UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHARLES WALKER,
Petitioner-Appellant,
v.
No. 03-11
R. C. LEE, Warden, Central Prison,
Raleigh, North Carolina,
Respondent-Appellee.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CA-99-952-1)
Argued: December 3, 2003
Decided: January 22, 2004
Before WILKINSON and NIEMEYER, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion,
in which Judge Wilkinson and Senior Judge Hamilton joined.
COUNSEL
ARGUED: Paul MacAllister Green, Durham, North Carolina; Jona-
than Lee Megerian, MEGERIAN & WELLS, Asheboro, North Caro-
lina, for Appellant. Jonathan Porter Babb, Sr., Special Deputy
Attorney General, NORTH CAROLINA DEPARTMENT OF JUS-
TICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Roy Coo-
2 WALKER v. LEE
per, Attorney General of North Carolina, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appel-
lee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
NIEMEYER, Circuit Judge:
Charles Walker is under a sentence of death for his conviction in
a North Carolina state court for first-degree murder.
In this appeal from the district court’s order denying his petition for
a writ of habeas corpus, filed under 28 U.S.C. § 2254, Walker con-
tends that decisions of the North Carolina state courts relating to his
conviction involved unreasonable applications of federal law by (1)
failing to instruct the jury on the lesser included offense of second-
degree murder, in violation of Beck v. Alabama, 447 U.S. 625 (1980),
and (2) declining to grant a new trial based on the prosecution’s sup-
pression of one version of a witness’ two statements given to the
police, in violation of Brady v. Maryland, 373 U.S. 83 (1965). He also
contends that in several respects he received ineffective assistance of
counsel, in violation of Strickland v. Washington, 466 U.S. 668
(1984). By order dated October 1, 2003, we granted Walker a certifi-
cate of appealability on these issues. For the reasons that follow, we
affirm the judgment of the district court.
I
Charles Walker lived with his girlfriend Pamela Haizlip in her
apartment in the Morningside Homes Housing Project in Greensboro,
North Carolina. On August 12, 1992, Walker and Haizlip, as well as
fellow Housing Project residents Jesse Thompson, Rashar Darden,
Antonio Wrenn, Sabrina Wilson, and Nicki Summers, were gathered
WALKER v. LEE 3
at Summers’ apartment, located directly across the parking lot from
Haizlip’s apartment. Thompson, Wrenn, and Darden worked for
Walker selling drugs. When Wrenn saw Tito Davidson nearby, the
group discussed how Davidson attempted to rob Haizlip’s apartment
the night before, where Haizlip typically kept $4,000 to $5,000 in
drug money. Walker told Haizlip to lure Davidson to her apartment,
open the back door, turn the radio on, and keep Davidson there. He
told Haizlip that Thompson and Darden were going to beat Davidson
up. Wilson and Darden heard Walker say that he was going to kill
Davidson. Walker then pulled out a gun and put a clip in it before he,
Thompson, and Darden, who was also armed with a gun, walked
across the parking lot to Haizlip’s apartment.
When Davidson had been lured into Haizlip’s apartment and
Thompson, Darden, and Walker had arrived, Haizlip slipped out and
returned to Summers’ apartment. Walker and Darden then pulled out
their guns, ordered Davidson to the floor and tied his hands with duct
tape and radio wire. Walker asked Davidson whether he had tried to
rob him, and Davidson said he "didn’t know nothing about that."
Walker then taped Davidson’s mouth shut and struck him three times
in the kneecaps with a hammer; Davidson’s screams were muffled by
the duct tape. Walker then handed Thompson his handgun and left the
apartment. While Walker was gone, Thompson sliced Davidson’s
throat with a Ginsu knife "about three times," and then shot Davidson
in the finger and the arm with Walker’s gun, muffling the sound with
a pillow. Darden too shot at Davidson with his gun.
