Simpson v. Polk

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-3

PERRIE DYON SIMPSON,

Petitioner - Appellant,

versus

MARVIN POLK, 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-99-741-1)

Argued: February 4, 2005 Decided: April 21, 2005

Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished opinion. Judge Traxler wrote the opinion,
in which Judge Motz and Judge Gregory joined.

ARGUED: Robert Mauldin Elliot, ELLIOTT, PLISHKO & MORGAN, P.A.,
Winston-Salem, North Carolina; Polly D. Sizemore, HILL, EVANS,
DUNCAN, JORDAN & DAVIS, P.L.L.C., Greensboro, North Carolina, for
Appellant. Barry Steven McNeill, Assistant Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee. ON BRIEF: Joseph P. Gram, HILL, EVANS, DUNCAN, JORDAN &
DAVIS, P.L.L.C., Greensboro, North Carolina, for Appellant. Roy
Cooper, Attorney General of North Carolina, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

2
TRAXLER, Circuit Judge:

Perrie Dyon Simpson was convicted of capital murder and

sentenced to death in a North Carolina state court. After

unsuccessfully challenging his murder conviction in state court on

direct review and in state habeas proceedings, Simpson filed a

petition for writ of habeas corpus in federal district court. See

28 U.S.C.A. § 2254 (West 1994 & Supp. 2004). The district court

denied his application for relief, and declined to issue a

certificate of appealability. We granted a certificate of

appealability to review three claims. See 28 U.S.C.A. § 2253(c)(1)

(West Supp. 2004). For the reasons set forth below, we affirm.

I.

On August 27, 1984, Simpson and his sixteen-year-old

girlfriend, Stephanie Yvette Eury, forced their way into the home

of Reverend Jean Ernest Darter, a 92-year-old retired minister,

burglarized the home, and murdered Reverend Darter.

Doris Faircloth, the victim’s daughter, became concerned when

she could not reach her father by telephone, and she and her

husband drove to the victim’s home that evening. As they entered

the home, they observed that all of the lights were off except for

a bathroom light. Reverend Darter was found lying across his bed

with a strap tying his neck to the bedpost. According to Ms.

Faircloth, what she saw was “‘so horrible that [she] seemed not to

3
be able to see it all collectively,’” but rather “‘in bits and

pieces.’” State v. Simpson, 462 S.E.2d 191, 197 (N.C. 1995).

Officers responding to the murder scene found no signs of

forced entry. The telephone cords in the hall and bedroom had been

cut. In one bedroom, the sheets and covers on the bed were wadded

up, the dresser drawers had been pulled out, and the contents from

the drawers had been dumped onto the floor. A number of knives

were found lying in the kitchen sink and the freezer and

refrigerator doors were cracked open. In a storage area adjacent

to the kitchen, the officers found a carton of glass Tab bottles

with one bottle missing. A pack of razor blades was in the

bathroom sink. The officers also found a writing pad with the

names “Lisa Marie Johnson” and “Curtis Anthony Parker” written on

it. Reverend Darter was found lying on his bed, with his feet on

the floor. The scene was further described by the North Carolina

Supreme Court as follows:

Two belts were wrapped around Reverend Darter’s neck.
The outer belt was the largest and thickest, and it was
tied to the bedpost. The inner belt was broken.
Reverend Darter’s face was bloated and bloody. He had
glass in his left eye, and a design composed of many
small circles and dots was imprinted on the Reverend’s
left cheek. Both of the Reverend’s arms were cut open
from his elbows to his wrists. Blood was on the bed and
had run down the side of the bed and formed a puddle on
the floor; there was blood on the walls and window
blinds. Also on the bed were the contents of two dresser
drawers, shattered glass, the Reverend’s broken glasses,
his false teeth, a razor blade, and the neck of a glass
Tab bottle.

Id.

