Johnson v. Watkins

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

ROBERT JOHNSON, 
Petitioner-Appellee,
v.
FRED WATKINS, Superintendent of  No. 00-6515
Alexander Correctional Center;
THEODIS BECK, Secretary of North
Carolina Department of Correction,
Respondents-Appellants.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CA-96-146)

Argued: November 3, 2000

Decided: February 8, 2001

Before WILKINSON, Chief Judge, and WILKINS and
LUTTIG, Circuit Judges.

Reversed and dismissed by unpublished per curiam opinion.

COUNSEL

ARGUED: Clarence Joe DelForge, III, Assistant Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellants. James Phillip Griffin, Jr., NORTH CARO-
LINA PRISONER LEGAL SERVICES, INC., Raleigh, North Caro-
2 JOHNSON v. WATKINS
lina, for Appellee. ON BRIEF: Michael F. Easley, Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellants.

Unpublished opinions are not binding precedent in this circuit.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

OPINION

PER CURIAM:

Robert Stanley Johnson, a former police officer, was convicted by
a jury of two counts of first degree sexual offense and eight counts
of indecent liberties with a minor. The state appellate courts affirmed
Johnson’s convictions1 and Johnson timely filed a habeas corpus peti-
tion in federal district court pursuant to 28 U.S.C. § 2254. The district
court granted partial summary judgment to Johnson on his habeas
petition, holding that his conviction was obtained in violation of his
right to effective assistance of counsel.2 We reverse that part of the
district court’s decision granting Johnson’s petition because we con-
clude that Johnson suffered no prejudice from his attorney’s perfor-
mance.

1
The Gaston County Superior Court denied Johnson’s motion for
appropriate relief after conducting both an evidentiary hearing and a sup-
plemental evidentiary hearing.
2
Johnson also claimed that his due process rights under Brady v. Mary-
land, 373 U.S. 83 (1963), were violated by the state when it failed to turn
over a report generated by the Department of Social Services. The dis-
trict court denied this claim because both the defense counsel and John-
son were aware of the essential exculpatory facts contained therein and
were able to make use of them. J.A. 240. Johnson does not appeal this
decision and we do not consider his Brady claim.
 JOHNSON v. WATKINS 3
I.

Robert Stanley Johnson, a police sergeant with the city of Mount
Holly, North Carolina, at the time he committed his offenses, was
convicted after a jury trial and sentenced by the trial judge to twenty-
four years and two life sentences, to run concurrently, for the sexual
molestation of Heather, his five-year-old niece, and Amber, Heather’s
five-year-old friend.

The charges arose in late September of 1989, when Heather told
her mother that Johnson showed Amber his penis, and that he had
also shown his private parts to Heather. Further, Heather stated that
Johnson had called her and Amber into his bedroom at different
times, pulled down his pants, showed them his penis, and asked them
to kiss it and "suck the white stuff out of it." The two girls often went
to Johnson’s house to play with Chad, Johnson’s six-year-old son, and
Johnson’s schedule frequently allowed him to be at home during the
daytime when the girls were there playing with Chad.

Heather’s mother reported the sexual abuse to the Gaston County
Police, after which Heather made a recorded statement to Detectives
Cook and Seagle. In the statement, Heather related that, in addition
to Amber, Chad was sometimes present when the sexual abuse
occurred.

The detectives went immediately afterwards to Amber’s school. At
the school, Amber told Detective Seagle that "Bob" had touched her
"private place" and that Heather and Chad had seen him do it. The
detectives arranged to have Amber brought to the police station the
next day to make a recorded statement. In that statement, Amber indi-
cated that Johnson had told her to pull her pants down, exposed his
penis to her, masturbated in front of her, and made them play a game
in his basement which required the loser to pull down his or her pants.
Amber also stated that Heather and Chad had been present when
Johnson masturbated in front of her.3
3
Amber and Heather attended different schools, and Johnson does not
allege that the girls spoke to one another between the time Heather made
her statement at the police station and the time Amber made her recorded
statement the next day.
4 JOHNSON v. WATKINS
The Department of Social Services ("DSS") then initiated an inves-
tigation into the allegations involving Chad at the behest of the dis-
trict attorney, who informed DSS that Johnson was being investigated
for child molestation and that his son, Chad, was present while at least
some of these activities were taking place. DSS assigned Ms. Billie
Moss to investigate the allegations regarding Chad but did not con-
duct an investigation into the allegations of sexual abuse of Heather
and Amber.4

