Skipper v. Lee

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

SHERMAN ELWOOD SKIPPER, 
Petitioner - Appellant,
v.
 No. 00-8
R. C. LEE, WARDEN, Central Prison,
Raleigh, North Carolina,
Respondent - Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-96-86-5-H-HC)

Argued: September 26, 2000

Decided: December 19, 2000

Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.

Affirmed by unpublished opinion. Judge Williams wrote the opinion,
in which Judge Widener and Judge Michael joined.

COUNSEL

ARGUED: William Stanley Mills, GLENN, MILLS & FISHER,
Durham, North Carolina, for Appellant. Alana Danielle Marquis, Spe-
cial Deputy Attorney General, NORTH CAROLINA DEPART-
MENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON
BRIEF: Gretchen Engel, CENTER FOR DEATH PENALTY LITI-
GATION, Durham, North Carolina, for Appellant. Michael F. Easley,
2 SKIPPER v. LEE
Attorney General of North Carolina, NORTH CAROLINA DEPART-
MENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

OPINION

WILLIAMS, Circuit Judge:

Sherman Skipper was convicted by a jury in the Superior Court of
Bladen County, North Carolina and sentenced to death on two counts
of first-degree murder for the shooting deaths of Aileen Pittman and
Nelson Fipps, Jr. The United States District Court for the Eastern Dis-
trict of North Carolina denied Skipper’s petition for habeas corpus,
and Skipper now appeals, seeking relief based upon the trial court’s
failure to instruct the jury on second-degree murder and the district
court’s refusal to grant an evidentiary hearing to determine whether
trial counsel rendered ineffective assistance in failing to present evi-
dence of Skipper’s mental retardation and diminished capacity at the
guilt phase of trial.1 Skipper also argues that his death sentence vio-
lates the Eighth and Fourteenth Amendments’ prohibition against
cruel and unusual punishment because he is mentally retarded. Find-
ing no reversible error, we affirm.

I.

On August 25, 1990, Skipper asked his friend, Mark Smith, to
drive him to the home of Aileen Pittman, Skipper’s girlfriend.2 Skip-
1
Skipper originally named James B. French, former Warden of Central
Prison in Raleigh, North Carolina, as the Respondent. R.C. Lee subse-
quently succeeded French as Warden. For ease of reference, we refer to
Respondent as "the State."
2
These facts are derived from the testimony of Smith, who is the only
living eyewitness to the murders, and from the statement of facts in the
Supreme Court of North Carolina’s published opinion affirming Skip-
per’s conviction on direct appeal. See State v. Skipper, 446 S.E.2d 252,
259 (N.C. 1994).
 SKIPPER v. LEE 3
per asked Smith to drive in part because Skipper had been drinking,
although Skipper was not visibly intoxicated and Smith did not know
how much alcohol Skipper had ingested. Skipper directed Smith to
Pittman’s house, where Nelson Fipps, Pittman’s grandson, was stand-
ing in the yard. Fipps went to get Pittman, and Skipper and Pittman
talked for fifteen to twenty minutes outside of her home. After the
conversation, Skipper returned to his truck, and Pittman asked Smith
not to bring Skipper back to her home.

Skipper told Smith to drive away, and Smith began to back the
truck out of the driveway. What Smith did not realize, however, was
that Skipper had a semiautomatic rifle containing fragmentation bul-
lets under his seat. As Smith backed the truck out of the driveway,
and without provocation, Skipper pulled out the weapon and shot Pitt-
man numerous times. He continued firing as she crouched in a door-
way trying to avoid the gunfire. When Skipper stopped shooting at
Pittman, he turned and pointed his rifle at Fipps, yelled "you, too,"
and then shot Fipps several times. Both Pittman and Fipps died of
multiple gunshot wounds. Pittman’s body had more than thirty
wounds, and Fipps’ body had two. As they drove away from the scene
of the brutal murders, Skipper confirmed with Smith that he "g[o]t
them." (J.A. at 242.)

Skipper then directed Smith to a wooded area, where Skipper hid
the gun and the ammunition. Skipper and Smith left the area and went
to a topless bar and then to a restaurant, where Skipper, for the first
time, stated that "he didn’t know why he had done it" and "was sorry
he had went by there." (J.A. at 247.) When Smith told Skipper that
he was going to turn himself in to the police, Skipper warned him of
the consequences, telling Smith that he would "g[e]t twenty years" in
prison for his part in the murders. (J.A. at 256.) Skipper and Smith
evaded capture by traveling to Virginia for several days and then to
Florida. Smith later turned himself in and told the police where to find
Skipper.

Prior to trial, Skipper’s trial counsel requested a neuropsychologi-
cal evaluation from Dr. Antoni Puente, a Ph.D in neuropsychology,
who concluded that Skipper appeared to have "a longstanding history
that suggests problems of a learning disability nature in school, crimi-
nal, alcohol, and interpersonal limitations since that period." (J.A. at
4 SKIPPER v. LEE
87.) Dr. Puente also opined that Skipper suffered from organic brain
damage and was mildly mentally retarded, with an I.Q. "slightly
above and below the cutoff for mild mental retardation." (J.A. at 87.)

Despite gathering evidence of Skipper’s mental impairment, how-
ever, trial counsel chose not to present this evidence at the guilt phase
of trial. The State’s case against Skipper was built on Smith’s testi-
mony that Skipper was the killer; Skipper did not testify, and Smith
was the only living eyewitness to the crime. Indeed, the police did not
obtain fingerprints or other physical evidence that might have proved
the perpetrator’s identity and supported the State’s theory of the case.
As a result, the State’s case largely turned upon Smith’s credibility.
Consequently, and not surprisingly, trial counsel sought to undermine
the State’s evidence that Skipper was the killer by implying that
Smith was fabricating his testimony in order to conceal his own guilt
and by presenting testimony suggesting that an unidentified third
party might have actually murdered Pittman and Fipps. Among other
things, trial counsel impeached Smith’s credibility by arguing that
Smith was able to avoid imprisonment by testifying against Skipper,
and trial counsel offered evidence that Smith had previously been
convicted of other crimes3 and that Smith initially lied about his role
in the murder by claiming that Skipper had held him hostage for a
week. Trial counsel also presented the testimony of Debbie Edwards,
who drove by Pittman’s home less than an hour before the murders
and who testified, contrary to Smith’s testimony, that Skipper’s truck
was not nearby and that an unidentified man was in Pittman’s yard.
Trial counsel also attacked the police investigation and focused on the
police’s failure to seek fingerprints, soil samples, or clothing fiber on
the truck or the weapon. Trial counsel also attempted to undermine
the credibility of the investigation by revealing through cross-
examination that the police identified Skipper as a suspect before he
had even been located.

