Willie Brown, Jr. v.  R. C. LEE, Warden, Central Prison, Raleigh, North Carolina

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 WILLIE BROWN, JR.,
Petitioner-Appellant,
v. No. 02-11 
R. C. LEE, Warden, Central Prison,
Raleigh, North Carolina,
Respondent-Appellee. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-98-774-5-H-HC)
Argued: October 30, 2002
Decided: February 14, 2003
Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.
Dismissed in part, reversed in part, and remanded by published opin-
ion. Judge Traxler wrote the opinion, in which Judge Luttig and Judge
Michael joined.
COUNSEL
ARGUED: James Donald Cowan, Jr., SMITH MOORE, L.L.P.,
Greensboro, North Carolina, for Appellant. Ellen Bradshaw Scouten,
Special Deputy Attorney General, NORTH CAROLINA DEPART-
MENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON
BRIEF: Frances P. Turner, SMITH MOORE, L.L.P., Greensboro,

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North Carolina, for Appellant. Roy Cooper, Attorney General of
North Carolina, NORTH CAROLINA DEPARTMENT OF JUS-
TICE, Raleigh, North Carolina, for Appellee.
OPINION
TRAXLER, Circuit Judge:
Petitioner Willie Brown, Jr., filed a petition for habeas relief in the
district court under 28 U.S.C.A. § 2254 (West 1994 & Supp. 2002),
challenging a sentence of death imposed after his conviction in North
Carolina for the armed robbery and murder of Vallerie Ann Roberson
Dixon. Brown asserts that his death sentence is constitutionally infirm
because the state trial court instructed the jury that unanimity was
required to find mitigating circumstances, a practice struck down by
the United States Supreme Court in McKoy v. North Carolina, 494
U.S. 433 (1990). Brown also contends that his trial counsel was con-
stitutionally ineffective for failing to investigate and present addi-
tional mitigating evidence during the sentencing phase of his trial.
The district court dismissed Brown’s habeas petition, but granted
Brown’s application for a certificate of appealability on the unanimity
issue. See 28 U.S.C.A. § 2253 (West Supp. 2002). Brown now seeks
a certificate of appealability from this court granting him permission
to appeal the district court’s dismissal of his ineffective assistance of
counsel claim as well.
For the following reasons, we reverse the district court’s holding
that Brown’s unanimity claim is procedurally barred and remand to
the district court for consideration of the merits of that claim. We
deny, however, Brown’s application for a certificate of appealability
on the ineffective assistance of counsel claim.
I.
In November 1983, a North Carolina jury convicted Brown of the
armed robbery and murder of Vallerie Ann Roberson Dixon. The
facts leading to Brown’s conviction are fully set forth by the North
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Carolina Supreme Court in State v. Brown, 337 S.E.2d 808 (N.C.
1985). Given the more narrow issues before us, a brief summary will
suffice here.
At approximately 5:47 a.m. on the morning of March 6, 1983, a
Zip Mart convenience store on Main Street in Williamston, North
Carolina, where Ms. Dixon was supposed to be working as a clerk,
was reported empty. A patrolling police officer had seen Ms. Dixon
in the store less than thirty minutes prior to the report. Money from
the cash register and a store safe was missing, as was Ms. Dixon’s
automobile. A search for Ms. Dixon was immediately begun.
At about 6:20 a.m., a police officer spotted Ms. Dixon’s automo-
bile traveling on a nearby road. The automobile was stopped by police
officers, and Brown, who was driving alone in the vehicle, was imme-
diately placed under arrest and advised of his rights. A .32 caliber six-
shot revolver, a paper bag containing approximately $90 in cash and
change, and a change purse containing Ms. Dixon’s drivers license
and social security card were found in the automobile. A pair of ski
gloves and a toboggan cap with eye holes cut out of it were found on
Brown’s person. The exterior of the car was partly covered with fresh
mud. According to the police officers, Brown admitted that he robbed
the Zip Mart and fled in Ms. Dixon’s car, but claimed that Ms. Dixon
was unharmed when he left the store.
At approximately 4:00 p.m. that afternoon, Ms. Dixon’s body was
found on a muddy logging road in a rural area outside Williamston.
Forensic pathology and firearm tests revealed that Ms. Dixon had
been shot six times with the .32 caliber revolver that police had found
in Dixon’s car at the time of Brown’s arrest.
Brown testified at his trial and disputed the police officers’ version
of the events that day. Brown testified that, while he was jogging near
the Zip Mart, a man ran past him and away from a parked car with
an opened door. Brown testified that he saw a gun and bag of money
on the seat of the car, sat down in the vehicle, and was arrested by
police before he could get out of the vehicle. Brown denied robbing
or killing Ms. Dixon, and denied making any admissions to the police.
On cross-examination, Brown admitted that he had been previously
convicted in North Carolina of breaking and entering and in Virginia
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for five armed robberies and the assault of a police officer. He denied,
however, that he was guilty of committing those crimes.
Following the presentation of all the evidence, the jury convicted
Brown of first-degree murder and robbery with a dangerous weapon.
A capital sentencing proceeding was then held, see N.C. Gen. Stat.
§ 15A-2000 (2001), during which additional details of Brown’s prior
convictions in North Carolina and Virginia were presented to the jury.
