Brown v. Polk

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-30
WILLIE BROWN, JR.,
Petitioner - Appellant,
versus
MARVIN POLK, Warden, Central Prison, Raleigh,
North Carolina,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
District Judge. (CA-98-774-5-H-HC)
Argued: May 27, 2005 Decided: June 23, 2005
Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished opinion. Judge Traxler wrote the opinion,
in which Judge Luttig and Judge Michael joined.
ARGUED: James Donald Cowan, Jr., SMITH MOORE, L.L.P., Greensboro,
North Carolina, for Appellant. Sandra Wallace-Smith, Assistant
Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee. ON BRIEF: Laura M. Loyek, SMITH
MOORE, L.L.P., Raleigh, North Carolina, for Appellant. Roy Cooper,
Attorney General, Barry McNeill, Special Deputy, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
TRAXLER, Circuit Judge:
Petitioner Willie Brown, Jr., appeals the district court’s
denial of his petition for a writ of habeas corpus under 28
U.S.C.A. § 2254 (West 1994 & Supp. 2005), which alleged (1) that
his death sentence violates the Eighth and Fourteenth Amendments to
the United States Constitution because the jury was instructed that
it must unanimously find the existence of any mitigating
circumstances; and (2) that his appellate counsel rendered
constitutionally ineffective assistance by failing to argue this
unanimity issue on direct appeal to the North Carolina Supreme
Court. For the following reasons, we affirm.
I.
In November 1983, a North Carolina jury convicted Brown of the
armed robbery and first-degree murder of Vallerie Ann Roberson
Dixon. The facts leading to Brown’s conviction are fully set forth
by the North Carolina Supreme Court in State v. Brown, 337 S.E.2d
808 (N.C. 1985), and by this court in Brown v. Lee, 319 F.3d 162(4th Cir. 2003). For purposes of this appeal, the following
excerpt will suffice:
At approximately 5:47 a.m. on the morning of March
6, 1983, a Zip Mart convenience store on Main Street in
Williamston, North Carolina, where Ms. Dixon was supposed
to be working as a clerk, was reported empty. A
patrolling police officer had seen Ms. Dixon in the store
less than thirty minutes prior to the report. Money from
the cash register and a store safe was missing, as was
Ms. Dixon’s automobile. A search for Ms. Dixon was
immediately begun.
3
At about 6:20 a.m., a police officer spotted Ms.
Dixon’s automobile traveling on a nearby road. The
automobile was stopped by police officers, and Brown, who
was driving alone in the vehicle, was immediately placed
under arrest and advised of his rights. A .32 caliber
six-shot revolver, a paper bag containing approximately
$90 in cash and change, and a change purse containing Ms.
Dixon’s drivers license and social security card were
found in the automobile. A pair of ski gloves and a
toboggan cap with eye holes cut out of it were found on
Brown’s person. The exterior of the car was partly
covered with fresh mud. According to the police
officers, Brown admitted that he robbed the Zip Mart and
fled in Ms. Dixon’s car, but claimed that Ms. Dixon was
unharmed when he left the store.
At approximately 4:00 p.m. that afternoon, Ms.
Dixon’s body was found on a muddy logging road in a rural
area outside Williamston. Forensic pathology and firearm
tests revealed that Ms. Dixon had been shot six times
with the .32 caliber revolver that police had found in
Dixon’s car at the time of Brown’s arrest.
Id. at 165. In November, 1983, Brown was tried and convicted of
first degree murder and the capital sentencing phase of the trial
began. At the conclusion of the sentencing phase, the jury found
three aggravating circumstances.1 The trial court submitted seven
possible mitigating circumstances for the jury’s consideration, but
the jury found none.2 The jury returned a recommendation that
1
The jury found the following aggravating circumstances: (1)
that Brown had previously been convicted of a felony involving the
use of threat or violence to the person; (2) that the murder was
committed by Brown while he was engaged in the commission of or
flight after committing a robbery; and (3) that the murder was
especially heinous, atrocious, or cruel.