Before closing arguments, trial counsel requested jury instructions
on second-degree murder and voluntary intoxication, which were both
3
Trial counsel elicited on cross-examination the fact that Smith had
previously been convicted of violating probation and four counts of com-
mon law forgery.
 SKIPPER v. LEE 5
rejected by the trial court. The jury found Skipper guilty of the first-
degree murders of both Pittman and Fipps.

At the sentencing phase of trial, Skipper’s trial counsel offered Dr.
Puente’s testimony that Skipper was mildly mentally retarded, with an
I.Q. of 69, and unable to appreciate the criminality of his conduct and
conform his conduct to the requirements of the law. Dr. Puente also
testified that Skipper had organic brain damage and had "[a] limited
ability to plan, to carry out, to understand or reflect about the serious
issues in life." (TT, at 1000+635.) Despite Dr. Puente’s testimony,
none of the sentencing jurors found as a mitigating factor that Skipper
was mentally retarded,4 but one or more of the sentencing jurors did
find that Skipper had consumed alcohol, that he was an alcohol abuser
who was under the influence of a mental or emotional disturbance,
and that his ability to "appreciate the criminality of his conduct or to
conform his conduct to the requirements of the law was impaired."
(J.A. at 349.) The jury recommended a sentence of death for each of
the murders.

On July 29, 1995, the Supreme Court of North Carolina affirmed
the convictions and death sentences. See State v. Skipper, 446 S.E.2d
252 (N.C. 1994). On January 23, 1995, the United States Supreme
Court denied certiorari. On April 17, 1995, the Superior Court of Bla-
den County appointed post-conviction counsel for Skipper, and Skip-
per filed a motion for appropriate relief. On January 24, 1996, the
Supreme Court of North Carolina denied his motion. On April 15,
1996, Skipper filed a petition for habeas corpus in federal district
court. The State moved for summary judgment, and, on December 4,
1996, the district court granted the State’s motion for summary judg-
ment and denied Skipper’s motion on the ground that all of his federal
claims were procedurally barred. We reversed and remanded, con-
cluding that neither the claims that Skipper raised on direct review
nor the claims that he raised in his motion for appropriate relief were
procedurally defaulted so as to foreclose federal collateral review. See
Skipper v. French, 130 F.3d 603, 611-13 (4th Cir. 1997). On remand,
the district court denied Skipper’s discovery requests and also denied
4
The sentencing jury answered "no" to the question of whether "[o]ne
or more of us finds" that "[t]he defendant’s I.Q. is in the mental retarda-
tion range." (J.A. at 349.)
6 SKIPPER v. LEE
Skipper’s request for an evidentiary hearing. On November 30, 1999,
the district court again granted the State’s motion for summary judg-
ment. On March 30, 2000, the district court denied Skipper’s motion
for relief from judgment; on May 1, 2000, Skipper filed his notice of
appeal. On May 8, 2000, the district court granted a certificate of
appealability as to seven of Skipper’s claims,5 stating that "[w]hile the
court does not agree that reasonable jurists would find the court’s
decision wrong, the court concedes that reasonable jurists could find
the court’s decision debatable." (J.A. at 221.)

Skipper combines four of his claims into the three arguments he
makes on appeal. First, Skipper argues that the trial court erred in fail-
ing to instruct the jury on second-degree murder. Second, Skipper
argues that the district court erred in refusing to grant an evidentiary
hearing to determine whether Skipper’s trial counsel rendered ineffec-
tive assistance in failing to present evidence of Skipper’s mental retar-
dation, organic brain damage, and intoxication at the guilt phase of
trial. Finally, Skipper argues that his death sentence violates the
Eighth and Fourteenth Amendments’ prohibition against cruel and
unusual punishment because he is mentally retarded. We address each
of these arguments, in turn.

II.

Skipper first argues that he was entitled to an instruction on the
lesser-included offense of second-degree murder based upon evidence
that he had a cordial relationship with the victims, Pittman and Fipps;
that he was confused and remorseful after the murders; and that he
was intoxicated at the time of the murders. Skipper asserts that this
5
The district court granted a certificate of appealability as to claims I
(entitlement to a second-degree murder instruction), III (ineffective assis-
tance of counsel based upon failure to present evidence of mental retar-
dation and organic brain damage), IV (ineffective assistance based upon
failure to present evidence of intoxication), V (cruel and unusual punish-
ment), VI (right to question prospective jurors about their views on the
meaning of a life sentence and the possibility of parole), VII (inaccurate
information about parole eligibility), and VIII (the jury considered extra-
neous information not admitted into evidence). Skipper does not raise
claims VI, VII, and VIII in this appeal.
 SKIPPER v. LEE 7
evidence, taken along with evidence of his mental retardation and
diminished capacity, was sufficient to show that he did not premedi-
tate and deliberate before committing the murders. Applying the stan-
dard of review for pre-AEDPA cases, we review questions of law and
mixed questions of law and fact de novo.6 See Noland v. French, 134
F.3d 208, 213 (4th Cir. 1998). "Any factual findings by the State
court are presumed to be correct as long as they were made after a
full, fair, and adequate hearing on the merits." Id.; see 28 U.S.C.A.
§ 2254(d) (West 1994) (pre-AEDPA).