Brown had been convicted in 1963 in North Carolina of six counts of
felonious larceny and six counts of breaking or entering. In 1965,
Brown was convicted in Virginia of five counts of armed robbery and
one count of felonious assault. The victim of the assault was a Vir-
ginia police officer, who testified at the sentencing hearing that he
was shot and paralyzed when Brown shot him three times in an
attempt to avoid arrest.
In mitigation, Brown presented the testimony of law enforcement
officers who testified that he offered no resistance to his arrest for
murder, that he was not disrespectful during interrogation, and that he
had an intense emotional reaction, crying and shaking, when ques-
tioned about Ms. Dixon. Brown also presented testimony from his
mother, who testified that Brown was the second of seven children,
that he was born and raised in Williamston, that he was not a good
student, that his father died in 1973, that she had visited him regularly
in prison, and that he had treated her with respect when he returned
to live at home after his release from prison. Brown’s school records
documenting his poor scholastic record were also presented.
At the conclusion of the sentencing phase of the trial, three poten-
tial aggravating circumstances were submitted for consideration by
the jury: (1) that Brown had previously been convicted of a felony
involving the use of threat or violence to the person; (2) that the mur-
der was committed by Brown while he was engaged in the commis-
sion of or flight after committing a robbery; and (3) that the murder
was especially heinous, atrocious or cruel. The jury found all three
aggravating circumstances to be present.
The trial court submitted seven possible mitigating circumstances
for the jury’s consideration: (1) that Brown had no significant history
of prior criminal activity; (2) that Brown was a person of limited
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intelligence and education; (3) that Brown was under the age of 21
at the time he committed any previous felonies for which he had been
convicted; (4) that Brown had not been convicted of any criminal
offense for 18 years; (5) that Brown surrendered at the time of his
arrest without resistance to law enforcement officers; (6) that Brown
confessed soon after his arrest to robbing the Zip Mart; and (7) any
other circumstances which the jury deemed to have mitigating value.
The jury found no mitigating circumstances and returned a recom-
mendation that Brown be sentenced to death for the murder convic-
tion. Following the recommendation, the trial court imposed the
sentence. The North Carolina Supreme Court affirmed Brown’s con-
viction and death sentence, see Brown, 337 S.E.2d at 830, and the
United States Supreme Court denied Brown’s petition for writ of cer-
tiorari. See Brown v. North Carolina, 476 U.S. 1164 (1986).
II.
On March 9, 1987, Brown filed a motion for appropriate relief
("MAR"), see N.C. Gen. Stat. § 15A-1415 (2001), in Martin County
Superior Court, asserting for the first time that the trial court had erro-
neously instructed the jury that it must unanimously find any mitigat-
ing circumstances, in violation of his rights under the Eighth and
Fourteenth Amendments to the United States Constitution. Brown
also alleged that his Sixth Amendment right to effective assistance of
counsel was violated by trial counsel’s failure to adequately investi-
gate and present mitigating evidence.
On November 19, 1987, Superior Court Judge Charles B. Winberry
concluded that Brown was procedurally barred from raising all issues
set forth in his MAR, including the unanimity issue, except for those
alleging ineffective assistance of counsel. On March 28, 1994, Brown
re-raised the unanimity issue in an amended MAR, and sought recon-
sideration of the November 1987 order shortly thereafter, citing the
intervening Supreme Court decision in McKoy v. North Carolina, 494
U.S. 433 (1990).1 On January 18, 1996, however, the state MAR court
1Because the state MAR court had not yet resolved issues pertaining
to the alleged ineffective assistance of counsel, the 1987 MAR was still
pending in 1994.
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concluded that the November 1987 order, procedurally barring the
unanimity claim, constituted a final judgment and was the law of the
case. In 1997, after having conducted an evidentiary hearing on
Brown’s claims of ineffective assistance of counsel, the state MAR
court entered an order denying Brown’s motion for appropriate relief
and his amendments to that original motion. Brown apparently raised
the unanimity claim yet again in a Second MAR filed in August 1997,
which in November 1997 was likewise rejected as procedurally
barred. Brown’s attempts to seek review of the state court MAR
orders by the North Carolina Supreme Court and the United States
Supreme Court were ultimately unsuccessful, and Brown turned to the
federal habeas court for relief.
Brown’s § 2254 petition raised eleven constitutional challenges to
his conviction and sentence, including the unanimity issue and inef-
fective assistance of counsel claim. Following an evidentiary hearing,
the district court granted the state’s motion for summary judgment,
denied Brown’s motion for summary judgment, and dismissed the
petition. Brown’s subsequent motion to alter or amend the judgment
was also denied. The district court refused to review the merits of
Brown’s unanimity claim because the state court had procedurally
barred him from raising it, and rejected Brown’s ineffective assistance
of counsel claim on the merits.
In May 2002, Brown filed an application for a certificate of
appealability with the district court, seeking an appeal of the district
court’s conclusion that it was procedurally barred from considering
the unanimity claim and the district court’s denial of Brown’s ineffec-
tive assistance claim. See 28 U.S.C.A. § 2253. The district court
found that Brown had made an adequate showing that reasonable
jurists could debate the application of procedural default to his una-
nimity claim and granted Brown’s application for a certificate of
appealability as to this claim. However, the court denied a certificate
of appealability as to Brown’s ineffective assistance of counsel claim.
