Carl Stephen Moseley v. GERALD J. BRANKER, Warden, No. 07-17  Central Prison, Raleigh, North Carolina

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 CARL STEPHEN MOSELEY,
Petitioner-Appellant,
v.
GERALD J. BRANKER, Warden, No. 07-17 
Central Prison, Raleigh, North
Carolina; NORTH CAROLINA
ATTORNEY GENERAL,
Respondents-Appellees. 
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., District Judge.
(1:97-cv-01239-NCT)
Argued: September 23, 2008
Decided: November 3, 2008
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Traxler wrote the opin-
ion, in which Judge Shedd and Judge Duncan concurred.
COUNSEL
ARGUED: Paul MacAllister Green, Durham, North Carolina,
for Appellant. Valerie Blanche Spalding, NORTH CARO-

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LINA DEPARTMENT OF JUSTICE, Capital Litigation, Fed-
eral Habeas Corpus Section, Raleigh, North Carolina, for
Appellees. ON BRIEF: Jonathan E. Broun, CENTER FOR
DEATH PENALTY LITIGATION, Durham, North Carolina,
for Appellant. Roy Cooper, Attorney General of North Caro-
lina, Raleigh, North Carolina, for Appellees.
OPINION
TRAXLER, Circuit Judge:
Carl Stephen Moseley was convicted by a North Carolina
jury of the capital murder of Deborah Henley and sentenced
to death. After unsuccessfully challenging his conviction and
sentence on direct appeal and in state post-conviction pro-
ceedings, Moseley filed a petition for writ of habeas corpus
in federal district court. See 28 U.S.C.A. § 2254 (West 2006).
The district court denied relief. We granted a certificate of
appealability, pursuant to 28 U.S.C.A. § 2253(c)(1) (West
2006), to consider a claim raised by Moseley under Brady v.
Maryland, 373 U.S. 83 (1963). Because the North Carolina
Supreme Court’s disposition of Moseley’s Brady claim was
neither contrary to, nor an unreasonable application of, clearly
established federal law, as determined by United States
Supreme Court precedents, we now affirm.
I.
A.
Deborah Henley was a 38-year-old petite woman with a
speech impediment who lived with her mother in the Old
Town section of Winston-Salem, North Carolina. On Thurs-
day evening, July 25, 1991, Henley’s sister dropped her off at
the SRO Club, a local dance club in Winston-Salem. Accord-
ing to her mother, Henley had approximately eight dollars
with her when she left for the club.
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Appellant Carl Moseley and two of his friends, Travis Key
and Tony Casstevens, also frequented the SRO Club and were
there that evening. Moseley and Key had spent most of the
day together and had thoroughly washed Key’s car, inside and
out. Moseley then borrowed Key’s car to go home and get
ready to go to the club. Key later rode to the club with another
friend, where he met Moseley and Casstevens about 9:00 p.m.
When the club closed at approximately 1:30 a.m., Henley
went outside and asked Duane Shouse for a ride home, but he
was unable to help her. An employee of the club offered to
let Henley use the telephone, but Henley declined. According
to several witnesses, Henley was instead telling patrons that
she would pay $50 for a ride home. Moseley, Key, and Cas-
stevens were also outside the club at the time. Key saw Hen-
ley talking to Shouse and, later, to Moseley. A few minutes
later, Moseley approached Key and asked to borrow Key’s car
to take Henley home. Moseley told Key that Henley had
offered to pay him $50 for the ride and that he would split the
money with Key. Key initially resisted, but finally agreed.
Key and Casstevens saw Henley get into Key’s car with
Moseley and drive away at approximately 1:40 a.m. Henley
never arrived home.
Key and Casstevens stayed behind at the club to wait for
Moseley to return with Key’s vehicle. Based upon where
Moseley said Henley lived, they expected Moseley to return
in approximately 15 to 30 minutes. When Moseley did not
return for more than an hour, the two men left the club in
Casstevens’ vehicle. As they were driving, they saw Moseley
coming towards them in Key’s vehicle. Moseley was alone.
Both vehicles pulled over and the men got out. When Key
asked Moseley where he had been, Moseley told the men that
"the damn bitch didn’t live where she said she did." J.A. 883.
Moseley told the men that she lived on the other side of King,
North Carolina, presumably to explain his delay. That state-
ment was untrue, but even if it had been true, the additional
distance did not explain the inordinate delay in Moseley’s
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return. In addition, Moseley told the men that Henley did not
have any money. A law enforcement officer who happened by
the area witnessed the three men standing beside the road and
briefly stopped to ask if there was a problem. After taking
Moseley home, Key returned to his home and went to bed.
The next morning, Key noticed a small amount of dirt and
weeds on the floorboard of the driver’s side of his vehicle. As
noted previously, Key’s car had been thoroughly washed just
before Moseley drove it to the SRO Club the previous eve-
ning.
On Friday evening, Tommy Beroth, a property owner in a
rural area of Forsyth County, discovered Henley’s body par-
tially hidden under cut corn stalks in his cornfield. The corn-
field was approximately five miles and a nine-minute drive
from the SRO Club and within one mile of Henley’s home.
There was testimony that Moseley had travelled the roads
near the cornfield in the past and, therefore, was presumably
familiar with them. Henley was completely naked, and her
clothing was never found. She had been brutally beaten about
the head, face, neck, chest, and abdomen, sexually assaulted
with a blunt instrument, stabbed twelve times in the chest, tor-
tured by means of two long incisions on her chest and two
more across her neck, and manually strangled. A single dark
hair was found underneath one of her fingernails. There was
no spermatozoa or semen detected.