During this entire period when Davidson was being cut and shot,
Walker moved back and forth several times between Haizlip’s apart-
ment and Summers’ apartment. Wrenn testified at trial that at one
point, while he was in Summers’ apartment, Darden and Thompson
came to get him, saying that Walker, who was in Haizlip’s apartment,
wanted him. When Wrenn arrived at Haizlip’s apartment, he saw
Davidson, who was still alive, tied and bleeding, with knife wounds
on his neck and bullet wounds on his body. When Davidson tried to
say something to Wrenn, whom he knew, Walker asked Wrenn,
"Ain’t this Tito [Davidson]?" After Wrenn answered in the affirma-
tive, he left the apartment. After some time had passed and Davidson
had not yet died, Darden, too, left the apartment and went to Walker,
who was now at Summers’ apartment, to tell Walker, "He ain’t
4 WALKER v. LEE
dying." According to Darden, Walker then accompanied him back to
Haizlip’s apartment, asked Thompson for the gun, and shot Davidson
in the neck, finally killing him.
After Davidson had been murdered, Wrenn and Walker went to a
nearby hardware store to purchase trash bags and cleaning supplies.
Darden, Thompson, and Walker wrapped Davidson’s body in a sheet
and trash bags, carried it outside, and dumped it into a dumpster. Dar-
den and Thompson then cleaned up the blood in Haizlip’s apartment.
Walker, Haizlip, Wrenn, Darden, and Thompson were subse-
quently arrested for Davidson’s murder. While in jail awaiting trial,
Haizlip sent several letters to Walker. She wrote that she knew
Walker "didn’t do nothing" and that she was "lying left to right" when
she told police that Walker had murdered Davidson. She wrote that
she had lied because she believed Walker was seeing another woman,
and because "Jay was threatening me." She added in one letter,
"[Y]ou say they’re doing this [giving you the death penalty] because
your past records. You must have had a bad past, Charles."
At Walker’s trial, Haizlip testified for the government, telling as
much about the circumstances of the murder as she knew. On cross
examination, Walker’s counsel sought to impeach Haizlip’s testimony
with the letters that she wrote to Walker. Counsel allowed Haizlip
first to read the letters to herself silently to refresh her recollection.
He then questioned her about them, and she acknowledged that she
"told [Walker] that I told some lies on him." Counsel then introduced
the letters into evidence and had Haizlip read from them. On redirect
examination, the government asked Haizlip about the passage in
which she referred to Walker’s "bad past," and Haizlip said that it
referred to "an attempted murder charge," about which Walker had
told her earlier.
The trial judge instructed the jury on first-degree murder only, and
the jury found Walker guilty. At the separate sentencing hearing,
Walker’s counsel did not mention, as a nonstatutory mitigating factor,
the uncertainty over whether Walker actually fired the fatal shot. The
judge, however, told the jury that "all of the evidence relevant to your
recommendation has been presented. . . . All of the evidence which
you hear in both phases of the case is competent for your consider-
WALKER v. LEE 5
ation in recommending punishment." On their sentencing form, the
jury answered "No" to the question whether Walker delivered the
fatal shot. They found, however, that Walker intended to kill the vic-
tim while acting in concert with others and sentenced him to death.
On appeal, the Supreme Court of North Carolina found that Walker
received a fair trial that was free of prejudicial error, State v. Walker,
469 S.E.2d 919, 926 (N.C. 1996), and the Supreme Court of the
United States denied Walker’s petition for a writ of certiorari, 519
U.S. 901 (1996).
After exhausting available North Carolina post-conviction proce-
dures, Walker filed this petition for a writ of habeas corpus in the dis-
trict court, and the district court denied relief. This appeal followed.
II
Walker contends first that the State trial court’s failure to instruct
the jury on second-degree murder was an unreasonable application of
the rule articulated in Beck v. Alabama, 447 U.S. 625 (1980) (holding
that in capital cases due process requires that a lesser included offense
instruction be given when the evidence warrants such an instruction).