2
The mitigating circumstances submitted to the jury for
consideration were (1) that Brown had no significant history of
prior criminal activity, (2) that Brown was a person of limited
intelligence and education, (3) that Brown was under the age of 21
at the time he committed any previous felonies for which he had
4
Brown be sentenced to death for the murder conviction. On appeal
to the North Carolina Supreme Court, counsel raised seventeen
claims of error, but did not assert that the trial judge erred in
instructing the jury that mitigating circumstances must be found
unanimously. The North Carolina Supreme Court affirmed Brown’s
conviction and death sentence, see Brown, 337 S.E.2d at 830, and
the United States Supreme Court denied Brown’s petition for writ of
certiorari in 1986. See Brown v. North Carolina, 476 U.S. 1164(1986).
On March 9, 1987, Brown filed a motion for appropriate relief
(“MAR”), seeking state habeas relief. For the first time, Brown
asserted that the trial court had erroneously instructed the jury
that it must unanimously find any mitigating circumstances, in
violation of his rights under the Eighth and Fourteenth Amendments
to the United States Constitution. On November 19, 1987, the MAR
court concluded that, because Brown had been in a position to raise
the unanimity issue before the North Carolina Supreme Court on
direct appeal but had failed to do so, he was procedurally barred
from raising it on state habeas.
been convicted, (4) that Brown had not been convicted of any
criminal offense for 18 years, (5) that Brown surrendered at the
time of his arrest without resistance to law enforcement officers,
(6) that Brown confessed soon after his arrest to robbing the Zip
Mart, and (7) any other circumstances which the jury deemed to have
mitigating value.
5
Six months prior to Brown’s November 1983 conviction, the
North Carolina Supreme Court rejected a claim that it was error for
the trial court to instruct the jury that it must unanimously find
mitigating circumstances. See State v. Kirkley, 302 S.E.2d 144,
156-57 (N.C. 1983). However, on June 6, 1988 (five years after
Kirkley was decided and two years after Brown’s conviction became
final), the United States Supreme Court reversed a death sentence
imposed in Maryland because there was “a substantial probability
that reasonable jurors . . . well may have thought they were
precluded from considering any mitigating evidence unless all 12
jurors agreed on the existence of a particular such circumstance.”
Mills v. Maryland, 486 U.S. 367, 384 (1988). Two years later, the
Supreme Court held that North Carolina’s unanimity requirement
likewise failed to pass constitutional muster. See McKoy v. North
Carolina, 494 U.S. 433, 443 (1990) (holding that the Constitution
requires that “each juror must be allowed to consider all
mitigating evidence in deciding . . . whether aggravating
circumstances outweigh mitigating circumstances, and whether the
aggravating circumstances, when considered with any mitigating
circumstances, are sufficiently substantial to justify a sentence
of death”).
In the wake of these Supreme Court decisions, Brown made a
number of attempts to re-raise the unanimity issue on state habeas
and to obtain reconsideration of the state MAR court’s November
6
1987 order finding the claim to be procedurally barred, but was
unsuccessful. See Brown, 319 F.3d at 166-67. On June 16, 1997,
the state court denied all remaining claims for state MAR relief,
including Brown’s claim that his counsel was ineffective for
failing to raise the unanimity issue on direct appeal, and the
North Carolina Supreme Court denied Brown’s petitions for writ of
certiorari and for reconsideration. See State v. Brown, 505 S.E.2d
879 (N.C. 1998); State v. Brown, 501 S.E.2d 920 (1998). The United
States Supreme Court denied Brown’s petition for writ of
certiorari. See Brown v. North Carolina, 525 U.S. 888 (1998).
On December 24, 1998, Brown filed his petition for habeas
relief in the district court under 28 U.S.C.A. § 2254, raising
eleven constitutional challenges to his conviction and sentence,
including claims that his jury was improperly instructed that it
had to be unanimous in finding any mitigating circumstances, and
that his counsel was constitutionally ineffective in failing to
raise the unanimity claim on direct appeal to the North Carolina
Supreme Court.
