Blakeney v. Branker, No. 07-15 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-15 ROGER M. BLAKENEY, Petitioner Appellant, v. GERALD J. BRANKER, Warden, Central Prison, Raleigh, North Carolina, Respondent Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Richard L. Voorhees, District Judge. (3:05-cv-00010-RLV) Argued: September 23, 2008 Decided: March 5, 2009 Before MICHAEL, KING, and GREGORY, Circuit Judges. Affirmed by unpublished opinion. Judge King wrote the opinion, in which Judge Michael joined. Judge Gregory wrote a separate opinion concurring in part and dissenting in part. ARGUED: Burton Craige, PATTERSON HARKAVY, L.L.P., Raleigh, North Carolina, for Appellant. Edwin William Welch, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Jeffrey P. Bloom, Columbia, South Carolina, for Appellant. Roy Cooper, North Carolina Attorney General, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. KING, Circuit Judge: Roger M. Blakeney ( Blakeney or defendant ) appeals the district court s denial of his federal habeas corpus petition, by which he seeks to have his North Carolina convictions and death sentence Blakeney contends respects: counsel vacated that for alleged the constitutional district court erred violations. in three (1) in denying him relief on the claim that his trial rendered ineffective assistance during sentencing proceedings; (2) in denying him relief on the claim that the prosecution withheld exculpatory evidence; and (3) by rejecting his request for an evidentiary hearing on the claim that his trial counsel was ineffective in failing to adequately challenge the racial composition of the jury. As explained below, we are constrained to affirm. I. A. The pertinent details of Blakeney s state trial and the factual predicate for his prosecution were outlined by Supreme Court of North Carolina on direct appeal, as follows: On 13 May 1996 defendant Roger McKinley Blakeney (defendant) was indicted for the first-degree murder of Callie Washington Huntley (the victim). Defendant was also indicted for arson, common law robbery, felonious breaking and entering, felonious larceny, and felonious possession of stolen goods. Defendant was tried capitally at the 25 August 1997 Criminal 2 the Session of Superior Court, Union County. At the close of the evidence, the state voluntarily dismissed the larceny charge. In addition, the charge of felonious possession of stolen goods was not submitted to the jury. The jury found defendant guilty of first-degree murder on the basis of malice, premeditation, and deliberation and under the felony murder rule. The jury also found defendant guilty of first-degree arson, common law robbery, and felonious breaking and entering. Following a capital sentencing proceeding, the jury recommended a sentence of death for the first-degree murder conviction, and the trial court entered judgment in accordance with that recommendation. The trial court also entered judgments sentencing defendant to consecutive terms of imprisonment for the remaining convictions. The state presented evidence at trial which is summarized as follows: On 15 April 1996, between the hours of 10:00 a.m. and 12:00 noon, defendant, age thirty-three, opened and crawled through a back window in his mother s home for the purpose of stealing something of value that he could sell. Defendant stole three of his mother s rings, a brown leather pouch, approximately $4.00 in change, a small herringbone chain, and his mother s savings account deposit book. Defendant then telephoned his wife and told her he would be home in a few minutes. After defendant finished speaking with his wife, the victim, age seventy-six, drove behind the house. The victim had lived with defendant s mother for over twenty years. Defendant hid in a small room behind the refrigerator as the victim entered the residence. According to defendant s confession, which was admitted into evidence at trial, defendant entered the kitchen, and the two began arguing. Defendant told authorities that he turned to leave, but the victim grabbed him. Defendant charged at the victim, grabbed and wrestled a .22-caliber revolver out of the victim s hand, and hit the victim in the back of the head with the butt of the gun. The victim fell facedown on the kitchen floor and started bleeding. According to defendant, after some additional period of physical struggle, a metal can of kerosene was accidentally spilled. Defendant also claimed that a cigarette he was smoking fell out of his mouth at some 3 time during the struggle. According to defendant, at some point, he pulled the victim off the floor, sat him in a chair, and wrapped an electrical cord around his hands and legs. Defendant then removed $78.00 from the victim s wallet, exited the residence, and departed the area in defendant s vehicle. Terry Lee Bivens (Bivens), defendant s longstanding friend, worked at a nearby business and observed defendant departing his mother s residence on the day in question. Bivens recognized defendant s vehicle. Seconds later, Bivens noticed smoke coming from the residence. Bivens and several other witnesses looked on as the house began to burn. Firefighters arrived at the scene and discovered the victim s wire-bound body as they fought the fire. Agent Van Worth Shaw, Jr. (Agent Shaw), an arson investigator for the State Bureau of Investigation (SBI), determined that the fire had two distinct points of origin and was caused by the use of a flammable liquid. In contrast to defendant s statement, all accidental causes were eliminated during the investigation, and Agent Shaw opined that the fire was intentionally set. The investigation revealed traces of kerosene on samples taken from the couch in the den and on the victim s clothing. Dr. Robert Thompson, a forensic pathologist with the Office of the Chief Medical Examiner, performed an autopsy on the victim s body. The autopsy revealed that seventy-five percent of the victim s skin was charred. Dr. Thompson also observed that the victim had received a wound to the back and a wound to the left temporal area of the head, which resulted in injury to the brain. Dr. Thompson opined that the victim was conscious for approximately three to five minutes after the fire started, that the victim died within approximately ten minutes, and that the cause of death was carbon monoxide poisoning produced by the fire. On 16 April 1996 law enforcement officers located defendant at a friend s residence, sitting in the passenger seat of his vehicle. Defendant consented to a search of his vehicle, where the officers found his mother s stolen jewelry, leather pouch, and savings 4 deposit book in the glove compartment. The authorities later recovered the .22-caliber revolver that defendant had taken from the victim. Defendant had exchanged the gun for a loan. The investigation also revealed that bloodstains found on defendant s clothing were consistent with the victim s blood. Defendant did not present guilt-innocence phase of trial. evidence during State v. Blakeney, 531 S.E.2d 799, 806-08 (N.C. 2000). 1 to the trial s sentencing phase, the state the Specific supreme court observed that the state presented evidence of, and defendant stipulated to, one conviction for robbery with a dangerous weapon. The state s evidence tended to show that, in 1989, defendant robbed a grocery store and struck the store owner in the back of the head with a 1 The state supreme court provided further details of the murder and its aftermath, as follows: defendant telephoned his wife from his mother s residence, before the victim arrived, and informed her he would be home in a few minutes. The record reveals, however, that defendant did not return home as planned. Rather, defendant ran from the scene of the crime and departed the area in his vehicle. One of defendant s longstanding friends waved at him, but defendant did not respond. After departing the area, defendant drove to [Emanuel Blackman s] shack out in the country, where he traded the victim s gun for cocaine and twenty dollars in cash. Defendant then continued to drive through the country, stopping in Pageland, South Carolina, where he traded more stolen items for drugs. Rather than return home, as originally intended, defendant then went to Kenneth Funderburk s house and remained there overnight. Law enforcement officers apprehended defendant at this residence the next afternoon. Blakeney, 531 S.E.2d at 819 (alteration in original). 5 gun. Evidence at trial also indicated that defendant had a history of drug abuse. * * * [In considering the death penalty on the firstdegree murder conviction,] [t]he jury found four aggravating circumstances: (1) defendant had been previously convicted of a felony involving the use of violence to the person, N.C.G.S. § 15A-2000(e)(3); (2) the murder was committed while defendant was engaged in the commission of first-degree arson, N.C.G.S. § 15A-2000(e)(5); (3) the murder was committed for pecuniary gain, N.C.G.S. § 15A-2000(e)(6); and (4) the murder was especially heinous, atrocious, or cruel, N.C.G.S. § 15A-2000(e)(9). Of the eight mitigating circumstances submitted, one or more jurors found the following: (1) defendant grew up in very unfortunate and difficult circumstances in that he grew up in a physical and psychological environment which significantly retarded the proper development of his character and functional abilities; (2) defendant s father was absent from the home since defendant was two or three years old; and (3) defendant s mother was in and out of the home and involved in an alcoholic and verbally and sometimes physically abusive relationship with Mr. Huntley, the victim here, which the defendant witnessed. Id. at 821, 824-25. On July 13, 2000, in his direct appeal, the state supreme court affirmed Blakeney s convictions and death sentence. See id. at 826. Thereafter, on January 16, 2001, the Supreme Court of the United States denied Blakeney s petition for a writ of certiorari. See Blakeney v. North Carolina, 121 S. Ct. 868 (2001). B. Blakeney filed a motion for appropriate relief (the MAR ) in the state superior court (the MAR court ) on November 16, 6 2001, and amended the MAR on February 5, 2003, raising a total of seven issues. By its Order of June 5, 2003, the MAR court, in relevant part, deferred ruling on Blakeney s claims that his trial counsel had rendered ineffective assistance at sentencing (the ineffective prosecution had assistance/sentencing withheld various claim ) exculpatory original exculpatory evidence claim ). and that evidence the (the See State v. Blakeney, No. 96 CRS 4774-4777 (N.C. Super. Ct. June 5, 2003) (the First MAR Order ). 2 Also by the First MAR Order, the court rejected as procedurally barred the claim that Blakeney, who is AfricanAmerican, had been unconstitutionally tried by an all-white jury (the substantive jury composition claim ). In the meantime, on May 9, 2003, Blakeney had amended his MAR for a second time, raising the claim that his trial counsel had rendered ineffective assistance by failing to object to the racial composition of the jury (the ineffective assistance/jury composition claim ). By its Order of November 12, 2003, the MAR court rejected the ineffective assistance/jury composition claim as both procedurally barred and without substantive merit. 2 See The First MAR Order is found at J.A. 847-933. (Citations herein to J.A. refer to the contents of the Joint Appendix filed by the parties in this appeal.) 7 State v. Blakeney, No. 96 CRS 4774-4777 (N.C. Super. Ct. Nov. 12, 2003) (the Second MAR Order ). 3 In January 2004, the MAR court conducted an evidentiary hearing (the MAR hearing ) on Blakeney s ineffective assistance/sentencing claim, as well as his original exculpatory evidence claim. At that time, Blakeney filed a motion to reconsider the MAR court s prior rulings on his substantive jury composition and ineffective assistance/jury composition claims, which the court denied from the bench. On April 30, 2004, Blakeney amended his MAR for the last time to conform with the MAR hearing evidence, asserting that the prosecution had withheld exculpatory evidence (the exculpatory evidence claim ) beyond that complained of in his original exculpatory evidence claim. 4 MAR By its Order and Memorandum Opinion of May 21, 2004, the court rejected, inter alia, Blakeney s ineffective assistance/sentencing and exculpatory evidence claims as lacking substantive merit and being, in part, procedurally barred. 3 See The Second MAR Order is found at J.A. 934-64. 4 Blakeney has since abandoned his original exculpatory evidence claim, but the claim asserted in the amended MAR of April 30, 2004, which we refer to as the exculpatory evidence claim, is now before us. 8 State v. Blakeney, No. 96 CRS 4774-4777 (N.C. Super. Ct. May 21, 2004) (the Third MAR Order ). 5 The state supreme court, by Order of December 2, 2004, denied Blakeney s subsequent petition for a writ of certiorari. See State v. Blakeney, 607 S.E.2d 650 (N.C. 2004). C. On January 31, 2005, Blakeney filed a petition for federal habeas corpus relief, pursuant to 28 Western District of North Carolina. raised twenty-one issues, assistance/sentencing, U.S.C. in the In his petition, Blakeney including exculpatory § 2254, evidence, his ineffective substantive jury composition, and ineffective assistance/jury composition claims. In response, the State filed an answer and a motion for summary judgment. Thereafter, Blakeney responded to the State s summary judgment motion, and filed his own summary judgment motion, a motion for discovery, and a motion for an evidentiary hearing. After the motions parties for submitted summary further judgment, the memoranda district on court the cross- issued its Order of May 3, 2007, denying Blakeney s habeas corpus petition, summary judgment motion, and motions for discovery and an evidentiary hearing, and granting the State s summary judgment 5 The Third MAR Order is found at J.A. 2158-2300. 