Darrell Eugene Strickland v. GERALD J. BRANKER, Warden, Central Prison, Raleigh, North Carolina

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-13
DARRELL EUGENE STRICKLAND,
Petitioner - Appellant,
v.
GERALD J. BRANKER, Warden, Central Prison, Raleigh, North
Carolina,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:02-cv-00033-GCM)
Argued: May 15, 2008 Decided: June 25, 2008
Before WILLIAMS, Chief Judge, and MICHAEL and MOTZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Michael wrote the opinion,
in which Chief Judge Williams and Judge Motz joined.
ARGUED: James R. Glover, GLOVER & PETERSEN, PA, Chapel Hill, North
Carolina, for Appellant. Steven Franklin Bryant, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON
BRIEF: Ann Bach Petersen, GLOVER & PETERSEN, PA, Chapel Hill,
North Carolina, for Appellant. Roy Cooper, Attorney General of
North Carolina, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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MICHAEL, Circuit Judge:
Darrell Eugene Strickland was sentenced to death
following his conviction for the first-degree murder of Henry
Brown. After unsuccessfully seeking post-conviction relief in
state court, Strickland filed a petition for a writ of habeas
corpus in U.S. district court. The district court denied relief,
finding several of Strickland’s claims to be procedurally defaulted
and denying several others on the merits. We granted a certificate
of appealability with respect to the district court’s
determinations (1) that Strickland was not entitled to relief on
the merits of a claim under Brady v. Maryland, 373 U.S. 83 (1963),
and (2) that Strickland had defaulted a portion of his claim that
he was denied the effective assistance of counsel during the
sentencing phase of his case. Because we conclude that Strickland
has not established the materiality necessary for his Brady claim
nor the prejudice necessary for his ineffective assistance claim,
we affirm the district court’s denial of relief.
I.
Strickland was convicted by a North Carolina jury for the
first-degree murder of Henry Brown. In affirming the conviction on
direct appeal, the state supreme court described the circumstances
of the murder as follows:
The State’s evidence tended to show inter alia that
on 1 January 1995, the victim, Henry Brown, went with his

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wife, Gail Brown, and her six-year-old child to the home
of [Strickland], who lived with Sherri Jenkins and their
two-year-old son in Marshville, North Carolina. Mrs.
Brown had formerly worked with both Ms. Jenkins and
[Strickland] at Cuddy Foods in Marshville and had been
“good friends” with Ms. Jenkins for about six years. Ms.
Jenkins had been dating [Strickland] for thirteen years,
had mothered his two-year-old son, and had been
cohabiting with [Strickland] for about six months at the
time of the murder.
The Browns arrived at the residence of [Strickland]
and Ms. Jenkins at approximately 8:00 p.m. Mr. Brown had
been drinking but was not drunk. Mr. Brown and
[Strickland] went into the kitchen, while Mrs. Brown and
Ms. Jenkins stayed in the living room. The children were
sent into the bedroom to play, and the adults began
drinking alcoholic beverages. Ms. Jenkins testified at
trial that they shared a marijuana joint and that all
four adults drank from a half-gallon bottle of gin. The
four adults continued drinking and talking for several
hours. During this time, a shotgun owned by [Strickland]
was passed around. Everyone was talking about shooting
it and joking about shooting each other, but there were
no serious threats. There were two shells in the gun and
no other shells in the house. Ms. Jenkins took the gun
outside and fired it once.
At approximately 1:30 a.m., Mrs. Brown and Ms.
Jenkins were in the kitchen preparing food for everyone
to eat. The men were in the living room. Mrs. Brown
testified that, while in the kitchen, she looked into the
living room, where she saw her husband sitting on an
ottoman with his head in his hands. [Strickland] was
standing to the back and side of Mr. Brown with the gun
in his hand pointed at Mr. Brown. Mrs. Brown saw
[Strickland]’s lips move but could not hear what he said.
She then heard the gun being fired, smelled burning
flesh, and saw her husband fall over.
Ms. Jenkins testified that she witnessed the victim
sitting on the ottoman with [Strickland] standing behind
him. The victim was mumbling something that she could
not hear. She stepped outside to feed the cats, during
which time she heard the gun go off. She came back
inside and saw the victim fall over. According to Ms.
Jenkins, the victim’s behavior that evening was obnoxious