On February 25, 2002, the district court granted the State’s
motion for summary judgment, denied Brown’s motion for summary
judgment, and dismissed Brown’s habeas petition. With regard to
the unanimity claim, the district court concluded that it was
precluded from reviewing the merits of the claim because the state
court procedurally barred Brown from raising it on state habeas
7
under an adequate and independent state law ground. The district
court also rejected Brown’s claim that his appellate counsel was
constitutionally ineffective for failing to raise the unanimity
claim on direct appeal. Brown’s subsequent motion to alter or
amend the judgment was also denied.
In May 2002, Brown filed an application for a certificate of
appealability, seeking, inter alia, to appeal the district court’s
conclusion that it was procedurally barred from considering the
unanimity claim, including the finding that counsel’s failure to
raise the issue on direct appeal did not constitute cause to excuse
the procedural default. The district court granted Brown’s
application for a certificate of appealability as to the unanimity
claim. See 28 U.S.C.A. § 2253 (West Supp. 2005).
On February 14, 2003, we reversed the district court’s holding
that it was precluded from considering the merits of Brown’s
unanimity claim under the doctrine of procedural default because
North Carolina “[had] not regularly and consistently applied its
procedural default rule . . . to claims challenging unanimity
instructions.” Brown, 319 F.3d at 177. Because our precedent at
the time was that the unanimity holdings in Mills and McKoy were
exceptions to the general rule that “new rules” of constitutional
procedure do not apply retroactively to cases on collateral review,
see Williams v. Dixon, 961 F.2d 448, 453 (4th Cir. 1992), we
remanded the unanimity claim to the district court for
8
consideration on the merits, see Brown, 319 F.3d at 168, 177. And,
because remand for a determination on the merits was in order, we
found it unnecessary to address Brown’s claim that his appellate
counsel was ineffective for failing to raise the unanimity issue on
direct appeal to the state court. See id. at 175 n.4.
After our decision was issued remanding the case for a
decision on the merits, the Supreme Court granted certiorari in the
case of Beard v. Banks to address the question of whether Mills v.
Maryland announced a “new rule” under Teague v. Lane, 489 U.S. 288(1989), not applicable retroactively to cases on federal habeas
review. See Beard v. Banks, 539 U.S. 987 (2003). Because this
directly impacted our decision in Williams and the propriety of the
district court’s examination of the merits of the unanimity claim
on remand, the district court issued an order on January 7, 2004,
holding Brown’s case in abeyance pending a decision by the United
States Supreme Court in Beard.
On June 24, 2004, the Supreme Court issued its decision in
Beard, holding that McKoy announced a new rule of law that did not
fall within either of the Teague exceptions to the general rule of
nonretroactivity, effectively overruling our decision in Williams.
See Beard v. Banks, 124 S. Ct. 2504, 2515 (2004). Accordingly,
under the Supreme Court’s directive in Beard, federal habeas courts
are precluded from applying the unanimity rules of Mills and McKoy
9
retroactively to state death penalty cases that became final before
the rule was announced. See id.On August 25, 2004, the district court issued an order
granting the state’s motion for summary judgment with respect to
Brown’s unanimity claim. Because the United States Supreme Court
had denied Brown’s petition for a writ of certiorari on June 2,
1986, well before the Supreme Court issued its decisions in Mills
or McKoy, the district court concluded that Brown was not entitled
to a writ of habeas corpus. The district court denied Brown’s
subsequent motion to alter or amend the judgment.3
In November 2004, Brown filed an application for a certificate
of appealability with the district court, seeking to appeal the
district court’s finding that Teague and Beard prohibit application
of the rule in Mills and McKoy to Brown’s case, as well as the
district court’s prior ruling that Brown’s appellate counsel was
not ineffective for failing to raise the McKoy error in Brown’s
direct appeal to the state court. The district court granted
Brown’s application for a certificate of appealability as to the
unanimity claim, and we granted Brown’s application for a
3
Because the merits of the unanimity claim were never
addressed by this court, and there is no dispute that the
controlling legal authority regarding Teague’s application changed
dramatically after our remand, the “mandate rule” did not prevent
the district court from denying the claim on the basis of Teague.
See United States v. Bell, 5 F.3d 64, 66-67 (4th Cir. 1993).