9 motion. See Blakeney v. Lee, No. 3:05-cv-00010 (W.D.N.C. May 3, 2007) (the Habeas Corpus Order ). 6 Blakeney timely filed a motion to alter or amend judgment and for relief from judgment under Federal Rules of Civil Procedure 59(e) and 60(b), which the district court treated as a Rule 59(e) motion Blakeney s seeking ineffective to relitigate its assistance/sentencing rejection and of exculpatory evidence claims, and to challenge the denial of an evidentiary hearing on his substantive jury composition assistance/jury composition claims. 2007, the court with ineffective assistance/sentencing and claims, Rule 59(e) motion ineffective By its Order of June 11, that, his concluded and respect to Blakeney s exculpatory constituted an evidence unauthorized successive application for federal habeas corpus relief under 28 U.S.C. § 2244(b). See Blakeney v. Lee, No. 3:05-cv-00010 (W.D.N.C. June 11, 2007) (the First Rule 59(e) Order ). 7 In its First Rule 59(e) Order, however, the court further observed that Blakeney had properly made in his Rule 59(e) motion the contention that he was erroneously denied an evidentiary hearing on his substantive jury composition assistance/jury composition claims. and ineffective Accordingly, invoking this 6 The Habeas Corpus Order is found at J.A. 2954-3079. 7 The First Rule 59(e) Order is found at J.A. 3096-98. 10 Court s precedent, the court gave Blakeney the options of deleting the claims subject to the requirements of successive petitions or having his entire Rule 59(e) Motion treated as a successive application for habeas relief. First Rule 59(e) Order 5-6 (citing United States v. Winestock, 340 F.3d 200 (4th Cir. 2003)). In accordance with the district court s instructions, Blakeney promptly filed a motion to amend his Rule 59(e) motion, in which he opted to withdraw his contentions with respect to his ineffective assistance/sentencing and exculpatory evidence claims. By its Order of July 9, 2007, the court granted Blakeney s motion to amend his Rule 59(e) motion, but rejected on the merits Blakeney s remaining contention that he had been erroneously jury denied composition claims. an evidentiary hearing on his substantive and ineffective assistance/jury composition See Blakeney v. Lee, No. 3:05-cv-00010 (W.D.N.C. July 9, 2007) (the Second Rule 59(e) Order ). 8 On August 7, 2007, Blakeney timely noted this appeal. On October 22, 2007, the district court granted a certificate of appealability (the COA ) assistance/sentencing claim. on Blakeney s ineffective On March 10, 2008, we expanded the COA to include Blakeney s exculpatory evidence claim, as well as 8 The Second Rule 59(e) Order is found at J.A. 3104-06. 11 the contention that the district court should have granted him an evidentiary composition hearing claim. 9 on We his ineffective possess jurisdiction assistance/jury over Blakeney s appeal pursuant to 28 U.S.C. §§ 1291 and 2253. II. We review de novo a district court s denial corpus relief on the basis of a state court record. v. Ozmint, 350 F.3d 433, 438 (4th Cir. 2003). of habeas See Tucker Insofar as the MAR court adjudicated Blakeney s habeas corpus claims on the merits, its decision is entitled to deference pursuant to the 1996 Antiterrorism and Effective Death Penalty Act ( AEDPA ). See 28 U.S.C. § 2254(d). analysis to assess AEDPA mandates the use of a two-step whether entitled to relief. a habeas corpus petitioner is Under the first step of the analysis, we may award relief only if (1) the state court adjudication of the issue on its merits 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 (2) the adjudication resulted in a decision that was based on an unreasonable determination of the 9 Blakeney has abandoned all contentions with respect to his substantive jury composition claim. 12 facts in light of the evidence presented in the State court proceeding. Id. And, even if error is identified, habeas corpus relief can only be granted, under the second step of the AEDPA analysis, if the error had a substantial and injurious effect or influence in determining the jury s verdict. Brecht v. Abrahmson, 507 U.S. 619, 637 (1993) (internal quotation marks omitted). The state court s factual determinations are presumed to be correct and may be rebutted only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). We are barred from conducting habeas corpus review of a state prisoner s claims that are procedurally defaulted under independent and adequate state procedural rules . . . unless the prisoner can show cause for the default and demonstrate actual prejudice as a result of the alleged violation of federal law, or prove that failure to consider the claims will result in a fundamental miscarriage of justice. F.3d 700, 714 omitted). A (4th state Cir. rule 2008) is Lawrence v. Branker, 517 (internal adequate if quotation it is marks firmly established, and regularly and consistently applied by the state court. Id. (internal quotation marks omitted). Finally, we review a district court s evidentiary hearing for abuse of discretion. Polk, 438 F.3d 350, 367 (4th Cir. 2006). 13 denial of an See Robinson v. III. On appeal, Blakeney s COA authorizes him to contend that the district court erred in three respects in denying him relief on his ineffective assistance/sentencing claim, in denying him relief on his exculpatory evidence claim, and by rejecting his request for an evidentiary hearing ineffective assistance/jury composition claim. on his We assess these contentions in turn. A. The ineffective assistance/sentencing claim essentially has two aspects: first, whether trial counsel rendered ineffective assistance by failing to collect relevant records and provide them to Blakeney s expert psychologist for the sentencing proceedings (the expert witness aspect ); and second, whether counsel was ineffective in failing to conduct pretrial interviews of, and then to call as character witnesses, several of Blakeney s family members and acquaintances (the character witness aspect ). Blakeney contends that the MAR court s adjudication on the merits of both aspects of his ineffective assistance/sentencing contrary to, Supreme Court or claim involved precedent. resulted an 28 in a unreasonable U.S.C. that application § 2254(d). Court explained in Williams v. Taylor that, 14 decision The was of, Supreme [u]nder the contrary to clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law . . . . Under the unreasonable application clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court s decisions but unreasonably applies that principle to the facts of the prisoner s case. 529 U.S. 362, 412-13 (2000). Here, as recognized by the district court, the MAR court correctly identified including the the Court s Washington, 466 ineffective assistance counsel s deficient U.S. performance performance Corpus Order 8. controlling seminal 668, was decision 687 claim Supreme deficient, prejudiced in (1984) requires the Court precedent, Strickland (recognizing showing and (2) defense ). that (1) that that See v. the Habeas Accordingly, the relevant issue is whether the MAR court unreasonably applied that precedent to the facts of Blakeney s case that is, whether the state court s application of clearly established federal law was objectively Williams, 529 U.S. at 409. unreasonable. beginning character with the witness expert witness aspect, assistance/sentencing claim. 1. a. 15 We assess such issue aspect, of followed the by the ineffective The MAR court concluded that the expert witness aspect of Blakeney s ineffective assistance/sentencing claim failed on both the performance and the prejudice prongs of the Strickland test. See Third MAR Order 89. In adjudicating the expert witness aspect, the MAR court provided an extensive discussion of the relevant evidence in the MAR hearing record, but largely abstained from explicitly resolving disputed issues of fact and making credibility determinations. The court observed, however, that the evidence before [it] shows that all of this claim is without merit. Id. The court also invoked various authorities applying Strickland and its Supreme Court progeny to justify the rejection of Blakeney s claim[] of prejudicial error. 33. Id. at Although the precise reason for the court s decision is not entirely clear, we must deem the decision to be reasonable if it is at least minimally consistent circumstances of the case. with the facts and Wright v. Angelone, 151 F.3d 151, 157 (4th Cir. 1998) (internal quotation marks omitted). i. According to the MAR court, Blakeney s experienced trial counsel lead counsel Robert Huffman and co-counsel Harry Crow, Jr. retained Dr. Mark Worthen, an expert in clinical and forensic psychology, phase of the trial. to evaluate Blakeney for the sentencing See Third MAR Order 10, 89, 91. Worthen produced a seventeen-page Forensic Psychological Evaluation (the 16 Expert Report ), dated August 28, 1997, which was incorporated by reference as part of the Third MAR Order. 10 The purpose of Worthen s evaluation, according to the Expert Report, was to describe time Mr. of Blakeney s the psychological psychological alleged offenses; history; to functioning list the provide to during social and any a relevant psychiatric diagnoses; and to comment on his propensity for violence within the correctional system. Report, Worthen relied Expert Report 1. on psychological For the Expert testing of and interviews with Blakeney, discussions with some of Blakeney s family members, and certain records provided by trial counsel and obtained by Worthen himself. See Third MAR Order 105-06; Expert Report 2. Trial counsel obtained school and prison records on Blakeney, and they provided those records to Dr. Worthen, along with police statements and reports about the Huntley murder. See Third MAR Order 89, 92. Carolina Department imprisonment from of 1990 The prison records, from the North Correction, to dangerous weapon offense. 1995 on related the prior See Expert Report 17. to Blakeney s robbery with a Lawyer Huffman advised Worthen that if you need anything else, please let me 10 The Expert Report is found at J.A. 2307-23. 17 know. Worthen See Third MAR Order 89 (quoting J.A. 1182). 11 did not follow up with any requests for When further information, Huffman presumed that Worthen was satisfied with what had been provided. See id. Dr. Worthen obtained records, on his own initiative, from the Union County Mental Health Center Blakeney that he had also been seen there. 92. upon learning from See Third MAR Order According to the Expert Report, those records reflected that Blakeney had sought treatment for substance abuse from the Union County Mental Health Center in September 1995, after being released from prison. reflect that, depressed, and at he See Expert Report 6. that was time, Blakeney diagnosed with withdrawal from cocaine and alcohol. The records also was anxious dependence on and and Id. at 6-7. Dr. Worthen was unable to obtain records from the North Carolina reported Department of participation in Correction a drug relating and alcohol to Blakeney s rehabilitation treatment ( DART ) program, despite requesting them in two or three letters and, perhaps, a phone call. 93. See Third MAR Order Trial counsel also made unsuccessful attempts to obtain the DART records. See id. The Expert Report reflects that Mr. 11 Where the MAR court quoted from transcripts of the MAR hearing, we provide J.A. citations for those portions of the transcripts. 18 Blakeney indicated that he participated in the DART program through the Department of Correction[] when he was incarcerated between 1990 and 1995 ; that Worthen, [u]nfortunately, . . . was not able to obtain records regarding any such treatment; and that Worthen was not sure if this indicates that Mr. Blakeney actually never participated in DART or if the records simply could not be located. court later recognized, Expert Report 6. there were Department As the MAR of Correction records that, if produced, would have confirmed to Worthen that Blakeney received 130 hours of instruction in the DART program prior to the Huntley murder. 1831 (Department reflecting that of Third MAR Order 94; see also J.A. Correction Blakeney letter completed of March four-week DART 28, 1994, program at Craggy Correctional Center). During the trial preparations, Dr. Worthen met [lawyer] Crow in person twice, once when they met at Crow s office and he interviewed two or three of defendant s family members, and once with Huffman and Crow immediately before the sentencing phase of defendant s trial. Third MAR Order 91. The Expert Report reflects that Worthen met with Blakeney five times, conducted a series of psychological tests on him, and interviewed three of his family members: wife Tiney Blakeney, and sister Peggy Blakeney. 