The following day, Moseley called both Casstevens and
Key and asked them not to tell anyone that he had been at the
SRO Club on Thursday night because he was on probation
and was not supposed to be drinking alcohol in such environ-
ments. Key and Casstevens, however, had been to clubs with
Moseley before and Moseley had never previously made such
a request. When Casstevens pointed out to Moseley that his
name would be on the sign-in sheets at the SRO Club, Mose-
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ley told Casstevens that he had gone to Nancy Bolt’s house
that evening and that she would be his alibi.1
Aware by that time of rumors that a woman had disap-
peared from the SRO Club on Thursday night, Casstevens and
Key contacted the police. The police obtained search warrants
and retrieved the clothing that Moseley was wearing that eve-
ning at the SRO Club, as well as two pocket-knives among his
possessions. Traces of blood were present on Moseley’s
boots, shirt, and jeans, indicating secondary transfer or spat-
tering, but the quantities were insufficient to determine the
origin. A pathologist testified that the size and shape of the
wounds inflicted on Henley were consistent with the two
knives seized by authorities. Although there was conflicting
testimony from Moseley’s soil expert, the state’s soil analyst
found the soil on Moseley’s boots to be consistent with soil
samples taken from the crime scene.
B.
During the trial, the prosecution was allowed to present evi-
dence of Moseley’s alleged involvement in the similar rape
and murder of Dorothy Woods Johnson, whose body was
found in adjoining Stokes County, North Carolina, approxi-
mately three months before Henley was murdered.
Dorothy Johnson was also last seen alive at the SRO Club.
She was 35 years old, petite, and also suffered from a speech
impediment. On the evening of April 12, 1991, she drove to
the SRO Club where she met her friend Sherry Hoss and
Hoss’s then-boyfriend, Dexter Mabe. During the evening, two
1Nancy Bolt was also at the SRO Club on the evening of July 25, 1991,
where she made plans to meet Moseley later at her home. When Moseley
arrived at her home about 3:15 a.m. the following morning, Bolt saw no
blood on his clothing or cuts on his body. However, she testified that she
was not with Moseley from midnight until his arrival, and that she had
expected him to arrive earlier.
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witnesses at the club saw Johnson dancing and talking with
Moseley, whose name appeared on the SRO Club’s sign-in
sheets. Moseley was wearing a cowboy hat and dark jeans.
Hoss and Mabe left the club around 11:00 p.m. and walked
to a nearby motel where they stayed for the remainder of the
night. Johnson was still at the SRO Club when they left.
Johnson’s nude body was later found in a rural area called
Friendship Forest. She had multiple blunt force injuries to her
head, neck, chest, abdomen, and body, and had been sexually
assaulted. Spermatozoa and semen were present on vaginal
and rectal smears. The semen was estimated to have been
deposited within twelve hours of Johnson’s death. Johnson
had a single black hair underneath one of her fingernails.
Johnson’s car and her purse were left at the SRO Club. Pam
James, a former girlfriend of Moseley, testified that she and
Moseley would sometimes drive to the Friendship Forest area,
near where Johnson’s body was found, to have sexual rela-
tions. A resident of the area, and acquaintance of Moseley and
James, testified that Moseley had once questioned her and her
husband about their property and remarked that it would be a
good place to leave a body because it would take days before
it would be found.
During the initial investigation of Johnson’s murder, law
enforcement identified Dexter Mabe, Daniel Cannaday, and
several other men as possible suspects. Mabe had dark hair,
was dating Hoss at the time of the murder, was present at the
SRO Club that night, and had been involved in disagreements
with Johnson about his relationship with Hoss in the past.
Cannaday was Johnson’s former boyfriend and was known to
have been possessive and jealous of Johnson before he ended
his relationship with her. However, both men were ultimately
eliminated as suspects. DNA samples obtained from both men
did not match the DNA samples retrieved from Johnson’s
body and each man had provided an alibi for the evening.
The DNA profile from semen found in Johnson did, how-
ever, match Moseley’s DNA profile, which was obtained after
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Key and Casstevens alerted authorities that Henley had left
the SRO Club with Moseley on the night Henley was mur-
dered. As noted previously, Moseley was seen dancing and
talking to Johnson on the night of Johnson’s murder. Accord-
ing to Michael Budzynski, of the DNA Unit of the State
Bureau of Investigation, the chance that Moseley was not the
donor of the semen found in Johnson was approximately one
in 274 million.
There were striking and obvious similarities between the
murders of Johnson and Henley, indicating a common killer.
Johnson and Henley were both last seen alive at or leaving the
SRO Club. Henley was with Moseley when she left the SRO
Club and Johnson was seen in the company of Moseley near
the time of her disappearance. The women were of similar age
and had small physical builds. Henley was 38 years old,
approximately 5′4″ tall, and weighed approximately 105
pounds. Johnson was 35 years old, approximately 5′6″ tall,
and weighed approximately 82 pounds. And, both women suf-
fered from speech impediments.
The nature and extent of the victims’ injuries and the
causes of their deaths were also similar. As discussed in more
detail below, both women sustained multiple blunt force inju-
ries to their head, neck, chest, abdomen, and body, and had
defensive injuries. Both women had also been sexually
assaulted with a foreign object, tortured, and strangled. In
addition, both women were found completely naked in rural
areas where Moseley was known to have traveled. Both
women had dirt around their fingernails, both were barefoot,
and both had ground-in dirt on the soles of their feet. An FBI
witness testified that the signature to each crime was overkill
—the murderer inflicted far more injuries to the victims than
necessary to cause death and employed multiple means of
death, any one of which would have been alone sufficient.