10
certificate of appealability as to the ineffective assistance of
counsel claim.
II.
We begin with Brown’s claim that his rights under the Eighth
and Fourteenth Amendments were violated, and that he is entitled to
a new sentencing hearing, because he was sentenced pursuant to the
jury instruction requiring unanimity for the consideration of
mitigating circumstances. The district court held that the claim
was barred by Teague. We agree.
In Teague, the Supreme Court held that “[u]nless they fall
within an exception to the general rule, new constitutional rules
of criminal procedure will not be applicable to those cases which
have become final before the new rules are announced.” Teague, 489
U.S. at 310. “[T]he determination whether a constitutional rule of
criminal procedure applies to a case on collateral review involves
a three-step process.” Beard, 124 S. Ct. at 2510. We must (1)
“determine when the defendant’s conviction became final,” (2)
“ascertain the legal landscape as it then existed, and ask whether
the Constitution, as interpreted by the precedent then existing,
compels the rule,” i.e., “decide whether the rule is actually
‘new,’” and (3) if so, “consider whether [the new rule] falls
within either of the two exceptions to nonretroactivity” set forth
in Teague. Id. (internal quotation marks and citations omitted).
The exceptions to nonretroactivity are limited; “the bar does not
11
apply to rules forbidding punishment of certain primary conduct or
to rules prohibiting a certain category of punishment for a class
of defendants because of their status or offense” or to “watershed
rules of criminal procedure implicating the fundamental fairness
and accuracy of the criminal proceeding.” Id. at 2513 (internal
quotation marks and alterations omitted).
In short, Teague’s “nonretroactivity principle prevents a
federal court from granting habeas corpus relief to a state
prisoner based on a rule announced after his conviction and
sentence became final,” unless the rule falls within one of the two
limited exceptions. Caspari v. Bohlen, 510 U.S. 383, 389 (1994).
“[T]he nonretroactivity principle is not jurisdictional in the
sense that federal courts must raise and decide the issue sua
sponte,” but “if the State does argue that the defendant seeks the
benefit of a new rule of constitutional law, the court must apply
Teague before considering the merits of the claim.” Id. (internal
quotation marks and alterations omitted).
In this case, the State preserved its argument that the rule
in Mills and McKoy should be viewed as a new rule not applicable
retroactively to Brown’s conviction; they raised the precise issue
in response to Brown’s prior appeal. And, in Beard, the Supreme
Court held that Mills did indeed announce a “new rule” regarding
unanimity which does not fall within either of the two exceptions
to Teague, effectively overruling our decision in Williams. See
12
Beard, 124 S. Ct. at 2515. There is also no dispute that Brown’s
conviction became final before the “new rule” of Mills and McKoy
was announced -- the North Carolina Supreme Court affirmed Brown’s
conviction and sentence on December 10, 1985, and the United States
Supreme Court denied Brown’s petition for a writ of certiorari on
June 6, 1986. See Caspari, 510 U.S. at 390 (“A state conviction
and sentence become final for purposes of retroactivity analysis
when the availability of direct appeal to the state courts has been
exhausted and the time for filing a petition for a writ of
certiorari has elapsed or a timely filed petition has been finally
denied.”). Indeed, Brown concedes that his conviction and sentence
became final prior to the Supreme Court’s decision in Mills.
Nevertheless, Brown claims that he should receive the benefit
of the Mills/McKoy rule (even though his conviction became final
before either case was decided) because the state court never
adjudicated the merits of his unanimity claim. Brown did not raise
the unanimity issue on direct appeal, and the state MAR court did
not reach the merits of the claim because it concluded that the
claim was procedurally barred. Where the state court has failed or
refused to render an adjudication on the merits of a constitutional
claim, Brown contends that the limitations in Teague and Beard
simply do not apply and “there is no basis for denying criminal
defendants the benefit of new constitutional protections” to upset
13
a final state court conviction. Brief of Appellant at 11. We
disagree.
As an initial premise, we note that Brown has pointed to no
authority for this purported “third” exception to the application
of Teague. Brown has uncovered no cases in which a court has
refused to apply Teague because the state court had not considered
the merits of a claim that ultimately led to the creation of a “new
rule” in an unrelated case, and the cases that have been referenced
suggest that no such exception was contemplated. See Lambrix v.