19 Blakeney, mother See Expert Report 2. Gracie Extensive details of Blakeney s childhood, education, and family life are provided in the Expert Report, which reflects, inter alia, that Blakeney, the youngest of nine children, was abandoned by his father as a toddler and spent his childhood living in embarrassing and terrible conditions in houses with no running water or electricity, filled with rats, snakes, and roaches. See Expert Report 3. Blakeney was intermittently cared for by his older siblings and by his mother Gracie, who was in and out of the home, being absent more often after she began dating Huntley when Blakeney was nine or ten years old. See id. Gracie Blakeney and Huntley both drank heavily and frequently fought, neglecting the Blakeney s school withdrew from and children Gracie and in alternate indulging performance school would [defendant]. was below ninth the between grade. average, Id. at Id. and he 5. He thereafter attempted to return to high school three different times, but he had to find work in order to survive, making it difficult attempts. women, for him Id. including to stay in school despite his several Blakeney had six children with five different two children married in February 1996. with Tiney See id. at 5-6. Blakeney, whom he Tiney Blakeney told Dr. Worthen that her husband has had problems with alcohol and other drugs, but she characterized him as a good father who is able to relate to and discipline the children better than she. 20 Id. at 6. Tiney Blakeney also indicated that she and Mr. Blakeney had arguments about finances and the fact that he was spending some of their money on alcohol and other drugs rather than the family, but she had not contemplated a separation or divorce. The Id. Expert Report contains a narrative of Blakeney s description to Dr. Worthen of the events surrounding the Huntley murder, including Blakeney s reports of having not slept for most of the previous three or four days and nights prior to the alleged offense and of having consumed alcohol and marijuana and crack cocaine during that time period. Report 7. smoked Expert Nevertheless, according to the Expert Report, Mr. Blakeney stated that at the time of the alleged offense he was not intoxicated and he was not feeling particularly bad. Id. The Expert Report also observes that Blakeney gave a written statement to police the day after the Huntley murder that did not include information about his conduct over the days prior to the murder (including his sleeplessness and substance abuse). See id. at 9. Blakeney s With respect to details of the murder itself, description of events to Dr. Worthen varie[d] somewhat from that given to law enforcement officers in [the] written statement, and Worthen assumed that the statement to police, being closer in time to the murder, was more accurate. Id. 21 During a screening test for alcoholism, the Expert Report reflects, Dr. Worthen suspect[ed] that Mr. Blakeney tended to minimize problems associated with alcohol use when answering the . . . questions. Expert Report 10. Similarly, Mr. Blakeney also minimized the extent of his drug (including alcohol) use and related problems on . . . a substance abuse evaluation instrument. After talking with Mr. Blakeney s attorney, it became apparent that Mr. Blakeney was afraid that if he acknowledged his drug use it would somehow hurt his case. After his attorney advised him that it was crucial to be open and honest . . . , Mr. Blakeney acknowledged that he has had a long term problem with crack cocaine and that he has been a regular user of alcohol and marijuana. Id. On one psychological test, Mr. Blakeney likely answered true to some test items indicative of more severe psychopathology than he actually exhibits, either in an attempt to look more disturbed or as a cry for help. The Expert Report includes a diagnosis Id. at 11. of Personality Disorder, Not Otherwise Specified (Mixed Personality Disorder) with avoidant, dependent, anti-social, and narcissistic traits, as well as cocaine, marijuana, and alcohol dependence. Expert Report 14. It also observes that Mr. Blakeney endorsed some symptoms dependent, of avoidant, and anti-social personality disorder during [the] interview procedure, and that his sister Peggy Blakeney indicated that she has observed her brother to exhibit dependent signs of anti-social, personality disorder. 22 narcissistic, Id. at avoidant, 13-14. The and Expert Report concludes that [t]he substance abuse diagnoses are relevant in that [t]he violence that occurred would not have taken place had Mr. Blakeney not chosen to seek out more money for more drugs, and [i]t is also likely that Mr. Blakeney s rational judgment was impaired, at least slightly, by the chronic use of alcohol and other drugs and the fact that he had reportedly been awake for most of the previous three days and nights. Id. at 16. According to the Expert Report, Mr. Blakeney presumably did not plan well in advance to kill Mr. Huntley . . . but when confronted by Mr. Huntley, he reacted. It was at this time that the poor judgment caused by chronic drug abuse, and alleged lack of sleep, was a factor. Id. The Expert Report acknowledges, however, that there was no evidence that Mr. Blakeney was experiencing more severe effects of alcohol and other drug abuse such as delusions, hallucinations, or perceptual disturbances, acute physical withdrawal, or memory blackout at the time of the alleged offenses. Thus, while Mr. Blakeney s ability to adequately consider the consequences of his actions was impaired to some extent, he was not so impaired that he lost significant awareness of his circumstances nor did he significantly lose his ability to control his behavior. Id. With respect to the diagnosis of personality disorder, the Expert Report opines that such disorder rendered Blakeney more vulnerable to the temporary stress-reducing properties of drugs and consequently, drug addictions, and that it also adversely affected [Blakeney s] ability 23 to adequately consider the consequences of his actions on others, due to his narcissism and anti-social attitudes. Id. at 16-17. Finally, the Expert Report reflects Dr. Worthen s opinion based on Blakeney s lack of a past history of violence in the [prison] setting or psychopathic personality that Blakeney poses no greater risk for violence than the average prisoner pose[] an imminent threat to other inmates. and does not Id. at 17. In his trial testimony, Dr. Worthen repeated much of the information stated in [the Expert Report]. Third MAR Order 91. According to lawyer Crow, he thought Dr. Worthen s testimony in court went over fairly well. We basically had him go over the report that he provided in front of the jury and he did a good job of presenting that information. . . . [H]e did not give the impression that he had not been adequately prepared. Id. at 89 (quoting J.A. 1159-60). 12 Thereafter, at the MAR hearing, Blakeney s post-conviction counsel presented records not obtained by trial counsel nor provided to Dr. Worthen prior to trial, including the following: Blakeney s DART Department of and other Correction; records state from Division the North Carolina of Social Services records concerning Blakeney s wife, Tiney Blakeney; employment 12 Our review of Dr. Worthen s trial testimony confirms that it closely covered the contents of the Expert Report. 24 records for Blakeney; and records concerning victim Huntley s prior conviction ( DUI ). during for driving under See Third MAR Order 90. the MAR hearing that the influence of alcohol Lawyer Huffman acknowledged all of these records, except Huntley s DUI records, were the types of records he would have provided Dr. Worthen collected them. Id. prior to defendant s trial if he had For his part, Worthen testified at the MAR hearing that he did not consider it his responsibility to locate witnesses acknowledged letter or there regarding to are records actively some on collect instances the theory when that records, but he send an might agency in general, a would respond better to a letter from a doctor than an attorney. id. at 91-92. he See In Blakeney s case, Dr. Worthen understood that, trial counsel would locate witnesses and obtain records, although Worthen volunteered to try to obtain records from the North Carolina Department of Correction and from the Union County Mental Health Center. See id. at 92. Dr. Worthen further testified at the MAR hearing that he had reconsidered his prior diagnosis of Blakeney based on new information, including the records obtained by Blakeney s postconviction counsel, which they provided to Worthen after the trial. See Third MAR Order 92. testified: Specifically, Dr. Worthen I would now diagnose the defendant with depressive disorder not otherwise specified. 25 It was not a diagnosis I assigned at the time and I would not diagnose personality disorder, which I did at the time. J.A. 1245). render an him with a Id. (quoting Additionally, Worthen testified that he would now opinion . . . [t]hat [defendant] was under the influence of a mental or emotional disturbance at the time of the crime. original). Id. (quoting J.A. 1245-46) (alterations in When asked whether the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct with the requirements of law was impaired, Worthen stated his opinion that defendant was impaired at the time of the crime. Dr. Id. at 92-93 (quoting J.A. 1246). 13 Worthen attributed the change in diagnosis to the following (collectively, the post-conviction information ): His post-trial review of community member affidavits and interviews with family members (including a re-interview of sister Peggy Blakeney and interviews of four other siblings), which indicated that defendant experienc[ed] symptoms of depression prior to the crime, Third MAR Order 93 (quoting J.A. 1248), and exhibited positive character traits which . . . would argue against the personality disorder diagnosis, id. at 96 (quoting J.A. 1267); 13 Blakeney contends that Dr. Worthen s revised opinion would have supported two statutory mitigating circumstances at sentencing: (1) that [t]he capital felony was committed while the defendant was under the influence of mental or emotional disturbance, and (2) that [t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired. N.C. Gen. Stat. § 15A-2000(f)(2), (6). 26 Records from the North Carolina Department of Correction, including what Worthen referred to as a previous diagnosis of depression made while Blakeney was incarcerated before the Huntley murder, id. at 93; The DART records reflecting Blakeney s 130 hours of instruction during his prior incarceration, see id. at 93-94; 14 Additional Department of Correction records, which constituted more substantive evidence . . . that [Blakeney] did not exhibit behavior problems [while incarcerated], including signs of anti-social personality disorder, id. at 94 (quoting J.A. 1253); North Carolina Division of Social Services records concerning problems in Tiney Blakeney s home (including Tiney s own alcohol abuse), which records: provide[d] information regarding the level of [depression-inducing] stress that the defendant was under at the time leading up to the crime ; corroborate[d] information from [Blakeney s] family . . . that they were having trouble in the home ; and provided Worthen a better understanding of [Blakeney s] psychological condition at the time, and helped [him] to put together how [Blakeney s] substance abuse and the depression were interacting to cause a deterioration in his functioning, id. at 94 (quoting J.A. 1254-55); and Blakeney s employment records, providing further evidence that although his employment history was certainly not perfect, he had sought and obtained employment after his previous 14 Dr. Worthen testified that the DART records to some extent go[] to the question of whether or not [Blakeney] had a personality disorder, how truthful he was being, and that such records also demonstrated that he at least had some motivation to try to overcome his alcohol and other drug problems. J.A. 1251. 27 incarceration a fact that goes against the . . . impression [Worthen] had at the time [of trial] that [Blakeney] was exhibiting some narcissistic and anti-social personality traits, id. at 95 (quoting J.A. 1257). Worthen testified that, if he had been provided the post- conviction information prior to trial, he would not have come to that conclusion [i.e., the personality disorder diagnosis], because there s information that would diagnosis of a personality disorder. argue against the Id. (quoting J.A. 1259). Worthen explained, inter alia, that he now saw Blakeney s drug use as being signs and symptoms of substance dependence itself and the depressant disorder, and as a reaction to the stress he was under, disorder. as opposed to being symptomatic of a personality Id. (quoting J.A. 1259). 15 Nevertheless, in testifying at the MAR hearing to his new diagnosis, Dr. Worthen admitted 15 that when he interviewed According to Worthen, the newly obtained records were also relevant to him in the following ways: the additional Department of Correction Records reflecting Blakeney s lack of behavior problems while incarcerated corroborated Worthen s 1997 trial testimony regarding his opinion about Blakeney s future adjustment in prison, see Third MAR Order 94; the employment records demonstrated that Blakeney passed certain urinalysis testing at work, which tends to show that there were some periods of time where he was not using . . . drugs, id. at 9596 (quoting J.A. 1260); and Huntley s DUI records corroborated what Blakeney and his sister Peggy told Worthen about their childhood environment, i.e., that their stepfather was drinking a lot, had an alcohol problem, and that this cause was a source of stress within the home, id. at 96 (quoting J.A. 1261). 