In Beck v. Alabama, 447 U.S. 625 (1980), the Supreme Court held
that a defendant is entitled to a lesser included offense instruction
when the evidence supports such an instruction. See id. at 643. "But
due process requires that a lesser included offense instruction be
given only when the evidence warrants such an instruction." Hopper
v. Evans, 456 U.S. 605, 611 (1982) (emphasis in original). Thus, "‘the
Circuit and the Supreme Court agree that lesser included offense
instructions are not required where . . . there is no support for such
instructions in the evidence.’" Kornahrens v. Evatt, 66 F.3d 1350,
1354 (4th Cir. 1995) (quoting Briley v. Bass, 742 F.2d 155, 165 (4th
Cir. 1984)). "The federal rule is that a lesser included offense instruc-
tion should be given if the evidence would permit a jury rationally to
find [a defendant] guilty of the lesser offense and acquit him of the
greater." Briley, 742 F.2d at 165 (internal quotation marks and cita-
tions omitted). In other words, "[a] defendant is not entitled to a
lesser-included offense instruction as a matter of course." United
States v. Wright, 131 F.3d 1111, 1112 (4th Cir. 1997). Rather, "[i]n
order to receive a lesser-included offense instruction, ‘the proof of the
element that differentiates the two offenses must be sufficiently in
dispute that the jury could rationally find the defendant guilty of the
lesser offense but not guilty of the greater offense,’" either because
the testimony on the relevant element is sharply conflicting, or
because "the conclusion as to the lesser offense [is] fairly inferable
from the evidence presented." Id. (quoting United States v. Walker, 75
F.3d 178-79 (4th Cir. 1996)). The North Carolina rule, similar to the
6
We must "use the pre-AEDPA standard of review in a capital case
pending in federal court at the time the AEDPA was signed into law."
Noland v. French, 134 F.3d 208, 213 (4th Cir. 1998). The parties do not
dispute that the pre-AEDPA standard of review applies to this case.
8 SKIPPER v. LEE
federal rule, is that "[a] defendant is entitled to have a lesser-included
offense submitted to the jury only when there is evidence to support
that lesser-included offense. When the State’s evidence establishes
each and every element of first-degree murder and there is no evi-
dence to negate these elements, it is proper for the trial court to
exclude second-degree murder from the jury’s consideration." State v.
Thibodeaux, 532 S.E.2d 797, 806 (N.C. 2000) (internal quotation
marks and citation omitted). When resolving a Beck claim, the court
must focus on whether the evidence warrants the lesser-included
offense, and not on whether "the evidence was sufficient to prove the
greater one." Hooks v. Ward, 184 F.3d 1206, 1232 (10th Cir. 1999).

As stated previously, Skipper argues that he was entitled to an
instruction on second-degree murder because the evidence showed
that he was intoxicated, that he was remorseful, and that he had a cor-
dial relationship with the victims. In essence, Skipper contends that
this evidence was sufficient for a rational jury to acquit him of first-
degree murder and convict him of second-degree murder because the
jury could have concluded that he did not premeditate and deliberate
before killing Pittman and Fipps. We disagree.

Under North Carolina law, first degree murder is "the unlawful
killing of another human being with malice and with premeditation
and deliberation." State v. Bonney, 405 S.E.2d 145, 154 (N.C. 1991).
"Second degree murder is defined as the unlawful killing of a human
being with malice but without premeditation and deliberation." Thi-
bodeaux, 532 S.E.2d at 806 (internal quotation marks omitted). Pre-
meditation "means that the defendant formed the specific intent to kill
the victim some period of time, however short, before the actual kill-
ing." Bonney, 405 S.E.2d at 154. Deliberation "means an intent to kill
executed by the defendant in a cool state of blood, in furtherance of
a fixed design for revenge or to accomplish an unlawful purpose and
not under the influence of a violent passion, suddenly aroused by law-
ful or just cause or legal provocation." Id. The term "cool state of
blood," however, "does not mean an absence of passion or emotion.
One may deliberate, may premeditate, and may intend to kill after
premeditation and deliberation, although prompted, and, to a large
extent, controlled by passion at the time." Id. (internal citations omit-
ted). "An unlawful killing is deliberate and premeditated if done as
part of a fixed design to kill, notwithstanding the fact that the defen-
 SKIPPER v. LEE 9
dant was angry or emotional at the time, unless such anger or emotion
was strong enough to disturb the defendant’s ability to reason." State
v. Fisher, 350 S.E.2d 334, 338 (N.C. 1986).

We first address Skipper’s alleged intoxication at the time of the
murders. Courts in North Carolina have applied a standard that
requires more than mere intoxication to entitle a defendant to an
instruction on second-degree murder based upon voluntary intoxica-
tion:

A defendant who wishes to raise an issue for the jury as to
whether he was so intoxicated by the voluntary consumption
of alcohol that he did not form a deliberate and premeditated
intent to kill has the burden of producing evidence, or rely-
ing on evidence produced by the state, of his intoxication.
Evidence of mere intoxication, however, is not enough to
meet the defendant’s burden of production. He must pro-
duce substantial evidence which would support a conclusion
by the judge that he was so intoxicated that he could not
form a deliberate and premeditated intent to kill.

Id. (internal quotation marks omitted and emphasis added). In other
words,

[t]he evidence must show that at the time of the killing the
defendant’s mind and reason were so completely intoxicated
and overthrown as to render him utterly incapable of form-
ing a deliberate and premeditated purpose to kill. In the
absence of some evidence of intoxication to such degree, the
court is not required to charge the jury thereon.

State v. Strickland, 361 S.E.2d 882, 888 (N.C. 1987) (quoting State
v. Medley, 243 S.E.2d 374, 377 (N.C. 1978) (internal citations omit-
ted)).