The evidence regarding Johnson’s murder was admitted in
the Henley murder trial pursuant to Rule 404(b) to show iden-
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tity of the perpetrator, the existence of a similar modus ope-
randi, intent, and design. See N.C. Gen. Stat. § 8C-1, Rule
404(b) ("Evidence of other crimes, wrongs, or acts . . . may
. . . be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake, entrapment or accident.").2 Clearly, there
was evidence from which the jury could find that the murders
were committed by the same person. Moseley offered no evi-
dence that excluded him as the murderer of either woman,
arguing primarily that the DNA evidence was not reliable and
that, even if it was, it only proved that Moseley had sexual
relations with Johnson in the hours immediately prior to her
death. He argued that the killer was an unknown dark-haired
man.
II.
Moseley was ultimately convicted by the jury of the first-
degree murder of Henley, and the capital sentencing hearing
commenced. As additional evidence in support of a prior fel-
ony conviction aggravator, the state presented evidence of a
1990 conviction of Moseley for assault with a deadly weapon
inflicting serious injury and the attempted second-degree rape
of Laura Fletcher. Fletcher met Moseley in June 1989 and
agreed to go for a ride with him. Moseley drove Fletcher to
a secluded road in a rural area and began to kiss and touch
her. When Fletcher resisted, Moseley took a gun from the
glove box and ordered her to completely disrobe. Moseley
2Johnson was murdered three months before Henley. However, Moseley
was not arrested or charged in Johnson’s murder in Stokes County until
after Moseley was arrested and charged in Forsyth County for the Henley
murder. Thus, Moseley was tried and convicted first for the second mur-
der. Moseley was later convicted of the first-degree murder, first-degree
sexual assault, and first-degree rape of Johnson, and again sentenced to
death. The circumstances underlying Johnson’s killing are set forth in
North Carolina v. Moseley, 449 S.E.2d 412 (N.C. 1994). A federal habeas
petition arising out of that case is currently pending in the federal district
court.
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also completely disrobed and ordered Fletcher to perform oral
sex. When she refused, Moseley grabbed her head and
attempted to force compliance. When she again pulled away,
Moseley pointed the gun at Fletcher’s head. A struggle ensued
and the gun went off, injuring Fletcher’s hand. After she was
injured, Moseley took Fletcher home but, anticipating that she
would contact the police and despite the fact that he had
already told her his real name, gave her a false name in the
hopes that she would report the latter instead.
In mitigation, Moseley called a former teacher, who testi-
fied as to Moseley’s good performance as a school bus driver,
and several family members and friends, who attested to a
good, loving home environment and a personal character on
the part of Moseley that was, in their opinion, inconsistent
with his having committed such an egregious crime.
At the conclusion of the sentencing hearing, the jury rec-
ommended a sentence of death, based upon the following
aggravating circumstances: (1) that Moseley had a previous
felony conviction involving the use or threat of violence; (2)
that the murder was committed while Moseley was engaged
in the commission of first-degree rape or a first-degree sex
offense; and (3) that the murder was especially heinous, atro-
cious, or cruel. The only mitigating circumstance found by
one or more jurors was that Moseley was cooperative during
his arrest and provided assistance to law enforcement during
the search of his bedroom. The North Carolina Supreme Court
affirmed the conviction and imposition of the death sentence,
and the United States Supreme Court denied certiorari. See
State v. Moseley, 445 S.E.2d 906 (N.C. 1994), cert. denied,
513 U.S. 1120 (1995).
Moseley initiated state post-conviction proceedings in April
1996, by filing a motion for appropriate relief ("MAR") with
the state court. The MAR was initially denied without a hear-
ing, and the North Carolina Supreme Court denied certiorari.
However, in November 1998, the North Carolina Supreme
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Court remanded the case for reconsideration of the MAR in
light of a change in state law governing capital cases in post-
conviction proceedings, which entitled Moseley to discovery.
See N.C. Gen. Stat. § 15A-1415(f).3 Moseley subsequently
filed an amended MAR, raising, inter alia, a claim that dis-
covery had produced a number of documents from the John-
son murder investigation that had not been produced to the
defense in the Henley murder trial, in violation of the state’s
obligation under Brady v. Maryland.
In October 2000, the state MAR court conducted an eviden-
tiary hearing on the claims and heard testimony from many of
the witnesses who were interviewed during the Johnson mur-
der investigation. On March 26, 2001, the state MAR court
denied all claims. The North Carolina Supreme Court denied
certiorari, as did the United States Supreme Court.
In the meantime, Moseley initiated federal habeas proceed-
ings by the filing of his § 2254 petition, but the matter was
held in abeyance to allow Moseley to pursue discovery in the
remanded state MAR proceedings. After the state denied his
MAR request, Moseley returned to the district court with an
amended § 2254 habeas petition as well. The magistrate judge
issued a report and recommendation that the amended petition
be denied. The district court agreed and issued an opinion
denying relief. The district court also denied Moseley’s Rule
59(e) motion. We subsequently granted a certificate of
appealability to consider Moseley’s Brady claim.
3Pursuant to § 15A-1415(f), "[i]n the case of a defendant who has been
convicted of a capital offense and sentenced to death, . . . [t]he State, to
the extent allowed by law, shall make available to the capital defendant’s
counsel the complete files of all law enforcement and prosecutorial agen-
cies involved in the investigation of the crimes committed or the prosecu-
tion of the defendant." N.C. Gen. Stat. § 15A-1415(f).
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III.
In Brady v. Maryland, the Supreme Court ruled that the
prosecution’s failure to disclose "evidence favorable to an
accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution." 373 U.S. at 87. In
order to prevail on a Brady claim, the accused must prove (1)
that the undisclosed evidence was favorable to him, either
because it was exculpatory or had impeaching value; (2) that
the state had the materials and failed to disclose them, "either
willfully or inadvertently"; and (3) that the evidence was
material to the defense, i.e., "prejudice must have ensued."