Accordingly, the issues pending before us are: (1) whether the dis-
trict court erred in concluding that Brown has procedurally defaulted
federal habeas review of the merits of his unanimity claim because
the North Carolina state court concluded it was procedurally barred;
and (2) whether Brown’s application for a certificate of appealability,
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seeking permission from this court to appeal his ineffective assistance
of counsel claim, should be granted.
III.
We begin with Brown’s appeal of the district court’s conclusion
that he procedurally defaulted federal habeas review of the merits of
his claim that his constitutional rights under the Eighth and Four-
teenth Amendments were violated because the trial court instructed
the jury during his sentencing phase that it must unanimously find the
existence of any mitigating circumstances. The district court held that
it was procedurally barred from considering the merits of this unanim-
ity claim because Brown had failed to raise the issue on direct appeal
to the North Carolina Supreme Court and the North Carolina MAR
court procedurally barred review of the claim on this basis.
A.
In 1990, the United States Supreme Court held that North Caroli-
na’s requirement that a jury unanimously find the existence of a miti-
gating circumstance before weighing it against aggravating
circumstances impermissibly prevented each juror from considering
all of the mitigating evidence. See McKoy, 494 U.S. at 435. However,
just six months prior to Brown’s November 1983 conviction, the
North Carolina Supreme Court had found no error in a trial court’s
instructions concerning a requirement of unanimity for mitigating cir-
cumstances. See State v. Kirkley, 302 S.E.2d 144, 156-57 (N.C.
1983). Five years after Kirkley was decided and Brown was con-
victed, however, the United States Supreme Court reversed a death
sentence imposed in Maryland because there was "a substantial prob-
ability that reasonable jurors . . . well may have thought they were
precluded from considering any mitigating evidence unless all 12
jurors agreed on the existence of a particular such circumstance."
Mills v. Maryland, 486 U.S. 367, 384 (1988). The North Carolina
Supreme Court attempted to distinguish the Maryland instruction at
issue in Mills from North Carolina’s unanimity requirement, see State
v. McKoy, 372 S.E.2d 12 (N.C. 1988), but the United States Supreme
Court ultimately held that North Carolina’s requirement likewise
failed to pass constitutional muster, see McKoy, 494 U.S. at 443-44.
The Constitution, the Court held, requires that "each juror must be
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allowed to consider all mitigating evidence in deciding . . . whether
aggravating circumstances outweigh mitigating circumstances, and
whether the aggravating circumstances, when considered with any
mitigating circumstances, are sufficiently substantial to justify a sen-
tence of death." Id. at 443; see also Williams v. French, 146 F.3d 203,
215-216 (4th Cir. 1998).
Shortly after the United States Supreme Court issued its decision
in McKoy, the North Carolina Supreme Court ruled that it would not
apply the plain error standard to direct appeals of capital defendants
who had failed to object at trial to a McKoy error, at least for all trials
conducted after Kirkley but before Mills. See State v. Sanderson, 394
S.E.2d 803, 806 (N.C. 1990). Such errors would, however, be sub-
jected to a harmless error analysis. See id. at 806; see also State v.
McNeil, 395 S.E.2d 106, 110 (N.C. 1990).
In March 1992, a panel of this court held that the unanimity hold-
ings in Mills and McKoy were exceptions to the general rule that "new
rules" do not apply retroactively to cases on collateral review. See
Williams v. Dixon, 961 F.2d 448, 453 (4th Cir. 1992) (citing Teague
v. Lane, 489 U.S. 288, 305 (1989)). Two years later, in June 1994, the
North Carolina Supreme Court adopted the retroactivity standard
announced in Teague, and likewise held that McKoy would be applied
retroactively "to final cases on state post-conviction review," at least
where the defendant assigned the instruction as error on direct review.
State v. Zuniga, 444 S.E.2d 443, 446-47 (N.C. 1994).
Brown initially challenged the trial court’s unanimity instruction in
his First MAR, filed in March 1987. In November 1987, the state
MAR court ruled that Brown was procedurally barred from raising the
claim because he was in a position to adequately raise the issue before
the North Carolina Supreme Court on direct appeal and had failed to
do so. See N.C. Gen. Stat. § 15A-1419(a)(3) (2001) (providing that an
MAR may be denied when "[u]pon a previous appeal the defendant
was in a position to adequately raise the ground or issue underlying
the present motion but did not do so"). This ruling, of course, post-
dated the North Carolina Supreme Court’s Kirkley decision upholding
the unanimity instruction, but predated the United States Supreme
Court decisions in Mills and McKoy, as well as the decisions in Wil-
liams and Zuniga regarding retroactivity. However, as set forth above,
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Brown’s attempts to re-raise the unanimity issue in the wake of Mills
and McKoy, and to obtain reconsideration of the MAR court’s
November 1987 order, were unsuccessful because the MAR court
concluded that the November 1987 order constituted a final judgment
and was the law of the case.
B.
Under the doctrine of procedural default, a federal habeas court is
precluded from reviewing the merits of a constitutional claim that the
state refused to consider on the merits "pursuant to an independent
and adequate state procedural rule, . . . unless the [petitioner] can
demonstrate cause for the default and actual prejudice as a result of
the alleged violation of federal law, or demonstrate that failure to con-
sider the claims will result in a fundamental miscarriage of justice."
