Vandross v. Stirling, No. 18-6916 (4th Cir. 2021)
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The Fourth Circuit affirmed the district court's denial of habeas relief to petitioner under 28 U.S.C. 2254, rejecting petitioner's claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). Petitioner contends that his trial counsel failed to call any forensic experts to testify on his behalf and asserted that such failure was not a strategic decision but was made out of counsel's ignorance of the availability of funding to pay experts.
Even though the district court did not restrict its review by considering only the state court record, as required in the circumstances, but instead considered an affidavit of a forensic expert that petitioner presented for the first time in the district court, the court nonetheless agreed with the district court's conclusion that the expert failed to show prejudice with evidence or a proffer of evidence "of what a defensive forensic expert would have testified to and how that could have altered the trial." The court explained that the forensic expert only identified investigatory issues that he or another forensic expert could have explored and did not test or challenge any evidence actually presented to the jury so as to support a conclusion that testimony from him or another forensic expert could have made a difference.
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