Strickler v. Greene, 527 U.S. 263, 282 (1999).
Brady’s requirement of materiality has particular signifi-
cance in this case. Supreme Court precedent does not "auto-
matically require a new trial whenever a combing of the
prosecutors’ files after the trial has disclosed evidence possi-
bly useful to the defense but not likely to have changed the
verdict." United States v. Bagley, 473 U.S. 667, 677 (1985)
(internal quotation marks omitted). Rather, evidence is "mate-
rial" and prejudice ensues for purposes of the Brady inquiry
"only if there is a reasonable probability that, had the evi-
dence been disclosed to the defense, the result of the proceed-
ing would have been different." Bagley, 473 U.S. at 682. The
"touchstone of materiality is a ‘reasonable probability’ of a
different result, and the adjective is important. The question
is not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether in
its absence he received a fair trial, understood as a trial result-
ing in a verdict worthy of confidence." Kyles v. Whitley, 514
U.S. 419, 434 (1995). "[A] constitutional error occurs, and the
conviction must be reversed, only if the evidence is material
in the sense that its suppression undermines confidence in the
outcome of the trial." Bagley, 473 U.S. at 678. Finally, the
materiality of suppressed evidence is "considered collectively,
not item by item." Kyles, 514 U.S. at 436. The "court may
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consider directly any adverse effect that the prosecutor’s fail-
ure to respond might have had on the preparation or presenta-
tion of the defendant’s case" and "should assess the
possibility that such effect might have occurred in light of the
totality of the circumstances and with an awareness of the dif-
ficulty of reconstructing in a post-trial proceeding the course
that the defense and the trial would have taken" had full dis-
closure been made. Bagley, 473 U.S. at 683.
On appeal from federal habeas review of a state capital
murder conviction, we review the district court’s denial of
relief on the basis of the state court record de novo. See
Tucker v. Ozmint, 350 F.3d 433, 438 (4th Cir. 2003). How-
ever, because the state court adjudicated Moseley’s Brady
claim on the merits, we review the matter in light of the limits
on federal habeas review of a state conviction that are
imposed by § 2254(d). When a habeas petitioner’s constitu-
tional claim has been "adjudicated on the merits in State court
proceedings," we may not grant relief unless the state court’s
adjudication "resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States" or "resulted in a decision that was based on an
unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding." 28 U.S.C.A.
§ 2254(d)(1) & (d)(2).
A state court’s decision is contrary to clearly established
federal law under § 2254(d) where it "applies a rule that con-
tradicts the governing law set forth" by the United States
Supreme Court, Williams v. Taylor, 529 U.S. 362, 405 (2000),
or "confronts a set of facts that are materially indistinguish-
able from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [that] precedent," id. at 406.
A state court’s decision involves an unreasonable application
of clearly established federal law "if the state court identifies
the correct governing legal rule from [the Supreme] Court’s
cases but unreasonably applies it to the facts of the particular
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state prisoner’s case." Id. at 407. The standard is quite defer-
ential. "The state court’s application of clearly established
federal law must be ‘objectively unreasonable,’ and ‘a federal
habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-
court decision applied clearly established federal law errone-
ously or incorrectly.’" Robinson v. Polk, 438 F.3d 350, 355
(4th Cir. 2006) (quoting Williams, 529 U.S. at 411). Further-
more, the state court need not cite relevant Supreme Court
decisions or even be aware of them. See id. at 358. When "as-
sessing the reasonableness of the state court’s application of
federal law," we "review the result that the state court
reached, not whether its decision was well reasoned." Id.
(internal quotation marks and alterations omitted).
IV.
With these principles in mind, we turn to the specific Brady
claim presented by Moseley to the state court. After Moseley
was granted discovery in the state MAR proceedings, he
learned that the Stokes County authorities investigating the
Johnson murder failed to provide the Forsyth County prosecu-
tor with several documents from their investigative file. In
particular, there were a number of documents generated in the
early phases of the Johnson murder investigation which led to
the initial identification of Daniel Cannaday and Dexter Mabe
(among others) as potential suspects, but which had not been
included in the files produced to Forysth County. Moseley
argues that, had he been privy to these additional documents
at the time, there is a reasonable probability that he could
have successfully pursued and presented an argument that
either Cannaday or Mabe was Johnson’s killer and, thereby,
that the result of his trial for the murder of Henley would have
been different.4
4Before the state MAR court, Moseley actually pursued claims that the
state withheld evidence implicating four men in Johnson’s murder: Daniel
Cannaday, Dexter Mabe, Ted Beck, and Steve Thomas Michael. He has
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A.
1.
We begin with the evidence that Moseley contends impli-
cates Cannaday as Johnson’s murderer, which we consider in
conjunction with the evidence regarding Cannaday that was
produced to Moseley and that he contends could have been
developed had full disclosure taken place.
Immediately after Johnson’s body was found, the investi-
gating law enforcement officers interviewed Edward Moore,
an off-duty Forsyth County police officer who was working
at the SRO Club the evening that Johnson disappeared, and
Shannon Jarrell Hill, who was a patron of the club that eve-
ning. Summaries of the interviews were prepared, but portions
of them were not included in the Stokes County materials for-
warded to Forsyth County.
According to the summaries, Moore told the officers that he
saw Johnson walking outside the SRO Club at approximately
1:00 a.m., with a white male, approximately 5′8″ tall, 192
pounds, with dark brown hair and a medium build, wearing a
cowboy hat, blue jeans, a light plaid shirt, and brown loafer
shoes with shoe strings. Moore had never seen the man
before. Within a few days, Moore was shown a photographic
line-up that included photographs of Dexter Mabe (the #2
photograph) and Daniel Cannaday (the #3 photograph), but
not Moseley (who had not yet been identified as a suspect).