In the present case, Skipper argues that the guilt-phase jury could
have concluded that he lacked the requisite premeditation and deliber-
ation because he "drank a large quantity of beer in the hours prior to
the offense," and "asked [Smith] to drive because he was afraid to
10 SKIPPER v. LEE
drive after drinking so much." (Appellant’s Br. at 15-16.) We agree
with the district court that this evidence is not sufficient to meet the
standard of intoxication necessary to entitle the defendant to a second-
degree murder instruction. As the Supreme Court of North Carolina
noted in rejecting this same argument on direct appeal, "[t]here was
no evidence as to how much [Skipper] had had to drink that day, nor
over what period of time. The evidence did establish that the defen-
dant was not visibly intoxicated." Skipper, 446 S.E.2d at 266. Indeed,
although Smith testified that he could smell alcohol on Skipper’s
breath and that it was apparent that Skipper had been drinking "some
beer," he also conceded that he did not know how much Skipper had
ingested that day or for how long he had been drinking. (J.A. at 275-
76.) Skipper’s bare assertion of intoxication and Smith’s vague testi-
mony as to Skipper’s alcohol intake shows, at best, that Skipper was
merely intoxicated. See Thibodeaux, 532 S.E.2d at 807. Mere intoxi-
cation is simply "not enough to meet the defendant’s burden . . . [of]
produc[ing] substantial evidence which would support a conclusion
by the judge that he was so intoxicated that he could not form a delib-
erate and premeditated intent to kill." Id. (quoting State v. Williams,
471 S.E.2d 379, 390 (N.C. 1996)). To the contrary, the only evidence
presented shows that Skipper was sufficiently aware to ask Smith to
drive him in Skipper’s truck to Pittman’s house; to direct Smith there
because Smith did not know how to get to Pittman’s house; to cooly
engage in a fifteen to twenty minute conversation with Pittman; to
grab the semiautomatic weapon, loaded with fragmentation bullets,
from under the passenger seat of his truck and shoot Pittman multiple
times, including as she crouched in a doorway attempting to avoid the
gunfire; to stop shooting and turn his weapon on Fipps, yell "you,
too," and then shoot Fipps several times as well; to ask Smith as they
drove away to confirm that he "g[o]t them"; to direct Smith immedi-
ately to a wooded area where Skipper discarded the weapons and
ammunition; and to warn Smith that he would get twenty years if he
turned himself in. Cf. Williams, 471 S.E.2d at 390 (rejecting the argu-
ment that Williams was incapable of forming the requisite intent
because the evidence showed, among other things, that he was able
"to give detailed directions to the witness who drove defendant and
Sikes to [the victim’s] home" and "conceal or dispose of incriminat-
ing evidence"). Based upon these facts, we simply cannot agree that
the vague evidence of Skipper’s drinking was sufficient to show that
"at the time of the killing defendant’s mind and reason were so com-
 SKIPPER v. LEE 11
pletely intoxicated and overthrown as to render him utterly incapable
of forming a deliberate and premeditated purpose to kill."7 Id. (inter-
nal quotation marks omitted). The circumstances that North Carolina
courts consider in evaluating the existence of premeditation and delib-
eration also support our conclusion. These circumstances include: (1)
provocation by the deceased; (2) "conduct and statements of the
defendant before and after the killing"; (3) "threats and declarations
of the defendant before and during the course of the occurrence giv-
ing rise to" the killing; (4) ill-will or previous difficulty between the
parties; (5) "the dealing of lethal blows after the deceased had been
felled and rendered helpless"; and (6) "evidence that the killing was
done in a brutal manner." State v. Fisher, 350 S.E.2d 334, 338 (N.C.
1986). The nature and number of the victim’s wounds also is a fact
to be considered, see State v. Hamlet, 321 S.E.2d 837, 843 (N.C.
1984), as is the defendant’s lack of remorse, see State v. Geddie, 478
S.E.2d 146, 163 (N.C. 1996). In the present case, it is undisputed that
the victims did nothing to provoke Skipper, that Skipper yelled "you,
too" before killing Fipps and that Skipper asked Smith to confirm that
he "g[o]t them" after killing Pittman and Fipps. The forensic patholo-
gist who examined the bodies of the victims testified that Pittman had
twenty-three wounds in the upper back, eight wounds under her right
arm, four wounds on the back of the right hip, two superficial wounds
on the back of her left hip, and a wound on her left ankle. The foren-
sic pathologist testified that Fipps had bullet wounds on the right side
of his chest and through his right leg. Pittman and Fipps had metal
fragments throughout their bodies as a result of the bullets that Skip-
per used.

We reject Skipper’s argument that the jury could have concluded
that he did not premeditate and deliberate based upon evidence that
he expressed remorse in the days that followed the murders and that
he had a cordial relationship with the victims. First, Skipper did not
demonstrate remorse until several hours after leaving the murder
scene, first at a restaurant in Fayetteville and later at an old house on
the highway. Notwithstanding these brief expressions of regret, Skip-
7
Skipper’s trial counsel recognized as much, as he admitted to the trial
court when he requested the voluntary intoxication instruction that "we
recognize in view of the case law that we may be on shaky grounds on
that issue." (J.A. at 316.)
12 SKIPPER v. LEE
per purposefully continued to evade capture, even warning Smith of
the consequences if he turned himself in, i.e., that Smith would "g[e]t
twenty years." (J.A. at 256.) Second, immediately after killing Pitt-
man and Fipps, Skipper confirmed with Smith that he "g[o]t" them,
and he proceeded to direct Smith to a wooded area where Skipper dis-
posed of the weapons and ammunition. (J.A. at 242.) Third, although
Smith eventually turned himself in, Skipper did not; instead, he was
captured a week after the murders, only after Smith told the police
where Skipper was hiding. We do not believe that Skipper’s limited
statements of regret, made hours after the killings and demonstrably
inconsistent with his earlier and later behavior, undermine the conclu-
sion that Skipper premeditated and deliberated prior to killing Pittman
and Fipps. Likewise, although Skipper maintains that his lack of pre-
meditation and deliberation is reflected by the cordial relationship that
he had with Pittman, we agree with the Supreme Court of North Caro-
lina that this contention is unsupported by the record and, indeed, is
belied by the fact that Pittman asked Smith not to bring Skipper to her
house anymore. See State v. Skipper, 446 S.E.2d 252, 266 (N.C.
1994).

In sum, the evidence of Skipper’s drinking, combined with his
post-murder statements of remorse and allegedly cordial relationship
with Pittman, simply are not enough in conjunction with the other
undisputed facts to permit a jury to "rationally find the defendant
guilty of the lesser offense but not guilty of the greater offense."
Wright, 131 F.3d at 1112 (quoting Walker, 75 F.3d at 180).8 Accord-
ingly, we conclude that Skipper is not entitled to relief based upon the
trial court’s failure to instruct the jury on second-degree murder.9
8
To the extent that Skipper asserts that the trial court should have
instructed the jury on second-degree murder based upon Skipper’s men-
tal retardation and diminished capacity, we disagree. Among other
things, we agree with the Supreme Court of North Carolina that "the evi-
dence that defendant was mildly retarded and suffered from organic brain
disorder was not presented to the jury until the sentencing phase, so it
was not a factor that could support a second-degree murder instruction."
State v. Skipper, 446 S.E.2d 252, 266 (N.C. 1994).
9
The State also argues that Skipper’s claim is barred by Teague v.
Lane, 489 U.S. 288 (1989), because his claim would require us to impose
a new rule of constitutional law, i.e., that a defendant "is entitled to an
 SKIPPER v. LEE 13
III.

Skipper next argues that he is entitled to an evidentiary hearing on
his ineffective assistance of counsel claim. In particular, Skipper
argues that he successfully raised a genuine issue of material fact
regarding whether his trial counsel should have offered evidence to
the jury during the guilt phase of trial that Skipper was mildly men-
tally retarded, had organic brain damage that heightened his sensitiv-
ity to alcohol, and had a history of severe alcoholism. Skipper argues
that had trial counsel presented this evidence to the jury during the
guilt phase of trial, the jury could have concluded that he was incapa-
ble of premeditation and deliberation. The State responds that Skipper
was not entitled to an evidentiary hearing because trial counsel made
a reasonable strategic choice to attack the State’s proof of Skipper’s
guilt and to avoid alternative inconsistent theories and that Skipper’s
claim is meritless as a matter of law because this evidence would not
have affected the trial’s outcome.