28 defendant prior to trial, defendant did not report that he was experiencing depressive symptoms at . . . the time of the evaluation, and it was not clear to [Dr. Worthen] whether he was experiencing depressive symptoms at the time of the crime. Third MAR Order 93 And indeed, original). (quoting J.A. Worthen had 1249) (alterations testified at trial in that Blakeney, during a pretrial evaluation, denied any suicidal thoughts or plans other than very fleeting suicidal thoughts, which he said he would not carry out. depression. to explain He denied any symptoms of Id. at 106 (quoting J.A. 87, 1304). the meaning of he denied any When asked symptoms of depression, Dr. Worthen replied, I asked him . . . if he experienced certain symptoms of depression and he said no. Id. (quoting J.A. 1304-05). Moreover, Worthen on retreated cross-examination from his at the MAR characterization of hearing, a Dr. previous diagnosis of depression in Blakeney s North Carolina Department of Correction records, see Third MAR Order 93, explaining that he merely assumed the relevant document a summary report reflecting psychologist that Blakeney because of had been admitted referred feelings of to a staff depression further indicated that there was an official diagnosis of depression. Id. at 101 (quoting J.A. 1285). Worthen also agreed that it is common for someone going into a period of 29 long term confinement to have situational depression, and that [m]ight . . . have been what [the Department of Correction] document referred to. Id. at 102 (quoting J.A. 1285-86). Additionally, it was established on cross-examination that the Union County diagnosing Mental Health Blakeney with Center report dependence on of and September 1995, withdrawal from cocaine and alcohol, was basically square with the diagnosis that [Dr. Worthen] testified to at trial in this case, except that Worthen also diagnosed marijuana dependence and did not include the withdrawal diagnoses . . . because [he] couldn t determine whether or not [Blakeney] was in a state of withdrawal at that time. at Id. 103 (quoting J.A. 1291) (some alterations in original). To corroborate Dr. Worthen s new diagnosis, Dr. James E. Bellard, an expert in the field of forensic psychiatry, also testified at the MAR hearing. performed a post-conviction evaluation that involved See Third MAR Order 111. evaluation meeting with of Bellard Blakeney, Blakeney on an three occasions and spend[ing] about six hours with him, as well as review[ing] conviction many documents counsel. provided Id. 16 Dr. 16 by defendant s Bellard s post- diagnosis of Dr. Bellard also interviewed defendant s sister, Peggy Blakeney. See J.A. 1426. 30 defendant s mental status at the time of the crime was that of . . . major depression of without psychotic features. moderate [to] severe severity[,] Id. (quoting J.A. 1428). Bellard opined that, at the time of the crime, defendant was under the influence of severe mental or emotional disturbances. 112. More specifically, Bellard described his Id. at belief that Blakeney was suffering from a major depression, which he had been suffering suffering from for at least the effects two of months, the and . dependencies cocaine and alcohol and probably marijuana. . . on he at was least And at the time of the crime was also under the influence of cocaine, marijuana, and alcohol. opined that Id. (quoting J.A. 1437-38). Blakeney s capacity . . . to Bellard further appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired. (alteration in original). Id. (quoting J.A. 1438) On this point, Bellard explained that with that combination of chemicals in the system, combined with the depression, I believe [Blakeney s] ability reasonable decisions and weigh[] options was impaired. to make And so in general you can support and corroborate Dr. Worthen s revised opinion as to depression and the presence of these mental health impairments. Id. at 113 (quoting J.A. 1438). 17 17 Although, in evaluating Blakeney, Dr. Bellard reviewed (Continued) 31 The MAR court noted Dr. Bellard s MAR hearing testimony about factors in Blakeney s life history significant to his overall mental status, including the following: that defendant shows a family history [for] alcoholism ; that defendant s parents split up by age two and [defendant] didn t ever have a relationship with his father past that point ; that no specific person . . . took a specific interest in [Blakeney] ; that things at defendant s home were pretty chaotic ; that defendant didn t do well in school ; that defendant was promoted socially several times and left school in the ninth grade ; [and] that defendant had a brother who died in the mid-eighties that was very close to him. Third MAR Order 113 (quoting J.A. 1439-44) (some alterations in original). On cross-examination, Bellard agreed that there was no indication that Blakeney had been diagnosed with depression prior to the Huntley murder, including during his 1990-1995 various documents, including those included in the postconviction information, his MAR hearing testimony reflects that the major depression diagnosis was largely based on his interviews with Blakeney and his sister Peggy. Specifically, Dr. Bellard testified that Blakeney and Peggy were able to describe [seven symptoms of depression] for a period of at least two months before [the Huntley murder]. J.A. 1431. According to Bellard, [i]t s possible but speculative that [Blakeney] had When asked how he clinical signs for long before that. Id. would . . . rate Roger Blakeney s depression at the time of the incident, Bellard responded that, based on [Blakeney s] report and his sister s report, I would rate him as moderate to severe. Id. at 1433. Bellard also noted that there is a minor distinction between his diagnosis of major depression and Dr. Worthen s diagnosis of depressive disorder, but that both of the diagnoses were of active disorders about depression. Id. at 1448. 32 incarceration in North Carolina and his September 1995 visit to the Union County Mental Health Center. See id. at 114, 116. Bellard also acknowledged that Blakeney had some things that would satisfy disorders, some but individuals criteria, he also and of the clarified satisfy that criteria he that some did . of not . the the . for personality vast majority personality think of disorder [Blakeney] has a Id. at 116 (quoting J.A. 1461). personality disorder. Finally, the MAR court accepted Dr. Pamela Laughon as an expert in the field of psychology on behalf of Blakeney. Third MAR Order 118. See She opined that it is customary for trial attorneys to collect information, such as documents and records, and provide them to any client. psychologist evaluating a Id. (quoting J.A. 1691). ii. In ruling against Blakeney on the expert witness aspect of his ineffective assistance/sentencing claim, the MAR court invoked our decision in Byram v. Ozmint, 339 F.3d 203 (4th Cir. 2003), among various other authorities applying Strickland and its Supreme Court progeny. See Third MAR Order 34 (characterizing Byram as a case having similarities to the case at bar ). We recognized in Byram that, to satisfy Strickland s performance prong, performance was the defendant deficient by 33 must show produc[ing] that counsel s evidence that counsel s representation fell below an objective standard of reasonableness. at 687, 688). 339 F.3d at 209 (quoting Strickland, 466 U.S. More specifically, we observed that [a] failure to obtain available records . . . does not show that counsel s investigation was inadequate. Attorneys will not be found ineffective unless they fail to make a reasonable investigation for possible mitigating evidence. And the reasonableness of an investigation, or a decision by counsel that forecloses the need for an investigation, must be considered in light of the scarcity of counsel s time and resources in preparing for a sentencing hearing and the reality that counsel must concentrate his efforts on the strongest arguments in favor of mitigation. Id. at 210 (internal citations and quotation marks omitted). We further observed in Byram, on the prejudice prong of Strickland, that [a] showing of prejudice requires the defendant to prove that counsel s errors were so defendant of a fair trial. 466 U.S. at 687). serious as to deprive the Id. at 209 (quoting Strickland, And we explained that, [i]n the context of a capital sentencing proceeding, the question is whether but for counsel s unprofessional errors, the result of the proceeding would have been different. Id. (quoting, inter alia, Strickland, 466 U.S. at 694). Finally, we concluded that where, [i]n light counsel [at of the wealth sentencing], of information additional presented information by trial [contained in unobtained records] would have added little[,] [t]here was no reasonable probability that the 34 outcome would have been different had trial counsel conducted an even more exhaustive investigation. Applying Byram s Id. at 211. these claim performance that at psychological principles his trial sentencing evidence, in on by the Byram, we counsel rendered deciding ground first not that rejected deficient to counsel present made a reasonable strategic decision in recognition of the potential harm posed by such evidence. See 339 F.3d at 210. Notably, we also recognized that trial counsel was not obligated to shop around for a favorable expert opinion yield[ed] little in mitigating evidence. after Id. an evaluation Furthermore, we rejected trial counsel s failure to obtain certain records as a basis for the ineffective assistance claim, under Strickland s performance and prejudice prongs, on the grounds that reasonable efforts event, were they made to would obtain have those added records little to and that, the in wealth any of information presented by trial counsel in support of Byram s mitigation case. Id. at 210-11. b. For Blakeney to prevail in these habeas corpus proceedings on the expert witness aspect of his ineffective assistance/sentencing claim, we would have to conclude that the MAR court unreasonably applied Supreme Court precedent in rejecting such claim under both the performance and prejudice 35 prongs of Strickland. Blakeney contends that he is entitled to relief on the premise that Dr. Worthen s initial personality disorder diagnosis the diagnosis to which Worthen testified during the trial s sentencing phase was the result of trial counsel s failure information. diagnosis was to Blakeney harmful obtain and asserts to provide the post-conviction that the personality Blakeney, and did not support submission of any statutory mental health mitigators. Appellant 24 (emphasis omitted). disorder the Br. of And, Blakeney maintains that, [i]f Dr. Worthen had been provided access to the [post-conviction information], he would have abandoned the damaging diagnosis of [personality disorder], and recognized that Blakeney was suffering from depression. There is at least a reasonable probability that had the jury understood that defendant was suffering from a depressive disorder and resulting substance abuse, as opposed to an antisocial personality disorder, at least one juror would have reached a different conclusion. Id. at 28-29. Unfortunately for Blakeney, though we are willing to assume that he has satisfied Strickland s performance prong, we cannot rule in his favor on the prejudice prong. Specifically, even accepting that the MAR court found Dr. Worthen s post-conviction diagnosis of depressive disorder to be credible a dubious notion in light of the evidence highlighted in the Blakeney Third had MAR Order, originally including Worthen s endorsed symptoms testimony of that personality disorder and denied symptoms of depression the court could yet 36 reject the proposition that Worthen s change depended on the post-conviction information. in diagnosis As the district court observed in its Habeas Corpus Order, [a]ssuming arguendo that the post-conviction diagnosis is the more accurate one, Dr. Worthen did not need counsel s help to diagnose Blakeney with a depressive disorder. Habeas Corpus Order 10. This is evident from the MAR hearing testimony of Dr. Bellard, corroborating Worthen s post-conviction diagnosis, in that Bellard relied for his major depression diagnosis on sources of information that were available to Worthen when he made his initial diagnosis of personality disorder. See id. at 12. Specifically, [l]ike Dr. Worthen s [initial diagnosis], Dr. Bellard s diagnosis was based upon his interview/evaluations with Blakeney and his interview with [Blakeney s sister] Peggy. According to Dr. Bellard, Blakeney reported experiencing seven identifiable symptoms of the illness of depression at the time of the [Huntley] murder. Significantly, Blakeney and Peggy were able to describe those symptoms as having existed for at least two months prior to the murder. Id. at 11; see also supra note 17. Moreover, those factors of Blakeney s the life history noted by MAR court as being significant to Bellard in assessing Blakeney s overall mental status his family history of alcoholism, the absence of his father or another adult role model, the chaotic nature of his home life, his lack of success in school, and the loss of his brother were largely known to Worthen prior to trial and 37 discussed in his Worthen s MAR Expert In testimony hearing Report. that these it circumstances, was the [post- conviction information] that made his diagnosis of depressive disorder possible is unconvincing. Accordingly, we agree Habeas Corpus Order 12. with the district court that, [w]hatever the reason for Dr. Worthen s original diagnosis, the record indicates that he had the necessary resources to make a diagnosis of depressive disorder prior to trial. prejudice arising attributable to from the trial counsel ineffectiveness of counsel (citing v. Polk, McHone (concluding that any original and claim. 392 F.3d diagnosis cannot Habeas 691, ineffectiveness As such, any 706 not support Corpus (4th arising is Order Cir. from an 14 2004) expert s failure to utilize readily available evidence is attributable to expert rather than to counsel and, thus, cannot support Strickland claim)); see also Byram, 339 F.3d at 211 (recognizing lack of prejudice resulting from counsel s failure to obtain records, where additional information in those records would have added little ). 