According to the summaries, Moore identified, with "[n]o
doubt," the #3 photograph of the lineup as the one depicting
the man walking with Johnson. J.A. 338. At the state MAR
abandoned the claims pertaining to Beck and Michael. With regard to
Cannaday and Mabe, Moseley asserts that he may have been able to con-
vince a jury that one or the other, but not both, was the actual murderer.
He has never asserted that the men acted jointly.
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hearing, however, Moore was not so definitive in his identifi-
cation. He testified that he initially "picked two and three"
from the photographic lineup, but "stuck with three." J.A.
2166. And Moore was never asked to confirm or deny the
officer’s "[n]o doubt" notation. Moore further testified that he
was about ten feet away from the man and was only able to
see his profile, the cowboy hat, and part of his face. He also
testified that, when he was shown a picture of Moseley for the
first time in 2000, he found the resemblance between Moseley
and Cannaday to be "uncanny." J.A. 2169. In Moore’s own
words, they "looked the same." J.A. 2169.
Hill told the officers that she saw Johnson slow dancing in
the SRO Club with a white male, approximately 165 pounds,
with sandy brown hair, at approximately 1:00 a.m. on the
night Johnson disappeared. However, she described the dress
of the man quite differently from Moore—beige or tan dress
pants, an off-white button-up shirt, and tan dress shoes.
According to the police summary, when Hill was shown the
photographic lineup, she told the police that numbers three
and four from the lineup "look[ed] familiar" and that number
three "look[ed] like the guy" that was dancing with Johnson.
J.A. 339. Hill did not testify at the evidentiary hearing and
appears to have never been shown a photograph of Moseley.
Also undisclosed to Moseley was a letter written by John-
son to Cannaday the week before her murder, as well as sum-
maries of police interviews of two friends and coworkers of
Johnson. In the letter, Johnson wrote that she still wanted to
marry Cannaday but knew he intended to marry someone else.
She also wrote that she was seeing other men. She mentioned
that Cannaday had asked to talk to her during the upcoming
weekend, but told him that if she did not hear from him, she
would know that he wanted to be with his new girlfriend.
Debra Wells, Johnson’s coworker, told police that someone
named Danny called for Johnson at work the Friday before
her murder and that Johnson told her that the man wanted to
start dating her again. Shirley Brim Jones, a friend and
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coworker of Johnson, told the police that Cannaday was pos-
sessive of Johnson when they were dating, but confirmed that
Cannaday had ended the relationship because Johnson suf-
fered from emotional problems.
Finally, Cannaday’s criminal record was not disclosed to
the defense. It contains a charge of attempted rape in 1979
that was dropped and an acquittal for a charge of assault the
same year.
According to the state MAR court, the police interview
summaries of Cannaday, Margaret Sisk (a waitress in a res-
taurant that Cannaday and Johnson sometimes visited), and
three patrons of the club that night were disclosed to the
defense prior to the Henley trial. Sisk told officers that Canna-
day seemed jealous of Johnson when they were together and
that Johnson would act differently when she was with Canna-
day. Sisk was unable to testify at the evidentiary hearing
because of health problems. The three patrons of the club
identified Cannaday and others in the photographic lineup as
persons who had been to the SRO Club in the past, but they
were unable to place Cannaday at the club or with Johnson on
the night of the murder.
Cannaday, who was also interviewed early in the Johnson
murder investigation, confirmed that he had ended his rela-
tionship with Johnson months before the murder because of
her mood swings. He admitted that he had called Johnson the
week before her death to ask her about an anonymous call his
father received from a woman claiming to be pregnant with
Cannaday’s child. Cannaday thought that Johnson might have
made the call in an effort to reunite with him. However, John-
son denied making the call and, consistent with her letter, told
Cannaday that she was seeing another man. Cannaday denied
calling Johnson on the day she was killed and said that he had
never been to the SRO Club.5 He told the police that he was
5Johnson’s letter to Cannaday appears to at least partially confirm Can-
naday’s statements. For example, Johnson wrote that Cannaday’s tele-
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with his new girlfriend, Sue Peck, the evening of Johnson’s
murder. He also volunteered to submit to a polygraph exami-
nation and blood test. As noted previously, Cannaday was
eliminated as a suspect after his DNA failed to match the
DNA found on Johnson’s body.
Neither the state nor the defense interviewed Sue Peck dur-
ing the investigation of Johnson’s murder. When located for
the state evidentiary hearing nearly ten years later, Peck con-
firmed that she was in a relationship with Cannaday at the
time and that they were together on the evening of Johnson’s
murder. However, she testified that she left Cannaday at his
father’s house around 9:00 p.m. or 10:00 p.m. on the evening
of Johnson’s murder, approximately an hour and fifteen min-
utes away from Winston-Salem. According to Peck, Canna-
day did not have a car but would have had access to his
father’s car. Cannaday was present and available to testify at
the state MAR hearing, but Moseley did not call him as a wit-
ness to confirm or deny the statements he had made to the
police.
2.
Moseley also contends that he was prejudiced by the state’s
failure to disclose evidence allegedly implicating Dexter
Mabe as Johnson’s murderer. Specifically, Moseley points to
the letter Johnson wrote to Cannaday as well as a missing por-
tion of the Jones interview, both of which recount that Mabe
had threatened Johnson in the past for interfering in Mabe’s
relationship with Hoss. In addition, Mark Lamb, a patron at
the SRO Club on the night of Johnson’s murder, told investi-
phone call to her "over someone calling" had interfered with her attempts
to heal from their breakup, and that she knew he was seeing someone else.