Moss’ summary report — a handwritten narrative record, much of
which was prepared months after she interviewed Chad — recites that
"Robert Johnson had been accused of sexual abuse of two females
(not his) and possible abuse of Chad." J.A. 33. Moss first interviewed
Chad at his school before Johnson was arrested. During that first
interview, Moss did not mention Chad’s father (Johnson), Heather,
Amber, or any details of the allegations. Rather, Moss sought only to
determine whether Chad understood which parts of his body were pri-
vate and whether anyone had touched those areas. Chad indicated to
Moss that he understood the private parts of his body and that he had
never received any sexual touches from anyone.

Moss again interviewed Chad several days later, after Johnson was
arrested, in the presence of his mother. During that interview Moss
did mention Johnson; Chad denied that he had received or witnessed
any sexual or improper touching by his father. Subsequently, Moss
concluded in her summary report that the complaint "will be unsub-
stantiated as there was no evidence to support allegation that Chad
had been sexually molested" or "present when other molestation
occurred." J.A. 33-35.

Johnson was not criminally investigated, charged, or tried for sex-
ual abuse of Chad but, rather, only for sexual abuse of Amber and
Heather.5 What is more, it is undisputed that Johnson knew that DSS
classified the allegations regarding the sexual abuse of Chad as unsub-
4
Although Moss was present when the police took Amber’s recorded
statement, she asked no questions of Amber and did not actively partici-
pate in the interview.
5
Chad, Amber, and Heather all testified at trial and were subject to
cross-examination.
 JOHNSON v. WATKINS 5
6
stantiated, as did his trial attorney. See, e.g., J.A. 39, 42-44, 52. Still,
after Johnson was convicted, and after Johnson exhausted his state
court remedies on direct appeal, Johnson filed a Motion for Appropri-
ate Relief ("MAR") in Gaston County Superior Court, seeking the
DSS records concerning Chad and alleging that his trial counsel was
ineffective because he failed to obtain them.7 Petitioner subsequently
filed an amended MAR, alleging ineffective assistance of trial counsel
for failure to investigate and call Moss as a witness.

The state superior court reviewed the DSS files in camera, allowed
the amended MAR, and conducted evidentiary and supplemental evi-
dentiary hearings. Both Kellum Morris, who represented Johnson at
trial, and Moss testified in the evidentiary hearings, as did Johnson
and Chad.

Based on this testimony and the trial court record, the state court
entered its order with written findings of fact and conclusions of law.
The court held that Morris’ failure to obtain the DSS records was pro-
fessionally unreasonable, and that if Morris had obtained and consid-
ered the records, there was a reasonable probability that he would
have offered portions of the records into evidence and called Moss as
a witness. However, the state court denied Johnson’s MAR, holding
that he was not prejudiced by his attorney’s failure to introduce either
the DSS report or Moss’ testimony at trial.

The North Carolina Court of Appeals denied Johnson’s petition for
a writ of certiorari, and Johnson timely filed his federal habeas peti-
tion under 28 U.S.C. § 2254 on April 18, 1996. The district court
granted the writ in March of 2000 — without an evidentiary hearing
— based on its determination that Moss’ testimony at the post-trial
supplementary evidentiary hearing was "grossly inconsistent with her
findings some five years earlier and with her testimony at the [initial]
6
A DSS finding of "unsubstantiated" means the agency found little or
no evidence to support an allegation.
7
The "DSS Report" consists of an intake sheet, Moss’ handwritten nar-
rative record, miscellaneous departmental notations and records, a list of
references provided to the agency by Johnson or his wife, and notes of
telephone conversations between Moss and persons she called on behalf
of Johnson.
6 JOHNSON v. WATKINS
evidentiary hearing." The court concluded that it was "unable to say"
that admission of some portion of the DSS report or Moss’ testimony
"would not have changed the result." J.A. 242.

Respondent-Appellees Fred Watkins, Superintendent of Alexander
Correctional Center, and Theodis Beck, Secretary of North Carolina
Department of Correction, appeal the district court’s order.8

II.