18 We thus 18 affirm the district court s To the extent that Blakeney contends that he was prejudiced by his trial counsel s failure to obtain the DART records, because the prosecution used the absence of such records to paint Blakeney as a liar, we agree with the district court s rejection of such contention: (Continued) 38 denial of habeas corpus relief on the expert witness aspect of the ineffective assistance/sentencing claim. 2. a. The MAR court also concluded that the character witness aspect of Blakeney s ineffective assistance/sentencing claim failed on both the performance and the prejudice prongs of the Ultimately, [Blakeney] cannot show that he was prejudiced by counsel s failure to obtain the DART records. The absence of DART records was only one example of several cited by the prosecutor as evidence that Blakeney was untruthful and that Dr. Worthen did not believe what Blakeney had told him. The prosecutor argued, without objection, that Dr. Worthen did not believe what Blakeney had told him about the arson and murder and that he did not believe the answers that Blakeney had given to some of the questions on the psychological tests. Indeed, Dr. Worthen testified at sentencing that the story Blakeney had told the police was likely more accurate than the very different story that Blakeney had told him about the crimes. He also testified that on the questionnaires he administered, Blakeney minimized his substance abuse problems, and that he (Dr. Worthen) had to adjust for that in making his diagnosis. Dr. Worthen testified that he likewise had to adjust for the fact that Blakeney exaggerated some symptoms of psychological problems on at least one of the tests that he took. The jury, therefore, had ample evidence to conclude that Dr. Worthen doubted Blakeney s veracity. As such, there is no reasonable probability that the jury would have returned a life sentence had the prosecutor not been able to argue that the absence of the DART records was evidence that Blakeney was not truthful. Habeas Corpus Order 16-17. 39 Strickland test. court, well [t]rial within professional See Third MAR Order 54. counsel s the pretrial acceptable assistance investigative wide required According to the MAR by range the efforts of first were reasonable prong of the Strickland test and not the source of prejudice that is the second prong of the Strickland test. 466 U.S. at 689). Id. (quoting Strickland, Importantly, the court supported its ruling with explicit findings of fact and legal analysis. i. The MAR court found that [o]ne of trial counsel s most significant pretrial investigative efforts involved [lawyer] Crow s discussions with defendant, which provided counsel with, inter alia, family, information information conviction and his about about sentence, mother s defendant s and presence in murder. Third MAR Order 54. defendant s information house on the background prior about day of and criminal defendant s the Huntley While preparing for trial, Crow asked defendant about people who were not his family members to whom trial witnesses. counsel might Id. at 59. talk about testifying as character Blakeney suggested Jerry Leak, his former supervisor at the City of Monroe Sanitation Department, and Crow then spoke with Leak but did not call him as a witness. See id. at 59, 60. Blakeney also told Crow that there were people working at the jail who could testify about how he had 40 gotten along while incarcerated and awaiting trial. Id. at 59. Crow questioned Officer Tim Phillips and Deputy Sheriff Andrew Simmerson, obtained a basic good report from them concerning defendant s conduct in jail, and thereafter called Phillips and Simmerson to testify at trial that defendant had been a good inmate. As Id. for Blakeney s family sister, members, Peggy Crow was Blakeney, well whom acquainted Crow had with previously represented and known for about three or four years before he represented conducted defendant. pretrial Third interviews MAR with Blakeney, and wife, Tiney Blakeney. Order 60. Blakeney s See id. Counsel mother, also Gracie Peggy, Gracie, and Tiney Blakeney are apparently the family members referred to in the MAR court s finding that Crow talked to some of defendant s family members and sized them up to determine whether he thought they would make good witnesses for the defense. Id. at 63. Counsel ultimately decided, with respect to Peggy, Gracie, and Tiney, to call only Peggy as a witness. Crow knew that being Peggy a witness can be difficult, composure to be a witness. but that Third MAR Order 63. had the By contrast, Crow ruled out calling Gracie and did not feel that Tiney . . . would be a good witness. Tiney, 41 Id. With specific regard to Crow decided not to call [her] as a witness at trial because he thought she might present some testimonial evidence that could hurt defendant s case. More precisely, Crow thought that evidence from [Tiney] concerning defendant s use of alcohol and drug abuse would be the proverbial two-edged sword that cuts both ways and would hurt defendant in the eyes of the jury. Id. at 61. background Counsel decided to present evidence on Blakeney s through the defense s expert psychologist, Dr. Worthen, rather than family members (other than Peggy), because, as Crow explained, I just felt like we could get all we needed in through Dr. Worthen without putting on people as witnesses who might not be able to express themselves as well as Dr. Id. at 63-64 (quoting J.A. 1118). Worthen. Crow added that I liked the Blakeney family, but it helps to have somebody who s experienced and has some composure to testify. Id. at 64 (quoting J.A. 1118). During the trial s sentencing phase, counsel called a total of four witnesses: personnel Phillips Dr. and Worthen, Peggy Simmerson. See Blakeney, Third MAR and jail Order 60. Counsel also encouraged family members to attend defendant s trial to show support for defendant. trial, present counsel for the spoke with trial knowledge of defendant. and several could Id. at 61. Id. at 60-61. family have During the members testified who about were their [C]ounsel made a tactical decision, however, not to call as witnesses any of defendant s 42 family and friends other than those witnesses who were called to testify. Id. Crow believed that we could bring out what we needed to bring out about [Blakeney s] family background, through the information that Dr. Worthen got, and it was going to be presented by an experienced witness, and I thought that would come over a lot better than by presenting the individual family members who [we were not] real sure could handle testifying. Id. (quoting J.A. 1127) (second alteration in original). Crow also explained that one of the reasons he decided not to call the additional family members was the fact that I really had no prior contact with [them], explaining that [i]t s hard to make a [really] good decision about something like that, with such short contact. was going to do. I already had pretty well in my mind what I That would require a change of strategy that I didn t feel comfortable with. Id. at 64 (quoting J.A. 1164) (third alteration in original). During allegation the that MAR hearing, trial counsel [w]hen asked provided to reply professional to the services below the requirements of Strickland by failing to adequately interview defendant s family members and other character witnesses, Crow responded as follows: Hindsight is twenty, twenty. I interviewed and talked to the people that [they, the family members] made . . . available to us, and that I ultimately felt comfortable with. I guess the bottom line, I talked to those people that came forward and I urged them and I would have talked to anybody else, any other family member that had had they brought along with 43 them. It s their family. I felt that they were the ones who could involve the other family members better than anybody else. That s all I know to answer. Third MAR original). 19 Order 63 (quoting J.A. 1158-59) (alterations in According to the MAR court, Crow thought that defendant s family members were all good people, but he also knew that none of them were what you might call leading citizens [in] the community. None of defendant s family members held public office; none were members of any profession (e.g., ministers, lawyers, doctors, bankers). Thus, Crow did not call as witnesses at trial all of defendant s brothers and sisters. Id. at 64 (quoting J.A. 1118). 20 19 Crow similarly testified at the MAR hearing that I guess in hindsight I should have gone out and hunted each one down and talked to them. Ideally that s what I should have done, no question about that. I told Gracie, I told Tiney, I told Peggy, this is your son, this is your brother, people come to my office, bring other family members, we can talk. And those were the ones that came. Third MAR Order 64 (quoting J.A. 1165). 20 Notably, Crow s leading citizens in the community testimony came in response to the State s questions about whether any Blakeney family member was a college graduate, a leading citizen in the community, a holder of any elective office, or a professional such as a minister[], lawyer[], doctor[], banker[,] etc. J.A. 1118-19. Crow offered that, [f]or better or worse, that s true, they weren t. But they re good people. I don t want to disparage any. They re from what I know about them, they re all fine, honorable people. The State then responded that it didn t mean to Id. at 1119. suggest otherwise by its questions. Id. With this context, it does not seem, as the MAR court suggested, that Crow indicated that he did not call more family members as witnesses because they were not leading citizens in the community or members of any profession. 44 Post-conviction counsel presented fourteen character witnesses at the MAR hearing eight family members (including Peggy, Gracie, (including that, and [i]n former Tiney Blakeney) supervisor general, they Leak). each and The testified six non-relatives MAR court observed that they believed defendant was a man of good character and a nice person, and that they would have testified to that effect if they had been called as witnesses at defendant s 1996 trial. 64-65. Third MAR Order The court concluded, however, that the stated basis of their opinions and the nature of their responses during crossexamination were such that their opinions would have no more than a de evaluating minimis the [e]ffect evidence on and a the reasonably aggravating circumstances in defendant s case. objective and juror mitigating Id. at 65; see also id. at 65-85 (detailing character witnesses MAR hearing testimony). ii. In denying Blakeney s court relief ineffective concluded, with on the character witness assistance/sentencing respect to the aspect performance the MAR prong claim, of of Strickland, that [t]rial counsel s investigation of defendant s background and his circumstances in life was objectively reasonable, that [t]here was no inattention to this matter by trial counsel, and that there was nothing to indicate that what trial counsel knew of defendant would have led a reasonable 45 attorney to investigate further. Third MAR Order 85. The court further ruled that, [a]lthough trial counsel interviewed far fewer potential witnesses than postconviction counsel presented at the [MAR] hearing, trial counsel s interviewing of potential witnesses was objectively reasonable performance that was [not] below the Strickland test. requirements Id. at 86. of the first prong of the The court distinguished Wiggins v. Smith, 539 U.S. 510, 524 (2003) (deeming counsel ineffective for abandon[ing] their investigation of petitioner s background after having acquired only rudimentary knowledge of his history from a narrow set of sources ). See Third MAR Order 85 (observing that there was in the case at bar nothing remotely approaching the egregious neglect of the counsel in Wiggins ). And, the MAR court drew favorable comparisons to three of our decisions: Tucker v. Ozmint, 350 F.3d 433, 441-42 (4th Cir. 2003) (concluding that counsel s performance far surpassed the inadequate performance described in Wiggins, in that counsel, inter alia, presented an expert psychologist who gave the jury a full picture of Tucker s disturbing social history ); Byram, 339 F.3d at 210 (rejecting ineffective assistance claim where, [u]nlike in Wiggins, . . . counsel here spent considerable time developing a picture of Byram s life ); and Bacon v. Lee, 225 F.3d 470, 481 (4th Cir. 2000) (observing that Bacon s counsel could reasonably have concluded. . . that the evidence they had 46 developed . . . would give the jury an accurate picture of Bacon s personality and that further investigation into Bacon s background would not be fruitful ). See Third MAR Order 86. On Strickland s prejudice prong, the MAR court re-weighed the evidence in aggravation against the totality of available mitigating evidence. Third MAR Order 88 (citing Wiggins, 539 U.S. at 534; Tucker, 350 F.3d at 442). The court explained that, in particular, it considered the following circumstances: (a) that several of the witnesses demonstrated an obvious bias in favor of defendant based on their past close familial relationship to him; (b) that several of the witnesses based their opinion that defendant was a man of good character on factors not normally considered to be indicia of good character; (c) that considerable evidence of record shows that defendant is not a man of good character (e.g., the evidence of his history of substance abuse and his commission of armed robbery, larceny, assault, arson, and murder); (d) that defendant did not introduce any significant evidence affirmatively proving that he is in fact a man of good character; and, (e) that evidence of record shows that after defendant completed the DART program while serving five years confinement and after he was placed on probation, defendant disregarded the lessons he should have learned and returned to the costly and debilitating practice of using illegal drugs. Id. at 87. This assessment led the court to conclude that trial counsel s failure to interview and call more character witnesses was not the source of prejudice that is the second prong of the Strickland test. Id. at 86. b. 47 In these habeas corpus proceedings, Blakeney contends that he is entitled to relief because counsel s unreasonably limited investigation resulted in a failure to discover readily available evidence of their client s positive character and past behavior, the very kind of evidence that could compel at least one juror to find the client s life to be worth saving. Appellant 22 (citing Wiggins, 539 U.S. at 537). Br. of According to Blakeney, the additional character witnesses who testified at the MAR hearing would have provided important positive evidence to counter the State s demonization of Blakeney at trial. Id. at 24. Of the eight family members and six non-relatives, Blakeney specifically discusses in this appeal the MAR hearing testimony of five of them: Union County Deputy Sheriff Curtis Parker, who had known Blakeney all his life, and testified that [the Huntley murder] was out of character for him ; Leak, Blakeney s former supervisor while employed by the City of Monroe, who spoke positively about [Blakeney s] work ; Blakeney s brother, Jimmy Blakeney, corroborated that Blakeney completed the program during his prior incarceration; Gracie Blakeney, who admitted that she and Huntley exposed her son to extensive alcohol abuse and violence, and who expressed love for her son and her desire that mercy be shown for his culpability in Huntley s death; and 48 who DART Id. at Tiney Blakeney, who shed light on the chaotic household in which [Blakeney] was living before the crime, testified about his drug abuse, and described him as a nonviolent good person whom she loved. 