Singletary, 520 U.S. 518, 521, 539-40 (1997) (holding that
petitioner’s constitutional claim, which the state court had
rejected without consideration of the merits on the ground that it
was procedurally barred, was based upon a “new rule” barred by
Teague); Burch v. Corcoran, 273 F.3d 577, 584 (4th Cir. 2001)
(applying Teague to bar Apprendi claim that had been raised for the
first time in the petitioner’s effort to obtain federal habeas
relief); Fisher v. Texas, 169 F.3d 295, 304 (5th Cir. 1999)
(holding that Teague bar applied to federal habeas claim that was
neither procedurally barred nor adjudicated on the merits by the
state court); Daniel v. Cockrell, 283 F.3d 697, 702, 705 (5th Cir.
2002) (same). And, as pointed out by the district court, we
indicated to the contrary in Green v. French, 143 F.3d 865, 874
(4th Cir. 1998), abrogated on other grounds by Williams v. Taylor,
529 U.S. 362, 409 (2000) (“[T]he anti-retroactivity principles of
14
Teague would appear applicable in contexts where the limitations of
section 2254(d)(1) are not, such as where a habeas petitioner’s
constitutional claim is not properly raised in state court and
therefore not adjudicated on the merits in State court, but where
a court may nonetheless conclude that the failure to properly raise
the claim in state court is not excused (or perhaps, excused but
Teague-barred) because the claim relies upon a new rule of
constitutional law not made retroactive on collateral review.”)
(internal quotation marks and citation omitted)).
Nor do we view the rationales of the “new rule” doctrine as
supporting such an exception. Brown asserts that “[a] primary
justification for Teague’s limitation on retroactive application of
new constitutional rules is comity between state and federal
courts,” and that “[t]his justification is inapplicable in cases
where the state court has not issued an adjudication on the
merits.” Brief of Appellant at 15-16. The “new rule” doctrine of
Teague, however, respects the interests of comity to state court
adjudications and the finality of criminal judgments. See Lockhart
v. Fretwell, 506 U.S. 364, 372 (1993) (noting that Teague “was
motivated by a respect for the States’ strong interest in the
finality of criminal convictions, and the recognition that a State
should not be penalized for relying on ‘the constitutional
standards that prevailed at the time the original proceedings took
place’”) (quoting Teague, 486 U.S. at 306)); Teague, 489 U.S. at
15
306 (“‘[T]he threat of habeas serves as a necessary additional
incentive for trial and appellate courts throughout the land to
conduct their proceedings in a manner consistent with established
constitutional standards. In order to perform this deterrence
function, . . . the habeas court need only apply the constitutional
standards that prevailed at the time the original proceedings took
place.’”) (quoting Desist v. United States, 394 U.S. 244, 262-63
(1969) (Harlan, J., dissenting)); id. at 308 (noting that “the
scope of the writ” had never been defined “simply by reference to
a perceived need to assure that an individual accused of crime is
afforded a trial free of constitutional error,” but rather by
recognition “that interests of comity and finality must also be
considered” (internal quotation marks omitted)).
Under Brown’s suggested exception to the application of the
Teague doctrine, however, the “finality” of a state court
conviction and sentence would not be respected unless the state
court actually considered and rejected the very claim that the
Supreme Court later found meritorious. Indeed, a state court
judgment could never truly be “final,” because it would always be
subject to collateral attack on the basis of a claim not presented
and rejected on the merits by the state court but which resulted in
a “new rule” upon presentation to the Supreme Court. Such
uncertainty contravenes the very basis for respecting the finality
of a state court judgment. See Teague, 489 U.S. at 309 (“[T]he
16
principle of finality . . . is essential to the operation of our
criminal justice system. Without finality, the criminal law is
deprived of much of its deterrent effect.”); id. (“‘No one, not
criminal defendants, not the judicial system, not society as a
whole is benefitted by a judgment providing a man shall tentatively
go to jail today, but tomorrow and every day thereafter his
continued incarceration shall be subject to fresh litigation.’”