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and loud. He was cursing at intervals and drinking
alcohol throughout the night.
Immediately following the shooting, [Strickland]
left in his truck. He drove to the house of his ex-wife,
Ms. Betty Sanders, in Marshville. [Strickland] asked Ms.
Sanders to drive him in his truck to his uncle’s house in
Rockingham. At approximately 2:45 a.m., Ms. Sanders and
[Strickland] were stopped in Rockingham by Officer Poston
and Officer Grant of the Rockingham Police Department,
which had been notified to be on the lookout for
[Strickland]. Officer Grant transported [Strickland] to
the Rockingham Police Department.
At the Police Department, after being advised of his
constitutional rights, [Strickland] spoke to Special
Agent Tony Underwood of the State Bureau of Investigation
(SBI) and Detective Bill Tucker of the Union County
Sheriff’s Department. [Strickland] told them that he
shot Henry Brown because “he pissed me off” and because
“he called me a punk Indian son-of-a-bitch.”
[Strickland] said that no one else had anything to do
with the shooting. He said that he “meant to kill” the
victim. He denied that alcohol had caused him to commit
the murder. [Strickland] said that he had not planned to
kill the victim. He did however say that he had to cock
the gun in order to get it to shoot.
Detective Easley of the Union County Sheriff’s
Department examined the crime scene during the early
morning hours of 2 January 1995. Detective Easley found
the body of Henry Brown lying on the living room floor on
its left side. Blood was coming from the victim’s nose
and mouth and a hole in the back shoulder area. There
was no weapon on or around the victim’s body. In the gun
cabinet, Detective Easley found one Ithaca twelve-gauge
pump shotgun which contained one spent Winchester “double
aught” buckshot casing in the chamber. He also found one
spent “double aught” buck-shot shell outside on the
ground about eleven inches from the front doorstep.
Michael Gavin of the forensic firearms and tool
marks unit of the SBI laboratory tested the shotgun and
found that the gun functioned properly. Gerald Long,
owner of Long’s Sporting Goods and Pawn Shop, testified
that he had experience in selling, firing, and repairing
Ithaca twelve-gauge pump shotguns. He testified that, in
his opinion, the Ithaca shotgun, in the hands of someone

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not experienced with it, would go off faster than any
other shotgun on the market and is susceptible to
accident.
State v. Strickland, 488 S.E.2d 194, 198-99 (N.C. 1997).
A separate capital sentencing proceeding followed
Strickland’s conviction. At sentencing a single statutory
aggravating factor was submitted for the jury’s consideration:
that Strickland “had been previously convicted of a felony
involving the use or threat of violence to the person.” N.C. Gen.
Stat. § 15A-2000(e)(3). The prosecution supported this factor by
presenting evidence of two previous felony convictions. First,
Strickland pled guilty in 1985 to one count of assault with a
deadly weapon based on an altercation in which he sliced a large
knife wound across the back of another man (Todd Kendell). Second,
Strickland was indicted for murder based on the 1993 shooting death
of Derrick Skipper. A jury convicted Strickland of voluntary
manslaughter.
Strickland offered three witnesses in mitigation. First,
Dr. Mark Worthen, a psychologist, testified about an interview he
conducted with Strickland. In that interview Strickland said that
he was drunk at the time he shot Brown, that he intended to scare
Brown rather than kill him, and that the gun went off by accident.
Strickland also told Dr. Worthen that he was a proud Indian, that
he was not crazy, and that he did not want anyone to beg for his
life. Second, Grant Davis testified that he was with Strickland at

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the time of the incident involving Todd Kendell. Though Davis
apparently did not see how Kendell was cut, his testimony suggested
that Kendell initiated the confrontation with Strickland by, among
other things, throwing a piece of cement through the windshield of
Strickland’s truck. Finally, Strickland called Officer James
Clemmons to testify about his investigation into the shooting of
Derrick Skipper. Clemmons testified that, according to witnesses,
Skipper had a gun in his possession during the incident.
Strickland’s counsel also attempted to elicit testimony suggesting
that Skipper initiated the confrontation, but the court cut off
this line of questioning after the prosecution objected on the
ground that it required the officer to recount inadmissible
hearsay.
Two nonstatutory mitigating factors were submitted to the
jury: (1) that Strickland was the father of three children, and
(2) that he had great pride in his Native American heritage. The
statutory catch-all mitigator for “[a]ny other circumstance arising
from the evidence which the jury deems to have mitigating value”
was also submitted. See N.C. Gen. Stat. § 15A-2000(f)(9). The
sentencing jury found the state’s requested aggravating
circumstance but did not find any circumstances in mitigation. The
jury recommended a sentence of death, which the trial judge
imposed.

