Earl Richmond, Jr. v.  MARVIN L. POLK, Warden, Central Prison, Raleigh, North Carolina

Filed: August 19, 2004
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-10
(CA-00-286-5-H)
EARL RICHMOND, JR.,
Petitioner - Appellant,
versus
MARVIN L. POLK, Warden, Central Prison,
Raleigh, North Carolina,
Respondent - Appellee.
O R D E R
The court amends its opinion filed July 20, 2004, as follows:
On page 11, first full paragraph, line 10; page 20, first
paragraph, line 10; and page 17, footnote 5, second paragraph, line
17 -- the date “October 10” is corrected to read “October 8.”
On page 11, first full paragraph, line 13, the word “Also” is
deleted from the beginning of the sentence.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 EARL RICHMOND, JR.,
Petitioner-Appellant,
v. No. 03-10 
MARVIN L. POLK, Warden, Central
Prison, Raleigh, North Carolina,
Respondent-Appellee. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-00-286-5-H)
Argued: May 4, 2004
Decided: July 20, 2004
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Gregory wrote the opinion, in
which Judge Wilkinson and Judge King joined.
COUNSEL
ARGUED: Ann Elizabeth Groninger, PATTERSON, HARKAVY &
LAWRENCE, Raleigh, North Carolina, for Appellant. Diane Apple-
ton Reeves, Assistant Attorney General, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appel-
lee. ON BRIEF: Burton Craige, PATTERSON, HARKAVY &
LAWRENCE, Raleigh, North Carolina, for Appellant. Roy Cooper,

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Attorney General of North Carolina, Raleigh, North Carolina, for
Appellee.
OPINION
GREGORY, Circuit Judge:
Petitioner-appellant Earl Richmond, Jr. was sentenced to death
after being found guilty by a North Carolina jury of three counts of
first-degree murder and one count of first-degree rape. Following
exhaustion of his rights of review in the North Carolina courts, Rich-
mond filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 in the United States District Court for the Eastern District of
North Carolina asserting sixteen separate claims. After reviewing the
merits of Richmond’s claims, the district court granted the State of
North Carolina’s motion for summary judgment and denied Rich-
mond’s habeas petition. The district court thereafter issued Richmond
a certificate of appealability for his claims that: (1) the state trial
court’s voir dire questions were constitutionally inadequate under
Morgan v. Illinois, 504 U.S. 719 (1992); (2) his counsel rendered
ineffective assistance during the guilt phase of his trial by failing to
present expert and available lay testimony regarding his inability to
form the requisite intent for first-degree murder because of his level
of intoxication; (3) his counsel rendered ineffective assistance during
the penalty phase of his trial by failing to present expert testimony
regarding his substance abuse and its effect on his behavior; and (4)
the state trial court’s denial of his request for an instruction informing
the jury of his parole ineligibility for a prior federal murder convic-
tion violated the Supreme Court’s holding in Simmons v. South Caro-
lina, 512 U.S. 154 (1994). We subsequently issued Richmond a
certificate of appealability for his claim that his counsel rendered inef-
fective assistance during the penalty phase of his trial by failing to (1)
retain a sexual abuse expert and (2) request that childhood sexual
abuse be presented to the jury as a possible mitigating factor. For the
reasons that follow, we affirm the district court’s denial of Rich-
mond’s habeas petition.
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I.
During the early morning of November 2, 1991, Richmond went
to the home of Helisa Hayes,1 the ex-wife of his best friend, Wayne
Hayes, and allegedly engaged in consensual intercourse with her.
Thereafter, Richmond and Ms. Hayes allegedly got into an argument
about Ms. Hayes flaunting her relationships with other men in front
of her ex-husband. During this argument, Richmond, after supposedly
being struck with an object by Ms. Hayes, grabbed and carried Ms.
Hayes into her bedroom. Once inside of Ms. Hayes’ bedroom, Rich-
mond struck Ms. Hayes in the face with his fist and proceeded to
engage in "forceful" intercourse with her. After having "forceful"
intercourse with Ms. Hayes, Richmond strangled her to death with his
hands and poured rubbing alcohol over her vaginal area. Richmond
then grabbed Ms. Hayes’ eight-year-old son, Phillip, who was laying
down in the hallway outside of his mother’s bedroom, carried him
into the bathroom, stabbed him approximately forty times with scis-
sors and wrapped an electrical cord five times around his neck. After
killing Phillip, Richmond went into the bedroom of Ms. Hayes’
seven-year-old daughter, Darien, who was sleeping in her bed, and
strangled her to death with the cord from a curling iron. Ms. Hayes’
father, William Stewart, discovered the bodies of his daughter and
two grandchildren on November 4th when, after having not heard
from Ms. Hayes for two days, he became concerned about her safety
and broke into her home.
Because Richmond was Wayne Hayes’ best friend and because he
was well acquainted with Ms. Hayes and her children, even serving
as a pallbearer at their funerals, police interviewed Richmond, among
others, soon after the dead bodies of Ms. Hayes and her two children
were discovered. During this initial interview, Richmond told police
that he had not been to Ms. Hayes’ home during the weekend of the
murders. Moreover, Richmond sought to shift attention from himself
by telling police that he believed Wayne Hayes had visited Ms.
Hayes’ home at some point during the weekend in question. Conse-
1Although the parties spell Ms. Hayes’ first name as "Halisa" in their
briefs, we spell Ms. Hayes’ first name in this opinion as "Helisa" because
this is how it is spelled in Richmond’s indictment and the opinions ren-
dered by the district court and state courts.
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quently, police, rather than considering Richmond a suspect, focused
their attention on Ms. Hayes’ ex-husband, Wayne Hayes, her boy-
friend at the time of the murders, Barrett Parks, and her father, Wil-
liam Stewart. Approximately three months after the murders,
however, Richmond became a suspect when his sister, Andrea
Knight, informed police that she had dropped Richmond off near Ms.
Hayes’ home on the early morning of November 2nd after they and
others attended an all night house party. In light of this information,
police requested a suspect rape kit from Richmond, which revealed,
through DNA evidence, that the semen found inside of Ms. Hayes’
body belonged to Richmond. Based on this DNA evidence, police
brought Richmond in for an interview on April 3, 1992.
During this interview, Richmond, after initially denying any
involvement in the murders of Ms. Hayes and her two children, con-
fessed to having committed the murders upon being informed that
DNA evidence revealed that his semen was found inside of Ms.
Hayes’ body. When asked to describe the murders, Richmond told
police, in sum, the following:
At approximately 3:45 a.m. on the morning of November
2nd, he went to Ms. Hayes’ home after leaving an all night
house party. Upon arriving at Ms. Hayes’ home, he and Ms.
Hayes got into an argument about her "messing" around on
Wayne Hayes. After arguing, he and Ms. Hayes engaged in
"forceful" sex and then got into another argument. During
this argument, Ms. Hayes struck him with an object and cal-
led her son, Phillip, into the room. In response, he knocked
Ms. Hayes to the ground by striking her in the face with his
fist, grabbed her son, who at this point had entered the room,
and took him into the bathroom where he stabbed him to
death with scissors. After killing Phillip, he went into the
bedroom of Ms. Hayes’ daughter, Darien, and strangled her
to death with the cord from a curling iron. He then went
back into Ms. Hayes’ bedroom where he strangled her to
death with his hands and poured rubbing alcohol on her vag-
inal area.
J.A. 346-67 (testimony of Lieutenant Don Smith). During a subse-
quent interview on April 5th, Richmond, although altering his recol-
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lection of the events, confirmed his confession. During this interview,
Richmond told police, in sum, the following:
Upon arriving at Ms. Hayes’ home at approximately 3:45
a.m., he engaged in consensual intercourse with Ms. Hayes.
After having consensual intercourse, he and Ms. Hayes got
into an argument about Ms. Hayes flaunting her relation-
ships with other men in front of Wayne Hayes. During this
argument, Ms. Hayes struck him with an object and called
her son, Phillip, into the room. In response, he carried Ms.
Hayes into her bedroom, struck her in the face with his fist,
engaged in "forceful" sex with her, strangled her to death
with his hands, and poured rubbing alcohol on her vaginal
area. After killing Ms. Hayes, he grabbed her son, who had
entered and left the room during the aforementioned events
and subsequently laid down in the hallway outside Ms.
Hayes’ bedroom, and took him into the bathroom where he
stabbed him to death with scissors. After killing Ms. Hayes’
son, he went into her daughter’s bedroom, Darien, and stran-
gled her to death with the cord from a curling iron.
Id. at 474-86 (testimony of Captain Art Binder). Based on his April
3rd and 5th confessions, Richmond was indicted on July 6, 1992 for
the first-degree rape of Ms. Hayes; the first-degree murder of Ms.
Hayes; the first-degree murder of Phillip Hayes; and the first-degree
murder of Darien Hayes.