(quoting Mackey, 401 U.S. at 691 (Harlan, J., concurring in
judgments in part and dissenting in part))).
Brown asserts that “the application of new constitutional
protections cannot undermine the state’s efforts to apply then-
existing precedent, and no friction is generated by the application
o[f] new constitutional rules on collateral review” if the state
court has not “adjudicat[ed] . . . the merits of a defendant’s
constitutional claims.” Brief of Appellant at 18. But, such an
approach to finality would no less result in the “understandabl[e]
frustrat[tion]” of state courts that have “faithfully appl[ied]
existing constitutional law only to have a federal court discover,
during a habeas proceeding, new constitutional commands” that
Teague set out to eliminate except in the most narrow of
exceptions. Teague, 489 U.S. at 310 (alteration and internal
quotation marks omitted). It also renders the “new rule” doctrine
dependent upon individualized determinations of the facts and
procedural history of each case. If defense counsel raises the
17
constitutional claim before the state court and it is rejected, the
defendant cannot obtain federal habeas relief based upon a contrary
Supreme Court decision issued after the conviction became final.
But if defense counsel fails to raise the constitutional claim
before the state court, or the state court otherwise has no
occasion to consider the claim on the merits (or refuses to
consider the claim on the merits due to a procedural bar), the
defendant can obtain federal habeas relief based upon a later
Supreme Court decision.
As noted in Teague, our “relevant frame of reference” in
federal habeas review “is not the purpose of the new rule whose
benefit the defendant seeks, but instead the purposes for which the
writ of habeas corpus is made available.” Id. at 306 (alteration
and internal quotation marks omitted).
Habeas corpus always has been a collateral remedy,
providing an avenue for upsetting judgments that have
become otherwise final. It is not designed as a
substitute for direct review. The interest in leaving
concluded litigation in a state of repose, that is,
reducing the controversy to a final judgment not subject
to further judicial revision, may quite legitimately be
found by those responsible for defining the scope of the
writ to outweigh in some, many, or most instances the
competing interest in readjudicating convictions
according to all legal standards in effect when a habeas
petition is filed.
Id. (quoting Mackey, 401 U.S. at 682-83). We find nothing in the
language of Teague that would make the concerns for comity and
finality dependent upon whether the state court had occasion to or
otherwise adjudicated the constitutional issue on the merits, and
18
no indication that a third “exception” to the nonretroactivity
principle was ever contemplated by the Court. On the contrary, the
Court noted at the outset of Teague the lack of “a unifying theme”
in prior cases and the need to “clarify how the question of
retroactivity should be resolved for cases on collateral review.”
Id. at 300. Had such an exception for the applicability of Teague
been in order, we think the Court would have made that equally
clear.
We also reject Brown’s contention that the language of 28
U.S.C.A. § 2254(d), as amended by the AEDPA, compels a holding that
Teague only applies to cases in which the petitioner has received
an adjudication on the merits of his constitutional claim.
Specifically, Brown asserts that the application of Teague in his
case “is contrary to the limitation on federal court review
established by the federal habeas statute, 28 U.S.C. § 2254(d),
which explicitly codifies the principle that habeas review should
be restricted only in cases involving an adjudication on the
merits.” Brief of Appellant at 16. We disagree.
The amendments to the AEDPA modified the standard of review
that courts apply to claims which are reviewable on federal habeas.
Before the amendments were adopted, federal habeas courts reviewed
such constitutional claims de novo. Under the amendments, federal
habeas courts review such constitutional claims under the
deferential provisions set forth therein, i.e., we may only grant
19
habeas relief based upon a constitutional claim adjudicated on the
merits by the state court if the state court adjudication is
contrary to or an unreasonable application of clearly established
Supreme Court precedent.