10-12. Blakeney generally describes the other non- relative witnesses, with one exception, as life-long citizens of Union County, gainfully employed, and without criminal records, who testified that Blakeney had performed good deeds and positive acts in the community, that he did not have a juvenile criminal nonviolent. history, [and] Id. at 11 & n.2. that he was usually Similarly, Blakeney s family member witnesses [a]ll are life-long residents of Union County, and none memories has a about criminal record. Blakeney All and articulated described his positive positive characteristics, along with his debilitating background and the dysfunctional household in which he grew up. According to Blakeney, the MAR Id. at 11. court s ruling on the prejudice prong of Strickland means that a family member cannot credibly testify for a defendant because of bias, and a defendant cannot have any positive character traits, since he has committed asserts that a the bad MAR act. court Br. of ruling Appellant cannot 33. stand. Blakeney Otherwise, contrary to Supreme Court precedent, no defendant could ever present family witnesses or mitigating lay testimony because the murder conviction the ultimate evidence of bad character 49 would always traits. preclude any testimony about good character Id. (citing, inter alia, Wiggins, 539 U.S. at 535). Although we may assume that Blakeney has satisfied Strickland s performance prong, as we did with respect to the expert witness aspect of the ineffective assistance/sentencing claim, we again cannot rule in his favor on the prejudice prong of Strickland. 21 court s Simply put, whatever else the merits of the MAR prejudice ruling, the additional character evidence testimony was substantially cumulative and, thus, can reasonably be said to reasonably have no objective more juror than a de evaluating minimis the [e]ffect evidence and on a the aggravating and mitigating circumstances in defendant s case. Third MAR Order 65. As the district court recognized, [t]he testimony of Blakeney s friends and family at the MAR hearing was largely repetitive of the evidence offered at sentencing through Moreover, Dr. Worthen the and additional Peggy. mitigating Habeas Corpus evidence, Order when 19. combined with what the jury learned at sentencing, would [not] have been enough to outweigh the aggravating evidence in this case. Id. at 24. 21 Because we assume that Blakeney has satisfied the performance prong of Strickland, we express no views (contrary to the depiction of this opinion by our dissenting colleague) on the reasonableness of trial counsel s performance or the MAR court s assessment thereof. 50 Accordingly, ineffective the character witness assistance/sentencing sufficient showing of prejudice. claim aspect fails of for Blakeney s lack of a See Tucker, 350 F.3d at 445 (recognizing that trial counsel s failure to expose impeachment evidence against prosecution expert was non-prejudicial, where expert s testimony was cumulative and, [c]onsidering the aggravating and mitigating circumstances present in this case, confidence in outcome of trial was not undermined); Byram, 339 F.3d at 211 (concluding there was no prejudice resulting from failure to present additional information about Byram s childhood, where the evidence presented before the [state postconviction relief] court was largely cumulative ). We therefore affirm the district court s denial of habeas corpus relief on this aspect of such ineffective assistance claim. B. Next, which also withheld, we has in turn two to Blakeney s aspects: contravention exculpatory first, of his whether due evidence the process claim, prosecution rights as recognized in Brady v. Maryland, 373 U.S. 83 (1963), the DART records from the North Carolina Department of Correction (the DART records aspect ); and second, whether the prosecution committed a Brady violation by failing to reveal the fact that Blakeney had confessed to the Huntley murder after Detective Ronnie Honeycutt of the Union County Sheriff s Department told 51 him it was time for him to stop hurting his family and hurting himself and tell the truth (the confession aspect ). As the Supreme Court has explained, [t]here are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). We assess whether the MAR court unreasonably applied Brady and its Supreme Court progeny to the facts of Blakeney s case, beginning with the DART records aspect, followed by the confession aspect, of the exculpatory evidence claim. 1. The MAR court concluded that the DART records aspect of Blakeney s because, exculpatory inter Department of alia, evidence claim [d]efendant Correction was has acting on failed on not shown behalf the of merits that the either the prosecutor or any state law enforcement agency investigating the murder of Callie disclosures. Huntley at the time of the alleged non- Third MAR Order 131 (citing, inter alia, Kyles v. Whitley, 514 U.S. 419, 437 (1995), for proposition that duty to disclose encompasses material in possession of prosecutor as well as material known to the others acting on the government s behalf in the case, including the 52 police ). The MAR court further concluded that the information allegedly withheld was not material to either defendant s conviction or sentence. Id. at 135 (citing Strickler, 527 U.S. at 289, for proposition that, to establish prejudice, petitioner must show a reasonable probability that the result of the trial would have been different if the suppressed documents had been disclosed to the defense (internal quotation marks omitted)). Without reaching the issue of whether the Department of Correction was acting on behalf of the prosecution when it failed to disclose the DART records, we conclude that Blakeney has not made a sufficient showing of prejudice. See supra note 18 (quoting Habeas Corpus Order 16-17). We thus affirm the district relief court s denial of habeas corpus on the DART of the barred and records aspect of Blakeney s exculpatory evidence claim. 2. The MAR exculpatory court evidence rejected claim lacking in substantive merit. the as confession both aspect procedurally See Third MAR Order 124, 129-31. The district court concluded that the MAR court s procedural ruling that Blakeney had abandoned the confession aspect on direct appeal, thus triggering the North Carolina General Statute section 15A-1419(a)(3) bar on collateral review was premised on a misreading of the issue. 42-43. See Habeas Corpus Order The court thus proceeded to analyze the merits of the 53 confession aspect, but rejected Blakeney s request for habeas corpus relief thereon. See id. at 43. In this appeal, the parties dispute whether the confession aspect was procedurally defaulted. Because we conclude that it fails on the merits, we need not reach the procedural default question. See Eaton v. Angelone, 139 F.3d 990, 994 n.1 (4th Cir. 1998) ( Because we agree with the district court s denial of Eaton s ineffectiveness claim on the merits, we need not resolve the thorny issue of procedural default. ). Blakeney contends that Detective Honeycutt revealed for the first time at the MAR hearing that Blakeney s confession came only after humanity . . . . the detective made an appeal to Blakeney s Such an [empathetic], emotional response to an appeal to Blakeney s feelings for his family would have been contrary to the picture the prosecution sought to paint of Blakeney as cold, calculating, anti-social and devoid of any feelings for Unfortunately anyone for but himself. Blakeney, Br. however, of no Appellant Brady 40-41. violation occurred, because Blakeney, as a participant in the conversation with Honeycutt, is presumed to know what was said. See United States v. Roane, 378 F.3d 382, 402 (4th Cir. 2004) ( We have explained that information actually known by the defendant falls outside the ambit of the Brady rule. (citing Fullwood v. Lee, 290 F.3d 663, 686 (4th Cir. 2002))). 54 In these circumstances, we affirm the district court s denial of habeas corpus relief on the confession aspect of Blakeney s exculpatory evidence claim. C. Finally, entitled we to assess an assistance/jury Blakeney s evidentiary composition contention hearing claim. on that his The he is ineffective premise of the ineffective assistance/jury composition claim is that Blakeney s trial counsel object to was the constitutionally prosecution s ineffective jury selection in failing to Swain v. under Alabama, 380 U.S. 202, 223 (1965) (recognizing that inference of purposeful prosecutor, discrimination in case would after be on whatever case, raised the evidence that circumstances, whatever the crime and whoever the defendant or the victim may be, removes qualified African-American prospective jurors who have survived challenges for cause, so that no African-Americans ever serve on petit juries ). Batson v. replaced Kentucky, Swain s 476 Of course, by its decision in U.S. threshold 79 (1986), requirement the to Supreme prove Court systemic discrimination under a Fourteenth Amendment jury claim, with the rule that discrimination defendant s jury by sufficed the to violation. Miller-El v. Nevertheless, Blakeney maintains relying on Miller-El. prosecutor establish Dretke, 545 that in the U.S. Swain selecting the constitutional 231, 236 (2005). survives Batson, In deciding whether the district court 55 abused its discretion in denying Blakeney an evidentiary hearing on his Swain, ineffective we related first claims assistance/jury review pursued the by composition procedural Blakeney, claim history and of then under this and to our turn analysis. 1. Blakeney first challenged the composition of his jury at trial, having unsuccessfully made written and oral motions to dismiss the jury venire based on an alleged under-representation of African-American citizens. The state supreme court affirmed on direct appeal, concluding that the difference in the makeup of the jury statistically venire and the general population significant, and observing not Blakeney that was had failed to allege (as required to sustain his claim) that the under-representation of African-American citizens was the result of systemic exclusion in the jury selection process. v. Blakeney, 531 S.E.2d 799, 808-09 (N.C. 2000). appeal, Blakeney counsel for asserted failure prosecution s to peremptory ineffective make a challenge prospective juror, Robert Crawford. supreme court concluded that to Also on direct assistance Batson objection one has of trial to the African-American See id. at 814. defendant See State not The state demonstrated that his counsel was ineffective by failing to make a Batson objection. Rather, defendant has shown only that he is black 56 and that the State peremptorily struck one black prospective juror. This is insufficient to establish a prima facie case of racial discrimination. Id. at 815 (internal quotation marks omitted). Thereafter, in his MAR, Blakeney asserted his substantive jury composition claim, alleging that [t]he prosecution used its peremptory American challenges jurors from his to excuse trial as all eligible part of a African- pattern of discrimination, J.A. 731, and citing three other Union County cases as evidence. The MAR court rejected the substantive jury composition as claim procedurally barred for having been previously determined on the merits upon an appeal ; waived by Blakeney s failure to raise the three other Union County cases at trial; and without merit in light of the disparate facts of one of the other Union County cases (in which the defendant was Native American and did not challenge the jury composition on direct appeal), and the failure of jury composition challenges in the remaining two Union County cases. First MAR Order 78, 81-84. Blakeney then amended his MAR to raise the ineffective assistance/jury composition claim, repeating his allegation that [t]he prosecution used its peremptory challenges to excuse all eligible African-American jurors from his trial, and further asserting that trial counsel failed to investigate and present 57 available and credible evidence that the prosecutor s conduct impermissibly excused all African-American jurors not only in [his] case, but in prior capital cases in Union County. 