While awaiting trial on these charges, Richmond was charged in
the United States District Court for the District of New Jersey with
the April 4, 1991 murder of Lisa Ann Nadeau, an army dispersing
clerk at the Fort Dix military base. On May 28, 1993, Richmond was
convicted of Ms. Nadeau’s murder and subsequently sentenced to a
term of life imprisonment. Because the Sentencing Reform Act of
1984, Pub. L. No. 98-473, Title II, 98 Stat. 1987, abolished parole for
federal offenses committed after November 1, 1987, Richmond is not
eligible for parole on this conviction.
After being convicted and receiving a life sentence in federal court
for Ms. Nadeau’s murder, Richmond was tried during the May 1,
1995 criminal session of the Superior Court for Cumberland County,
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North Carolina for the rape and murder of Ms. Hayes and the murders
of her two children. Prior to the commencement of Richmond’s trial,
the court ruled that the State would be allowed to introduce evidence
about Richmond’s federal conviction for the murder of Ms. Nadeau,
as an aggravating factor, during the penalty phase. Consequently,
Richmond’s attorneys requested the court’s permission to ask poten-
tial jurors during voir dire whether "if . . . knowing that [Richmond]
had a previous first-degree murder conviction, they could still con-
sider mitigating circumstances . . . in determining what their ultimate
recommendation as to life or death is going to be." State v. Richmond,
495 S.E.2d 677, 683 (N.C. 1998). The court denied this request on the
basis that it was a "stakeout" question aimed at determining what pro-
spective jurors would do if presented with a certain state of evidence.
Moreover, the court noted that Richmond’s attorneys could get the
information they needed to empanel an impartial jury through broader
and more appropriate questions.
At trial, Richmond’s attorneys called his two sisters, Sheila Jordan
and Erica Richmond, as their sole witnesses. Jordan testified that: (1)
Richmond drank beer on a regular basis; (2) she observed Richmond
consume about two to three forty-ounce beers prior to attending a
house party on the night of November 1st; (3) Richmond consumed
a lot of hard liquor, which he did not regularly drink, within the first
couple hours of arriving at the party; (4) Richmond drove her to pur-
chase twenty dollars worth of crack cocaine, of which each of them
took one hit; (5) Richmond became extremely obnoxious after taking
a hit of the crack cocaine, which frightened her because she had never
witnessed him have such a reaction to crack cocaine; (6) Richmond,
after returning to the party at approximately 1:45 a.m., consumed
alcohol for another two hours prior to leaving the party; and (7) she
had never observed Richmond consume so much alcohol. Erica Rich-
mond testified that Richmond regularly drank beer and that, although
she could not quantify the amount of alcohol that Richmond con-
sumed at the party, she saw Richmond with a glass of alcohol
throughout the night.
At the conclusion of Richmond’s two day trial, the court held a
charge conference. During this conference, the court denied Rich-
mond’s request for a voluntary intoxication jury instruction on his
three first-degree murder charges because Richmond’s attorneys
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failed to produce substantial evidence showing that he was "utterly
incapable of forming a deliberate and premeditated purpose to kill."
Id. at 557. Specifically, the court found:
Assuming arguendo that the Defendant has shown consump-
tion of alcohol and drugs through the testimony of one or
more of his own family members, that same evidence also
shows an ability of the Defendant to drive an automobile
and to follow directions to and from the scene of the party
to a locale where drugs apparently were consumed. Later,
the Defendant, at his request was dropped off approximately
a mile to a mile and a half from the trailer of H[e]lisa Hayes
at approximately 3:45 a.m. There now remains a void about
the Defendant and his activities after 3:45 a.m. that can be
illustrated by a few simple questions: Where did the Defen-
dant go? Did the Defendant go directly to H[e]lisa Hayes’
trailer? Did the Defendant stop, rest or sleep before going to
the Hayes trailer? How long did it take the Defendant to get
to the trailer? Did the Defendant walk? Did the Defendant
catch a ride? If the Defendant walked, how long did it take
him? What was the time that the Defendant arrived at the
Hayes trailer? Did the Defendant arrive a couple of hours
later, which would be approximately 5:45 a.m.? The Defen-
dant’s various statements contained details and recollections
of events that depict a man aware of the events unfolding in
the Hayes trailer on the morning hours of that day.
* * * *
The Defendant has a void that has not been filled con-
cerning the state of intoxication at the time of the killings.
Id. at 557-59. Nonetheless, Richmond’s attorneys were permitted dur-
ing their closing argument to refer to his alcohol and drug consump-
tion on the night in question, as part of the totality of circumstances
surrounding the murders, for the proposition that Richmond was so
intoxicated that he could not have premeditated the murders. Conse-
quently, Richmond’s attorneys maintained during their closing argu-
ment:
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In all three [murder] cases, [Richmond] did not act with pre-
meditation and deliberation. Premeditation means to plan an
act before, for some period of time, however short. Deliber-
ation means to act in a cool state of mind. And in this case
the State has not shown that [Richmond] either planned the
events or acted in a cool state of mind.
Let’s recount what it shows — the evidence. That night
he’d been drinking, been using drugs. You heard the evi-
dence, the testimony of his sisters. The evidence, also, of his
drinking and the effects it may have had on him was also
shown by his problems with [his] memory about what
occurred when he was admitting his involvement in the
crime, the problems he had remembering details is evidence
of influence of the alcohol and drugs. He gets out of the car
that night. There’s no evidence at that point that he’s plan-
ning to harm anyone. He goes out first to see a friend down
on Bruce Road. It appears that the last of the many places
he went was H[e]lisa Hayes’ house. She let him in. They
had sex. And then an argument ensued and in the course of
that argument she hit him.
That resulted — the combination of the alcohol, the
drugs, the anger from the argument and being struck, put
into such a rage, a rage that meant that without planning,
and certainly never acting in a cool state of mind, these
events happened. There is no evidence to prove that he acted
in a cool state of mind when this occurred.
Id. at 573-75.
In response, the State asserted in its closing argument that there
was sufficient evidence to establish beyond a reasonable doubt that
Richmond acted with premeditation and deliberation. In particular,
the State argued that Richmond went to Ms. Hayes’ home at 3:45 a.m.
with the sole purpose of raping her, and that once he murdered her,
he purposely searched out her children, even going through the house
looking for a weapon, and killed them so as to ensure that there would
be no witnesses. After both sides completed their closing arguments
and rested, the court instructed the jury on each count.
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On May 24, 1995, after deliberating for a short period, the jury
found Richmond guilty of the first-degree rape of Ms. Hayes and the
first-degree murders of Ms. Hayes and her two children. After the
jury rendered its guilty verdict, the court scheduled Richmond’s sen-
tencing hearing for the following day. Prior to and during this hear-
ing, Richmond’s attorneys moved to have the jury informed that
Richmond was not eligible for parole on his federal conviction for the
murder of Ms. Nadeau given that the State intended to introduce evi-
dence of his conviction as an aggravating factor. The court denied
Richmond’s motions on the basis that North Carolina law, as deter-
mined by the North Carolina Supreme Court, does not allow jurors to
consider parole eligibility when making sentencing decisions.
At the commencement of Richmond’s sentencing hearing, the pros-
ecution introduced into evidence a certified copy of Richmond’s fed-
eral murder conviction. In addition, the prosecution called Ms.
Nadeau’s father, Arthur Nadeau, as a witness. Mr. Nadeau testified
that Richmond strangled his daughter to death with his hands as he
had with Ms. Hayes. The prosecution also called Art Binder, one of
the Cumberland County Sheriffs who conducted Richmond’s April
5th interview, as a witness.
Richmond’s trial counsel called eight witnesses during his sentenc-
ing hearing: Andrea Knight (Richmond’s sister); Woodrow Rowell
(prison GED instructor); Lieutenant Darryl Morin (jailer); Franklin
York (Director of Prison Ministries); Robin Monita, Jr. (Richmond’s
friend from his military service); Dr. John Warren (forensic psycholo-
gist); and Dr. Billy Royal (forensic psychiatrist). Knight testified that
Richmond was: (1) an alcoholic who had been introduced to drinking
at an early age by their alcoholic father; (2) drinking alcohol, although
she was uncertain as to whether it was hard liquor, at the November
1st party; and (3) acting wild and differently, which could have been
due to the alcohol or the party atmosphere. Monita testified that Rich-
mond drank all the time while in the military, went from an easy
going person to someone easily angered when under the influence of
hard liquor, and that people stayed away from him when they knew
he was drinking hard liquor. Rowell, York and Lieutenant Morin tes-
tified that Richmond had not been cited for any disciplinary infrac-
tions while in prison.
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Drs. Warren and Royal testified that Richmond suffered from
severe personality disorders and chronic depression, grew up in a dys-
functional family and suffered from mixed substance abuse disorder.
They also testified that Richmond’s father was violent and aggressive,
an alcoholic, had numerous affairs and introduced Richmond to sex
and alcohol at a young age. Due to all these factors, they concluded
that Richmond had a deep-seated anger, no sense of self, was isolated
from his feelings, had a diminished capacity to control his behavior
outside of a structured environment, and had a diminished capacity to
appreciate the criminality of his conduct and conform his behavior to
the requirements of the law.