4
 Eight latent fingerprints and Reverend Darter’s telephone bill

led police investigators to Simpson. According to the telephone

bill, a long-distance telephone call had been placed on the day

before the murder from Reverend Darter’s house to a telephone

number belonging to a woman named Ruby Locklear in Greensboro,

North Carolina. When questioned, Ms. Locklear told the officers

that Simpson would occasionally call her from Reidsville when he

wanted to reach his father. The fingerprints matched those of

Simpson.

An autopsy performed by pathologist Michael James Shkrum

revealed further details of the gruesome crime:

[T]he Reverend sustained blunt-trauma injuries to his
face causing swelling and bruising. The bone between the
eye socket and the brain was fractured, the cheek and the
jaw bone were broken, and the Reverend’s tongue was torn.
Strangulation bruises appeared on the neck. It was Dr.
Shkrum’s opinion that Reverend Darter died from ligature
strangulation, and that it would have taken several
minutes for his heart to stop beating. It was Dr.
Shkrum’s further opinion that Reverend Darter experienced
pain. Dr. Shkrum also testified that because Reverend
Darter sustained bruising around his face, his heart was
still beating when those injuries were inflicted.

Id. at 199.

During the investigation, officers discovered that there was

an outstanding warrant for Simpson in Greensboro for simple

assault. Simpson was arrested on September 21, 1984, and advised

of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). He

initially claimed to know nothing about the murder, denied ever

having met or seen Reverend Darter, and denied ever having been

5
inside Reverend Darter’s home. After he was transported to

Greensboro for a bond hearing on the simple assault charge,

however, Simpson agreed to talk with the officers about the Darter

murder and ultimately executed a sixteen-page, detailed written

statement confessing to the crime. The North Carolina Supreme

Court summarized the confession as follows:

Defendant confessed that on 26 August 1984, he and his
pregnant, sixteen-year-old girlfriend, Stephanie Eury,
went for a walk to look for some money. Stephanie went
to the front door of Reverend Darter’s house and rang the
doorbell. She told Reverend Darter she was hungry, so he
brought her a diet soft drink and gave the defendant a
glass of milk. Stephanie asked if they could come
inside, so the three went into the front living room.
Stephanie told the Reverend that she and defendant were
traveling to Florida and had gotten stuck in Reidsville.
The Reverend suggested they contact the Salvation Army or
the police. Stephanie asked Darter if he could give them
some money, and Reverend Darter gave her four dollars,
explaining that was all the money he had in cash.
Defendant told police that he and Stephanie “noticed the
preacher had a nice home.” After getting permission to
use the telephone, defendant called Ruby Locklear in
Greensboro to see if she had seen defendant's father.
When defendant got off of the telephone, he heard
Stephanie tell the Reverend her name was “Lisa” and
defendant's name was “Curtis Anthony.” Defendant watched
the Reverend write these names down on a pad of paper.
Defendant told the police that before he and Stephanie
left the house, the Reverend gave them some sponge cake
and peaches to take with them. Defendant admitted that
“Reverend Darter was real friendly to us and was very
helpful.”

The next day, 27 August 1984, defendant said that he and
Stephanie “both talked about going back to preacher
Darter’s house to get some money. Stephanie and I decided
we would go back to Darter’s house and we would not come
back empty-handed no matter what.” Defendant told police
that he and Stephanie walked around outside waiting for
it to get dark. Once it was dark enough, the two walked
to Reverend Darter’s house, looking around to make sure

6
no one saw them. They rang the doorbell, and when
Reverend Darter answered the door, they forced their way
inside. Reverend Darter ran to the telephone, but
defendant “pulled the preacher’s hands off the
telephone.” Defendant told Stephanie to cut the
telephone cords, and in the meantime, he was “struggling
with Preacher Darter holding onto the preacher's arms to
control him and force him back in his bedroom so he would
tell me where some money was.” Defendant held the
Reverend down on the bed, with his hands around his neck,
telling him he wanted money “or else,” but the Reverend
told defendant he did not have any money.