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Harris v.
Reed, 489 U.S. 255, 262 (1989).
The assessment of whether a particular state procedure is "indepen-
dent and adequate," so as to bar consideration of the merits of a fed-
eral constitutional claim, is a question of federal, not state, law. See
Johnson v. Mississippi, 486 U.S. 578, 587 (1988); see also Edwards
v. Carpenter, 529 U.S. 446, 455 (2000) (Breyer, J., concurring). A
state rule is "adequate" if it is firmly established and regularly or con-
sistently applied by the state court, see Johnson, 486 U.S. at 587, and
"independent" if it does not "depend[ ] on a federal constitutional rul-
ing," Ake v. Oklahoma, 470 U.S. 68, 75 (1985). See also Yeatts v.
Angelone, 166 F.3d 255, 260 (4th Cir. 1999).
The basis for the district court’s determination that Brown proce-
durally defaulted federal habeas review of his unanimity claim is N.C.
Gen. Stat. § 15A-1419(a), which sets forth the following procedural
bars to the state court’s review of issues raised in a motion for appro-
priate relief:
(1) Upon a previous motion made pursuant to this Article,
the defendant was in a position to adequately raise the
ground or issue underlying the present motion but did not do
so. . . .
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(2) The ground or issue underlying the motion was previ-
ously determined on the merits upon an appeal from the
judgment or upon a previous motion or proceeding in the
courts of this State or a federal court, unless since the time
of such previous determination there has been a retroac-
tively effective change in the law controlling such issue.
(3) Upon a previous appeal the defendant was in a position
to adequately raise the ground or issue underlying the pres-
ent motion but did not do so. . . .
(4) The defendant failed to file a timely motion for appro-
priate relief as required by G.S. 15A-1415(a).
N.C. Gen. Stat. § 15A-1419(a).
Section 15A-1419 was amended in June 1996. Prior to that time,
N.C. Gen. Stat. § 15A-1419(b) provided that "[a]lthough the court
may deny the motion under any of the circumstances specified in
[subsection (a)], in the interest of justice and for good cause shown
it may in its discretion grant the motion if it is otherwise meritorious."
N.C. Gen. Stat. § 15A-1419(b) (1995). The amended version of sec-
tion 15A-1419(b) now provides that:
(b) The court shall deny the motion under any of the cir-
cumstances specified in [subsection (a)], unless the defen-
dant can demonstrate:
(1) Good cause for excusing the grounds for denial listed
in subsection (a) of this section and can demonstrate actual
prejudice resulting from the defendant’s claim; or
(2) That failure to consider the defendant’s claim will
result in a fundamental miscarriage of justice.
N.C. Gen. Stat. § 15A-1419(b) (emphasis added). Therefore, the
amendment to section 15A-1419(b) made the state procedural bars
established under section 15A-1419(a) mandatory, rather than discre-
tionary, unless the petitioner can demonstrate good cause or a funda-
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mental miscarriage of justice. See Rose v. Lee, 252 F.3d 676, 683 (4th
Cir. 2001).
Brown asserts that the state MAR court did not review and reject
his McKoy claim based upon an "independent and adequate" state law
ground because, although the procedural bars available under subsec-
tions 15A-1419(a)(1) and (a)(3) have generally been found to be ade-
quate to preclude federal habeas review of other types of defaulted
constitutional claims, the state procedural bars have not been "regu-
larly and consistently" followed by North Carolina courts which have
been presented with alleged "unanimity" claims.2
As correctly noted by the parties, we have on a number of occa-
sions held that subsections 15A-1419(a)(1) and (a)(3) are independent
and adequate state law grounds for finding that a claim has been pro-
cedurally defaulted. See e.g., Fisher v. Lee, 215 F.3d 438, 456 (4th
Cir. 2000); Boyd v. French, 147 F.3d 319, 332 (4th Cir. 1998); Wil-
liams, 146 F.3d at 217; Ashe v. Styles, 39 F.3d 80, 87-88 (4th Cir.
1994). However, as the parties also correctly note, this general obser-
vation does not end our inquiry. See e.g., Bacon v. Lee, 225 F.3d 470,
476-77 (4th Cir. 2000), cert. denied 121 S. Ct. 1420 (2001); McCar-
ver v. Lee, 221 F.3d 583, 589 (4th Cir. 2000). Where the procedural
bars available in subsections 15A-1419(a)(1) and (a)(3) have not been
regularly and consistently applied by the state court to a particular
type of federal constitutional claim, they cannot be considered an ade-
quate state law ground barring federal court review of the merits of
that claim. See McCarver, 221 F.3d at 589; see also Hathorn v.
Lovorn, 457 U.S. 255, 263 (1982) ("State courts may not avoid decid-
ing federal issues by invoking procedural rules that they do not apply
evenhandedly to all similar claims."). Otherwise, state courts would
be able to engage in an arbitrary application of state procedural rules
to thwart federal habeas review of constitutional issues that the "ade-
quacy" requirement was designed to prevent.
2Although North Carolina courts refer to the subsection 15A-
1419(a)(2) bar as a "procedural bar" for purposes of reviewing a state
court defendant’s MAR, it is not a state procedural bar for purposes of
federal habeas review. Subsection (a)(2) bars state MAR review of a
claim that has been properly raised by a state court defendant, but
rejected on the merits. Thus, it states a rule of res judicata and law of the
case, precluding re-litigation of the claim though the MAR proceeding.