To rebut the expert testimony of Drs. Warren and Royal, the State
called Dr. Louis Schlesinger, a forensic psychologist, and Dr. Daniel
Greenfield, a forensic psychiatrist, as witnesses. Dr. Schlesinger testi-
fied that Richmond’s conduct on the night of the murders, despite his
severe personality disorder and likely drug and alcohol consumption,
was goal-oriented and thoughtful. Dr. Schlesinger also testified that
Richmond clearly had the ability to appreciate the criminality of his
conduct and conform to the requirements of the law. Moreover, Dr.
Schlesinger described to the jury Richmond’s recollection of the
Nadeau and Hayes murders. Dr. Greenfield testified that Richmond’s
behavior on the night of the Hayes murders, irrespective of his likely
drug and alcohol consumption, was purposeful, goal-oriented, know-
ing and sophisticated. Dr. Greenfield also testified that Richmond’s
murder of Ms. Nadeau required complex, goal-oriented and sophisti-
cated behavior.
In its closing argument during Richmond’s sentencing hearing,
indeed its very last statement to the jury, the State argued:
When you know that someone has killed not just once, Lisa
Ann Nadeau, not just twice, H[e]lisa Hayes, not just three
times, Darien Hayes, not just four times, Phillip Hayes. Four
times, folks. What does it take? What does it take? There is
only one way you can ensure that this defendant does not
kill again, and that is to impose the penalty that he has
earned and worked for and deserves. I ask you to impose the
death penalty on all three cases.
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Richmond, 495 S.E.2d at 696. After finding the existence of three
aggravating factors, including Richmond’s federal murder conviction,
and five mitigating factors,2 the jury imposed a death sentence for
each of Richmond’s murder convictions and a life sentence for his
rape conviction.
On direct appeal, the North Carolina Supreme Court held, among
other things, that the trial court did not violate Richmond’s rights
under Morgan and Simmons. Id. at 684, 696. On October 5, 1998, the
United States Supreme Court denied Richmond’s petition for a writ
of certiorari. Richmond v. North Carolina, 525 U.S. 843, reh’g
denied, 525 U.S. 1034 (1998). On September 13, 1999, Richmond
filed a motion for appropriate relief ("MAR") in the Cumberland
County Superior Court asserting several ineffective assistance of
counsel claims arising out of both the guilt and penalty phases of his
trial. On October 8, 1999, the State filed a response requesting that
Richmond’s MAR be denied on the pleadings because the claims
asserted therein were both procedural defaulted and without merit.
On October 10th, Richmond filed two motions seeking (1) the
appointment of Dr. Roy Matthew, a psychiatrist specializing in addic-
tion medicine, as an expert to assist his counsel in developing evi-
dence about the effects of his substance abuse, and (2) additional
expenditures for Dr. David Lisak, a sexual abuse expert who was
investigating Richmond’s possible childhood sexual abuse. On Octo-
ber 12th, the Cumberland County Superior Court granted both
motions.
On November 22, 1999, the Cumberland County Superior Court
denied Richmond’s MAR on the pleadings after concluding that his
ineffective assistance of counsel claims were both procedurally
defaulted and without merit. The following day, not yet aware of the
denial of his MAR, Richmond filed an amendment to his MAR, to
2Out of the thirty mitigating factors presented by Richmond’s trial
counsel, the jury found the following mitigating factors: (1) Richmond
committed the crimes while suffering from mental or emotional distur-
bance; (2) Richmond committed the crimes while under the influence of
alcohol; (3) Richmond suffers from severe personality disorder; (4) Rich-
mond’s use of alcohol and drugs had an effect on his behavior; and (5)
Richmond’s father mentally abused him.
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which he attached an affidavit from his trial counsel, Jonathan Broun.
On December 2nd, Richmond filed a motion for reconsideration of
the order denying his MAR, asking that the court consider Broun’s
affidavit. On December 10th, the Cumberland County Superior Court
summarily denied Richmond’s motion for reconsideration. On
December 14th, Richmond filed a supplemental motion for reconsid-
eration upon which the Cumberland County Superior Court did not
rule. Richmond then filed a petition for a writ of certiorari in the
North Carolina Supreme Court. This petition was denied on April 6,
2000.
On April 28, 2000, Richmond filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254 in the United States District Court for
the Eastern District of North Carolina. In his habeas petition, Rich-
mond asserted sixteen separate claims. On January 13, 2003, the dis-
trict court, after reviewing the merits of Richmond’s claims, granted
the State’s motion for summary judgment and dismissed Richmond’s
habeas petition. On May 1, 2003, the district court denied Rich-
mond’s Rule 59(e) motion. On July 1, 2003, the district court granted
Richmond a certificate of appealability on his claims that: (1) the state
trial court’s voir dire questions violated Morgan; (2) he received inef-
fective assistance during the guilt phase of his trial when his trial
counsel failed to present expert and available lay testimony regarding
the effects that his drug and alcohol consumption had on his ability
to form the requisite intent for first-degree murder; (3) he received
ineffective assistance during the penalty phase of his trial when his
trial counsel failed to present expert testimony regarding his sub-
stance abuse and its effect on his behavior; and (4) the state trial court
erred by denying his requests for a Simmons instruction. On Decem-
ber 17, 2003, Richmond, after having submitted his opening brief
with this Court, filed an unopposed motion pursuant to our local rules,
specifically Local Rule 22(c)(2)(B), seeking to extend the time to file
a request to expand his certificate of appealability to include three
additional claims rejected by the district court. We subsequently
granted Richmond’s motion to extend time and issued him a certifi-
cate of appealability for one of his claims. Specifically, we issued
Richmond a certificate of appealability for his claim that his trial
counsel rendered ineffective assistance during the penalty phase of his
trial by failing to (1) retain a sexual abuse expert and (2) request that
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childhood sexual abuse be presented to the jury as a possible mitigat-
ing factor.
II.
"We review de novo a district court’s decision on a petition for writ
of habeas corpus based on a state record." Spicer v. Roxbury Corr.
Inst., 194 F.3d 547, 555 (4th Cir. 1999). However, because Rich-
mond’s habeas petition was filed on April 28, 2000, after the effective
date of the Anti-Terrorism and Effective Death Penalty Act of 1996
("AEDPA"), our de novo review is constrained by the standards sets
forth by AEDPA. Under AEDPA, if a state court has resolved the
merits of a claim for post-conviction relief, as is the case here, we
may issue a writ of habeas corpus only if the state court’s holding
"was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States," 28 U.S.C. § 2254(d)(1), or "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.
§ 2254(d)(2).
In the present case, our inquiry focuses on whether the state court’s
adjudication of Richmond’s claims "was contrary to, or involved an
unreasonable application of, clearly established Federal law." Id.
§ 2254(d)(1). To grant Richmond’s habeas petition, we need not find
that the state court’s adjudication of his claims was both "contrary to"
and an "unreasonable application" of clearly established federal law
because these clauses, as interpreted by the Supreme Court, have
independent meanings. Williams v. Taylor, 529 U.S. 362, 404-05
(2000). A state court decision is contrary to clearly established federal
law "if the state court applies a rule different from the governing law
set forth in [the Supreme Court’s] cases, or if it decides a case differ-
ently than [the Supreme Court has] on a set of materially indistin-
guishable facts." Bell v. Cone, 535 U.S. 685, 694 (2002). A state court
decision constitutes an unreasonable application of clearly established
federal law "if the state court correctly identifies the governing legal
principle from [the Supreme Court’s] decisions but unreasonably
applies it to the facts of the particular case." Id. A state court’s errone-
ous or incorrect application of clearly established federal law, how-
ever, does not constitute an unreasonable application because an
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"unreasonable application of federal law is different from an incor-
rect application of federal law." Williams, 529 U.S. at 410. Thus, the
state court’s erroneous or incorrect application of federal law "must
also be unreasonable." Id. at 411.
III.
Richmond raises three distinct ineffective assistance of counsel
claims. First, Richmond argues that his trial counsel rendered ineffec-
tive assistance during the guilt phase of his trial by failing to present
expert and available lay testimony, other than that of his two sisters,
in support of his defense that he was too intoxicated to premeditate
the murders of Ms. Hayes and her two children. Richmond asserts
that his trial counsel’s failure to present this additional testimony pre-
vented him from receiving a voluntary intoxication jury instruction.
Second, Richmond argues that his trial counsel rendered ineffective
assistance during the penalty phase of his trial by failing to present
expert testimony regarding his substance abuse and its effect on his
behavior. Richmond contends that a substance abuse expert would
have testified that although he was able to control the rage generated
by his childhood sexual abuse when sober,3 he could not do so when
under the influence of drugs and alcohol. Third, Richmond’s habeas
counsel argues that his trial counsel rendered ineffective assistance
during the penalty phase of his trial by failing, upon being informed
by one of his sisters that she believed Richmond may have been sexu-
ally abused by their father, to (1) retain a sexual abuse expert and (2)
request that childhood sexual abuse be presented to the jury as a pos-
sible mitigating factor.