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Strickland thereafter filed a motion for appropriate
relief (MAR) in state court. In his MAR petition Strickland
argued, as relevant here, (1) that the prosecution violated its
duties under Brady v. Maryland, 373 U.S. 83 (1963), by failing to
disclose pretrial statements made by witness Gail Brown, and (2)
that his counsel provided ineffective assistance during the
sentencing phase of his case. The MAR court rejected all of
Strickland’s claims.
Strickland then filed a petition for a writ of habeas
corpus in U.S. district court. The district court ultimately
denied all the claims for relief in the petition. Strickland
appealed, and we granted a certificate of appealability with
respect to his Brady claim and the district court’s ruling that
Strickland had defaulted a portion of his claim for ineffective
assistance of counsel by not fairly presenting it to the MAR court.
II.
We first consider Strickland’s contention that the
prosecution violated its disclosure obligations under Brady v.
Maryland. Three elements are necessary for a successful Brady
claim: (1) the “evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is
impeaching”; (2) the “evidence must have been suppressed by the
State”; and (3) the evidence must be “material,” that is, there

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must be “a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different.” Strickler v. Greene, 527 U.S. 263, 280-82 (1999)
(internal quotation marks omitted).
Strickland focuses his Brady claim on the prosecution’s
failure to disclose a pretrial statement that the victim’s wife,
Gail Brown, made to Officer Ted Keziah. At trial Mrs. Brown
testified that her husband (the victim) and Strickland had been
drinking during the evening of the murder but had not been fighting
or arguing. Her testimony also indicated that she did not overhear
what conversation (if any) the two men had immediately prior to the
murder. Strickland’s counsel requested that the prosecution
disclose any pretrial statements made by Mrs. Brown, but the
prosecution claimed that there were none. During post-conviction
proceedings, however, the state disclosed evidence of several such
pretrial statements, including one made to Keziah. According to
Keziah’s report, Mrs. Brown told him (Keziah) shortly after the
murder that Strickland and the victim had been “running their
mouths at one another” prior to the shooting. J.A. 1345. In
addition to Keziah’s report, Strickland’s claim relies on an
affidavit from Mrs. Brown, which appears to clarify the meaning of
the statement she gave to Keziah. In the affidavit Brown said that
about ten minutes before the shooting she heard the two men
exchange racial slurs, including “Indian son-of-a-bitch” and

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“nigger.” She also said that she “did not hear everything the two
[men] said just before the shooting.” J.A. 1490. Because the
information contained in the affidavit was not considered by the
state MAR court, we must make an independent assessment of the
merits of Strickland’s Brady claim. See Monroe v. Angelone, 323
F.3d 286, 298-99 (4th Cir. 2003).
We agree with the district court that Strickland’s Brady
claim lacks merit. Even though Mrs. Brown’s statement to Keziah
(as supplemented by her affidavit) contradicts the testimony she
gave at trial, Strickland is unable to satisfy the third Brady
element because he has not established “a reasonable probability
that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” Strickler, 527 U.S. at
280. While Mrs. Brown testified at trial that she did not hear
racial slurs, her testimony also indicated that she did not
overhear everything that transpired in the moments before the
shooting. As the district court recognized, Mrs. Brown’s affidavit
is consistent with her trial testimony in that she expressly says
in the affidavit that she did not hear the conversation between the
men immediately prior to shooting. Inasmuch as Mrs. Brown did not
claim at trial to have overheard the entirety of the men’s
conversation, the jury had little reason to disbelieve the
explanation that Strickland gave to the police shortly after the
murder: that he shot the victim in response to the victim calling

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him a “punk Indian son-of-a-bitch.” Because the jury knew about
this racial slur from Strickland’s confession, it appears quite
unlikely that the disclosure of Brown’s statement would have
altered the jury’s decision to convict Strickland of first-degree
murder. For these reasons, we agree with the district court that
Strickland is not entitled to relief on his Brady claim.
III.
The second issue before us relates to Strickland’s claim
that he was denied his Sixth Amendment right to effective
assistance of counsel during the sentencing phase of his trial.
Strickland has supported this claim by arguing that his counsel
should have introduced additional evidence in mitigation, including
evidence regarding the circumstances surrounding the Skipper
shooting. Specifically, Strickland argues that counsel should have
elicited testimony from Doris Perkins Lee, an eyewitness to the
shooting, who would have testified that Skipper fired an initial
shot at Strickland, hitting him in the thigh. The district court
denied several aspects of Strickland’s ineffective assistance claim
on the merits, but it held that the portion of his claim relating
to his counsel’s failure to present Lee’s testimony was
procedurally defaulted because Strickland had not adequately raised
it in his MAR petition. We granted a certificate of appealability
with respect to “the district court’s ruling that [Strickland]’s