Johnson’s claim that he received constitutionally ineffective assis-
tance of counsel is governed by standards well-settled since Strick-
land v. Washington, 466 U.S. 668 (1984). To state a valid claim of
ineffective assistance of counsel, Johnson must show both that his
attorney’s performance fell below an objective standard of reason-
ableness and that he suffered actual prejudice as a result. Id. at 687.

In evaluating whether Johnson has shown actual prejudice from
deficient performance, it is insufficient "to show that the errors had
some conceivable effect on the outcome of the proceeding." Id. at 693
(emphasis added). To satisfy the prejudice prong, Johnson must prove
that there is a "reasonable probability" that the result of the trial
would have been different absent the deficient performance — "a
probability sufficient to undermine confidence in the outcome," rather
than a possibility the outcome would have been different. Id. at 694.
Importantly, attorney errors are considered in context; when making
the prejudice determination, the "court may consider all aspects of the
evidence proffered by the petitioner, including aspects both beneficial
and detrimental to petitioner’s case." Huffington v. Nuth, 140 F.3d
572, 581 (4th Cir. 1998).9
8
Franklin Freeman was originally the Secretary of the Department of
Correction when Johnson filed his habeas action. Pursuant to Fed. R.
Civ. P. 25(d)(1), Mr. Beck is automatically substituted as a party.
9
Because Johnson filed his petition for federal habeas relief prior to
enactment of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. 104-132, 110 Stat. 1214, the mixed question of law
and fact as to whether Johnson received effective assistance of counsel
is reviewed de novo. Hoots v. Allsbrook, 785 F.2d 1214, 1219 (4th Cir.
 JOHNSON v. WATKINS 7
III.

Examined in light of Strickland, subject to the pre-AEDPA stan-
dard of review, and affording the section 2254 presumption of cor-
rectness to the state court’s findings of fact, we conclude that the facts
in this case do not warrant habeas relief because, as the state courts
decided, Johnson has failed to establish prejudice from either coun-
sel’s failure to obtain the DSS report or Moss’ failure to testify.
Because we conclude that Johnson has failed to show any prejudice
from his counsel’s alleged ineffective assistance, we need not reach
the issue of whether counsel’s performance was in fact objectively
unreasonable, when counsel already knew that the DSS had classified
as "unsubstantiated" the allegations against Johnson with respect to
Chad10 and in fact did attempt to interview Moss before trial, but was
rebuffed.11

A.

Johnson’s primary assertion is that he was prejudiced by his coun-
sel’s failure to call Moss as a witness at trial, because if the "jury had
realized that [there was] another trained investigator who relied upon

1986). In conducting this de novo review, however, we are nonetheless
bound by the underlying state findings of fact with respect to the DSS
report and Moss unless a statutory exception overcomes the presumption
of correctness. See 28 U.S.C. § 2254(d) (pre-AEDPA); Strickland, 466
U.S. at 698.
10
See, e.g., Strickland, 466 U.S. at 691 (when facts are generally
known to counsel, "the need for further investigation may be considera-
bly diminished or eliminated altogether"); Huffington, 140 F.3d. at 580
(suggesting that failure to interview witnesses where the substance of
their testimony is known may not violate the Sixth Amendment).
11
Petitioner’s statement that trial counsel was "professionally deficient
in failing to interview Billie Moss" is disingenuous at best. Petitioner’s
Brief at 19. Trial counsel and his assistant did attempt to discuss Moss’
expected trial testimony with her (they expected the state was calling her
as a witness because the state subpoenaed her), Rec. on App., Vol. I C-
5, and Moss testified at the evidentiary hearing that she told them both
that she could not discuss the matter because of confidentiality. J.A. 111.
8 JOHNSON v. WATKINS
her investigation to conclude that Chad was in no danger of being
abused by Petitioner, there is a reasonable probability that it would
have found reasonable doubt that the two girls were telling the truth."
Petitioner’s Brief at 24. Johnson’s claim of prejudice assumes that if
Moss had testified, "the jury would have known that prior to the pos-
sibility of any [ ] motive to conceal the truth, Chad had convinced a
trained investigator that Petitioner was innocent of the accusations
against him." Petitioner’s Brief at 27-28.

1.