The Cumberland County Superior Court, in denying Richmond’s
MAR, held that Richmond’s first two ineffective assistance of counsel
claims were procedurally defaulted under N.C. Gen. Stat. § 15A-
3We note that Richmond himself has never asserted that he was sexu-
ally abused as a child. Indeed, Richmond stated during an interview with
Dr. Lisak, the sexual abuse expert retained by his habeas counsel, that he
did not recall being sexually abused as a child. Instead, this claim has
been put forth by Richmond’s habeas counsel based on the fact that one
of Richmond’s sisters informed his trial counsel that she believed their
father may have molested Richmond as a child.
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1420(b)(1) because he failed to support these claims with an affidavit
or other documentary evidence.4 The Cumberland County Superior
Court held that Richmond’s third ineffective assistance of counsel
claim, although accompanied by an affidavit from Dr. Lisak, was pro-
cedurally defaulted under N.C. Gen. Stat. § 15A-1420(b)(1) because
Dr. Lisak’s affidavit did not actually support Richmond’s claim. The
Cumberland County Superior Court concluded that Dr. Lisak’s affida-
vit did not support Richmond’s claim because, in addition to contain-
ing cumulative speculation, it acknowledged that Richmond did not
recall being sexually abused as a child by his father and that Rich-
mond’s father adamantly denied sexually abusing him. As an alternate
basis for denying Richmond’s MAR, the Cumberland County Supe-
rior Court, after reviewing Richmond’s ineffective assistance of coun-
sel claims, held that they lacked any merit.
A.
Under the procedural default doctrine, federal habeas review of
federal claims defaulted by prisoners in state court "pursuant to an
independent and adequate state procedural rule . . . is barred unless
the prisoner can demonstrate cause for the default and actual preju-
dice as a result of the alleged violation of federal law." Coleman v.
Thompson, 501 U.S. 722, 750 (1991). "The procedural default doc-
trine and its attendant cause and prejudice standard are grounded in
concerns of comity and federalism and apply alike whether the default
in question occurred at trial, on appeal, or on state collateral attack."
Edwards v. Carpenter, 529 U.S. 446, 451 (2000)(internal citation and
quotation marks omitted). In addition to showing "due regard for
States’ finality and comity interests," Dretke v. Haley, ___ U.S. ___,
124 S.Ct. 1847, 1852 (2004), the procedural default doctrine’s cause
and prejudice standard, by allowing federal courts to consider certain
procedurally defaulted claims, also serves to ensure "that ‘fundamen-
tal fairness [remains] the central concern of the writ of habeas cor-
4Section 15A-1420(b)(1) provides that "[a] motion for appropriate
relief after the entry of judgment must be supported by affidavit or other
documentary evidence if based upon the existence or occurrence of facts
which are not ascertainable from the records and any transcripts of the
case or which are not within the knowledge of the judge who hears the
motion." N.C. Gen. Stat. § 15A-1420(b)(1).
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pus.’" Id. (quoting Strickland v. Washington, 466 U.S. 668, 697
(1984)). Thus, to further ensure "that ‘fundamental fairness [remains]
the central concern of the writ of habeas corpus,’" id., the Supreme
Court has recognized a "fundamental miscarriage of justice" excep-
tion to the procedural default doctrine’s cause requirement. Murray v.
Carrier, 477 U.S. 478, 496 (1986). Under this narrow exception to the
cause requirement, federal habeas courts may consider a federal claim
procedurally defaulted in state court "where a constitutional violation
has ‘probably resulted’ in the conviction of one who is ‘actually inno-
cent’ of the substantive offense." Dretke, ___ U.S. at ___, 124 S.Ct.
at 1852. In the context of capital sentencing, a habeas petitioner can
make a showing of "actual innocence," and thus qualify for the "fun-
damental miscarriage of justice" exception, by putting forth "‘clear
and convincing evidence that, but for the constitutional error, no rea-
sonable juror would have found the petitioner eligible for the death
penalty under the applicable state law.’" Id. (quoting Sawyer v. Whit-
ley, 505 U.S. 333, 336 (1992)).
Therefore, the procedural default doctrine, as developed by the
Supreme Court, allows for habeas review of federal claims defaulted
in state court pursuant to an adequate and independent state proce-
dural rule where a petitioner can show (1) cause for the default and
prejudice therefrom or (2) that failure to consider the claims will
result in a fundamental miscarriage of justice. With this in mind, we
must first determine whether N.C. Gen. Stat. § 15A-1420(b)(1) con-
stitutes an independent and adequate state procedural rule and, if so,
whether Richmond can demonstrate that his failure to comply with it
should be excused under the cause and prejudice or fundamental mis-
carriage of justice exceptions to the procedural default doctrine.
B.
A state procedural rule is "adequate" if it is firmly established and
regularly or consistently applied by the state court, Johnson v. Missis-
sippi, 486 U.S. 578, 587 (1988), and "independent" it if does not
depend on a federal constitutional ruling. Ake v. Oklahoma, 470 U.S.
68, 75 (1985). Here, we find that N.C. Gen. Stat. § 15A-1420(b)(1)
is an adequate state procedural rule because "an unambiguous court
rule such as [N.C. Gen. Stat. § 15A-1420(b)(1)] is necessarily ‘firmly
established,’" Weeks v. Angelone, 176 F.3d 249, 270 (4th Cir. 1999),
16 RICHMOND v. POLK

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and because North Carolina courts regularly and consistently applied
it prior to denying Richmond’s MAR for noncompliance with its evi-
dentiary requirement.5 State v. Ware, 482 S.E.2d 14, 16 (N.C.App.
5Although Richmond does not argue that N.C. Gen. Stat. § 15A-
1420(b)(1) is not an adequate state procedural rule, he does argue that
"[t]he haphazard manner in which [his] ineffective assistance claims
were procedurally defaulted cannot be an adequate state ground to pre-
vent relief." Br. for Appellant at 37. Richmond asserts that his ineffective
assistance of counsel claims were haphazardly found to be defaulted
because the Cumberland County Superior Court was not precluded from
granting his motion to reconsider the denial of his MAR once he cured
his procedural default by submitting an affidavit from his trial counsel.
Richmond further asserts that his ineffective assistance of counsel claims
were haphazardly found to be defaulted because his attorneys reasonably
believed that the Cumberland County Superior Court would not rule on
his MAR prior to the necessary affidavits being submitted given that (1)
the court granted Richmond’s motions requesting the appointment of Dr.
Matthew and additional expenditures for Dr. Lisak and (2) North Caro-
lina courts have, on at least one occasion, taken up to a year and a half
to rule on a MAR. For the reasons that follow, we find Richmond’s argu-
ments without merit.
First, the decision of whether to grant Richmond’s motion for recon-
sideration of his procedurally defaulted MAR was completely within the
discretion of the Cumberland County Superior Court. Richmond has not
argued before us that the Cumberland County Superior Court exercised
this discretion in a constitutionally impermissible manner. Rather, he has
simply contended that the Cumberland County Superior Court should
have granted his motion for reconsideration of his procedurally defaulted
MAR because "[t]here was no reason for [the court] not to have recon-
sidered [its] ruling in light of [his trial counsel’s] affidavit." Id. at 36.
This is not a valid basis for challenging in federal court a state court’s
decision not to reconsider a motion defaulted under an adequate and
independent state procedural rule. Second, once Richmond filed his
MAR and the State was given an opportunity to respond, the Cumberland
County Superior Court was free to rule on Richmond’s MAR at any
time. Indeed, Richmond was effectively placed on notice that his MAR
could be declared procedurally defective when the State moved, on Octo-
ber 8, 1999, to have his MAR denied because, among other things, it
failed to comply with N.C. Gen. Stat. § 15A-1420(b)(1). Consequently,
Richmond had approximately six weeks before the Cumberland County
Superior Court denied his MAR to cure his procedural default or move
for additional time to submit the necessary affidavits.
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1997)(stating that N.C. Gen. Stat. § 15A-1420(b)(1) requires that
MARs "be accompanied by affidavits or other documentary evidence
necessary to support defendant’s contention"); State v. Payne, 325
S.E.2d 205, 219 (N.C. 1985)(declining to "address the merits of
defendant’s [MAR]" because N.C. Gen. Stat. § 15A-1420(b)(1),
"which governs the procedure for filing a [MAR] clearly requires sup-
porting affidavits to accompany the motion"); State v. Parker, 300
S.E.2d 451, 453 (N.C.App. 1983)(holding that MAR was properly
denied because defendant failed to submit supporting affidavit or
other documentary evidence as required by N.C. Gen. Stat. § 15A-
1420(b)(1)); cf. State v. Harding, 429 S.E.2d 416, 422-25 (N.C.App.
1993)(considering and denying MAR accompanied by affidavit);
State v. Nickerson, 359 S.E.2d 760, 763-64 (N.C. 1987)(same); State
v. Clark, 308 S.E.2d 913, 916-19 (N.C.App. 1983)(same), disc.
review denied, 315 S.E.2d 693 (1984). We also find that N.C. Gen.
Stat. § 15A-1420(b)(1) is an independent state procedural rule given
that it does not depend on any federal constitutional ruling.6
C.
