, but you do. . . . If you want to punish
Henry Lee Hunt, I suggest to let him live. You cannot punish him
when he’s dead." Focusing particularly on the fourth interrogatory
submitted to the jury, Hunt’s attorney stated: "I want you to think
about whether any aggravating circumstances are sufficiently substan-
tial for you to take this man’s life in either one of those cases . . .
Now, his honor will instruct you that even if you find aggravating cir-
cumstances and no mitigating circumstances, you will still have a
chance to answer Issue Number Four no."
It is true that Hunt’s counsel spent some time talking about the his-
tory of the death penalty and its barbaric nature, indicating to the jury
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that its choice should be historically progressive in that the jury
should not elect death as a method of punishing Hunt. Then returning
to the present situation, counsel argued: "None of us are perfect. No,
not even the least of us, but you do have the power to choose. You
see, that is what separates you from Jackie Ransom, from Larry Jones,
and Henry Lee Hunt. You can choose the love or hate. . . . You can
say for these reasons I choose not to take Henry Lee Hunt’s life."
The strategy that Hunt’s counsel was pursuing was to find the one
juror whose conscience would not permit a finding of death, even
though the jury had been qualified for the death penalty, and to rely
on the inadequacy of the aggravating circumstances to support a death
sentence. Indeed, Hunt’s counsel specifically appealed to jury vulner-
ability with this approach, arguing, "From the jury selection process,
I have learned that some of you have just recently formed your atti-
tudes and beliefs or opinions about capital punishment. You know,
this is important to me, because it reaffirms what I’ve always
believed, that attitudes and opinions and beliefs are not contained in
a vacuum during the life of an individual. Attitudes, opinions and
beliefs do change over the experience, over life’s experience in this
earthly existence."
The state court at the MAR hearing found the argument conven-
tional and well within the scope of reasonable arguments to be made
in capital cases and concluded counsel’s performance was not defi-
cient.
But Hunt argues that he received ineffective assistance of counsel
because his counsel failed to argue evidence to the jury that was spe-
cific to Hunt and his crimes, arguing instead against the death penalty
based on moral or religious standards. In addition, he contends that
his counsel should not have acknowledged "certainly, there are aggra-
vating circumstances in these cases." As a result of this combination
of errors, Hunt asserts that his counsel was improperly seeking jury
nullification.
First, in view of the record, and Hunt’s counsel’s decision not to
introduce evidence of mitigating factors, Hunt’s counsel concluded
that he could not focus on the specific weighing of aggravating and
mitigating circumstances. He had elected, instead, to focus on inter-
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rogatory four that allowed the jury, after weighing the factors, to find
that mercy outweighed the aggravating circumstances and the aggra-
vating circumstances were not sufficient to justify the death penalty.
See, e.g., State v. Conner, 480 S.E.2d 626, 632 (N.C. 1997). While
he acknowledged the existence of aggravating circumstances, counsel
also indicated that Hunt had a family, that Hunt was not perfect, and
that the more merciful course would be to spare Hunt’s life. We can-
not conclude that the state court’s decision to find this argument rea-
sonable in light of North Carolina law unreasonably applied the
Strickland standard. The state court found Hunt’s argument typical of
death penalty arguments, and, indeed, it may have been the strongest
argument that Hunt’s counsel could have made in light of the record.
Hunt nevertheless argues that it cannot be reasonable to approve an
argument that improperly seeks jury nullification. Again, Hunt fails
to recognize the scope of authority given to a jury in a North Carolina
capital case. His counsel did not ask the jury to ignore the law; rather,
he asked the jury to focus on the fourth interrogatory on the verdict
form and determine whether the aggravating circumstances were suf-
ficiently substantial that "the defendant should be sentenced to death."
N.C. Gen. Stat. § 15A-2000(b)(3). In answering this interrogatory, the
North Carolina Supreme Court has stated that it is not inappropriate
to consider sympathy or mercy. See Conner, 480 S.E.2d at 632 (hold-
ing that while the court may not instruct that sympathy is a mitigating
factor, the "catchall" mitigating factor phrase in N.C. Gen. Stat.
§ 15A-2000(f)(9) permits consideration of sympathy).
Finally, even though the closing argument carried a heavy religious
and moral overlay, it was not error under North Carolina law to make
such an argument in a capital case. See North Carolina v. Barrett, 469
S.E.2d 888, 899 (N.C. 1996) (holding that prosecutor’s closing argu-
ment that contained Biblical references was not reversible error and
North Carolina has upheld such arguments as long as argument is not
that State law is divinely inspired or that law officers are divinely
ordained); McDougall v. Dixon, 921 F.2d 518, 539 (4th Cir. 1990)
(applying N.C. law). Indeed, in McDougall, we concluded that in a
death penalty case, it was a "conventional argument" to discuss with
the jury "the irrevocability of the death penalty verdict, the mitigating
factors in favor of the defendant, Biblical passages in support of
mercy, other arguments indicating that the death penalty was not a
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proper solution for McDougall." Id. at 535. In that case, one of the
counsel argued that the death penalty was "a cold blooded, premedi-
tated killing by the state," quoting Clarence Darrow, Martin Luther
King, Jr., and the Bible, "including a complete recitation of the Beati-
tudes." Id. at 536.
While some attorneys might consider the argument made by Hunt’s
counsel to have been a "desperate appeal," it nevertheless was an "ap-
peal . . . made with full knowledge of the facts and the law, and the
options available to him." McDougall, 921 F.2d at 537. In these cir-
cumstances, we cannot conclude that the state court’s finding that
Hunt received effective assistance of counsel was an unreasonable
application of Strickland.
III
Hunt also contends that the State violated his rights under Brady
v. Maryland, 373 U.S. 83, 87 (1963), when it failed to turn over
police notes documenting Larry Jones’ conversations with police offi-
cers. Hunt argues that the notes were both exculpatory and material
to his defense.
These police notes would have revealed that Jones had been talking
to the police but had not identified Hunt as Ransom’s killer. Hunt
argues that the notes should have been turned over as exculpatory
because they could have been used (1) to bolster the testimony of
defense witnesses about Hunt’s lack of motive to kill Jones, (2) to
show that Hunt did not commit the crime, and (3) to impeach the tes-
timony of Bernice Cummings who testified that, according to Hunt,
Larry Jones had been "running his mouth" about the Ransom murder
and that Hunt "would put a stop to his damn mouth." Hunt argues that
this evidence would have demonstrated, contrary to Bernice Cum-
mings’ testimony, that Jones was not in fact running his mouth.
Hunt’s argument, however, overlooks the state’s theory that Hunt
killed Jones because Hunt believed that Jones was talking to the
police and telling them that Hunt killed Ransom. It is irrelevant
whether Jones had actually told the police that Hunt was Ransom’s
killer. The critical issue is whether Hunt believed that Jones was tell-
ing the police that Hunt was the killer. And on that point, there was
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ample evidence to support the motive, given Hunt’s statement to
Cummings that he was going to "kill that water-headed, ratting son-
of-a-bitch Larry Jones." Moreover, the notes confirmed that Jones had
been talking ("running his damn mouth") to the police, which would
only serve to bolster evidence of Hunt’s motive given that there was
no way for Hunt to have known exactly what Jones was telling the
police.
Hunt’s Brady claim is without merit and it follows that the state
court’s conclusion that the failure to turn over the notes did not vio-
late Brady was not an unreasonable application of federal law. See
Williams, 529 U.S. at 413.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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