The flaw in this argument is that it focuses exclusively on the evi-
dence that Johnson presumably would have chosen to elicit and
ignores the further testimony that also would have been elicited from
Moss, such as that that she presented during the state court proceed-
ings. Considering all of the evidence that likely would have been elic-
ited from Moss, together with the factual findings of the state court
— many dependent upon Moss’ testimony — which supported that
court’s holding that Johnson was not prejudiced by his lawyer’s per-
formance, we are unpersuaded that the jury would have reached a dif-
ferent result had it heard testimony from Moss that she classified the
allegations regarding sexual abuse of Chad as unsubstantiated. Huf-
fington, 140 F.3d at 581 (explaining that all proffered evidence must
be considered in making the prejudice inquiry). Contrary to Johnson’s
claim, the evidence elicited from Moss, we are convinced, would not
show that Moss doubted the truth of the little girls’ allegations but,
rather, would show that she did not even consider these allegations in
arriving at her opinion with respect to Chad. For, as the state court
found, Moss’ investigation, and her conclusion that the allegations
regarding the abuse of Chad were unsubstantiated, were based almost
exclusively on information gleaned from Johnson, his wife, and their
six-year-old son. Specifically, the state court found that: (1) Moss did
not seek to interview Amber or Heather as part of her investigation,
J.A. 221; (2) Moss did not consider what Amber had said at an Octo-
ber 13 interview by the police, in finding that the allegations regard-
ing Chad were unsubstantiated, J.A. 221; and (3) Moss also did not
consider the reports of detectives investigating the offenses against
Heather and Amber in finding that the allegations regarding Chad
were unsubstantiated. J.A. 221.
 JOHNSON v. WATKINS 9
Even more significantly, the state court also found that Moss would
have testified at trial that, in her October 13 statement to the police,
Amber described explicit sexual conduct that was age-inappropriate
and possibly suggestive of sexual abuse, and that Moss "found
Amber’s statement about what happened to her to be credible." Id.
This and similar testimony, when elicited at trial, would have served
to directly implicate Johnson in the charged offenses.

Given that Moss had not considered Amber’s and Heather’s state-
ments to the police in reaching her conclusions,12 there is every reason
to believe that she would have testified at trial that her conclusion
would not have been that the allegations of child abuse were unsub-
stantiated if she had been aware of the statements of the two girls.
Indeed, and as the state court emphasized in reaching its conclusion,
Moss testified at the evidentiary hearings that Amber’s October 13
statement — in which Amber revealed that Chad had been present
when the petitioner exposed himself and masturbated in front of her
(J.A. 219) — was inconsistent with the DSS finding that the allega-
tions of abuse of Chad were unsubstantiated. J.A. 221.

In particular, Moss indicated that if she had been aware of that
information, "probably our case decision would have been that Chad
was sexually abused," J.A. 137, or that her "conclusion probably
would not have been that Chad was sexually abused, but that he was
present while sexual acts were being performed and he was therefore
a neglected child and in an environment injurious to his welfare." J.A.
166. From this, we conclude that Moss’ testimony at trial would have
confirmed that she found Amber and Heather credible rather than, as
Johnson contends, that she found Chad credible. Accordingly, we
reject Johnson’s claim that if Moss had testified, the jury would have
concluded either that she believed Chad or that she was convinced
that Johnson was innocent of the accusations against him.

For many of the same reasons, and in light of the testimony dis-
cussed above, we also reject Johnson’s claim that a reasonable proba-
bility exists that Moss’ testimony that Chad exhibited no
12
Trial counsel’s uncontradicted testimony at the evidentiary hearing
was that Moss never communicated with either girl and that the DSS ini-
tiated no investigation with respect to them. J.A. 49.
10 JOHNSON v. WATKINS
characteristics of abuse would have had the impact on the jury’s ver-
dict that he believes. Indeed, considered in context, even if Moss testi-
fied that Chad exhibited no characteristics of sexual abuse, such
testimony would have had minimal probative value, given that she
also testified that "there is no definite characteristic for sexual abuse.
You can’t look at a child and just based on what their behaviors are
determine why — whether or not they have been sexually abused."
J.A. 114. In other words, "when you’re looking at indicators for sex-
ual abuse, some children present and some don’t present." J.A. 177.

Given the full testimony that Moss could have been expected to
give, we simply cannot conclude that there is a reasonable probability
that the jury would have found doubt as to whether Johnson was
guilty of the offenses against Amber and Heather had Moss testified
that Chad did not display characteristics of abuse.