The standard for collateral review of state proceedings under 28
U.S.C. § 2254(d) is now familiar. A federal court may not grant a writ
of habeas corpus unless the State court’s adjudication of the claim
"resulted in a decision that was contrary to, or involved an unreason-
able application of, clearly established Federal law, as determined by
the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
This criterion is satisfied when "the state court identifies the correct
governing legal principle from [the Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case."
Williams v. Taylor, 529 U.S. 362, 413 (2000). But "[a]n unreasonable
application of federal law is different from an incorrect or erroneous
application of federal law." Id. at 412.
Because Beck requires that a State trial judge instruct the jury on
second-degree murder in a capital case "when the evidence warrants
such an instruction," Hopper v. Evans, 456 U.S. 605, 611 (1982), we
6 WALKER v. LEE
must look to North Carolina law to determine what evidence would
distinguish capital murder from second-degree murder.
Under North Carolina law, first-degree murder is "the unlawful
killing of a human being with malice, premeditation, and delibera-
tion." State v. Nicholson, 558 S.E.2d 109, 134 (N.C. 2002). "Premedi-
tation" means the formation of a specific intent to kill, however
briefly before the act of murder, and "deliberation" means the forma-
tion of such intent "not in the heat of passion, but while the defendant
is in a ‘cool state of blood.’" Id. The elements of first-degree murder
include the lesser offense of second-degree murder, which requires
only malice, but not premeditation or deliberation. State v. Watson,
449 S.E.2d 694, 699 (N.C. 1994).
At Walker’s State trial, the court instructed the jury only on first-
degree murder. Therefore, we must determine whether, in light of
Beck and of the evidence before the State trial court, the State trial
court’s decision not to give an instruction on second-degree murder
as a lesser included offense involved an unreasonable application of
Beck. The State presented overwhelming evidence of Walker’s intent
to kill Davidson. Every one of the four witnesses to the events preced-
ing the murder — Wilson, Haizlip, Darden, and Wrenn — testified
that Walker instructed Haizlip to lure Davidson into her apartment
and keep him there. In addition, Wilson witnessed Walker pull out a
gun and put a clip in it before departing for Haizlip’s apartment,
where the murder took place, and both Wilson and Darden heard
Walker expressly say that he was going to kill Davidson. Darden tes-
tified that he himself understood and intended that he and his com-
panions, including Walker, were going to Haizlip’s apartment to kill
Davidson. Moreover, all of the witnesses agreed that the murder itself
was a prolonged crime, with Davidson slowly dying from various
wounds that included throat-slashings and bullets to the body, leaving
little room for the argument that his death was unintended. Finally, all
the witnesses testified to Walker’s participation in the clean up of the
murder scene and the disposal of the body. There was no evidence
that Davidson’s murder was committed with an intent other than one
characterized as premeditated and deliberate. We conclude therefore
that the State trial court did not unreasonably apply Beck in refusing
to give a second-degree murder instruction in light of the evidence
presented at trial.
WALKER v. LEE 7
Walker argues that Haizlip’s testimony that Walker said that his
friends were "gonna beat [Davidson] up" undermined the testimony
of Darden and Wilson that Walker expressed an intent to kill David-
son and therefore created a conflict in the evidence on intent. Hai-
zlip’s testimony, however, does not indicate that Walker did not
intend to kill Davidson, and the North Carolina Supreme Court
expressly found no conflict in the evidence that Walker deliberately
intended to kill Davidson. See Walker, 469 S.E.2d at 922. Rather, the
evidence must be taken that Walker intended both to beat up David-
son and to kill him. And indeed the evidence supports the finding that
Walker did just that. Walker, Darden, and Wilson beat Davidson with
a hammer, and then they killed him. Rather than conflict with the tes-
timony of Darden and Wilson, Haizlip’s testimony simply elaborates
on Walker’s intent and confirms exactly what happened.
Walker also argues that there was an inconsistency as to what pre-
cise acts in the course of murdering Davidson he committed and what
acts were committed by Darden and Thompson. This argument, how-
ever, does not go to whether Walker acted with premeditation and
deliberation, the elements that separate first-degree murder from
second-degree murder, but to the question of whether Walker was
guilty of murdering Davidson at all. Indeed, for this reason it serves
to further substantiate the trial court’s decision because it supports the
notion that as long as the jury believed that Walker killed Davidson,
there was no question but that he did it with the intent required for
first-degree murder.