Having found N.C. Gen. Stat. § 15A-1420(b)(1) to be an adequate
and independent state procedural rule, we now turn to whether Rich-
mond’s failure to comply with its evidentiary requirement should be
excused. Because Richmond does not argue that our failure to enter-
tain his ineffective assistance of counsel claims will result in a funda-
mental miscarriage of justice, we focus solely on whether Richmond
can "demonstrate cause for [his] default and actual prejudice as a
result of the alleged violation of federal law." Coleman, 501 U.S. at
750.
6We reject Richmond’s alternative argument that he complied with
N.C. Gen. Stat. § 15A-1420(b)(1) by filing a verified MAR. Richmond
has not brought to our attention, nor have we found, any North Carolina
cases holding that a verified MAR satisfies the evidentiary requirement
of N.C. Gen. Stat. § 15A-1420(b)(1). The fact that North Carolina courts
have held that verified pleadings satisfy the evidentiary requirement of
other procedural rules does not compel an opposite conclusion because
it is well within the purview of state courts to interpret individual state
procedural rules, which may serve distinct purposes, as they see fit.
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To establish cause, Richmond must "show that some objective fac-
tor external to the defense impeded counsel’s efforts to comply with
[N.C. Gen. Stat. § 15A-1420(b)(1)]," such as "some interference by
officials [that] made compliance impracticable." Murray, 477 U.S. at
488 (internal citation and quotation marks omitted). Richmond con-
tends that the Cumberland County Superior Court caused his proce-
dural default under N.C. Gen. Stat. § 15A-1420(b)(1) because the
"lack of an affidavit from an expert witness resulted from the court’s
failure to allow [him] sufficient opportunity to obtain the assistance
of the [sex and substance abuse] experts . . . [it] had appointed." Br.
for Appellant at 31. Richmond also argues that the Cumberland
County Superior Court caused his procedural default under N.C. Gen.
Stat. § 15A-1420(b)(1) because it denied his MAR "without notice
that a ruling was imminent." Id. We reject both of these arguments.
With regard to Richmond’s first argument, we find that the Cum-
berland County Superior Court provided Richmond sufficient time to
work with, and obtain an adequate affidavit from, his sexual abuse
expert, Dr. Lisak. As noted in Dr. Lisak’s affidavit, the Cumberland
County Superior Court granted Richmond’s motion for his appoint-
ment in April 1999. Consequently, Richmond had approximately five
months before filing his MAR on September 13, 1999 to obtain an
adequate affidavit from Dr. Lisak. If this was an insufficient period
for Dr. Lisak to conduct his investigation and prepare an adequate
affidavit then Richmond should have waited to file his MAR. Thus,
Richmond’s inability to obtain an adequate affidavit from Dr. Lisak
was caused by his decision, without the court’s prompting, to file his
MAR knowing that Dr. Lisak’s investigation into his possible child-
hood sexual abuse was not yet complete. Likewise, we find that Rich-
mond’s inability to obtain an affidavit from his substance abuse
expert, Dr. Matthew, was caused solely by Richmond’s decision not
to move for the appointment of Dr. Matthew until approximately one
month after he filed his MAR. Richmond could have ensured that he
had adequate time to obtain an affidavit from Dr. Matthew by moving
to have Dr. Matthew appointed, as he did with Dr. Lisak, prior to fil-
ing his MAR. Once Richmond filed his MAR and the State
responded, the Cumberland County Superior Court was under no duty
to postpone its ruling until Richmond obtained and submitted an affi-
davit from Dr. Matthew.
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With regard to Richmond’s second argument, the Cumberland
County Superior Court was not obligated to notify him that it was pre-
paring to rule on his MAR. Upon receiving the State’s response, the
Cumberland County Superior Court, irrespective of the fact that it
granted Richmond’s motions seeking the appointment of Dr. Matthew
and additional expenditures for Dr. Lisak, was free to rule on Rich-
mond’s MAR at any moment. Moreover, as we previously noted,
Richmond received constructive notice that his MAR could be denied
for failure to comply with N.C. Gen. Stat. § 15A-1420(b)(1) when the
State moved on October 8, 1999 to have his MAR denied on this
basis. Pursuant to this constructive notice, Richmond had approxi-
mately six weeks before his MAR was denied to cure his procedural
default or request additional time to submit the necessary affidavits.
Having failed to do so, Richmond cannot now argue that the Cumber-
land County Superior Court caused his procedural default by not noti-
fying him of its intent to rule on his MAR.
Even if we were to agree with Richmond that cause exists to
excuse his procedural default, we conclude, as explained below, that
Richmond is unable to show that he was actually prejudiced by his
trial counsel’s alleged ineffectiveness.7
7In concluding that Richmond cannot establish actual prejudice to
excuse his procedural default, we note that there is a question as to
"whether the showing of prejudice required to excuse procedural default
is identical to the showing of prejudice required to establish ineffective
assistance of counsel, namely, that ‘there is a reasonable probability that,
but for the [errors], the result of the proceeding would have been differ-
ent.’" Burket v. Angelone, 208 F.3d 172, 189 n.17 (4th Cir. 2000)(quot-
ing Strickland, 466 U.S. at 694); see also Williams v. French, 146 F.3d
203, 210 n.10 (4th Cir. 1998), cert. denied, 525 U.S. 1155 (1999)(noting
uncertainty as to whether showing of actual prejudice to excuse proce-
dural default is the same as showing of actual prejudice to establish inef-
fective assistance of counsel under Strickland); United States v. Dale,
140 F.3d 1054, 1056 n.3 (D.C. 1998)(same); United States v. Walling,
982 F.2d 447, 449 (10th Cir. 1992)(same). We need not resolve this
question in the present case, however, because Richmond is unable to
satisfy either standard.
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1.
Richmond first asserts that his trial counsel rendered ineffective
assistance during the guilt phase of his trial by failing to present the
testimony of a substance abuse expert, such as Dr. Matthew, and his
military friend, Monita. Richmond contends that his trial counsel’s
failure to present this testimony prevented him from receiving a vol-
untary intoxication jury instruction on his three first-degree murder
charges. Because this claim arises out of the guilt phase of his trial,
Richmond must establish actual prejudice by showing "‘not merely
that the errors at his trial created a possibility of prejudice, but that
they worked to his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions.’" McCarver v.
Lee, 221 F.3d 583, 592 (4th Cir. 2000)(quoting United States v.
Frady, 456 U.S. 152, 170 (1982)). Richmond is unable to make such
a showing.
The Cumberland County Superior Court, after hearing the testi-
mony of Richmond’s two sisters regarding his drug and alcohol con-
sumption on the night of the murders and its effect on his behavior,
denied Richmond’s request for a voluntary intoxication jury instruc-
tion because he failed to make the requisite showing that he was
utterly incapable of forming a deliberate and premeditated purpose to
kill at the time that he murdered Ms. Hayes and her two children. The
court based this decision on the fact that Richmond failed to establish
that he went to Ms. Hayes’ home immediately after leaving the party
and thus had not sobered up prior to committing the murders. Rich-
mond’s inability to establish this key fact, the court reasoned, did not
allow for the conclusion that he was still under the influence of alco-
hol and crack cocaine, to the point where he could not formulate the
requisite intent for first-degree murder, at the time that he killed Ms.
Hayes and her two children. The court also noted that Richmond’s
detailed recollection of the murders undercut his argument that his
alcohol and crack cocaine consumption prevented him from being
able to premeditate and deliberate the murders. On direct review, the
North Carolina Supreme Court agreed, holding that Richmond was
unable to make "the necessary showing that he was ‘utterly incapable’
of forming the requisite intent [for first-degree murder]" because
"there [was] little evidence of the degree of his intoxication at the
time of the murders." Richmond, 495 S.E.2d at 688. Neither the
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expert testimony of Dr. Matthew nor the lay testimony of Monita
would have aided Richmond in making this showing because they
were not present on the night of the murders and thus could not testify
about Richmond’s activities after he left the house party or that the
effects of Richmond’s drug and alcohol consumption had not worn
off prior to his murdering Ms. Hayes and her two children. This is
reflected in Richmond’s brief, which argues that Dr. Matthew "could
have testified based on his investigation that [Richmond] ‘consumed
vast quantities of alcohol — at least 20 beers and a fifth of liquor —
while eating only a sandwich . . . [and that] [h]e also consumed a sub-
stantial amount of cocaine,’" which "released [Richmond’s] intense,
underlying rage in a disastrous manner." Br. for Appellant at 41
(quoting J.A. 1711.134-64 ¶ 10). In addition to not helping Richmond
make the requisite showing for a voluntary intoxication jury instruc-
tion, this proposed testimony simply repeats the information that was
before the Cumberland County Superior Court, through the testimony
of Richmond’s two sisters, when it denied Richmond’s request for a
voluntary intoxication jury instruction.
2.
Richmond also argues that his trial counsel rendered ineffective
assistance during the penalty phase of his trial by failing to have a
substance abuse expert testify about the effect that his drug and alco-
hol abuse has on his behavior. Richmond asserts that a substance
abuse expert would have explained to the jury that he is unable to
control the rage generated by his childhood sex abuse when under the
influence of drugs and alcohol.8 Because this claim arises out of the
sentencing phase of his trial, Richmond must establish actual preju-
dice by showing that "there is a reasonable probability that, absent the
errors, the sentencer . . . would have concluded that the balance of
aggravating and mitigating circumstances did not warrant death."