2.

In holding to the contrary, the district court wholly discounted the
factual findings of, and bases for, the state court’s decision. Indeed,
the district court appears to have granted the writ based solely on its
own conclusion — without even the benefit of an evidentiary hearing
— that Moss’ testimony at the supplemental evidentiary hearing was,

grossly inconsistent with her findings some five years earlier
and with her testimony at the [initial] evidentiary hearing.
Nevertheless, much of the state judge’s ruling is based on
the contradictory testimony of Moss at the supplemental
hearing.

J.A. at 241. But in so holding, the district court erroneously ignored
the requirements of both Sumner v. Mata, 449 U.S. 539, 551 (1981)
(noting that federal court should include in its opinion the reasoning
which led it to conclude that the state finding was "not fairly sup-
ported by the record"), and Marshall v. Lonberger, 459 U.S. 422, 434
(1984) (admonishing that habeas court may not redetermine witness
credibility).

As federal courts, we are not free to disregard the factual findings
 JOHNSON v. WATKINS 11
of the state court or to simply discount Moss’ testimony as inconsis-
tent or incredible — even pre-AEDPA. There is no evidence, or even
allegation, that the state court failed to afford Johnson a full, fair, and
adequate evidentiary hearing on the matters raised in his MAR and
amended MAR. Nor is there reason to conclude that the state court’s
findings of fact were not fairly supported.13 See 28 U.S.C. § 2254(d)
(noting exceptions to the presumption of correctness afforded to state
court factual findings); Miller v. Fenton, 474 U.S. 104, 114 (1985)
(compelling reasons for according trial judge’s determinations regard-
ing witness credibility presumptive weight); Lonberger, 459 U.S. at
433 (even implied credibility determination tantamount to a fact and
subject to "fairly supported by the record" standard).

Applying the section 2254(d) presumption requires that we accept
the state court’s findings of fact, including the finding implied in the
incorporation of her testimony into its own findings, that Moss’ testi-
mony at the supplementary evidentiary hearing was credible. Further,
the presumption of "deference requires that a federal habeas court
more than simply disagree with the state court before rejecting its fac-
tual determination. Instead, it must conclude that the state court’s
findings lacked even "‘fair[ ] support’ in the record." Lonberger, 459
U.S. at 432 (citing 28 U.S.C. § 2254(d)(8)). We can say neither that
the district court considered the proper standard of review nor that the
state court findings are unsupported by the record.

As the Supreme Court has made clear, "28 U.S.C. § 2254(d) gives
federal habeas courts no license to redetermine credibility of wit-
nesses whose demeanor has been observed by the state [ ] court, but
not by them." Id. at 434. Accepting Moss’ testimony at the evidenti-
ary hearings, as did the state courts, we conclude that Moss would not
have testified as Johnson claims. Rather, the record makes clear that
if she had testified at trial, she would have rejected her own DSS
report and prior opinion that the allegations regarding Chad were
13
Even prior to the AEDPA, section 2254(d) established a presumption
of correctness — absent exceptions not present here — for "a determina-
tion after a hearing on the merits of a factual issue, made by a State court
of competent jurisdiction . . . evidenced by a written finding, written
opinion, or other reliable and adequate written indicia. . . ."
12 JOHNSON v. WATKINS
unsubstantiated. It cannot reasonably be claimed that the absence of
such damning testimony from Moss prejudiced Johnson.

3.

Our holding that Johnson was not prejudiced by his attorney’s per-
formance does not depend solely upon the fact that Moss would have
rejected the DSS classification and her prior opinion, had she testified
at trial. We are satisfied that the jury would not have come to a differ-
ent conclusion had Moss testified also because the allegedly relevant
exculpatory facts that would have been elicited from Moss were pres-
ented to the jury at trial, albeit through other witnesses. Additionally,
we believe that any slight probative value from her testimony would
have been outweighed by the damage to Chad’s credibility from her
testimony on either direct or cross-examination.14

In the first place, even to the extent that Moss’ testimony would
have served to corroborate that Chad made statements denying that
Johnson sexually abused him or anyone else, we cannot say that her
testimony would have had the effect that Johnson imagines, given that
it would be cumulative of evidence that was presented to the jury.
See, e.g., Huffington, 140 F.3d at 581 (citing Hunt v. Nuth, 57 F.3d
1327, 1333 (4th Cir. 1995) (essentially cumulative evidence not com-
pelling; counsel’s failure to obtain cumulative evidence does not dem-
onstrate prejudice). Chad testified at trial and relayed the relevant
information from his conversations with Moss to the jury. For
instance, in addition to learning that Chad denied any sexual assault
or abuse by Johnson in his interviews with Moss, the jury also learned
that nothing came of the DSS investigation: Chad explained on direct
examination that he had limited interviews with Moss, after which he
never saw her again. Moreover, this testimony was uncontroverted;
the state produced no evidence suggesting that the DSS investigation
continued.