The Reverend told defendant that if he was killed, he
knew he was going to heaven. Defendant told the police,
“this frustrated me and I grabbed him tighter around the
throat.” Defendant reached across the bed and got a belt
and “looped it around his neck and tightened the belt.”
While he held the belt tight, defendant rummaged through
two dresser drawers Stephanie had dumped onto the bed.
Not finding anything he wanted, defendant drew the “belt
more tight around his neck and I told the preacher he had
better tell us where some more money was but the preacher
could not talk because he was choking.” When the first
belt broke, defendant got another, thicker belt “and
looped this leather belt around the preacher’s neck and
tightened up on this leather belt. Then I called
Stephanie to bring me something in the bedroom to kill
this preacher with.”

When defendant did not receive any weapon to his liking,
he called for Stephanie to come and hold the belt while
he “went in the kitchen and looked for some device to
beat the old preacher and finish him off.” He picked up
a full pop bottle and then decided to put it back and get
an empty bottle. He returned to the bedroom, pulled
tight on the belt, and “hit the old preacher hard three
times with this bottle and on the third blow the soft
drink bottle broke.” Defendant then decided to tie the
end of the belt to the bedpost, and he went into the
bathroom and got a double-edged razor blade. “I held
this double-edged razor blade between my right index
finger and right thumb and then I sliced the preacher’s
arms from the biceps all of the way down the under side
of the forearms to the wrist. I cut both of the
preacher’s arms.” Stephanie gathered a bag of food, a
porcelain lamp, a radio, and boxes of Kleenex and packed
them in a plastic laundry basket. “The last thing we did

7
 before leaving the preacher’s house was to turn off all
the lights except the bathroom light.”

Simpson, 462 S.E.2d at 198-99. According to one officer, when

Simpson read the statement out loud to check for mistakes he

laughed when he came to a portion of the statement where he had

used profanity.

On March 4, 1985, Simpson entered a plea of guilty to first-

degree murder, conspiracy to commit murder, and armed robbery.

Under a plea agreement, Simpson reserved his right to appeal from

the state trial court’s denial of his motion to suppress his

confession and the state dismissed the charge of first-degree

burglary. A sentencing hearing was held, at the conclusion of

which the jury returned a verdict recommending a sentence of death.

On July 7, 1987, the Supreme Court of North Carolina rejected

Simpson’s appeal of the order refusing to suppress his confession

and affirmed the convictions, but vacated the sentence of death and

remanded for a new sentencing hearing due to an error that had

occurred during closing argument. See State v. Simpson, 357 S.E.2d

332 (N.C. 1987), cert. denied, Simpson v. North Carolina, 485 U.S.

963 (1988). A second sentencing hearing was held in May 1989, and

Simpson again received a sentence of death. This time, the Supreme

Court of North Carolina vacated the sentence and remanded for a new

sentencing hearing due to an error under McKoy v. North Carolina,

494 U.S. 433 (1990). See State v. Simpson, 415 S.E.2d 351, 353

(N.C. 1992).

8
 In January 1993, Simpson’s third sentencing proceeding took

place. In mitigation, Simpson presented testimony of various

persons who knew him during his childhood and his case manager at

the prison where he had been incarcerated pending trial. The heart

of the case in mitigation, however, centered on the testimony of

Ms. Joan Landreth, a social worker, and Dr. Claudia Coleman, a

clinical psychologist. In summary, Ms. Landreth related to the

jury that Simpson had been removed from his mother at birth and

placed into the North Carolina foster care system, where he

languished for the rest of his childhood. Dr. Coleman opined that

this background, along with a personality disorder, exacerbated

Simpson’s severe and untreated attention deficit hyperactivity

disorder (ADHD) causing him to suffer from severe mental and

emotional disturbances and an impaired ability to conform his

conduct to the requirements of the law.