Under pre-AEDPA standards, "[w]here material facts are in dis-
pute, the federal court in a habeas proceeding must hold an evidenti-
ary hearing unless the facts were resolved in a prior state hearing."
Becton v. Barnett, 920 F.2d 1190, 1192 (4th Cir. 1990). "A federal
habeas corpus petitioner is entitled to an evidentiary hearing in the
district court if (1) he alleges additional facts that, if true, would enti-
tle him to relief; and (2) he is able to establish" that (a) the merits of
a factual dispute were not previously resolved in a state hearing; (b)
the record as a whole does not fairly support the state factual determi-
nation; (c) the state court’s fact-finding procedure was not adequate
to afford a full and fair hearing; (c) "there is a substantial allegation
of newly discovered evidence"; (d) "material facts were not ade-
quately developed at the state court hearing"; or (e) "for any reason

instruction on a lesser included offense, simply because a juror may not
believe the solid evidence that supports one of the elements of the
charged offense, first degree murder, and where the evidence does not
support second degree murder." (Appellee’s Br. at 9.) The State’s Teague
argument fails, however, because Skipper does not seek a new rule;
rather, Skipper argues that the evidence in fact supports a second-degree
murder instruction.
14 SKIPPER v. LEE
it appears that the state trier of fact did not afford the habeas applicant
a full and fair hearing." Poyner v. Murray, 964 F.2d 1404, 1414 (4th
Cir. 1992) (internal quotation omitted).10

In order to determine whether Skipper is entitled to an evidentiary
hearing on his ineffective assistance of counsel claim, therefore, we
examine whether he has alleged additional facts that, if true, would
allow him to prevail under the two-pronged inquiry set forth in Strick-
land v. Washington, 466 U.S. 668 (1984). First, he must show that
counsel’s performance fell below an objective standard of reasonable-
ness. See id. at 688. We review counsel’s performance under a highly
deferential standard, affording a strong presumption that counsel’s
performance was within the wide range of professionally competent
assistance. See id. at 689. Second, he must show that there is a reason-
able probability that, but for counsel’s errors, the results of the pro-
ceedings would have been different. See Williams (Terry) v. Taylor,
120 S. Ct. 1495, 1511-12 (2000). The level of certainty is something
less than a preponderance; it need not be proved that counsel’s perfor-
mance more likely than not affected the outcome. See Strickland, 466
U.S. at 693. Rather, the petitioner need only show a probability suffi-
cient to undermine confidence in the outcome. See id. at 694. "[A]
court need not determine whether counsel’s performance was defi-
cient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies." Id. at 697.

To attack the reasonableness of trial counsel’s actions, Skipper first
points to the evaluation of Dr. Puente, who examined Skipper at the
request of trial counsel. Dr. Puente opined that Skipper was mildly
mentally retarded, with an I.Q. of 69, and that he suffered from
organic brain damage. Later, in a post-trial affidavit that was submit-
ted four years after Dr. Puente’s original evaluation and three years
after trial, Dr. Puente stated that "as a direct result of [Skipper’s]
10
The pre-AEDPA version of § 2254(d) provides two additional fac-
tors: (f) "that the State court lacked jurisdiction of the subject matter or
over the person of the applicant in the State court proceeding"; or (g) "the
applicant was an indigent and the State court, in deprivation of his con-
stitutional right, failed to appoint counsel to represent him in the State
court proceeding." Beaver v. Thompson, 93 F.3d 1186, 1190 n.4 (4th Cir.
1996).
 SKIPPER v. LEE 15
retardation and organic brain injury . . . he is not able to plan, deliber-
ate and premeditate." (J.A. at 77.) Dr. Puente also stated in his post-
trial affidavit that he was asked by counsel to testify at sentencing to
render an opinion as to Skipper’s ability to appreciate the criminality
of his conduct and conform his conduct to the requirements of the
law, but that he was not asked to testify at the guilt phase of the trial
or "to render any opinion about [Skipper’s] ability to premeditate and
deliberate." (J.A. at 78.) Skipper maintains that trial counsel’s deci-
sion to present Dr. Puente’s opinion at sentencing, but not at the guilt
phase of trial, was unreasonable.

Skipper also argues that trial counsel failed to investigate Skipper’s
history of alcoholism and his heightened sensitivity to alcohol, which
reportedly was the result of organic brain damage. Skipper points to
the testimony of Dr. Roy Mathew, a psychiatrist who was appointed
to assist Skipper in federal habeas proceedings. Dr. Mathew has
opined that Skipper was unable to form the specific intent to kill or
to premeditate and deliberate as a result of his history of alcoholism
and use of alcohol on the day of the killings.

Finally, Skipper points to lay testimony that Skipper drank a six-
pack of beer on the day of the killings, as well as lay testimony con-
cerning Skipper’s inability to hold steady jobs, do his own grocery
shopping, or be financially independent. For this lay testimony, Skip-
per relies largely upon the affidavit of a Duke University law student
who assisted post-conviction counsel by interviewing Skipper eight
times, his family, and other lay witnesses. The law student’s affidavit
states, among other things, that although Skipper owned his own
junkyard business, his business was not profitable, in part because he
failed to keep records and run the business in a manner of a true com-
mercial enterprise. The law student’s affidavit also states that Skipper
is not financially independent, that he never learned how to write a
check, that he has no credit, and that he relies upon others for his
basic needs. Finally, the affidavit states that she interviewed an
unnamed witness who saw Skipper drink a six-pack of beer on the
morning of the killings and that another unnamed witness told her that
Skipper became "a completely different person" after drinking only a
small amount of alcohol.11 (J.A. at 91.)
11
The district court refused to consider the law student’s affidavit
because it concluded that the affidavit "is replete with inadmissible hear-
16 SKIPPER v. LEE
As noted above, trial counsel obtained Dr. Puente’s opinion that
Skipper was mildly mentally retarded and had organic brain damage.
Trial counsel chose not to present this evidence during the guilt phase
of trial and, instead, sought to undermine the State’s evidence that
Skipper was the killer by suggesting that another person killed Pitt-
man and Fipps and pointing to the presence of an unidentified third
person as well as Smith, and by implying that Smith was attempting
to conceal his own guilt. Trial counsel impeached Smith’s credibility
by demonstrating that Smith had previously been convicted of other
crimes, including four counts of common law forgery, and by sug-
gesting that Smith fabricated his testimony in order to avoid being
charged with two counts of first degree murder himself.12 Trial coun-
sel also attacked the police investigation, including the police’s failure
to seek fingerprints, soil samples, or clothing fiber on the truck or the
weapon. We agree with the district court that trial counsel’s conscious
decision to focus on Skipper’s actual innocence and to avoid inconsis-
tent defense theories was not objectively unreasonable. See Jackson
v. Shanks, 143 F.3d 1313, 1320 (10th Cir.) (concluding that trial
counsel was not objectively unreasonable in failing to seek dimin-
ished capacity and intoxication instructions based in part upon border-
line mental retardation because "trial counsel’s defense was that Mr.
Jackson was not present and did not participate in the robbery. Pursu-
ing a diminished capacity defense would have been inconsistent with
Mr. Jackson’s complete denial of involvement in the robbery."), cert.
denied, 525 U.S. 950 (1998).