Because the record contains no evidence tending to undermine the
State’s overwhelming evidence of premeditation and deliberation and
therefore to suggest the need for an instruction on second-degree mur-
der, we conclude that the trial court did not unreasonably apply Beck
in instructing the jury only on first-degree murder.
III
Walker also contends that the North Carolina courts unreasonably
applied Brady v. Maryland, 373 U.S. 83 (1965) (holding that the Due
Process Clause requires the government to produce to the defendant
evidence favorable to the defendant), by refusing to grant him a new
trial based on the prosecution’s suppression of a statement orally
8 WALKER v. LEE
given by Marquita Schofield to a police officer which he contends
was favorable to him. A new trial would be required under Brady if
Walker were able to show that the evidence was (1) favorable to him;
(2) known to the government but not to the defense; and (3) "mate-
rial" in that there was a "reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have
been different." United States v. Bagley, 473 U.S. 667, 682 (1985);
see also Brady, 373 U.S. at 87-88.
On September 30, 1992, more than a month after the murder of
Davidson, Marquita Schofield approached a police officer at the hous-
ing complex and relayed a conversation that she had had with Thomp-
son, in which Thompson had said that Davidson had tried to rob
Haizlip and Walker, and that Thompson, after hearing of the
attempted robbery, confronted Davidson, asking him, "Are you the
one trying to rob us?" As related by Schofield, Thompson then said
that he "bust [Davidson] twice," meaning that he shot him twice, and
told him, "That’s for my man ‘Black,’" a friend of Thompson who
was shot at Haizlip’s apartment a few days before Davidson’s murder.
According to Schofield, Thompson also told her that after he shot
Davidson, Walker "told [Thompson] he was crazy."
A few weeks later, on October 19, 1992, Schofield repeated the
statement in writing, and this second statement was substantively
identical to the first one recorded by the police officer on September
30, except that Schofield’s handwritten statement failed to include
Thompson’s statement that Walker said that Thompson was "crazy."
At trial, the government provided Walker with Schofield’s October
19, 1992 handwritten statement but not the earlier report given to a
police officer in September 1992. The State trial court found that
Schofield’s first statement was "substantially consistent with and
merely cumulative to" her second statement and therefore concluded
that the government’s failure to produce this evidence was not mate-
rial.
Walker argues that the difference between the statements was vital
because Schofield’s first statement that Thompson told her Walker
said Thompson was "crazy" was material to the question of Walker’s
level of involvement in the murder. If we accept Walker’s contention
WALKER v. LEE 9
that this evidence might be construed to be favorable to Walker, it
was nevertheless not unreasonable for the North Carolina courts to
have concluded that its suppression did not present a "reasonable
probability" of affecting the trial’s outcome. With all the govern-
ment’s evidence showing Walker’s specific intent to kill Davidson, as
well as the fact that Thompson was subordinate to Walker as a drug
runner, it was not unreasonable to conclude that Thompson’s report
that Walker said he was "crazy" would not have had a reasonable
probability of affecting the jury’s verdict that Walker killed Davidson.
Describing a person as "crazy" could have several different meanings
in this context, among them "maniacal" and "ruthless." Such an inter-
pretation would be entirely consistent with the remainder of Thomp-
son’s statement to Schofield, in which Thompson bragged about how
merciless he was in avenging the wrongs for which he imagined
Davidson responsible. With the ambiguity in Thompson’s statement,
combined with the State’s overwhelming evidence that Walker
intended to kill Davidson and directed his subordinates to aid him in
doing so, the difference between the disclosed and undisclosed ver-
sions of Schofield’s testimony could reasonably be found to have had
no impact on the outcome of the trial, and we therefore cannot con-
clude that the State court’s decision in not ordering a new trial was
an unreasonable application of Brady.