Second, though Johnson believes that Moss’ testimony that Chad
denied the sexual abuse prior to Johnson’s arrest is significant, John-
14
We note as well the relatively weak probative value of evidence that
is not directly material to the charged offenses; Moss was not a material
witness, or even a rebuttal witness.
 JOHNSON v. WATKINS 13
15
son again falls far short of showing prejudice. If Moss had testified,
she would have told the jury that neither Johnson, Amber, Heather,
nor the specific allegations were mentioned in the interview that took
place with Chad prior to Johnson’s arrest, minimizing further the sig-
nificance of the pre-arrest interview.

Moreover, the jury did learn that Chad was interviewed by Moss
prior to Johnson’s arrest, because trial counsel specifically elicited
from Chad that Moss’ first interview took place before Johnson was
arrested:

Q: Now [Ms. Moss’ asking you questions] was before
your father was even arrested, wasn’t it?

A: Yes.

Q: She came to your school before you ever heard any-
thing about your father going to the police department
and to the jail. Isn’t that right?

A: Yes.

State Trial Tr. at 248. The state did not rebut this testimony.

The jury also learned, through cross-examination and closing argu-
ments, many of the other facts which, if testified to by Moss, Johnson
claims may have resulted in a different outcome. For example, the
jury learned through defense counsel’s cross-examination of state wit-
nesses that, with regard to Chad, the detectives involved in the case
did not see a need to go beyond Moss’ investigation; that Chad was
never removed from the home he shared with Johnson and his
mother; and that Moss was not testifying at the trial. State Trial Tr.
at 165, 208-210. Once again, these factual matters were not disputed
by the state and remained uncontroverted.
15
Though our decision does not rely on this point, we remain skeptical
that a child would not have the same motivation to lie to law enforce-
ment about his or her sexual abuse at the hands of a parent in order to
protect the parent, even absent knowledge of an arrest.
14 JOHNSON v. WATKINS
The brevity of Moss’ investigation — and the reasonable inference
that it went nowhere because the allegations with respect to Chad
were unfounded — was further underscored by Johnson’s trial coun-
sel in closing argument, which capitalized upon Moss’ absence from
trial. In addition to suggesting that the state was hiding something
from the jury by not calling Moss as a witness, trial counsel argued
that Moss must have believed Chad or she "would have investigated
beyond the visit with the parents in her office," strongly suggesting,
again, that the reason the state did not have her at the trial was
because Chad told her that the allegations were not true. See J.A. at
55-57.

Trial counsel’s use of the absence of Moss to highlight the theory
and buttress the claim that Chad — rather than Amber or Heather —
was telling the truth is instructive; it informs the jury of facts helpful
to the defense while avoiding the negative aspects of Moss’ testi-
mony.

As one example, Moss testified at both the post-trial evidentiary
hearing and the supplementary evidentiary hearing that she had some
concerns during the pendency of the investigation that Chad and
Johnson were very close, and that Chad would say anything to protect
his dad, J.A. 183, or may have felt "compelled to protect his father,"
J.A. 104. Any of these statements would have undermined Chad’s
credibility.

Further, Johnson’s claims regarding the importance of Chad’s testi-
mony and the need to corroborate it through Moss’ trial testimony
depend in large part on the assumption that Chad’s statements to
Moss were wholly truthful and that she accepted them as such. As
discussed above, Moss would not have testified to that effect at trial
but, even if she would have, Chad’s trial testimony was inconsistent
with his earlier statements to Moss. Chad avoided impeachment by
prior inconsistent statement precisely because Moss did not testify.