J.A. 362. She also mentioned to Cannaday that she had been going to a
new club in Winston-Salem where no one knew her and that she was see-
ing other people.
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gators that he saw Johnson arguing with Mabe. When Lamb
asked Johnson about the argument, Johnson said that Mabe
thought she was interfering in his relationship with his girl-
friend. At the evidentiary hearing, Lamb testified that Johnson
initially "seemed a bit upset over it but it kind of blew away
after a couple of minutes" and "didn’t seem to result in very
much." J.A. 2196. Moseley also points to police records indi-
cating a number of charges and convictions against Mabe for
angry or assaultive behavior and a criminal investigation
report regarding a previous altercation between Mabe, Hoss,
and Johnson, including allegations that Mabe had assaulted
the women.
When Mabe was interviewed by law enforcement officers,
he confirmed that he was at the SRO Club that evening with
Hoss and Johnson and that he and Johnson argued at one
point about his relationship with Hoss. However, he told the
officers that he and Hoss left the club before Johnson and
spent the rest of the evening together in a nearby hotel. Mabe
also agreed to a polygraph examination and gave blood and
hair samples for comparison purposes. Like Cannaday, he was
eliminated as a suspect after his DNA did not match the
semen found in Johnson’s body.
At the state MAR hearing, Hoss confirmed the acrimonious
relationship between Mabe and Johnson, as well as the argu-
ment that evening. However, she testified that she and Mabe
(whom she was no longer seeing at the time of the hearing)
left the club somewhere between 11:30 p.m. and 12:00 a.m.
and were together for the rest of the night, thus confirming
Mabe’s alibi.6
6According to an additional police interview summary, Rose Inmann,
who was also a patron of the club that night, told officers that she saw
Mabe and Johnson dancing together an hour after Mabe and Hoss left the
club. However, this was wholly inconsistent both with the testimony of
Hoss and Mabe as well as the evidence that Mabe and Johnson disliked
one another and argued that evening. In any event, Inmann was unable to
substantiate the unsworn statement or recall any of the events of the eve-
ning when called to testify at the state MAR hearing.
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B.
Moseley claims that, when considered in conjunction with
the evidence that was disclosed to him at the time of his trial,
he has proven that the state’s nondisclosure prejudiced him in
his defense to the Henley murder. More specifically, he
argues that he has demonstrated a reasonable probability that
he could have pursued and presented a successful argument
that either Cannaday or Mabe was Johnson’s killer and,
thereby, created enough doubt to obtain an acquittal or to mit-
igate against the death sentence. Like the district court, how-
ever, we cannot say that the state MAR court’s decision
rejecting Moseley’s claim was contrary to, or an unreasonable
application of, the due process principles of Brady and its
progeny.
First, the evidence implicating Moseley as Henley’s mur-
derer was independently strong. Henley’s body was found in
a rural area, five miles and nine minutes from the SRO Club,
within one mile of Henley’s home, and in a place known to
have been traveled by Moseley in the past. There was eyewit-
ness testimony from Key and Casstevens, Moseley’s friends
who accompanied him to the SRO Club that evening, that
Moseley borrowed Key’s car at approximately 1:30 a.m. to
drive Henley home from the club and that Henley and Mose-
ley left in the vehicle shortly thereafter. Thus, Moseley was
the last person seen with Henley, who never arrived home.
Moseley took more than twice as long as expected to return
to the club with Key’s vehicle, where Key and Casstevens
were waiting for him. When Moseley finally did meet up with
Key and Casstevens, who had left the club in Casstevens’
vehicle after tiring of the wait, Moseley falsely told them that
"the bitch" lived farther away than she had said (presumably
to justify the delay in returning) and had no money (which
was apparently true). Then, after the rumor broke that a
woman had disappeared from the SRO Club that night, Mose-
ley telephoned Key and Casstevens and asked them to lie and
say that Moseley had not been at the club. While Moseley
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claimed that this was because he was on probation, both Key
and Casstevens had frequented clubs with Moseley before and
Moseley had never previously made such a request.
The physical evidence also pointed to Moseley’s guilt.
Although Key and Moseley had washed Key’s car just prior
to going to the SRO Club the evening of the murder, Key
found dirt and weeds in the driver’s side floorboard of the car
when Moseley returned the car to him. Moseley’s boots,
which Casstevens testified were clean at the SRO Club, had
dirt on them when the police seized them from Moseley’s res-
idence, and the state’s soil expert testified that the soil on the
boots was consistent with the soil in the field where Henley’s
body was found. Also, Moseley’s boots, pants, and shirt had
traces of blood on them indicating a spatter or secondary
transfer that the prosecution persuasively argued could have
been picked up when Moseley, unclothed during the assault
and murder, put his clothing back on after cleaning himself
with the victim’s still-missing clothing.
Second, the evidence implicating Moseley as Johnson’s
rapist and murderer was independently strong. Eyewitness
testimony placed Moseley and Johnson at the SRO Club on
the night of the murder dancing and talking together at vari-
ous times. Johnson never returned home that night and was
found raped and murdered, also in a rural area known to
Moseley. And, of course, evidence of the semen found in
Johnson’s body matched the DNA samples obtained from
Moseley.
Finally, as noted by the state MAR court, the evidence that
the same person raped and murdered both Henley and John-
son, and that that person was Moseley, was compelling. Dr.
Patrick Lantz, the pathologist who performed the autopsy on
Johnson’s body, compared the injuries suffered by Johnson
and by Henley. In addition to noting their similar physical
features, age, and disabilities, Dr. Lantz testified as to the
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striking similarities in the injuries inflicted upon both women.