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ineffective assistance claim regarding counsel’s failure to present
the testimony of Doris Perkins Lee was procedurally defaulted.”
Upon full review of the issue, we conclude that
Strickland is not entitled to relief on his ineffective assistance
claim even assuming that his argument regarding Lee’s testimony was
properly presented to the state MAR court. Because the record
makes clear that Strickland’s ineffective assistance claim lacks
merit, we need not resolve the procedural default issue. Eaton v.
Angelone, 139 F.3d 990, 994 n.1 (4th Cir. 1998).
To succeed on a claim that he received ineffective
assistance of counsel at sentencing, Strickland must establish two
elements. First, he must show that his counsel’s performance “fell
below an objective standard of reasonableness.” Strickland v.
Washington, 466 U.S. 668, 687-88 (1984)). Second, he must
establish prejudice by showing “a reasonable probability . . .
that, but for the deficient performance, he would not have been
sentenced to death.” Buckner v. Polk, 453 F.3d 195, 201 (4th Cir.
2006). When a petitioner alleges, as Strickland does here, that
his counsel should have put forth additional evidence in
mitigation, we assess prejudice by “reweigh[ing] the evidence in
aggravation against the totality of available mitigating evidence.”
Wiggins v. Smith, 539 U.S. 510, 534 (2003). Because the state MAR
court did not address the merits of Strickland’s ineffective
assistance claim with respect to his counsel’s failure to elicit

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testimony from Doris Perkins Lee, our review is de novo. See
Weeks v. Angelone, 176 F.3d 249, 258 (4th Cir. 1999) (“When a
petitioner has properly presented a claim to the state court but
the state court has not adjudicated the claim on the merits,
however, our review of questions of law and mixed questions of law
and fact is de novo.”).
Strickland cannot satisfy the prejudice element, even if
his counsel was deficient in failing to present testimony from
Doris Lee. After reweighing the totality of the mitigating
evidence (including Lee’s testimony) against the aggravating
evidence, we cannot conclude that there is a reasonable probability
that the jury would have returned a sentence other than death. In
our view, the addition of Lee’s testimony would not have
significantly altered the balance of mitigating and aggravating
evidence that was presented at sentencing. For instance, while the
sentencing jury did not have all the details of the Skipper
incident, it did know that Strickland had been convicted only of
voluntary manslaughter rather than a more serious charge such as
first-degree murder. Indeed, despite hearing testimony from Doris
Lee, the earlier jury at the Skipper trial “rejected any theory of
self-defense” and found Strickland guilty of voluntary
manslaughter. State v. Strickland, 488 S.E.2d at 205. Introducing
Lee’s testimony before the sentencing jury in Strickland’s capital
case would likely have prompted the state to introduce rebuttal

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evidence from the Skipper trial, which “tended to show that
[Strickland] . . . shot Mr. Skipper several times, including firing
the gun while standing directly over Mr. Skipper after he had
fallen in the street.” Strickland v. State, 488 S.E.2d at 205. We
agree with the district court, which noted when analyzing one of
Strickland’s related claims, that “evidence that [Skipper,] the
victim in the 1993 shooting[,] may have shot at and even wounded
[Strickland] would not have mitigated” these more damaging details
of Strickland’s actions during the Skipper shooting. J.A. 1406.
Moreover, the aggravating evidence against Strickland
extended beyond the Skipper incident to his involvement in the
wounding of Todd Kendell. Additional evidence regarding the
circumstances of the Skipper shooting would not have offset the
aggravating effect of the Kendell incident. As the district court
explained:
[S]uch evidence [regarding the circumstances of the
Skipper shooting] would have done nothing to mitigate the
damaging evidence that the State introduced to prove
[Strickland’s] other previous felony conviction involving
the use or threat of violence - the stabbing of Todd
Kendall [sic]. The State’s evidence showed that Kendall
was unarmed and that [Strickland] attempted to slash
Kendall across the stomach with a knife. When Kendall
turned and attempted to run, [Strickland] slashed him
down the back, opening him from shoulder to belt.
Kendall’s wife testified that when she saw the wound she
was certain her husband was dead and that it took over
800 stitches to repair his back.
J.A. 1406-07.

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In sum, we cannot conclude that a reasonable probability
exists that the sentencing jury would have returned a different
sentence if Lee’s testimony had been presented. Therefore,
Strickland’s claim for relief based on ineffective assistance of
counsel is without merit.
* * *
For the reasons stated above, the judgment of the
district court is
AFFIRMED.

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