Skipper concedes that trial counsel focused a large part of Skip-
per’s defense on Skipper’s identity as the killer but makes much of
the fact that trial counsel sought jury instructions on second-degree
murder and voluntary intoxication. Skipper maintains that trial coun-

say." (J.A. at 180.) Skipper contends that the district court erred in doing
so because the affidavit was introduced into the state court record and the
state court considered the affidavit. Even if we considered the law stu-
dent’s affidavit, however, it would not alter our conclusion that trial
counsel was not constitutionally ineffective.
12
Smith was initially charged with two counts of first-degree murder.
Prior to trial, those charges were dismissed. Smith pleaded guilty to two
counts of accessory after the fact.
 SKIPPER v. LEE 17
sel could not have intended to avoid inconsistent defenses and still
have requested these lesser-included offense instructions. We dis-
agree. "Although inconsistent and alternative defenses may be raised,
competent trial counsel know that reasonableness is absolutely man-
datory if one hopes to achieve credibility with the jury." Harich v.
Dugger, 844 F.2d 1464, 1470 (11th Cir. 1988) (en banc) (internal
quotation marks omitted), overruled on other grounds, Davis v.
Singletary, 119 F.3d 1471, 1482 (11th Cir. 1997). To the extent that
trial counsel referred to Skipper’s inability to premeditate and deliber-
ate, he did so in the context of attacking Smith’s credibility as a wit-
ness:

What - what has Mark Smith proven? Because he is the
accuser. Let’s look at Mark Smith. . . . Let’s talk about the
first time Mark saw Sherman Skipper. Was Sherman Skip-
per on that day a man with a fixed design, a man who had
shown deliberated — deliberation and premeditation, a man
who expressed an intent to kill someone?

Ladies and gentleman, this man went to Mark Smith’s
house. Now, if a man was planning to kill somebody, why
would he go get a witness? Why would he go pick up a wit-
ness to the killing? But what did Mark do? [Skipper] went
there; he did not to want to drive because he’d had too much
beer to drink. But Mark said he was calm, appeared to be
nothing wrong with him, appeared to be acting normally.

(J.A. at 321-22.) In other words, although the jury heard evidence and
argument of Skipper’s intoxication and diminished capacity, trial
counsel presented that evidence and argument as part of his strategy
of attacking Smith’s credibility and maintaining Skipper’s actual
innocence. We believe, on these facts, that it was not unreasonable,
albeit not with a high expectation of success, for trial counsel to seek
second-degree murder and voluntary intoxication instructions based
upon the evidence already before the jury as part of Skipper’s defense
of actual innocence, and also to forego presenting additional evidence
of diminished capacity that would have unduly emphasized the inher-
ent inconsistency of pursuing both defenses.13 See Harich, 844 F.2d
13
We note that according to Dr. Puente’s report, Skipper continued to
deny killing Pittman and Fipps during Dr. Puente’s evaluation, stating
18 SKIPPER v. LEE
at 1470 ("By handling the matter the way he did, defense counsel was
able to inject the thought of diminished capacity (due to heavy drink-
ing and marijuana) without totally rejecting the testimony of Harich
[denying any involvement in the murders]." (internal quotation marks
omitted)).

Indeed, we find it notable that, before trial, trial counsel obviously
recognized the importance of Skipper’s mental state; trial counsel was
the one who initially requested Dr. Puente’s testimony. Consequently,
this is not a situation in which trial counsel neglected to investigate
Skipper’s alleged mental retardation or developed his defense without
adequate information.14 See Strickland, 466 U.S. at 690-91
("Strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strate-
gic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support
the limitations on investigation."); Washington v. Murray, 4 F.3d
1285, 1288 (4th Cir. 1993) ("Strickland makes plain that a lawyer’s

that "[h]e was very concerned that people would implicate him in all of
this as he had hit [Pittman] recently, and he decided to stay away. He
went into hiding because he thought he would be charged." (J.A. at 82.)
14
Although Skipper argues that trial counsel should have presented Dr.
Puente’s opinion that Skipper was incapable of premeditation and delib-
eration, we note that the Supreme Court of North Carolina had previ-
ously held as inadmissible expert medical opinions concerning a
defendant’s inability to premeditate and deliberate. See State v. Rose, 373
S.E.2d 426, 429 (N.C. 1988) (stating that expert testimony [that the
defendant was incapable of premeditation or deliberation] would have
been inadmissible as a conclusion that a legal standard had not been
met"); see also State v. Anderson, 513 S.E.2d 296, 313 (N.C. 1999) (stat-
ing that "testimony by medical experts relating to precise legal terms
such as ‘premeditation’ or ‘deliberation,’ definitions of which are not
readily apparent to such medical experts, should be excluded"); State v.
Daniel, 429 S.E.2d 724, 728-29 (N.C. 1993) (stating that although expert
testimony of organic brain impairment, which affected Daniel’s ability to
plan and reflect, could assist the jury in determining whether he premedi-
tated and deliberated, "testimony by medical experts relating to precise
legal terms such as ‘premeditation or deliberation’ . . . should be
excluded").
 SKIPPER v. LEE 19
performance will not be deemed deficient if it results from informed,
strategic choices about how to mount a defense."); see also Lockett
v. Anderson, No. 98-60019, 2000 WL 1520594, at *16 (5th Cir. Oct.
13, 2000) (stating that Strickland "demands more than the mere deci-
sion of a strategic choice by counsel. It requires informed strategic
choices." (internal quotation marks omitted)); cf. Chandler v. United
States, 218 F.3d 1305, 1315 n.16 (11th Cir. 2000) ("To uphold a law-
yer’s strategy, we need not attempt to divine the lawyer’s mental pro-
cesses underlying the strategy. . . . Because the standard is an
objective one, that trial counsel (at a post-conviction evidentiary hear-
ing) admits that his performance was deficient matters little.").