Specifically,
The faces of both women showed multiple blunt
force injuries. Both suffered numerous bruises
around the forehead with bleeding in the soft tissue
around the eyes. There were contusions to the sides
of their heads, cheeks and particularly their ears.
Both women had bruising or hemorrhaging in their
neck areas, demonstrating the similarity of strangula-
tion. They both had abrasions and bruising to their
jaws and chins. They had both suffered curvilinear
pattern injuries to the back left side of their heads.
Both women had defensive bruising to their upper
right arms and inner right elbows. [Henley] had suf-
fered two incised wounds beginning near her pubic
area and traveling in an upward left direction. [John-
son] had similar sharp injuries although hers were on
the back of her body. Both women had contusions
over the right shoulder region and both had fractured
ribs. Both women had suffered injury to their genita-
lia indicating that a foreign object had been inserted.
Both women had lingual contusions where their
tongues had been between their teeth as they
received blows to their faces.
J.A. 2475-76. As noted by the state MAR court, FBI Special
Agent Gregory Cooper also testified as to these similarities,
as well as to the consistent victimology of the murders:
[B]oth victims were very small in stature; both had
birth defects affecting their speech and had received
medical treatment therefor; both were living at home
in somewhat dependent relationships with their par-
ents; both were romantically unattached; both
attended the SRO club alone; and both were consid-
ered friendly and unsuspecting. [Special Agent]
Cooper concluded that the offender in the two cases
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was looking for somebody whom he could easily
dominate, control, and manipulate.
J.A. 2476-77. Of additional significance was the fact that the
three-month period between the two murders was a typical
"cooling off period" for serial killers, that the "initial contact
and abduction site was the same," J.A. 2477, and that the
crime scenes were similar. Specifically,
both were rural with no lighting; both were conve-
nient to the SRO club; both were secluded, private
and somewhat isolated. The fact that both bodies
were nude was significant because from the offend-
er’s perspective this delays identification of the vic-
tim. Taking clothes and jewelry is typical because
these items are trophies for the offender so that he
may relive the crime and relish the experience.
J.A. 2477. Finally, Special Agent Cooper, having confirmed
the similarities in the injuries and attacks attested to by Dr.
Lantz, "also noted the signature aspects of the offender’s
method of operation: overkill. Based on his investigative anal-
ysis of both the Stokes County and the Forsyth County mur-
ders, [Special Agent] Cooper’s opinion was that the two
murders were committed by the same person." J.A. 2477.
In sum, the similarities of the two crimes were striking, the
"signature" of the crimes the same, and eyewitness testimony
placed Moseley with both victims at the SRO Club immedi-
ately prior to the victims being last seen alive there. Yet in
contrast to this compelling evidence that Moseley was the
murderer of both women, there is no evidence connecting
Cannaday to Henley in any way, much less to her murder, and
the undisclosed evidence that Moseley asserts implicates Can-
naday or Mabe as Johnson’s murderer is too weak and specu-
lative to have created a reasonable probability that the result
of his trial for Henley’s murder would have been different.
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With regard to Cannaday, the evidence at best demon-
strated that Cannaday was jealous or possessive of Johnson
when they were dating and may have discussed seeing John-
son during the weekend of her murder. However, Cannaday
ended the relationship with Johnson months before her mur-
der and was in a relationship with another woman at the time,
facts that Johnson’s letter to Cannaday confirms. There was
no evidence that Cannaday had ever threatened Johnson or
was violent towards her during their relationship. And while
the photographic lineup identifications made by Moore and
Hill seem initially troubling, the evidence developed at the
state MAR hearing fell well short of that necessary to demon-
strate the requisite prejudice. Although both witnesses appar-
ently settled upon Cannaday’s photograph from the lineup as
the man they saw Johnson with that evening, neither was
immediately confident in their choice, Moseley was not
included in the photographic lineup, and there is a strong
physical resemblance between the two men. Hill could not be
located prior to the evidentiary hearing, has never been shown
a photograph of Moseley for identification, and described the
dress of the man she saw dancing with Johnson much differ-
ently from the dress of the man Moore saw Johnson leaving
the club with that night. Moore, when shown a picture of
Moseley prior to the state MAR hearing, acknowledged that
it bore an uncanny resemblance to Cannaday’s picture in the
1991 lineup, i.e., that they "looked the same," and reiterated
that the man was wearing a cowboy hat and that he was only
able to see part of the man’s face.
The state MAR court, after reviewing the undisclosed doc-
uments and observing Moore’s testimony at the evidentiary
hearing, found Moore’s 1991 identification of Cannaday’s
photograph as the man who left with Johnson to be sincere,
but nonetheless "extremely weak." J.A. 2474. As further
noted by the court, Cannaday had an alibi from his girlfriend
until around 10:00 p.m. that night, when she dropped him off
at his father’s home more than an hour away from the SRO
Club. The patrons who identified Cannaday as a prior patron
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at the club did not know him personally and did not place him
there on the night of the murder. And, Sherry Hoss, who was
with Johnson at the Club that night and did know Cannaday
personally, did not see him at the club that evening. In con-
trast, patrons at the club that evening who knew Moseley tes-
tified that Moseley was at the club, wearing a cowboy hat,
dancing and conversing with Johnson. And, of course, Canna-
day, unlike Moseley, was definitively excluded by DNA test-
ing as the source of the semen found in Johnson’s body, and
Cannaday was eliminated early on as a suspect in her murder.