The language of § 2254(d), however, does not engraft upon
Teague’s general rule of nonretroactivity a requirement that the
state court must have adjudicated the merits of the constitutional
claim that ultimately resulted in the “new rule.” Contrary to
Brown’s contention, we view the more deferential standard of review
on federal habeas which was implemented by the amendments to
§ 2254(d) as consistent with the traditional application of Teague
to “new rule” cases. If a constitutional claim has been
adjudicated on the merits by the state court, we may not grant
federal habeas relief unless that adjudication is contrary to or an
unreasonable application of “clearly established” Supreme Court
precedent, i.e., an “old rule” under Teague jurisprudence. If the
state court adjudication is contrary to or an unreasonable
application of “clearly established” Supreme Court precedent, then
§ 2254(d) is no bar to relief, but habeas relief is not required;
rather, the federal court reviews the merits of the claim under the
pre-AEDPA de novo standard, no longer constrained by the deference
required under § 2254(d). See Moody v. Polk, No. 04-21, 2005 WL
1118275 (4th Cir. May 12, 2005). Under Teague jurisprudence,
however, “new rules” may not be applied to upset a state court
20
conviction, regardless of whether there has been a state court
adjudication on the merits of the claim, unless one of the two
narrow Teague exceptions exists. The constitutional claim is
simply not “reviewable” on the merits by the federal habeas court
in the first instance.
In this case, the North Carolina state courts “conduct[ed]
their proceedings in a manner consistent with established
constitutional standards,” i.e., those “constitutional standards
that prevailed at the time the original proceedings took place.”
Teague, 489 U.S. at 306 (internal quotation marks omitted).
Indeed, just six months before Brown’s trial, the North Carolina
Supreme Court confronted the unanimity issue and ruled that the
requirement was constitutional. See Kirkley, 302 S.E.2d at 156-57.
Upsetting the state court’s judgment in Brown’s case, based upon a
new Supreme Court rule that contradicted the settled law in North
Carolina at the time Brown’s conviction and sentence became final,
would strike at the very heart of the concerns for finality and
comity expressed in Teague and, we believe, would directly
contravene the directives laid down in Teague and Beard.
Accordingly, we affirm the judgment of the district court denying
habeas relief based upon Brown’s unanimity claim. Because “Mills
announced a new rule of constitutional criminal procedure that
falls within neither Teague exception,” the “rule cannot be applied
21
retroactively” to Brown on federal habeas review. Beard, 124 S.
Ct. at 2515.
III.
Brown next contends that he is entitled to habeas relief
because his appellate counsel rendered constitutionally ineffective
assistance in failing to argue on direct appeal that the unanimity
instruction violated his constitutional rights. We disagree.
The Sixth Amendment requires that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence,” U.S. Const. amend. VI, and
that such assistance be effective, see Strickland v. Washington,
466 U.S. 668, 686 (1984). In order to establish an ineffective
assistance of appellate counsel claim before the state court, Brown
was required to demonstrate “that his counsel was objectively
unreasonable in failing” to identify and argue the unanimity issue,
and “a reasonable probability that, but for his counsel’s
unreasonable failure . . ., he would have prevailed on his appeal.”
Smith v. Robbins, 528 U.S. 259, 285 (2000) (citation omitted); see
Hudson v. Hunt, 235 F.3d 892, 895-96 (4th Cir. 2000). “Unless
[Brown] makes both showings, it cannot be said that the . . . death
sentence resulted from a breakdown in the adversary process that
renders the result unreliable.” Strickland, 466 U.S. at 687. The
burden is a high one.
22
In applying th[e] [Strickland] test to claims of
ineffective assistance of counsel on appeal . . .,
reviewing courts must accord appellate counsel the
“presumption that he decided which issues were most
likely to afford relief on appeal.” Pruett v. Thompson,
996 F.2d 1560, 1568 (4th Cir. 1993). Counsel is not
obligated to assert all nonfrivolous issues on appeal, as
“[t]here can hardly be any question about the importance
of having the appellate advocate examine the record with
a view to selecting the most promising issues for
review.” Jones v. Barnes, 463 U.S. 745, 752 (1983); see
also Smith v. South Carolina, 882 F.2d 895, 899 (4th Cir.
1989). Indeed, “‘[w]innowing out weaker arguments on
appeal and focusing on’ those more likely to prevail, far
from being evidence of incompetence, is the hallmark of
effective appellate advocacy.” Smith v. Murray, 477 U.S.