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Thus, as we have previously held, "[t]he question we must ask . . .
is whether the particular procedural bar is applied consistently to
cases that are procedurally analogous — here, cases in which the par-
ticular claim raised could have been raised previously but was not."
McCarver, 221 F.3d at 589 (second emphasis added). "[C]onsistent
or regular application of a state rule of procedural default does not
require that the state court show an undeviating adherence to such
rule admitting of no exception so long as the rule has as a general rule
been applied in the vast majority of cases." Mueller v. Angelone, 181
F.3d 557, 584 (4th Cir. 1999) (internal quotation marks and ellipsis
omitted); see also Yeatts, 166 F.3d at 263-64.
C.
In this case, our precise inquiry is to determine whether the proce-
dural bars in subsection 15A-1419(a)(1) or (a)(3) have been applied
consistently to cases in which a unanimity claim could have been
raised on direct appeal but was not. To support their respective posi-
tions on this issue, the parties have directed our attention to ten capital
defendants in North Carolina who first raised a claim that their sen-
tencing jury was improperly instructed that it must unanimously find
the existence of any mitigating circumstances after the completion of
their direct appeal, i.e., in motions for appropriate relief brought under
section 15A-1415. Of these ten capital defendants, six received an
adjudication of the merits of their unanimity claim and four found
their claims to be procedurally barred under section 15A-1419(a).
1.
We begin with those cases, relied upon by Brown, in which the
state MAR courts did not apply the procedural bars available at the
time for discretionary application under subsections 15A-1419(a)(1)
and (a)(3).
(a)
Michael Van McDougall was convicted of capital murder in 1980.
He raised his unanimity claim in a Second MAR filed June 15, 1988,
just days after the Supreme Court’s decision in Mills was issued. At
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the time, McDougall had already filed a federal habeas petition, and
this court delayed issuing our opinion pending the Supreme Court’s
decision in McKoy. On December 19, 1990, we held that McKoy did
not apply to McDougall’s instruction. See McDougall v. Dixon, 921
F.2d 518, 539 (4th Cir. 1990). We also stated, in dicta, that even if
McKoy applied, it would represent new law not applicable retroac-
tively to cases on collateral review. See id. Thus, McDougall received
an adjudication on the merits of his unanimity claim, albeit an unsuc-
cessful one. Shortly thereafter, the state MAR court ruled upon
McDougall’s Second MAR which had also raised the unanimity
claim. The state argued that McDougall’s McKoy claim was procedur-
ally barred by section 15A-1419, but the state MAR judge refused to
so rule, noting that "[g]iven the state of the law in North Carolina
regarding capital sentencing procedure during the period of McDou-
gall’s direct appeal and the decision on his first [MAR], and the
impossibility of predicting future appellate decisions on federal con-
stitutional law, this [c]ourt declines to conclude that McDougall’s
Mills/McKoy claim is procedurally barred." S.J.A. 60. The court then
proceeded to also address, but ultimately reject, McDougall’s unanim-
ity claim on the merits.
(b)
The case of Douglas Williams, who was convicted in 1981, is also
apposite. By order dated June 17, 1985, the state MAR court
addressed the merits of a unanimity claim first raised by Williams in
his MAR, but held that the jury was properly charged in accordance
with the North Carolina Supreme Court’s Kirkley decision (which
was still controlling precedent in North Carolina at the time). The
claim had not been presented on direct appeal from Williams’ convic-
tion, but we find no indication in our record as to whether the state
MAR court was presented with a claim that Williams had procedur-
ally defaulted the issue by not raising it on direct appeal. In 1992, on
appeal from the district court’s denial of Williams’ petition for writ
of habeas corpus (and contrary to the dicta in McDougall), we
expressly held that the Mills/McKoy rules applied retroactively to
cases on collateral review. See Williams, 961 F.2d at 453. Accord-
ingly, we vacated Williams’ death sentence and remanded the case to
the district court. See id. at 459.
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(c)
In 1993, the state MAR court specifically rejected the contention
that Alton Garner Green, convicted in 1985 (also after the Kirkley
decision was issued), was procedurally barred from raising a unanim-
ity challenge by his failure to raise the issue at trial or on direct appeal
from his conviction. Noting that "[a]t the time of Green’s trial, and
on appeal, no lawyer or judge in North Carolina had reason to believe
there was error in the unanimity instruction that required correction,"
the court ruled that Green’s failure to raise the issue did not bar him
from raising it on state post-conviction review. S.J.A. 21. In addition,
the court found that "in the interests of justice and for good cause
shown, Green should be allowed to raise the McKoy issue in th[e]
post-conviction proceeding." S.J.A. 21. Thus, the state MAR court
again invoked its discretion under section 15A-1419(b) to address the
merits of an otherwise procedurally defaulted unanimity claim.