840. J.A. Blakeney again raised the three other Union County cases, and he invoked Swain, Batson, and Miller-El. rejected the ineffective assistance/jury The MAR court composition procedurally barred and without substantive merit. court observed peremptory that, challenges contrary being to used Blakeney s to exclude claim as First, the allegation of African-American jurors from his trial, only one African-American prospective See Second MAR juror (Crawford) was peremptorily challenged. Order 3. Additionally, the court observed that Blakeney s assertion about discrimination in other Union County cases was not supported by the three other Union County cases cited. id. at 4. See The court also observed that the three other Union County cases, as well as Blakeney s own case, are matters of record affirmatively misconduct during showing jury an absence selection. Id. of at prosecutorial 11. The court concluded that the ineffective assistance/jury composition claim was procedurally barred for having been raised in Blakeney s direct appeal, by assistance claim. way of his See id. at 16. Batson-related ineffective Further, the court rejected the claim on the merits by ruling that, because Blakeney could not establish ineffective assistance 58 for failure to make a Batson objection, he could not do so for failure to make a Swain objection. establish As the MAR court explained, a defendant can not either an old Swain violation or a new Batson violation unless he can prove that a prosecutor in his case engaged in racially discriminating challenges. habeas of peremptory Id. at 20. In use these considered and corpus rejected proceedings, the composition claim on the merits. the ineffective district court assistance/jury As an initial matter, the court properly recognized that the relevant state court decision for AEDPA purposes in these proceedings is that of the state supreme court on direct appeal. See Habeas Corpus Order 32-33 (citing Goins v. Angelone, 226 F.3d 312, 320 (4th Cir. 2000)). The district court then observed that, [o]rdinarily, the Court would review the North Carolina Supreme Court s decision to determine whether it was contrary to or an unreasonable application of established Federal law. However, [Blakeney] does not challenge that court s adjudication of this issue in any way. In fact, he does not directly acknowledge [ineffective that he raised a Batson-related assistance] claim on direct appeal. He does not assign error to the state Supreme Court s factual or legal conclusions rejecting his Batson-related [ineffective assistance] claim. Most importantly, he has not directed this Court to any relevant circumstances from his trial or the record on appeal that would constitute evidence of discriminatory intent on the part of the prosecutors when they used a peremptory challenge to strike Robert Crawford (e.g. racially suspect comments by the prosecutors during voir dire, similarities between voir dire answers by white jurors who were not excused by the prosecutor 59 and those of Robert Crawford, etc.). Because [Blakeney] has not alleged error on the part of the state Supreme Court or challenged that court s conclusion that there is no evidence in the record on appeal of discriminatory intent by the prosecutor when he removed Robert Crawford, he has waived any argument in this Court that the state Supreme Court was incorrect in either its factual or legal conclusions. Since [Blakeney] waived any challenge to the North Carolina Supreme Court s conclusion that there is no evidence of discriminatory intent by the prosecutor when he removed Robert Crawford, his support for a prima facie case of a Batson violation by the State consists solely of the following evidence presented in his MAR and in the instant claim: 1) [Blakeney] is African-American; 2) prosecutors used a peremptory strike to excuse Robert Crawford, an African American, from [Blakeney s] jury; and 3) in three other Union County capital cases, prosecutors allegedly struck all African American jurors who were not struck for cause. [Blakeney] refers to the three prior Union County capital cases as Swain evidence and argues that under Swain[, 380 U.S. at 222-24], he is entitled to show the prosecutor s systemic use of peremptory challenges to strike African-American jurors over time. It appears that [Blakeney s] argument is that had trial counsel made a Batson objection and presented evidence from [the three other Union County cases], it would have been sufficient to establish a prima facie case of discriminatory intent on the part of the prosecutors when they excused Robert Crawford. Habeas Corpus Order 33-35 (internal citations and quotation marks omitted). The district court concluded that, even [a]ssuming that Swain s prima [Blakeney s] facie evidence evidentiary of standard historical survived systemic Batson, exclusion is insufficient to raise an inference of discriminatory intent in his own case. Habeas Corpus Order 35. 60 The court therefore ruled that Blakeney s ineffective assistance/jury composition claim failed on the first prong of Strickland, in that trial counsel was not deficient in failing to challenge the exclusion of Crawford from Blakeney s jury. See id. at 37. Additionally, the court observed that, even if counsel had been deficient, Blakeney could prejudice. See not make id. at Strickland s 37-38. requisite Finally, the showing court of denied Blakeney s request for an evidentiary hearing on the ineffective assistance/jury composition claim, on the ground that Blakeney failed to establish one of the six factors in Townsend v. Sain, 372 U.S. 293, 312-13 (1963), a showing necessary to qualify him for such a hearing. See Habeas Corpus Order 38. Thereafter, in its Second Rule 59(e) Order, the court stood by its denial of Blakeney s evidentiary hearing request. 2. On appeal, Blakeney challenges the district court s grounds for rejecting his ineffective assistance/jury composition claim pursuant to Strickland, but he does not specifically address the court s ruling that he failed to demonstrate entitlement to an evidentiary hearing under Townsend. A habeas corpus petitioner is not entitled to an evidentiary hearing in the district court if he failed to develop the factual basis of a claim in state court unless certain statutory 61 requirements are satisfied. Fullwood, 290 F.3d at 681 (quoting 28 U.S.C. § 2254(e)(2)). 22 Even if § 2254(e)(2) presents no bar to an evidentiary hearing, however, that does not mean he is entitled to an evidentiary hearing only that he may be. Id. (internal quotation marks omitted). And, as the district court recognized, petitioner must establish also one of Townsend, 372 U.S. at 312-13. the six factors set forth in Those six factors are: (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. Townsend, 372 U.S. at 313. Simply put, Blakeney has not offered us any basis to conclude that the district court abused its discretion in ruling that he failed to satisfy one of the six Townsend factors. Accordingly, we affirm the court s denial of 22 Under 28 U.S.C. § 2254(e)(2), a habeas corpus petitioner, in order to be accorded an evidentiary hearing in the district court, must show that his habeas claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable or on a factual predicate that could not have been previously discovered through the exercise of due diligence, and that the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 62 Blakeney s request for an evidentiary hearing on his ineffective assistance/jury composition claim. IV. Pursuant to the foregoing, we affirm the district court. AFFIRMED 63 GREGORY, Circuit Judge, concurring in part and dissenting in part: Blakeney contends that he was prejudiced by trial counsel s failure to interview and present mitigating evidence from several witnesses who were available and willing to testify at the sentencing proceeding. 1 I agree and, therefore, dissent from the majority s denial of relief on Blakeney s claim that his trial counsel sentencing rendered phase of the ineffective trial. I assistance concur in during the the majority s judgment to deny Blakeney relief on his other claims. Trial their lack counsel s of ineffectiveness investigation was deprived prejudicial Blakeney of testimony that was crucial to his mitigation defense. because witness They did not call Blakeney s wife, five of his six siblings, or members of his community as witnesses. 1 Although trial counsel s Blakeney also claimed that his counsel rendered ineffective assistance because they failed to provide his expert, Dr. Worthen, with sufficient information to make an appropriate diagnosis. Although it seems clear that trial counsel inadequately prepared Dr. Worthen, and that Dr. Worthen s testimony probably had a prejudicial effect on the jury, I agree with the majority that Blakeney s claim was undermined when his own witness, Dr. Bellard, testified at the MAR hearing that Dr. Worthen could have reached a proper diagnosis with the limited information supplied by counsel. Thus, Blakeney could not demonstrate that counsel s ineffective assistance caused the prejudice that resulted from Dr. Worthen s diagnosis. 64 decision not to call character witnesses is a strategic one to which enormous deference is owed, United States v. Terry, 366 F.3d 312, 317 (4th Cir. 2004), we are not obliged to give such deference when, as here, counsel s conduct is unreasonable and unjustifiable. If the Sixth Amendment is to have meaning, we cannot simply elevate counsel s flawed performance to the status of strategy. This is especially so in capital sentencing proceedings. During the sentencing phase of the trial, Blakeney s trial counsel presented three lay witnesses and one expert, Dr. Mark Worthen. the Two of the lay witnesses, correctional officers from county infractions witness, siblings, extremely jail, testified while Peggy jail. Blakeney (J.A. 56-60.) Blakeney (J.A. poor in that Ratcliff, one 143-51) testified that and that Mr. Huntley, the of did The commit third lay Blakeney s six their victim, Blakeney, Blakeney s mother, often drank too much. 51.) not family and was Gracie (J.A. 146- Trial counsel did not seek further testimony from Ms. Ratcliff about Blakeney s background or Mr. Huntley as a stepfather. 2 The testimony of the three lay witnesses represented 2 Evidence came in during the MAR hearing that the victim had physically abused Blakeney s mother and engaged in sexually inappropriate behavior with Blakeney s sisters. 65 only twelve pages of the entire trial transcript. 143-51.) Crow, one of Blakeney s attorneys, testified that he strategically chose to call because he knew her well. 3 Trial (J.A. 56-60, counsel only Ms. Ratcliff as a did want witness (J.A. 2217.) stated that they not to put Blakeney s wife on the stand for the strategic reason that she would highlight his drug use. Yet, evidence of Blakeney s drug use was prevalent throughout the record without her testimony. The drug use was emphasized specifically in Dr. Worthen s report, yet trial counsel thought that the doctor s testimony was the most effective way to present mitigation evidence. Blakeney s wife chaotic family life. could have presented evidence of their She testified at the MAR hearing that her oldest daughter, age fourteen, was in a violent relationship with her twenty-one-year-old husband, Aaron. When Blakeney came to his step-daughter s aid, Aaron pulled a gun on him. 4 This was not in the first time that things became physical that household, yet Blakeney did not respond violently then or ever. (J.A. 1646-47.) This was important testimony to be heard in 3 Crow served as Ms. Ratcliff s counsel three or four years prior to Blakeney s trial. (J.A. 2217.) 4 This is exactly what the victim did to Blakeney in the underlying offense. 