527, 536 (1986) (quoting Jones, 463 U.S. at 751); see
also Smith, 882 F.2d at 899 (counsel’s failure to raise
a weak constitutional claim may constitute an acceptable
strategic decision designed “to avoid diverting the
appellate court's attention from what [counsel] felt were
stronger claims”). Although recognizing that
“[n]otwithstanding Barnes, it is still possible to bring
a Strickland claim based on counsel’s failure to raise a
particular claim” on direct appeal, the Supreme Court has
recently reiterated that “it [will be] difficult to
demonstrate that counsel was incompetent.” Robbins, 120
S. Ct. at 765. “‘Generally, only when ignored issues are
clearly stronger than those presented, will the
presumption of effective assistance of counsel be
overcome.’” Id. (quoting Gray v. Greer, 800 F.2d 644,
646 (7th Cir. 1986)).
Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (en banc).
Because Brown’s Sixth Amendment claim was adjudicated on the
merits by the North Carolina state court, Brown’s claims are
subject to the deferential standards set forth in the amendments to
28 U.S.C.A. § 2254(d). We are precluded from granting habeas
relief unless we conclude that the state court’s adjudication of a
claim “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
23
determined by the Supreme Court of the United States” or “resulted
in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C.A. § 2254(d); see Williams, 529 U.S. at 412.4
Under Strickland, Brown was required to demonstrate that it
was objectively unreasonable for his counsel to fail to raise a
unanimity claim on direct appeal in 1985 and that, but for his
counsel’s deficient performance, there is a reasonable probability
that his appeal would have succeeded. Noting that “[a]t the time
that the defendant’s case was tried, the North Carolina Supreme
Court had upheld the jury instruction that required the sentencing
jury to be unanimous in the finding of a mitigating circumstance
[in Kirkley] and that “the Supreme Court did not reverse that
opinion until 1990,” J.A. 1853, the state MAR court concluded that
appellate counsel’s “[f]ailure to anticipate a new rule of law
d[id] not constitute ineffective assistance of counsel.” J.A.
4
Brown argues that we must evaluate the prejudice prong of
Strickland de novo because the state MAR court, when evaluating the
second prong of Strickland’s test, i.e., the “prejudice” prong,
required a showing that the result “would have been different,”
instead of only a “reasonable probability” that the result “would
have been different.” Brief of Appellant at 38-39 (internal
quotation marks omitted); see Moody v. Polk, No. 04-21, 2005 WL
1118275 (4th Cir. May 12, 2005). Because we conclude that the
state court’s determination that appellate counsel’s performance
was not deficient is neither contrary to nor an unreasonable
application of the first prong of Strickland, we do not reach the
prejudice inquiry and express no opinion as to what standard of
review would be appropriate to apply to the second prong of the
Strickland inquiry.
24
1854. The state court also concluded that Brown had “failed to
prove that the failure of counsel to raise any of the alleged
errors enunciated in this claim was not within the range of
competence demanded of attorneys in criminal cases or such that the
defendant’s appellate counsel was not functioning as counsel as
guaranteed by the Sixth Amendment of the United States
Constitution.” J.A. 1854. The district court, on federal habeas
review, agreed:
[Brown’s] evidence is simply not sufficient to overcome
the strong presumption that counsel’s performance fell
within the wide range of reasonable professional
assistance. It is of no consequence whether counsel’s
failure to raise the claim was an intentional tactical
choice or an inadvertent omission, for [Brown] has failed
to establish that the prevailing professional norm in
1985 required appellate counsel to challenge the
unanimity requirement. The Sixth Amendment does not
require counsel to recognize and raise every conceivable
constitutional claim.
J.A. 2094 (internal quotation marks omitted). Accordingly, the
district court concluded that the state MAR court’s determination
that counsel’s performance was not constitutionally deficient was
neither contrary to nor an unreasonable application of Strickland.
We agree with the district court’s determination that Brown is not
entitled to habeas relief on this basis as well.
25
IV.
For the foregoing reasons, the judgment of the district court
is affirmed.
AFFIRMED
26