Indeed, as pointed out by the district court, Moore’s testimony
at the state MAR hearing not only severely undercut his iden-
tification of Cannaday from the photographic lineup, but,
when considered in conjunction with the testimony of other
witnesses, arguably amounts to inculpatory evidence that
Moseley was the man seen outside the club with Johnson that
evening.
With regard to Mabe, the evidence allegedly implicating
him as Johnson’s murderer is even weaker. At best, it demon-
strates that Mabe and Johnson did not get along, that Mabe
had threatened Johnson in the past for interfering in his rela-
tionship with Hoss, and that the two had argued earlier in the
evening at the SRO Club. However, Johnson met Hoss and
Mabe at the SRO club that night as prearranged, an eyewit-
ness confirmed that the argument between Johnson and Mabe
blew over, and there is no reliable evidence to contradict the
consistent testimony of Hoss and Mabe that they left the club
at 11:30 p.m. that night, returned to the nearby motel room
that they had rented before going to the club, and remained
for the rest of the night.
For these reasons, we, like the state court and the district
court, are satisfied that there is no reasonable probability that
the result of Moseley’s trial for Henley’s murder would have
been different had the additional Stokes County materials
been produced to him by the Forsyth County prosecutor.
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Accordingly, Moseley is not entitled to habeas relief on this
basis.7
C.
Finally, we note briefly Moseley’s additional claim that he
was prejudiced because the undisclosed evidence, when con-
sidered in conjunction with the evidence that was disclosed
and developed during the state MAR evidentiary hearing, was
sufficiently compelling to raise a reasonable probability that
the trial court would have excluded all of the Johnson murder
evidence from presentation in the Henley trial. We need not
tarry long with this contention. After conducting the evidenti-
ary hearing and reviewing the undisclosed evidence pertain-
ing to Cannaday and Mabe, the state MAR court ruled that the
evidence would not have changed the trial ruling that evi-
dence of the Johnson murder could be properly presented
under Rule 404(b). Given that the judge in the state MAR pro-
ceedings was also the trial judge, there is no reasonable prob-
7In the opening brief, Moseley’s counsel asserted that the district court
erred in its analysis of the underlying Brady claim and, therefore, in its
similar determination that the state court’s consistent ruling was not unrea-
sonable. In the reply brief and, more particularly at oral argument, Mose-
ley’s counsel focused upon a complaint that the state court, unlike the
district court, failed to consider all of the evidence that was undisclosed,
regardless of whether it would be admissible at trial, along with any evi-
dence that could have reasonably been uncovered in a subsequent defense
investigation. As a general rule, arguments not specifically raised and
addressed in opening brief, but raised for the first time in reply, are
deemed forfeited. See Cavallo v. Star Enter., 100 F.3d 1150, 1152 n.2 (4th
Cir. 1996). In this case, however, the failure to squarely brief the issue has
no effect upon our decision. As noted previously, we "review the result
that the state court reached, not whether its decision was well reasoned."
Robinson v. Polk, 438 F.3d 350, 358 (4th Cir. 2006) (internal quotation
marks and alterations omitted). Furthermore, in assessing the reasonable-
ness of the state MAR court’s application of federal law, we (like the dis-
trict court) have independently considered all of the evidence relied upon
by Moseley in light of his Brady claim, including that which he contends
would have been developed by competent trial counsel, and agree that he
failed to demonstrate the requisite materiality.
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ability that the suppressed evidence would have resulted in
the trial court’s issuance of a different Rule 404(b) ruling.8
V.
To conclude, the state MAR court’s determination that pro-
duction of the undisclosed evidence would not have resulted
in a different verdict, either at guilt or sentencing, in Mose-
ley’s trial for the murder of Henley was not an unreasonable
one. The evidence that Moseley murdered Johnson is strong.
The evidence that Moseley murdered Henley is strong. And,
given the similarities in the murders, the evidence that the
same person murdered both women and that the person was
Moseley is overwhelming. In contrast, the evidence allegedly
implicating Cannaday or Mabe in Johnson’s murder is specu-
lative, and there is no evidence that implicates Cannaday or
Mabe in the murder of Henley. Because we agree that the
nondisclosure by the state was not "so serious that there is a
reasonable probability that the suppressed evidence would
8The state MAR court added that it would have deemed the suppressed
evidence inadmissible under state law because it raised nothing more than
conjecture or speculation as to Cannaday’s and Mabe’s involvement in
Johnson’s murder. See State v. Cotton, 351 S.E.2d 277, 279-80 (N.C.
1987) (holding that under Rule 401 of the North Carolina Rules of Evi-
dence, "[e]vidence that another committed the crime for which the defen-
dant is charged generally is relevant and admissible as long as it does
more than create an inference or conjecture in this regard. It must point
directly to the guilt of the other party. Under Rule 401 such evidence must
tend both to implicate another and be inconsistent with the guilt of the
defendant.") (internal citations omitted). We express no opinion as to the
propriety of this hypothetical state evidentiary ruling or whether the evi-
dence would have been admissible under state or federal law, neither of
which is the issue before us. Under Brady, the question is whether Mose-
ley was prejudiced by the nondisclosure of the evidence because there is
a reasonable probability that the outcome of the proceeding would have
been different had he been privy to it. Thus, while we agree that the evi-
dence allegedly implicating Mabe and Cannaday is indeed speculative, our
ruling is limited to the question of whether Moseley demonstrated that he
was prejudiced by the failure of the state to disclose the documents at
issue.
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have produced a different verdict," Strickler, 527 U.S. at 281,
the state court’s rejection of Moseley’s Brady claim is neither
contrary to, nor an unreasonable application of, the applicable
precedents and Moseley is not entitled to federal habeas relief.
Accordingly, we affirm the district court’s order denying
Moseley’s petition for federal habeas corpus relief.
AFFIRMED
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