We are mindful of the highly deferential standard on which we are
to review counsel’s decisions, as well as the strong presumption that
counsel’s performance was within the wide range of professionally
competent assistance. See Strickland, 466 U.S. at 689. Here, trial
counsel recognized that a defense of diminished capacity based upon
voluntary intoxication was weak, (see J.A. at 316 (trial counsel’s con-
cession that "we may be on shaky grounds on that issue")), and he
reasonably may have chosen to maintain his credibility with the jury
in the face of strong evidence showing that if Skipper was the killer,
he acted with premeditation and deliberation. The fact that trial coun-
sel requested lesser-included instructions based upon the evidence
that was already before the jury is not inconsistent with the strategic
choice to avoid additional evidence of diminished capacity that might
easily have highlighted inconsistencies and undermined counsel’s
credibility before the jury. Cf. United States v. Fortson, 194 F.3d 730,
736 (6th Cir. 1999) ("We can conceive of numerous reasonable strate-
gic motives for the decision."). We conclude that Skipper has not
"overcome the presumption that, under the circumstances, the chal-
lenged action might be considered sound trial strategy." Id. (internal
quotation marks omitted).

Moreover, even assuming that trial counsel’s decision not to
present evidence of Skipper’s mental impairment and sensitivity to
alcohol at the guilt phase of trial was not a reasonable strategic deci-
sion, Skipper has also failed to show a reasonable probability that this
evidence, if presented during the guilt phase of trial and taken as true,
could have affected the outcome of the case. After reviewing the
undisputed facts in the record, we, like the other courts that have
20 SKIPPER v. LEE
reviewed the record, simply cannot see how a reasonable jury could
have acquitted Skipper on the first-degree murder charge and con-
victed him on a second-degree murder charge, even in light of this
additional evidence. As noted above, the evidence of Skipper’s pre-
meditation and deliberation is simply overwhelming. See supra part
II (describing undisputed evidence of Skipper’s words and conduct
showing premeditation and deliberation).15 Accordingly, we conclude
that Skipper was not entitled to an evidentiary hearing on his ineffec-
tive assistance of counsel claim because he has failed to raise a genu-
ine issue of material fact that trial counsel was objectively
unreasonable, or that the evidence of his mental condition and intoxi-
cation, if presented during the guilt phase of trial, could have affected
the outcome of the proceedings.

IV.

Finally, Skipper argues that it is unconstitutional to impose the
death penalty on him because he is mentally retarded. We disagree.

As a threshold matter, the State argues that Skipper is procedurally
15
We also note that although Dr. Puente opined that Skipper had
organic brain damage, was mentally retarded, and had "[a] limited ability
to plan, to carry out, to understand or reflect about the serious issues in
life," (TT, at 1000+635), the sentencing jury nevertheless sentenced
Skipper to death on each of the murder counts even after hearing Dr.
Puente’s testimony, as well as the other evidence of Skipper’s mental
capacity and sensitivity to alcohol. See Harich v. Dugger, 844 F.2d 1464,
1472 (11th Cir. 1988) (finding it unlikely that similar expert testimony
would have impacted the jury’s determination of guilt because "[d]efense
counsel did use an expert during the penalty phase with apparently no
impact on the jury’s recommended sentence. It is, therefore, not reason-
ably probable that presenting expert testimony earlier would have
resulted in a different verdict."). Although at least one juror found that
Skipper had consumed alcohol and 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," (J.A. at 349); N.C. Gen. Stat.
§ 15A-2000(f)(6), the sentencing jury answered "no" to the question of
whether "[o]ne or more" of the jurors found the mitigating circumstance
that "[t]he defendant’s I.Q. is in the mental retardation range." (J.A. at
349.)
 SKIPPER v. LEE 21
defaulted from raising this argument because he failed contemporane-
ously to object at trial and also failed formally to assign this issue as
error on direct appeal. See State v. Skipper, 446 S.E.2d 252, 283 (N.C.
1994). "Absent cause and prejudice or a miscarriage of justice, a fed-
eral habeas court may not review constitutional claims when a state
court has declined to consider their merits on the basis of an adequate
and independent state procedural rule." Jenkins v. Hutchinson, 221
F.3d 679, 682 (4th Cir. 2000). "Such a rule is adequate if it is regu-
larly or consistently applied by the state court, and is independent if
it does not depend on a federal constitutional ruling." Yeatts v. Ange-
lone, 166 F.3d 255, 260 (4th Cir. 1999) (internal quotation marks,
citations, and alterations omitted). "[W]e will not assume that a state-
court decision rests on adequate and independent state grounds when
the ‘state-court decision fairly appears to rest primarily on federal
law, or to be interwoven with the federal law, and when the adequacy
and independence of any possible state law ground is not clear from
the face of the opinion.’" Caldwell v. Mississippi, 472 U.S. 320, 327
(1985) (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)).