For instance, while Chad told Moss that he had never received a
sexual touch, Chad testified at trial that the five-year-old Heather "has
always been wanting me to get on top of her and to French kiss her
and try to pull my pants down and for her to pull her pants down,"
and that "she has done all that more than once." State Trial Tr. at 165.
 JOHNSON v. WATKINS 15
This testimony was inconsistent with his statements to Moss that he
had not received a sexual touch.

So, too, with Chad’s trial testimony that Heather and Amber tried
to play a game with a clock that involved pulling one’s pants down,
that both girls wanted to take their pants down, and that he told Moss
about this game. State Trial Tr. at 256, 260-61. In fact, contrary to his
own trial testimony, Chad had told Moss that a game was played with
the clock that did not involve pulling one’s pants down and also
denied any acting out involving the clock.

Given the importance of showing that Chad was totally truthful
with Moss, even these inconsistencies would have undermined the
value of Chad’s testimony. As a result, the fact that any probative
value from Moss’ testimony would have been outweighed by con-
comitant damage to Chad’s credibility provides further support for
our holding that Johnson has failed to meet the prejudice prong of
Strickland with respect to the absence of this testimony from his trial.

B.

We dispense in short order with Johnson’s related habeas claim for
ineffective assistance of counsel based on trial counsel’s failure to
obtain the DSS report. First, in his brief to this court Johnson neglects
either to address counsel’s failure to obtain the DSS report or to argue
specifically that this constitutes ineffective assistance of counsel —
as he is required to do. See Fed. R. App. P. 28(b) (appellee’s briefs
must conform to the requirements of paragraphs 28(a)(1)-(6); (a)(6)
mandates that a party’s brief contain its arguments). See also Edwards
v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (noting
that issues not briefed or argued on appeal are deemed abandoned, cit-
ing rule 28(a)(6)). Instead, as Johnson’s "summary of argument"
makes clear, his argument — and the issue briefed — is that trial
counsel was ineffective in failing to interview Moss and in failing to
call her to testify in Johnson’s defense at trial. It appears, therefore,
that Johnson has effectively abandoned the claim that he received
constitutionally ineffective assistance of counsel because his trial
counsel did not obtain the DSS report.

But even if Johnson had not abandoned this claim, and even if we
were to conclude both that, upon obtaining the DSS report, trial coun-
16 JOHNSON v. WATKINS
sel would have chosen to admit portions of it and that those portions
would have been admissible, we would nonetheless hold that Johnson
was not prejudiced by counsel’s failure to obtain it. For, considering
admission of the DSS report at trial in toto, including aspects both
beneficial and detrimental to Johnson’s case, we conclude that it
would have had minimal probative value and certain harmful effects,
such that there is no reasonable probability that it would have intro-
duced reasonable doubt as to Johnson’s guilt.

Significantly, we believe that if Johnson had attempted to introduce
any portion of the DSS report, the state would have called Moss as
a witness. As discussed supra at 8-9, this testimony would not only
have rendered nugatory the DSS finding with respect to Chad, but
also would have presented the serious risk that, once she looked at all
relevant information, rather than relying on Johnson and his family
only, Moss’ testimony would have tended to confirm that she found
Amber and Heather to be credible.

Similarly, for the same reasons discussed supra at 14-15, we con-
clude that the information contained in the DSS report tends to con-
tradict parts of Chad’s trial testimony. Therefore, any probative value
to be gained from the DSS report is outweighed by the risk that its
admission would undermine Chad’s credibility and utility as a wit-
ness.

Finally, and for obvious reasons, the DSS report offers little proba-
tive value with regard to its substantive merits; it is cumulative evi-
dence, on non-material facts, which the jury was made aware of at
trial, yet ultimately rejected. See discussion, supra at 12. This point
is all the more compelling when it is considered that the DSS report
was neither directed at nor intended to resolve the charges at trial —
Johnson’s sexual abuse of the two little girls.

CONCLUSION

Even assuming trial counsel’s performance was objectively unrea-
sonable, a matter we do not decide, Johnson failed to show that either
Moss’ testimony or introduction of the DSS report was reasonably
likely to change the outcome of the trial. Consequently, Johnson was
not sufficiently prejudiced by his attorney’s performance to constitute
 JOHNSON v. WATKINS 17
constitutionally ineffective assistance of counsel. The judgment of the
district court, accordingly, is reversed and the petition is dismissed.

REVERSED AND DISMISSED