Strickland, 466 U.S. at 695. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Glover v. Miro,
8As previously noted, Richmond himself has never asserted that he
was sexually abused as a child. See supra at 14 n.3. Rather, this is a
claim that Richmond’s habeas counsel has put forth in light of the fact
that one of Richmond’s sisters informed his trial counsel that she
believed their father may have molested Richmond.
22 RICHMOND v. POLK

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262 F.3d 268, 275 (4th Cir. 2001)(quoting Strickland, 466 U.S. at
694). After reviewing the testimony presented by Richmond’s trial
counsel during both the guilt and penalty phases, we find that Rich-
mond’s substance abuse and its effect on his behavior was sufficiently
put before the jury. Accordingly, we are confident that there is no rea-
sonable probability that the testimony of a substance abuse expert
would have caused the jury to determine that a death sentence on each
of Richmond’s three first-degree murder convictions was not war-
ranted.
During the guilt phase of Richmond’s trial, the jury heard the testi-
mony of Richmond’s two sisters, Sheila Jordan and Erica Richmond.
As detailed above, they testified at length about Richmond’s drug and
alcohol consumption on the night of the murders and how they
became frightened by how aggressive he became as a result. During
the penalty phase of Richmond’s trial, the jury heard the expert testi-
mony of Dr. Royal, a forensic psychiatrist, and Dr. Warren, a forensic
psychologist. As discussed above, Drs. Royal and Warren testified in
detail about Richmond’s substance abuse and how it, among other
things, caused him to have a diminished capacity to (1) control his
behavior outside of a structured environment, (2) appreciate the crimi-
nality of his conduct and (3) conform his behavior to the requirements
of the law. Moreover, during Richmond’s sentencing hearing, the jury
heard the testimony of his sister, Andrea Knight, whose testimony
was credible given that her call to police lead to Richmond’s arrest.
Knight testified that Richmond was an alcoholic who had been intro-
duced to alcohol and sex at a young age by their alcoholic father.
Lastly, the jury heard the testimony of Richmond’s military friend,
Monita, who described Richmond’s alcoholism in the military and the
effect that it had on his behavior.
As a result of this testimony, the jury found, as mitigating factors,
that Richmond murdered Ms. Hayes and her two children while under
the influence of alcohol and that Richmond’s use of alcohol and drugs
had an effect on his behavior. Nonetheless, the jury, after weighing
these and three additional mitigating factors against three aggravating
factors, decided to impose a death sentence on each of Richmond’s
three first-degree murder convictions. We do not believe that there is
a reasonable probability that the testimony of a substance abuse
expert, whose testimony was likely to repeat much of what the jury
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heard through other witnesses, would have resulted in the jury balanc-
ing differently the mitigating and aggravating factors and concluding
that a death sentence was not warranted.
3.
Lastly, Richmond’s habeas counsel argues that his trial counsel
rendered ineffective assistance during the penalty phase of his trial by
failing, upon being informed by one of his sisters that she believed he
may have been sexually abused by their father, to retain a sexual
abuse expert and request that childhood sexual abuse be presented to
the jury as a potential mitigating factor. Richmond’s habeas counsel
asserts that a sex abuse expert would have explained to the jury how
childhood sexual abuse causes people to commit violent crimes.
According to Richmond’s habeas counsel, this testimony, had it been
presented, would have allowed the jury to find childhood sexual
abuse as a mitigating factor and therefore provided it with an addi-
tional basis upon which to decline to impose the death penalty.
Because this claim arises out of the penalty phase of Richmond’s
trial, he must establish actual prejudice, as previously noted, by show-
ing "there is a reasonable probability that, absent the errors, the sen-
tencer . . . would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death." Strickland, 466 U.S.
at 695. Such a showing cannot be made. Even if Richmond’s trial
counsel had retained a sexual abuse expert and requested that child-
hood sexual abuse be presented to the jury as a possible mitigating
factor, there does not exist a reasonable probability that the jury
would have found childhood sexual abuse as a mitigating factor and
as a result declined to impose a death sentence. First, Richmond’s sis-
ter only asserted that she believed, not knew, that their father sexually
abused Richmond. Second, this belief has never been substantiated by
any witnesses or independent evidence, such as medical or school
records. Third, Richmond himself has stated that he does not recall
being sexually abused by his father. Lastly, Richmond’s father has
vehemently denied ever sexually abusing him. Based on these facts,
we find that Richmond was not actually prejudiced by his trial coun-
sel’s failure to (1) retain a sexual abuse expert and (2) request that
childhood sexual abuse be put before the jury as a potential mitigating
factor.
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D.
For the reasons stated above, we find that Richmond’s three inef-
fective assistance of counsel claims were procedurally defaulted in
state court, pursuant to an independent and adequate state procedural
rule, and that Richmond has failed to establish cause or actual preju-
dice to excuse his procedural default.
IV.
We now turn to Richmond’s argument that under the Supreme
Court’s holding in Morgan he was entitled to ask prospective jurors
at voir dire whether, once informed that he had previously been con-
victed of first-degree murder, they would still be able to consider mit-
igating factors and impose a life sentence.
A.
The Sixth and Fourteenth Amendments "guarantee[ ] a defendant
on trial for his life the right to an impartial jury." Morgan, 504 U.S.
at 728. This right extends to the sentencing phase, where a capital
defendant has the right to be sentenced by jurors who do not believe
that "death should be imposed ipso facto upon conviction of a capital
offense." Id. at 735. To allow capital defendants to enforce this right,
the Supreme Court held in Morgan v. Illinois that "[a] defendant on
trial for his life must be permitted on voir dire to ascertain whether
his perspective jurors," id. at 735-36, would vote to "impose death
regardless of the facts and circumstances of conviction." Id. at 735.
Consequently, capital defendants must be afforded an adequate
opportunity at voir dire to assess a prospective juror’s views on capi-
tal punishment and whether, in light of these views, he or she would
be able to follow the court’s instructions and his or her oath.9 Id. at
733-36.
9Similarly, the Supreme Court has held that "the State may exclude
from capital sentencing juries that ‘class’ of veniremen whose views
would prevent or substantially impair the performance of their duties in
accordance with their instructions or their oaths." Wainwright v. Witt,
469 U.S. 412, 424 n.5 (1985). Accordingly, the State, like capital defen-
dants, "must be given the opportunity to identify such prospective jurors
by questioning them at voir dire about their views of the death penalty."
Lockhart v. McCree, 476 U.S. 162, 170 n.7 (1986).
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B.
In the present case, Richmond’s trial counsel sought to ask pro-
spective jurors the following question at voir dire: "[I]f . . . knowing
that [the defendant] had a previous first-degree murder conviction,
could they still consider mitigating circumstances . . . in determining
their ultimate recommendation as to life or death." Richmond, 495
S.E.2d at 683. The trial court denied this request, finding that it was
a "stakeout" question aimed at determining a prospective juror’s
answers to legal questions before being informed of the legal princi-
ples applicable to their sentencing recommendation. Instead, the trial
court allowed Richmond’s trial counsel "to ask broad questions about
whether they can consider any and all aggravating circumstances and
balance that against any and all mitigating circumstances, whatever
they may be." Id. On direct appeal, the North Carolina Supreme Court
concluded that Richmond’s proposed voir dire question was a "stake-
out" question because it sought to "discover in advance what a pro-
spective juror’s decision will be under a certain state of the evidence
. . . [and] how a certain set of facts would affect his or her decision."
Id. Because it concluded that Richmond’s proposed voir dire question
was a "stakeout" question, the North Carolina Supreme held that the
trial court did not violate Morgan by not allowing Richmond to pose
this question to prospective jurors because "Morgan does not require
that a defendant be allowed to ask stake-out questions." Id. at 684.
"Stakeout" questions, the court reasoned, are not required by Morgan
because they seek to cause prospective jurors to pledge themselves to
a future course of action and "indoctrinate [them] regarding potential
issues before the evidence has been presented and [they] have been
instructed on the law." Id. at 683. Accordingly, the North Carolina
Supreme Court held that the trial court complied with Morgan by
"properly refus[ing] to allow questioning about [Richmond’s] prior
first-degree murder conviction, while allowing [him] to ask prospec-
tive jurors whether they would be able to consider all aggravating and
mitigating circumstances." Id. at 684.
C.
We find that the North Carolina Supreme Court’s decision was nei-
ther "contrary to" nor "an unreasonable application" of Morgan. As
noted by the North Carolina Supreme Court, Morgan does not require
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that a capital defendant be allowed to determine at voir dire what a
prospective juror’s sentencing decision will be if presented with a
specific state of evidence or circumstances. Rather, Morgan requires
that a capital defendant be afforded an adequate opportunity at voir
dire to identify prospective jurors "who, even prior to the State’s case
in chief, [have] predetermined . . . to impose the death penalty." 504
U.S. at 736. Consequently, the Supreme Court’s holding in Morgan
mandates that a capital defendant be allowed to make an essential
inquiry at voir dire: "the [prospective] jurors’ ability to give due con-
sideration to mitigating evidence at sentencing." Oken v. Corcoran,
220 F.3d 259, 274 (4th Cir. 2000)(Michael, J., concurring). Here,
Richmond was allowed to make this essential inquiry. At voir dire,
Richmond was able to ask prospective jurors questions such as:
1. Have you given much thought to the idea of the death
penalty before you were called [into] court this week?