(d)
Two additional capital defendants, Francis Marion Anthony and
Andrew Craig, also obtained state MAR review of the merits of una-
nimity claims that had not been raised on direct appeal. In the Craig
case, an order was entered by Superior Court Judge Davis in August
1996, ruling that Craig’s unanimity claim, raised in a Second MAR,
was procedurally barred pursuant to section 15A-1419. However, the
unanimity claim, as well as others raised in the Second MAR, was
later reheard by Senior Resident Superior Court Judge Beale. Judge
Beale issued an order dated July 18, 2000, denying a number of
claims, but not the unanimity claim, as being procedurally barred pur-
suant to section 15A-1419. Instead, Judge Beale rejected the unanim-
ity claims of both Craig and Anthony on the merits and not on the
basis of a procedural bar in section 15A-1419.
(e)
The final case cited by Brown does not speak directly to the "regu-
larly and consistently applied" issue because we can find no indica-
tion that the state court was even presented with the unanimity claim
in an MAR. It is, however, indirectly supportive of Brown’s conten-
tion that he should obtain a decision on the merits. In 1991, a federal
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magistrate judge refused to accept North Carolina’s claim that David
Lawson, who was convicted in 1981, should be procedurally barred
from raising his unanimity claim under section 15A-1419(a), noting
that it would not be appropriate to presume that such a claim would
be procedurally barred by a state MAR court in view of the discretion
available to the state judges to address the merits of such claims under
the pre-1996 version of section 15A-1419(b). However, the magis-
trate judge concluded that Lawson lost on the merits of his unanimity
because McKoy had no retroactive application, and the district judge
adopted the magistrate judge’s recommendations and entered judg-
ment dismissing Lawson’s petition on January 7, 1992. Two months
later, of course, we reached the contrary conclusion on retroactivity.
See Williams, 961 F.2d at 456. In Lawson’s appeal to this court, and
without discussion of the default or retroactivity issues, we addressed
the merits of Lawson’s claim and found no McKoy violation. See
Lawson v. Dixon, 3 F.3d 743, 754 (4th Cir. 1993).
2.
In contrast to these cases, in which similar defendants received
review of the merits of their unanimity claims, the state has directed
us to the cases of four capital defendants whose unanimity claims
were found to be procedurally barred under section 15A-1419(a) by
a state MAR court.
(a)
We begin with the case of Larry Darnell Williams, convicted of
capital murder in 1980. Although we have not been provided with the
state court order, Williams appears to have first raised his unanimity
claim before a state MAR court. See Williams, 146 F.3d at 215. The
state court denied the claim on November 17, 1995, as being proce-
durally barred, but it is not clear whether Williams even contested the
bar at the state court level. On federal habeas, Williams "ac-
knowledge[d] this claim [was] procedurally defaulted under [subsec-
tion] 15A-1419(a)(3) because, as the state court held, the claim could
have been raised on direct appeal." Id. However, Williams did con-
tend that he could show cause and prejudice to excuse the procedural
default, starting with the claim that his counsel was ineffective for
failing to pursue the unanimity claim on direct appeal. Concluding
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that the instruction given by the trial court did not run afoul of the
principles in McKoy, we held that Williams had failed to establish
cause to excuse the procedural default and denied habeas relief. Id. at
215-16. Thus, unlike Brown, Williams did not contend on federal
habeas that subsection 15A-1419(a)(3) was an inadequate state law
ground to preclude federal habeas review of the merits of his claim.
The issue was not presented to us and the amended version of section
15A-1419(b), in effect by the time of our review, made denial of a
ground for relief under subsection (a) mandatory by the state court
unless the defendant could show cause and prejudice or a miscarriage
of justice.
(b)
The state next relies upon the case of Kermit Smith, Jr., who was
convicted of capital murder in 1981. It too has a lengthy history. See
Smith v. Dixon, 14 F.3d 956 (4th Cir. 1994) (en banc). However, it
suffices for our purposes to observe that, following our split over the
issue of whether the state court had in fact procedurally barred
Smith’s unanimity claim, the state MAR court held on January 3,
1995 that the claim, then raised in a Third MAR, was procedurally
barred under subsections 15A-1419(a)(3) and (a)(2) due to Smith’s
failure to raise the issue on direct appeal and, alternatively, because
Smith’s unanimity claim had been addressed and rejected on the mer-
its by the federal court. In our prior opinion, a majority of the court
had also rejected the unanimity claim on the merits, concluding that
"Smith’s sentencing hearing was not tainted with McKoy error." Id.
at 981 n.15; see id. at 983 (Hall, J., concurring).
(c)
The third case relied upon by the state is that of David Earl Huff-
stetler, convicted of capital murder in 1983. In that case, by order
dated October 15, 1990, the state MAR court clearly ruled that Huff-
stetler’s unanimity claim, raised in a Second and Third MAR, was
procedurally barred under subsections 15A-1419(a)(1) and (a)(3).
However, the court went on to specifically note that it need not
address whether, "in the interest of justice and for good cause shown"
it should exercise its discretion to "grant the motion if it is otherwise
meritorious," see N.C. Gen. Stat. § 15A-1419(b) (1995), noting that
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"[w]hile the rule in McKoy v. North Carolina is a change in the law,
it is not to be given retroactive application." S.J.A. 140. Because this
order predated the contrary holdings on retroactivity expressed by the
North Carolina Supreme Court in Zuniga, and by our court in Wil-
liams, it is of limited utility in resolving this case.