66 juxtaposition government s to Blakeney s attempt to prior portray criminal Blakeney record as a man and the prone to violence. The majority s characterization of the other five siblings testimony presented at the MAR hearing as cumulative is incorrect. All of Blakeney s siblings were available and willing to be interviewed and provide unique testimony. Claree Blakeney Griffin testified at the MAR hearing and offered a portrait of Blakeney quite different from that painted by the government. She described her brother as a gentle and giving man, testifying that when the father that abandoned all seven children became ill as an elderly man, it was Blakeney who traveled to stay with him and take care of him until he got better on his feet. (J.A. 1400.) Blakeney cooked, cleaned, and helped his father pay the bills. This was but one example of Blakeney s actions that supported Griffin s testimony that her brother has a good heart. (J.A. 1402.) Griffin s testimony Catherine Taylor. was corroborated by another sister, Taylor added her own unique story to help describe why she thought her brother was a good person. she was having personal problems, Blakeney offered to When drive Taylor from North Carolina to Cleveland and then take the bus back. (J.A. 1602-03.) she needed him. (Id.) She said that he was always there when It is mystifying that trial counsel 67 disregarded Taylor s the entire testimony family, seemed to when be the MAR especially transcript of coherent and believable. Like his sisters testimony, Jimmy testimony could have helped his brother. Blakeney s ( Jimmy ) Not only could Jimmy have corroborated Blakeney s assertion that he had completed the DART program, but he also had his own unique story demonstrating Blakeney s positive character traits. Jimmy lived next door to the Wilsons, an elderly couple whom Blakeney would take shopping and fishing. Blakeney also did chores and ran errands for the couple without compensation. The majority did not (J.A. 1630.) explain how it was reasonable for trial counsel to discount five siblings, saying that they could not handle testifying, after seemed worthy of the stand. meeting only (Maj. Op. 43.) one sibling, who The information the family could have provided was vital because his family offered, among other things, an alternative portrayal to contrast the government s image of a man who had thoughtless disregard for the elderly and personal suffering. The MAR court stated that trial counsel talked to Blakeney s family members and sized them up in order to decide who should testify for Blakeney. Counsel met Blakeney s wife and mother and decided they did not have enough composure to testify. (Maj. Op. 42.) It is clear that trial counsel based 68 their decision on the way that these women spoke and their level of education, calling it composure. In fact, it seems that after trial counsel met these women, they prejudged the rest of Blakeney s large family, deciding that if these women lacked composure then no one in his family was worth interviewing. The majority appears to approve of Crow s stated reason for not calling these family members: I really had no prior contact with [them] . . . [i]t s hard to make a [really] good decision about something like that, with such short contact. (Maj. Op. 43.) It is hard to believe that the majority was satisfied with this excuse given that Crow s short contact with Blakeney s family members was the result of his failure to attempt to meet them. It is not clear whether counsel ignored Blakeney s family because they lacked composure or because Crow had no prior contact with them, but each excuse is inadequate on its own and indefensible when joined with the other. it be reasonable to conclude without meeting him or her? that a person lacks How can composure Clearly, trial counsel s excuses are unjustifiable. In finding that trial counsel were reasonable in failing to interview and offer Blakeney s family as witnesses, the court stated: Crow thought that defendant s family members were all good people, but he also knew that none of them were what you might call leading citizens of the 69 MAR community. None of defendant s family members held public office; none were members of any profession (e.g., ministers, lawyers, doctors, bankers.) Thus Crow did not call as witnesses at trial all of defendant s brothers and sisters. (J.A. 2221.) Needless to say, one need not be a minister, lawyer, doctor, or banker to be a respected or leading member of one s community. All of the people who testified for Blakeney at the MAR hearing were hardworking members of the community and, with the exception of one, none had criminal records. Trial counsel prejudged these potential witnesses and discounted them because they did not have fancy letters after their names. The MAR court, district court, and majority called this strained reasoning strategy, Strickland. Even and concluded that it satisfied that Blakeney s I disagree. if trial counsel did not believe family members were upstanding citizens worthy of the stand, had trial witnesses counsel such interviewed as Union them County they Deputy would Sheriff have led George to Curtis Parker. Parker testified at the MAR hearing that he had known Blakeney all of his life, that the incident was out of character for Blakeney, and that he would have testified at the sentencing enforcement proceeding. officer with years before retiring. persuasive at the (J.A. the 1375-88.) Sheriff s Parker Office was for a law seventeen His testimony certainly would have been sentencing proceeding, 70 because unlike the prison guards trial counsel presented at sentencing, Parker knew Blakeney s family intimately and had known Blakeney personally since he was a boy. Given the nature of Parker s close relationship with the family, a minimal amount of investigation would have led trial counsel to him. In fact, most of the information Blakeney s that would have aided in mitigation defense could have been easily obtained. The majority and the courts before it found Blakeney s trial counsel effective because they accepted Crow s decision to place all of the responsibility for mitigation investigation on Blakeney s family: people that came I guess the bottom line, I talked to those forward and I urged them and I would have talked to anybody else, any other family member that had-had they brought along with them. It s their family. One must appreciate Crow s honesty. (J.A. 2220.) He admitted that he allowed his mitigation investigation to begin and end with the efforts of Blakeney s family. He admitted that he was willing to talk to anyone provided they came to him, but forged no independent investigation despite the fact that such investigation could have revealed defense theories and character witnesses. This type of responsibility shifting has been rejected as ineffective in relevant case law. In Gray, this Court did not allow trial counsel to rely on the petitioner s failure to aid in his own defense. 71 529 F.3d at 225-26, 230 (finding that trial counsel was not allowed to rely on defendant s instruction not to spend another f ing penny on this trial because he didn t need a psychiatrist and [t]here was nothing wrong with him. ). In Rompilla, the defendant told his trial counsel that his background was unexceptional, yet the Supreme Court did not investigation there. allow trial counsel 545 U.S. at 381. to end their Investigation is as important to a proper defense as oral argument in court, and it is an especially essential element in the defense of a capital case. It is ironic that Blakeney s counsel shifted responsibility for the investigation onto the same family that they determined lacked composure. trial counsel s performance Even a cursory evaluation of reveals that it fell well below professional norms and greatly prejudiced Blakeney. The majority stated that the MAR court drew favorable comparisons to three of our decisions, implying that the MAR court s analysis was sound when it was not. (Maj. Op. 46.) Unlike in Tucker v. Ozmint, this Court cannot conclude that the psychologist ... gave the jury a full picture defendant s] ... disturbing social history. 42. of [the 350 F.3d at 441- Unlike the doctor in Tucker, Dr. Worthen could not have presented a full picture of Blakeney to the jury, because, as acknowledged, he lacked the complete picture. 72 In this case, Blakeney s family could have provided the full picture, but no one interviewed them to obtain it. The MAR court and the majority correctly characterized Bacon v. Lee, where we stated: [C]ounsel could reasonably have concluded, based on their earlier investigation, that the evidence they had developed . . . would give the jury an accurate picture of [the petitioner s] . . . personality and that further investigation into . . . [the petitioner s] background would not be fruitful. 225 F.3d at 481. In contrast, here further investigation would certainly have been fruitful in developing Blakeney s mitigation defense. Had trial counsel done even minimal investigation, they would have discovered that Blakeney s family could have presented valuable information to the jury. This information would have supplemented the doctor s testimony with mitigating evidence relating to Blakeney s benevolent conduct, kind heart, and good character. It stated, is unclear Unlike in how Byram is . Wiggins, analogous, . . since counsel this here Court spent considerable time developing a picture of [petitioner s] . . . life. 5 339 F.3d at 210. The record reflects that trial counsel 5 In Byram, we held that the petitioner had not shown that his trial counsel s performance fell below an objective standard of reasonableness. Id. at 209. One member of Byram s defense team logged 623.5 hours of pre-trial preparation while the other member met with Byram at least thirty times. Id. at 210. Blakeney s trial counsel logged a total of 506.47 hours working (Continued) 73 did not spend a considerable amount of time developing a picture of Blakeney s life. The cases cited by the MAR court, and relied upon by the majority, are inapposite to the case at bar. The MAR court proffered, and the majority tacitly accepts, some troubling reasons to justify its finding that trial counsel was not ineffective in failing to interview Blakeney s family. The court s first stated reason for concluding that trial counsel s failure to interview and call Blakeney s family as character witnesses was not a source of prejudice was that several of the witnesses demonstrated an obvious bias in favor of defendant based on their past close familial relationship to him. must (Maj. Op. 47.) The MAR court seems to suggest that courts discredit defendant. the testimony of family members who love the Is obvious bias . . . based on . . . close familial on Blakeney s entire case. (J.A. 2167-69.) Most of trial counsel Crow s hours were in court. Despite the fact that one member of Byram s defense team logged more hours in pre-trial preparation than the total of both of Blakeney s defense attorneys during the entire case, this is not dispositive as we did not base our decision in Byram merely on the number of hours logged by the attorneys. Byram s defense team hired a forensic psychologist and a forensic psychiatrist. Id. Byram s defense team carefully analyzed the findings of the doctors and decided not to present the testimony of either, which was a strategic decision based on the potentially prejudicial findings of the doctors. Id. Blakeney could only wish that his trial counsel had understood the potentially prejudicial effect of Dr. Worthen s diagnosis and supplemented it with mitigation evidence. 74 relationship not just a convoluted way of describing love? If this Court were to adopt the logic of the MAR court, then we would have to disregard the testimony of all family members even when, as here, they possess valuable mitigation evidence. The court went on to state that several of the witnesses based their opinion that defendant was a man of good character on factors not character. normally (Id.) Yet considered as shown to above, be indicia of his siblings good offered specific conduct as evidence to support their assertions that Blakeney had a kind heart and was a good person. Additionally, the court stated that considerable evidence of record shows that defendant is not a man of good character (e.g., the evidence of his history of substance abuse and his commission of armed robbery, larceny, assault, arson, and murder). This is an especially troubling assertion. (Id.) Under the court s standard, no person with a history of criminal convictions and substance abuse could be considered a good person no matter how many years he was sober or how many good deeds he had done. Under the court s standard, there would be no need to have character witnesses at all because if a man were convicted of a crime, he would be, per se, a man of bad character. Most surprisingly, the court said, [D]efendant did not introduce any significant evidence proving that he is in fact a man of good character. (Id.) 75 However, Blakeney presented fourteen character witnesses, many of whom said wonderful and unique things about specific evidence. him and supported their testimony with By the MAR court s standard, it seems there is nothing Blakeney could have presented to demonstrate good character. Finally, the MAR court justified its finding that Blakeney was not prejudiced by his counsel s deficient performance by stating: [E]vidence of record shows that after defendant completed the DART program while serving five years confinement and after he was placed on probation, defendant disregarded the lessons he should have learned and returned to the costly and debilitating practice of using illegal drugs. however, statements argues that doubting he that was he prejudiced had completed (Id.) Blakeney, Dr. Worthen s by the DART program because the prosecutor exploited it in closing argument to cast doubt on other aspects of his life. The MAR court s conclusion that Blakeney was not prejudiced by the DART inference because he had relapsed is unpersuasive. Blakeney never claimed he was drug-free; to he merely attempted demonstrate that he had completed the DART program in an effort to rid himself of drugs. Although he was telling the truth about an important aspect of his mitigation defense, proceeding as being a liar. he was impugned at the sentencing This was clearly prejudicial. 76 Blakeney s indefensible Worthen s evidence trial and led counsel s to a failure meager poorly informed diagnosis against Blakeney, his to investigate mitigation could sister s defense: is Dr. not mitigate testimony was the but a small piece of the full story his family could have provided, and the two correctional officers testimony paled in comparison to that of the Deputy Sheriff. evidence on guilt was Trial counsel admitted that the stacked against Blakeney, which only increased the necessity to develop the mitigation defense that was readily available if they had properly investigated the case, assessed the witnesses, and presented the evidence at the sentencing phase of the trial. Blakeney was practically left defenseless at the sentencing proceeding. In this matter of life or death, the Sixth Amendment certainly requires more of counsel. Thus, I dissent. 77

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