J.A. 104.
2. If the circumstances that were argued in mitigation were
not circumstances that would legally justify the killing,
would you be able to give consideration to those miti-
gating circumstances? Id. at 107.
3. As you sit there right now, and understanding that you
don’t know much about this case and you shouldn’t, at
this point, but given how you feel about things and what
you have been questioned about and informed of, can
you say that, if it comes down to a question of life or
death in this case, that your mind is as open to a life
sentence[?] Id. at 114.
4. Would you, in reaching your determination about the
appropriate sentence to vote for, either life or death, be
able to give fair consideration to mitigating circum-
stances? Id. at 124.
5. So that, even though there may be evidence offered, or
argued, as mitigation that you would still, bottom line,
be considering a killing that was intentional, premedi-
tated, and without any legal justification or excuse.
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With this little lead up, can you tell me how you would
feel about the death penalty as a punishment for that
kind of crime, taking those things into consideration?
Id. at 161-62.
6. And would you choose the death penalty in every case
of deliberate, premeditated, intentional murder for
which there is no legal justification or excuse? Id. at
163.
From these questions, it is obvious that Richmond, although unable
to specifically question jurors about the effect that his prior murder
conviction would have on their sentencing decision, was allowed to
question prospective jurors about their beliefs on the death penalty
and ability to consider mitigating evidence irrespective of the facts
and circumstances surrounding the murders of Ms. Hayes and her two
children. Moreover, these questions are not the sort of "general fair-
ness and ‘follow the law’ questions" that the Supreme Court found to
be constitutionally deficient in Morgan, 504 U.S. at 734. Instead, they
are the sort of questions that enable a capital defendant at voir dire
to identify prospective jurors holding the misconception that "death
should be imposed ipso facto upon conviction of a capital offense . . .
regardless of the facts and circumstances of conviction." Id. at 735.
V.
Finally, we turn to Richmond’s argument that the North Carolina
Supreme Court’s conclusion that he was not entitled to inform the
jury of his parole ineligibility for his federal murder conviction is
contrary to or an unreasonable application of the Supreme Court’s
holding in Simmons v. South Carolina, 512 U.S. 154 (1994).
A.
In Simmons, Justice O’Connor, whose concurring opinion we treat
as controlling because it represents the narrowest grounds upon which
the majority agreed,10 concluded that "[w]here the State puts the
10Although Justice Blackmun authored the Court’s plurality opinion,
Justice O’Connor’s concurring opinion is viewed as announcing the
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defendant’s future dangerousness in issue, and the only available
alternative is life imprisonment without the possibility of parole, due
process entitles the defendant to inform the capital sentencing jury—
by either argument or instruction—that he is parole ineligible." Id. at
178 (O’Connor, J., concurring). Justice O’Connor rested her conclu-
sion on the Court’s precedent holding that "[w]here the prosecution
specifically relies on a prediction of future dangerousness in asking
for the death penalty, . . . the elemental due process requirement that
a defendant not be sentenced to death on the basis of information
which he had no opportunity to deny or explain [requires that the
defendant be afforded an opportunity to introduce evidence on this
point.]" Id. at 175 (quoting Skipper v. South Carolina, 476 U.S. 1, 5
n.1 (1986)(internal quotation marks omitted)). Justice O’Connor also
concluded, however, that a jury need not be informed of a defendant’s
parole ineligibility where the prosecution limits its argument of future
dangerousness to the defendant’s potential danger in prison. Id. at 177
("Of course, in . . . cases [where the only alternative to death is life
without parole] the prosecution is free to argue that the defendant
would be dangerous in prison.").
Applying the holding in Simmons, the North Carolina Supreme
Court held that Richmond was not entitled to a Simmons instruction
because the State’s arguments about his future dangerousness were
limited to the danger he posed in prison to other inmates and staff.
Richmond, 495 S.E.2d at 696. We conclude, however, that the State’s
arguments about Richmond’s future dangerousness were not limited
to the potential danger he posed in prison. Accordingly, we find that
the North Carolina Supreme Court’s application of Simmons was
unreasonable.
Court’s holding in Simmons because "[w]hen a fragmented Court decides
a case and no single rationale explaining the result enjoys the assent of
five Justices, ‘the holding of the Court may be viewed as that position
taken by those Members who concurred in the judgment on the
narrowest grounds.’" Marks v. United States, 430 U.S. 188, 193
(1977)(quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15
(1976)(opinion of Stewart, Powell, and Stevens, JJ.)); see also Ramdass
v. Angelone, 187 F.3d 396, 403 (4th Cir. 1999)("We recognize Justice
O’Connor’s concurrence as the controlling opinion in Simmons because
it represents the narrowest grounds upon which a majority of the Court
agreed.").
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In the very last thought it left the jury to ponder before beginning
its sentencing deliberations, the State expressly put Richmond’s
future dangerousness in issue by stating:
When you know that someone has killed not just once, Lisa
Ann Nadeau, not just twice, H[e]lisa Hayes, not just three
times, Darien Hayes, not just four times, Phillip Hayes. Four
times, folks. What does it take? What does it take? There is
only one way you can ensure that this defendant does not
kill again, and that is to impose the penalty that he has
earned and worked for and deserves. I ask you to impose the
death penalty on all three cases.11
Id. (emphasis added). The North Carolina Supreme Court concluded
that this statement, when read in context, solely placed in issue Rich-
mond’s future threat in prison. Specifically, the North Carolina
Supreme Court reasoned that this statement was limited to Rich-
mond’s future threat in prison because it was made in close proximity
to the State’s arguments in opposition to two proposed mitigating fac-
tors: (1) that Richmond had exhibited good conduct in jail following
his arrest and (2) that Richmond would adjust well to life in prison.
Id. In so finding, the court noted that the State posed the following
question to the jury in arguing against the proposition that Richmond
would adjust well to life in jail: "[A]re you convinced [Richmond]
won’t kill in prison?" Id. The court also noted that the State, in argu-
ing against the assertion that Richmond had exhibited good conduct
since his incarceration, maintained that while Richmond "can control
himself when he wants to control himself," id., the "[p]roblem is, you
and I can’t be sure when he’s going to want to and when he’s not,
even in a jail cell." Id. We find the North Carolina Supreme Court’s
11In Simmons, the Court found that the State put the defendant’s future
dangerousness in issue by urging the jury to impose the death penalty
because it would represent "‘a response of society to someone who is a
threat . . . [and] an act of self defense.’" 512 U.S. at 157 (Blackmun, J.,
plurality opinion)(quoting App. 110). In the present case, the State’s
closing argument had the same effect because it urged the jury to impose
the death penalty, which Richmond "earned and worked for and deser-
ve[d]," Richmond, 495 S.E.2d at 696, to "ensure that [Richmond] does
not kill again." Id.
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conclusion as to the limiting effect of these statements unreasonable
for several reasons.
First, the State’s comments purportedly attempting to limit its
future dangerousness argument were very short—amounting to only
two-thirds of a transcript page. J.A. 1123. Given the brevity of these
comments, we find that they could not have had the limiting effect
that the North Carolina Supreme Court gave them. Second, and more
importantly, the State’s references to Richmond’s future threat in
prison were solely made in connection with its arguments against the
aforementioned mitigating factors, which one would expect given that
the mitigating factors being opposed dealt only with Richmond’s con-
duct in prison. Consequently, a jury hearing these arguments, which
were not made immediately prior to the State’s subsequent reference
to Richmond’s future dangerousness, would naturally conclude that
they were made solely in opposition to the entirety of the aforemen-
tioned mitigating factors, and would not have viewed them as limiting
the State’s reference to Richmond’s future dangerousness to his dan-
gerousness in prison. Third, a close assessment of the State’s argu-
ment in opposition to the contention that Richmond would adjust well
to life in prison reveals that the State gave little value to the threat he
posed in prison and actually placed Richmond’s future threat outside
of the prison context.
In urging the jury not to give mitigating value to the proposition
that Richmond would adjust well to life in prison, the State argued:
"Defendant would adjust well to prison life. You heard the evidence
in this case. Are you convinced he won’t kill in prison? Are you con-
vinced he won’t kill now? And whether he does or doesn’t, what miti-
gating value does that have as to these crimes? None." Id. This latter
statement clearly indicated to the jury that it should not consider
Richmond’s threat in prison when making its sentencing decision.