In the present case, the Supreme Court of North Carolina stated, in
addressing Skipper’s direct appeal on his Eighth Amendment Claim,
that "[t]o begin, we note that defendant did not object to the imposi-
tion of the death penalty on these grounds at trial. Nor did defendant
make this an assignment of error in the record. Accordingly, the issue
is deemed waived by defendant."16 Skipper, 446 S.E.2d at 283
(emphasis added). The court then addressed the merits of the claim
and concluded that the imposition of the death penalty upon Skipper
was not unconstitutional. See id.
16
North Carolina Rule of Appellate Procedure 10(b)(1) provides that
"[i]n order to preserve a question for appellate review, a party must have
presented to the trial court a timely request, objection or motion, stating
the specific grounds for the ruling the party desired the court to make if
the specific grounds were not apparent from the context. . . . Any such
question which was properly preserved for review by action of counsel
taken during the course of proceedings in the trial tribunal by objection
noted or which by rule or law was deemed preserved or taken without
any such action, may be made the basis of an assignment of error in the
record on appeal." N.C. R. App. P. 10(b)(1).
22 SKIPPER v. LEE
We assume without deciding that the state procedural rule relied
upon in this case — that the court will not consider the merits of
claims for which there was no objection at trial or assignments of
error on appeal — is inadequate because it has not been consistently
applied by North Carolina courts in capital cases. We note that the
Supreme Court of North Carolina has stated that "‘in all capital cases
reaching this Court, it is the settled policy to examine the record for
the ascertainment of reversible error. If, upon such an examination,
error is found, it then becomes the duty of the Court upon its own
motion to recognize and act upon the error so found.’" State v. Greg-
ory, 467 S.E.2d 28, 32 (N.C. 1996) (quoting State v. McCoy, 71
S.E.2d 921, 922 (N.C. 1952)); State v. Mosely, 449 S.E.2d 412, 433-
34 (N.C. 1994) ("Since defendant did not object or allege plain error,
he has failed to properly preserve this issue for appeal. However,
since this is a case in which the death penalty was imposed, we will
consider the merits of the issue under a plain error analysis."); State
v. Payne, 402 S.E.2d 582, 592 (1991) ("By failing to object or move
for a mistrial in regard to the unsworn deputy, defendant has waived
his right to have this issue considered on appeal. Nonetheless, since
this is a capital case, we will address the issue." (internal citations
omitted)); cf. Smith v. Dixon, 14 F.3d 956, 972 & n.10 (4th Cir. 1994)
(en banc) (affirmed by equally divided court) (recognizing that "the
Supreme Court of North Carolina has previously examined the entire
record of the capital case for error on direct review, including error
that was not properly preserved," and referring to the Supreme Court
of North Carolina’s "well-established rule, that in its direct review of
capital cases it will consider all errors").17
17
The State argues that "North Carolina’s procedural bar has been
found to be an adequate and independent state law basis precluding fed-
eral review." (Appellee’s Br. at 46.) We note, however, that the State
supports this argument by relying upon cases involving N.C. Gen. Stat.
§ 15A-1419(a)(3), which addresses default of claims on state collateral
review that are not raised on direct appeal. See Williams v. French, 146
F.3d 203, 209 (4th Cir. 1998). The State does not cite to any cases
addressing default of claims on direct review that are not raised at the
trial court. Cf. Smith v. Dixon, 14 F.3d 956, 972 (4th Cir. 1994) (en banc)
(affirmed by equally divided court) (noting the difference between the
two situations and rejecting Smith’s argument that the Supreme Court of
North Carolina’s practice of reviewing all errors on direct review, even
if not raised at the trial court, demonstrated that the state procedural bar
against claims on collateral review that were not raised on direct appeal
was not consistently applied).
 SKIPPER v. LEE 23
Nevertheless, Skipper cannot prevail on the merits of his Eighth
Amendment claim. The Supreme Court has previously held that the
Eighth Amendment does not categorically prohibit the death penalty
for mentally retarded persons. See Penry v. Lynaugh, 492 U.S. 302,
340 (1989). In Penry, the Supreme Court recognized that the prohibi-
tion against cruel and unusual punishment is marked by the evolving
standards of decency in our society and that "[t]he clearest and most
reliable objective evidence of contemporary values is the legislation
enacted by the country’s legislatures." Id. at 331. The Court also
noted that "[w]hile a national consensus against execution of the men-
tally retarded may someday emerge reflecting the evolving standards
of decency that mark the progress of a maturing society, there is
insufficient evidence of such a consensus today." Id. at 340 (internal
quotation marks omitted).

Skipper argues that the national consensus has changed since
Penry, as demonstrated by the fact that eleven additional states have
outlawed the death penalty for mentally retarded persons since Penry.
Even if we accepted Skipper’s argument, however, Skipper would not
be entitled to prevail for the simple reason that he has not shown that
he is in fact mentally retarded. Indeed, none of the jurors in this case
found as a mitigating circumstance that Skipper was mentally
retarded, even after hearing Dr. Puente’s testimony that Skipper had
an I.Q. of 69, which placed him in the mildly mentally retarded range.
Notably, Dr. Puente’s report and testimony also revealed that Skipper
had been married for five years, worked in several jobs, and, for
seven years, owned and operated a 200-300 car junkyard that he sold
for approximately $25,000. Cf. State v. Best, 467 S.E.2d 45, 53-54
(N.C. 1996) (rejecting Best’s Eighth Amendment argument because
of Penry, and because "it is not at all certain that he is mentally
retarded" despite his I.Q. of 70 because "he was employed and was
able to function in society"); Jones v. Johnson, 171 F.3d 270, 276 (5th
Cir.) ("Even Dr. Landrum’s low figures, however, fall within the bor-
derline area between mild retardation (below 70) and dull normal
intelligence. We have found that a showing of borderline or below
average intelligence does not constitute a showing of mental retarda-
tion."), cert. denied, 527 U.S. 1059 (1999); Ark. Code Ann. § 5-4-
618(a)(2) (West 2000) (defining mental retardation and providing a
"rebuttable presumption of mental retardation when a defendant has
an intelligence quotient of sixty-five (65) or below"); Colo. Rev. Stat.
24 SKIPPER v. LEE
Ann. § 16-9-402(2) (West 2000) ("The defendant shall have the bur-
den of proof to show by clear and convincing evidence that such
defendant is mentally retarded."). Because it is questionable, at best,
whether Skipper is mentally retarded, and, indeed, because the sen-
tencing jury has explicitly found to the contrary, we reject Skipper’s
argument.18

V.

In conclusion, we hold that Skipper was not entitled to a second-
degree murder instruction, that Skipper was not entitled to an eviden-
tiary hearing on his ineffective assistance of counsel claim, and that
Skipper’s trial counsel was not constitutionally ineffective. We also
hold that even if Skipper is not procedurally barred from arguing that
his death sentence constitutes cruel and unusual punishment, he can-
not prevail on the merits of his claim because he has failed to show
that he is mentally retarded. We, therefore, affirm the district court’s
denial of Skipper’s petition for habeas corpus relief.

AFFIRMED

18
The State also argues that Teague bars Skipper from raising this
argument because he is asking us to impose a new rule on collateral
review that it is unconstitutional to execute a mentally retarded person.
The Supreme Court in Penry v. Lynaugh, 492 U.S. 302, 330 (1989),
addressed this same issue and stated that "if we held, as a substantive
matter, that the Eighth Amendment prohibits the execution of mentally
retarded persons such as Penry regardless of the procedures followed,
such a rule would fall under the first exception to the general rule of non-
retroactivity [which covers rules that prohibit a certain category of pun-
ishment for a class of defendants because of their status] and would be
applicable to defendants on collateral review." Id.