IV
Finally, Walker claims that he received ineffective assistance of
counsel at trial. To carry his burden on this claim, Walker must show
(1) "that [his] counsel’s representation fell below an objective stan-
dard of reasonableness," Strickland v. Washington, 466 U.S. 668, 688
(1984), and (2) "that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would
have been different," id. at 694. Walker argues that counsel made four
unprofessional errors that violated the Strickland standard.
A
First, Walker contends that his counsel’s failure to locate and inter-
view Marquita Schofield was professionally unreasonable. His coun-
sel and the law clerk in counsel’s office submitted affidavits
indicating their efforts to locate witnesses, including Schofield, and
10 WALKER v. LEE
their inability to find Schofield. The inability to locate witnesses after
reasonable efforts does not constitute ineffective assistance of coun-
sel. See Huffington v. Nuth, 140 F.3d 572 (4th Cir. 1998). In addition,
there is no reasonable probability that Schofield’s testimony would
have affected the outcome of the proceedings. At most, Schofield
could have reiterated what Thompson told her in the statement she
gave to the police. Thus, Walker has failed to satisfy both prongs of
the Strickland test.
B
Walker next contends that his counsel acted in a professionally
unreasonable manner by introducing into evidence the letters written
by Haizlip to Walker while the two were in jail pending trial.
In these letters, Haizlip stated that she knew Walker "didn’t do
nothing" and that she was "lying left to right" when she told the police
he had murdered Davidson. Accordingly, these letters served an
important purpose in Walker’s defense, particularly in a trial without
substantial physical evidence. Haizlip was one of four witnesses who
was vital to the government’s case, and by producing letters of one
of those witnesses stating that she was lying, counsel for Walker legit-
imately hoped to create a reasonable doubt as to whether these wit-
nesses were pinning murder on Walker for their own reasons.
One of the letters, however, contained a passing reference to Walk-
er’s "bad past," through which the prosecution elicited from Haizlip
the testimony that Walker had told her of a past charge for attempted
murder. Although evidence of this past conduct was unfavorable to
Walker, it was the strategic price paid by Walker’s counsel to intro-
duce the evidence helpful to Walker’s case. Strategic decisions of this
kind are not a basis for finding professional incompetence, especially
when counsel’s decision "might be considered sound trial strategy."
Strickland, 466 U.S. at 689.
C
Walker also contends that his counsel was ineffective in failing to
cross examine Antonio Wrenn on the question of whether Wrenn and
WALKER v. LEE 11
Walker had taken a cab to the hardware store to purchase supplies to
dispose of Davidson’s body and to clean the apartment. This detail,
however, is insubstantial and presents no reasonable probability that
questioning Wrenn on this point would have changed the outcome of
the proceedings.
D
Finally, Walker contends that his counsel was incompetent in fail-
ing to propound as a non-statutory mitigating factor at sentencing the
possibility that Walker did not personally kill Davidson.
While defense counsel has an obligation to investigate possible
mitigating factors in preparation for a capital sentencing hearing, Wil-
liams, 529 U.S. at 395-96, counsel did bring to the jury’s attention in
the guilt/innocence portion of the trial the argument that Walker was
not the person who fired the fatal shot. Indeed, the question of
whether the State had proved that Walker fired the fatal shot was
resolved by the jury when it answered "No" to that question on the
sentencing form. In addition, the trial judge instructed the jury to
"consider any other circumstance . . . arising from the evidence which
you deem to have mitigating value." The jury was conscious of the
fact that Walker did not fire the fatal shot — indeed it could not con-
clude unanimously that he did — and it was instructed by the judge
to consider such evidence if the jurors thought it tended to mitigate
Walker’s guilt. Any failure, therefore, to present explicitly the fact
that Walker did not fire the fatal shot during sentencing had no rea-
sonable probability of affecting the outcome of the sentencing hear-
ing.
V
For the foregoing reasons, we affirm the district court’s order deny-
ing Walker’s petition for a writ of habeas corpus.
AFFIRMED