(d)
Finally, the state relies upon the case of Phillip Robbins, also con-
victed of capital murder in 1983. On February 1, 1993, the state MAR
court ruled, without elaboration, that Robbins’ unanimity claim was
barred pursuant to subsection 15A-1419(a)(3). There is no discussion
of the discretion afforded under then-existing subsection (b), although
the state MAR court order in Robbins also predates Zuniga and Wil-
liams. For that matter, it post-dates our decision in McDougall indi-
cating that we would not apply McKoy retroactively.3
3The state’s reliance upon a fifth case — that of Henry Lee Hunt —
is wholly inapposite. In Hunt, the North Carolina Supreme Court rejected
on the merits a unanimity claim raised by Hunt on direct appeal. See
State v. Hunt, 373 S.E.2d 400, 417 (N.C. 1988). However, because that
decision was based upon the reasons stated in its opinion in State v.
McKoy, 372 S.E.2d 12 (1988), the Hunt decision was vacated and
remanded by the United States Supreme Court for further reconsideration
in light of the Supreme Court’s overruling of that decision in McKoy v.
North Carolina, 494 U.S. 433 (1990). See Hunt v. North Carolina, 494
U.S. 1022 (1990). On remand, the North Carolina Supreme Court found
that any McKoy error in Hunt’s trial was harmless and affirmed Hunt’s
death sentence, see State v. Hunt, 411 S.E.2d 806, 814 (N.C. 1992), and
the Supreme Court denied certiorari, see Hunt v. North Carolina, 505
U.S. 1226 (1992).
Hunt apparently filed an MAR on December 3, 1992, re-raising the
McKoy claim, which was found to be procedurally barred by order of the
state MAR court in June 1994. The precise basis for the default ruling
is not provided to us, but because Hunt raised the original challenge to
the unanimity instruction given at his trial on direct appeal, we know the
claim was not barred under subsection 15A-1419(a)(3). Rather, because
the application of the procedural bar post-dates the North Carolina
Supreme Court’s determination that the McKoy violation was harmless
error, we can assume that Hunt’s 1992 McKoy claim was directed to the
"harmless error" claim, which was subject to procedural bar by the MAR
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D.
To summarize, Brown has pointed us to five defendants convicted
in North Carolina of capital murder who obtained judicial review of
the merits of their constitutional unanimity claim, first raised in a
motion for appropriate relief, by the state MAR court. Two were ulti-
mately successful in obtaining relief on the merits, and three were not,
but all obtained review of the merits. A sixth capital defendant
obtained review of the merits on federal habeas, even though it had
not been raised on direct appeal to the state court.
The state has pointed us to four cases in which the capital defen-
dants’ unanimity claims were found to be procedurally barred under
subsection 15A-1419(a)(3). Two of those defendants, however,
received a judicial determination that there was no constitutional error
in the challenged instruction, albeit within the procedural bar context,
and the remaining two cases involved unanimity claims that were pro-
cedurally barred during the time that state MAR courts were afforded
discretion to review the merits of procedurally defaulted claims that
might otherwise be meritorious, but prior to North Carolina’s determi-
nation that McKoy would not be applied retroactively to cases on state
collateral review.
As we have previously discussed, Brown’s ability to obtain federal
habeas review of the merits of his unanimity claim rests upon our res-
olution of the question of "whether the particular procedural bar [has
been] applied consistently to cases that are procedurally analogous —
here, cases in which the particular claim raised could have been
raised previously but was not." McCarver, 221 F.3d at 589 (second
emphasis added). Having reviewed the evidence presented by the par-
ties on this more precise issue, we are satisfied that the state MAR
courts have not regularly and consistently applied section 15A-
court under subsection 15A-1419(a)(2) (providing that a MAR claim
may be procedurally barred under state MAR law if the issue was previ-
ously determined on the merits upon direct appeal or in a prior MAR).
See also Hunt v. Lee, 291 F.3d 284, 287-88 (4th Cir. 2002) (setting forth
the procedural history of Hunt’s state appeal and post-conviction pro-
ceedings).
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1419(a) to unanimity claims made by defendants in procedural pos-
tures similar to Brown’s. Brown has made a colorable showing that,
although subsections 15A-1419(a)(1) and (a)(3) have been generally
held to be adequate and independent state procedural grounds to bar
federal habeas review of a claim, the state MAR courts have not con-
sistently applied the bar to unanimity claims raised by defendants in
the wake of Mills and McKoy. We suspect that this may well have
been due to the fact that state MAR courts, prior to 1996, had discre-
tion in their ability to reach the merits of otherwise procedurally
defaulted claims.4 But, in the end, it matters little why the bar has not
been regularly and consistently applied by state MAR courts to una-
nimity claims. Because it has not been, the state MAR court decision
barring review of Brown’s claim on the merits was not based on an
adequate and independent state law ground. And, because we hold
that there is no procedural bar to federal habeas review of the merits
of Brown’s unanimity claim, we must remand the case to the district
court for the purpose of conducting such review in the first instance.
IV.
Brown has also sought permission to appeal the district court’s dis-
missal of his claim that his attorneys were constitutionally ineffective
under the Sixth and Fourteenth Amendments for failing to adequately
investigate and present mitigating evidence to the jury. Brown
asserted below that counsel failed to uncover and present certain testi-
mony from family and friends on his behalf, failed to collect available
medical, psychological, or correctional information concerning
Brown, and failed to obtain an independent evaluation of Brown’s
mental condition.