Morever, by asking the jury, "Are you convinced Richmond won’t
kill now," the State clearly brought Richmond’s future threat outside
of the prison context and sought to make the jurors feel as if they
could be Richmond’s next victim. Likewise, a close assessment of the
State’s argument in opposition to Richmond’s good conduct in prison
as a mitigating factor reveals that the State actually limited Rich-
mond’s future threat in prison. In urging the jury not to give mitigat-
ing value to Richmond’s good conduct in prison, the State expressly
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stated: "Not sure how much trouble you can get into in jail. That’s
what they’re there for." Id. This statement clearly implied to the jury
that the only reason Richmond did not have any disciplinary infrac-
tions in prison was because he was unable to get into any trouble in
prison. Thus, by making this statement, the State created the impres-
sion that Richmond’s future dangerousness would be a concern out-
side, not within, the setting of incarceration. Further limiting
Richmond’s threat in prison was the State’s argument that Rich-
mond’s good prison conduct "shows he can control himself. He’s not
out of control. He’s not a raving maniac. He can control himself when
he wants to control himself." Id.
The State argues that even if we find that Richmond’s future dan-
gerousness, as contemplated in Simmons, was put in issue during the
sentencing phase of his trial, the North Carolina Supreme Court’s
application of Simmons was reasonable because a Simmons instruc-
tion is only required when a defendant is not eligible for parole under
state law. We reject such a narrow reading of the holding in Simmons.
While the Court in Simmons dealt directly with parole ineligibility
under state law, the Court’s holding in Simmons stands for the princi-
ple of law that elemental due process requires that capital defendants,
once their future dangerousness outside of prison is put in issue, have
the opportunity to inform the jury of their parole ineligibility irrespec-
tive of how it came about. We base our reading of Simmons on the
fact that this is the one common theme throughout the separate opin-
ions written by the Justices that joined the judgment in Simmons.12
512 U.S. at 169 (Blackmun, J., plurality opinion)("Because truthful
information of parole ineligibility allows the defendant to ‘deny or
explain’ the showing of future dangerousness, due process plainly
requires that he be allowed to bring it to the jury’s attention by way
of argument by defense counsel or an instruction from the court."); id.
at 172 (Souter, J., concurring)("I join Justice BLACKMUN’s opinion
that, at least when future dangerousness is an issue in a capital sen-
12We reject the State’s argument that our reading of Simmons consti-
tutes a new constitutional rule of criminal procedure and thus is inappli-
cable to the present case under Teague v. Lane, 489 U.S. 288, 310
(1989)("Unless they fall within an exception to the general rule, new
constitutional rules of criminal procedure will not be applicable to those
cases which have become final before the new rules are announced.").
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tencing determination, the defendant has a due process right to require
that his sentencing jury be informed of his ineligibility for parole.");
id. at 174 (Ginsburg, J., concurring)("To be full and fair, [a defen-
dant’s opportunity to rebut an argument of future dangerousness]
must include the right to inform the jury, if it is indeed the case, that
the defendant is ineligible for parole. JUSTICE BLACKMUN’s opin-
ion is in accord with JUSTICE O’CONNOR’s on this essential
point."); id. at 175 (O’Connor, J., concurring)("But ‘[w]here the pros-
ecution specifically relies on a prediction of future dangerousness in
asking for the death penalty, . . . the elemental due process require-
ment that a defendant not be sentenced to death ‘on the basis of infor-
mation which he had no opportunity to deny or explain’ [requires that
the defendant be afforded an opportunity to introduce evidence on this
point.]" (quoting Skipper, 476 U.S. at 5 n.1)).
B.
Although we find that Richmond was entitled to a Simmons
instruction, we must now determine whether the trial court’s failure
to provide Richmond with a Simmons instruction constitutes harmless
error under Brecht v. Abrahamson, 507 U.S. 619 (1993). Before con-
ducting this inquiry, however, we note that the Tenth Circuit has
recently called into question whether a Simmons violation is subject
to Brecht’s harmless error analysis because the Supreme Court has
never conducted such an analysis in the three cases where it has found
a Simmons violation.13 Mollett v. Mullin, 348 F.3d 902, 921 n.6 (10th
Cir. 2003)("It is not entirely clear whether a Simmons error is subject
to harmless error analysis . . . [given that] the Supreme Court has
never performed a harmless error analysis in any of the three cases
where the Court found a Simmons violation."); id. at 925 n.2 (Mur-
phy, J., dissenting)("In light of the nature of the due process problem
identified in Simmons, however, it is not surprising that the Court has
never subjected such an error to a harmless-error analysis."). But see
O’Dell v. Netherland, 95 F.3d 1214, 1239 n.5 (4th Cir. 1996)(en
banc)(implying that Brecht harmless error analysis would be required
if Simmons violation is found); Johnson v. Gibson, 254 F.3d 1155,
13The three cases in which the Supreme Court has found a Simmons
violation are Simmons, 512 U.S. 154, Shafer v. South Carolina, 532 U.S.
36 (2001), and Kelly v. South Carolina, 534 U.S. 246 (2002).
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1166-67 (10th Cir. 2001)(applying harmless error analysis to
Simmons violation). However, because the Supreme Court has recog-
nized that "most constitutional errors can be harmless," Neder v.
United States, 527 U.S. 1, 8 (1999), and that "if the defendant had
counsel and was tried by an impartial adjudicator, there is a strong
presumption that any other [constitutional] errors that may have
occurred are subject to harmless-error analysis," id. (quoting Rose v.
Clark, 478 U.S. 570, 579 (1986)(alteration omitted)), we deem it
appropriate to conduct a Brecht analysis to determine whether the trial
court’s failure to provide Richmond with a Simmons instruction was
harmless.
C.
In Brecht, the Supreme Court held that principles of comity and
respect for state court judgments preclude federal courts from grant-
ing habeas relief to state prisoners for constitutional errors committed
in state court absent a showing that the error "‘had a substantial and
injurious effect or influence in determining the jury’s verdict.’" 507
U.S. at 623 (quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946)). In applying Brecht’s harmless error analysis, we must grant
a habeas petition if we are in "grave doubt" as to the harmlessness of
the error. Fullwood v. Lee, 290 F.3d 663, 679 (4th Cir. 2002). "‘Grave
doubt’ exists when, in light of the entire record, the matter is so
evenly balanced that the court feels itself in ‘virtual equipose’ regard-
ing the error’s harmlessness." Id. In light of the facts and circum-
stances surrounding the murders of Ms. Hayes and her two children,
we conclude that the trial court’s Simmons error did not have a sub-
stantial and injurious effect or influence in determining the jury’s sen-
tencing decision and have no grave doubt as to the harmlessness of
the trial court’s Simmons error.
In making its sentencing decision, the jury was presented with a sit-
uation where it had found Richmond guilty of: (1) forcefully raping
Ms. Hayes, his best friend’s ex-wife, and strangling her to death while
her eight-year-old son, Phillip, listened and watched; (2) grabbing Ms.
Hayes’ son and carrying him into the bathroom where he murdered
him by stabbing him approximately forty times with scissors and
wrapping an electrical cord five times around his neck; and (3) walk-
ing into the bedroom of Ms. Hayes’ seven-year-old daughter, Darien,
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who was sound asleep while he raped and murdered her mother and
then proceeded to murder her brother, and strangled her to death with
the cord from a curling iron. In addition, the jury had before it a situa-
tion where Richmond showed no remorse for his actions. After raping
and murdering Ms. Hayes and murdering her two children, Richmond
served as a pallbearer at their funerals and sought to shift police atten-
tion from himself and onto his best friend, Wayne Hayes. By pur-
posely misleading police, Richmond caused Wayne Hayes, as well as
Ms. Hayes’ father, William Stewart, and her boyfriend at the time of
the murders, Barrett Park, to endure the pain and stress of being con-
sidered a suspect in the murders of loved ones. Further illustrating
Richmond’s lack of remorse is the fact that he continued to deny that
he murdered Ms. Hayes and her two children until he was informed
that DNA evidence established that the semen found in Ms. Hayes’
body was his. Lastly, the jury was confronted with a situation where
it had been informed of the fact that Richmond had already been
found guilty in federal court of strangling Ms. Nadeau to death with
his bare hands, as he had done with Ms. Hayes. In light of these facts
and circumstances, we find it highly unlikely that the jury, had it
received a Simmons instruction, would have declined to sentence
Richmond to death.
VI.
We hold that Richmond’s ineffective assistance of counsel claims
were procedurally defaulted in state court pursuant to N.C. Gen. Stat.
§ 15A-1420(b)(1), an adequate and independent state procedural rule.
Because Richmond does not argue that our failure to consider his
claims will result in a "fundamental miscarriage of justice" and
because Richmond has failed to establish cause to excuse his proce-
dural default and prejudice therefrom, we are precluded from consid-
ering his ineffective assistance of counsel claims under the procedural
default doctrine. We also hold that the North Carolina Supreme
Court’s adjudication of Richmond’s Morgan claim was neither con-
trary to nor an unreasonable application of clearly established federal
law. We do, however, hold that the North Carolina Supreme Court’s
adjudication of Richmond’s Simmons claim constituted an unreason-
able application of Simmons because Richmond’s future dangerous-
ness was put in issue and not limited to the threat he posed in prison.
Nonetheless, we hold that Richmond is not entitled to habeas relief
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on his Simmons claim because he is unable to show that the trial
court’s Simmons error was not harmless under Brecht.
Accordingly, we affirm the district court’s denial of Richmond’s
habeas petition.
AFFIRMED
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