4In the alternative, Brown contended that we should address the merits
of his McKoy claim because he had established cause and prejudice for
his procedural default, that our failure to do so would result in a manifest
injustice, and that such review is warranted under Lee v. Kemna, 534
U.S. 362 (2002). In view of our decision that the claim is not procedur-
ally defaulted, we need not address these alternative grounds for review.
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A.
The Sixth Amendment requires that "[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defence," U.S. Const. amend. VI, and that such assistance be
effective, Strickland v. Washington, 466 U.S. 668, 686 (1984). In
order to establish an ineffective assistance of counsel claim before the
state court, Brown was required to establish that his "counsel’s repre-
sentation fell below an objective standard of reasonableness," mea-
sured by the "prevailing professional norms," id. at 688, and "that
there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different," id. at
694. "Unless a defendant makes both showings, it cannot be said that
the conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable." Id. at 687.
Brown presented his ineffective assistance of counsel claim to the
state MAR court, which received and considered the testimony of six
of Brown’s family members, a childhood friend, and a teacher. The
court also received and considered expert testimony from two mental
health professionals who had examined Brown and who opined that
he suffered from an impulse control disorder at the time of the mur-
der. In June 1997, however, the court denied relief upon concluding
that Brown had failed to prove that counsel’s presentation of mitiga-
tion evidence during the sentencing phase was outside the range of
competence demanded of attorneys in criminal cases or that the pre-
sentation of additional evidence "would have caused a different
result." J.A. 2117 (internal quotation marks omitted).
On federal habeas review, the district court also conducted an evi-
dentiary hearing to explore trial counsel’s presentation of mitigating
evidence on Brown’s behalf. Counsel testified that Brown’s family
was of no assistance to him in preparation for sentencing, that he did
not perceive Brown to have any mental problems, and that he did not
recall any indication that Brown had ever undergone a psychiatric
evaluation. The district court concluded that Brown had failed to
establish that he was denied effective assistance of counsel as a result
of counsel’s investigation and presentation of mitigating evidence.
The district court found "that counsel made a reasonable effort to
meet and consult with members of petitioner’s family and to investi-
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gate and present mitigating evidence," J.A. 2117-18, and that the
court could not "conclude from the testimony of family and friends
presented in the state court proceedings that there [was] a reasonable
probability that the outcome of the sentencing proceeding would have
been different had their testimony been presented," J.A. 2118. The
district court likewise concluded that counsel was not deficient in fail-
ing to investigate and present mental health evidence. Having found
that Brown had failed to establish that he was denied the effective
assistance of counsel as a result of counsel’s investigation and presen-
tation of mitigating evidence, the district court thereupon concluded
that the state court’s adjudication of the claim was neither contrary to
nor an unreasonable application of clearly established federal law. See
28 U.S.C.A. § 2254(d)(1).
B.
In order to pursue an appeal from a final order in a habeas proceed-
ing arising from a state court conviction the state court defendant
must obtain a certificate of appealability. The certificate of appeala-
bility "may issue . . . if the applicant has made a substantial showing
of the denial of a constitutional right." 28 U.S.C.A. § 2253(c)(2). To
do so, the applicant must demonstrate that "reasonable jurists could
debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further." Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omit-
ted).
Having been denied a certificate of appealability of this issue from
the district court, Brown now requests that we allow him to appeal the
issue along with his unanimity claim. In particular, Brown asserts that
the state court applied the wrong standard of review, i.e., the state
MAR court required him to show that the presentation of additional
evidence in mitigation "would have caused a different result," J.A.
2117 (internal quotation marks omitted), instead of just a "reasonable
probability" that the outcome "would have been different," Strickland,
466 U.S. at 694. As a result, Brown asserts, we must review his claim
de novo. We disagree. Following an evidentiary hearing, the district
court independently concluded that Brown had failed to establish that
his "counsel’s representation fell below an objective standard of rea-
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sonableness," measured by the "prevailing professional norms," id. at
688, and "that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different," id. at 694. Based upon these findings, the district court then
concluded that the state court’s adjudication of the claim was neither
contrary to nor an unreasonable application of clearly established fed-
eral law. See 28 U.S.C.A. § 2254(d)(1); Williams v. Taylor, 529 U.S.
362 (2000). In addition, we have independently reviewed the record
from the state court proceeding and the federal habeas proceeding and
are satisfied that Brown has failed to make the requisite "substantial
showing" that his Sixth Amendment right to effective assistance of
counsel was denied by trial counsel’s failure to investigate and pres-
ent additional mitigating evidence. Thus, we deny Brown’s applica-
tion for a certificate of appealability of this issue.
V.
For the foregoing reasons, we hold that North Carolina has not reg-
ularly and consistently applied its procedural default rule in section
15A-1419(a) to claims challenging unanimity instructions and, there-
fore, that the district court erred in holding that the state bar is an ade-
quate and independent ground procedurally barring federal court
consideration of Brown’s unanimity claim on federal habeas review.
Accordingly, we remand this case for consideration by the district
court of the merits of the unanimity claim.
Because Brown has failed to make a substantial showing that his
constitutional rights were violated by his counsel’s failure to present
additional mitigating evidence at his capital sentencing hearing, we
deny a certificate of appealability on that issue.
DISMISSED IN PART, REVERSED
IN PART, AND REMANDED
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