At the conclusion of the sentencing hearing, the jury found

as aggravating factors that the murder of Reverend Darter was

committed by Simpson while he was engaged in the commission of

robbery and that the murder was especially heinous, atrocious, or

cruel. The jury found thirteen mitigating circumstances: (1) that

the murder was committed while the defendant was under the

influence of mental or emotional disturbance; (2) that the

defendant aided in the apprehension of another capital felon; (3)

that the mental or emotional age of the defendant at the time of

9
the murder was a mitigating circumstance; (4) that the defendant’s

development was adversely affected by the lack of permanence in his

life resulting from frequent changes in foster home and school

placements; (5) that the defendant was taken into and removed from

the home and care of his grandmother during which time his brother,

Daryl, continued to remain in the home and care of his grandmother;

(6) that the defendant experienced mental or emotional disturbance

beginning at an early age; (7) that the defendant’s mental or

emotional disturbance adversely affected his ability to perform in

school; (8) that the defendant’s mental or emotional disturbance

adversely affected his ability to sustain employment; (9) that the

defendant’s behavior has improved during times when he was in a

structured environment; (10) that prior to his arrest for murder,

the defendant freely and voluntarily confessed, both orally and in

writing, to his involvement in the murder; (11) that the defendant

did not minimize his personal culpability for the murder in the

course of his confession; (12) that the defendant voluntarily

consented to a search of his portion of the Eury residence for

evidence of the robbery and murder; and (13) that the defendant

voluntarily entered a plea of guilty to the offenses of murder,

armed robbery, and conspiracy to commit murder. However, the jury

unanimously decided that the aggravating circumstances outweighed

these mitigating circumstances and recommended that Simpson be

sentenced to death for the murder of Reverend Darter.

10
 On direct appeal to the North Carolina Supreme Court, Simpson

asserted, among other claims, that the trial court erred in

allowing the prosecution to cross-examine Dr. Coleman about

diagnoses and opinions of other physicians and psychologists which

were contained within the reports she had reviewed and erred in

refusing to allow Ms. Landreth to testify regarding several

additional matters that he contends would have had mitigating

value. The North Carolina Supreme Court affirmed Simpson’s death

sentence, see Simpson, 462 S.E.2d at 200, and the United States

Supreme Court denied Simpson’s petition for writ of certiorari, see

Simpson v. North Carolina, 516 U.S. 1161 (1996).

In 1997, Simpson was appointed new legal counsel and initiated

state post-conviction proceedings by filing a motion for

appropriate relief (“MAR”) in the North Carolina Superior Court.

The motion alleged, among other things, that Simpson’s plea of

guilty entered in 1985 was not the result of a knowing and informed

decision because he did not fully understand the consequences of

pleading guilty. The state MAR court denied Simpson post-

conviction relief and the North Carolina Supreme Court denied

review. See State v. Simpson, 539 S.E.2d 648 (N.C. 1999).

Pursuant to 28 U.S.C.A. § 2254, Simpson filed this petition

for a writ of habeas corpus in the district court on August 27,

1999. The district court denied the petition, and declined to

issue a certificate of appealability under 28 U.S.C.A. § 2253. We

11
then granted a certificate of appealability to address Simpson’s

constitutional claims that (1) his death sentence violated the

Confrontation Clause of the Sixth Amendment because the state trial

court allowed the prosecution to cross-examine Dr. Coleman

concerning the diagnoses and opinions of other providers; (2) his

Eighth Amendment right to introduce evidence in mitigation was

violated by the trial court’s exclusion of certain testimony by Ms.

Landreth; and (3) that his guilty plea was not knowing and

voluntary. We now affirm.

II.

Pursuant to the limits on federal habeas review of a state

conviction, when a habeas petitioner’s claim has been “adjudicated

on the merits in State Court proceedings,” we may not grant relief

unless that adjudication “resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States” or “resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C.A. § 2254(d);

see also Williams v. Taylor, 529 U.S. 362 (2000). A state court’s

decision is contrary to clearly established federal law under

§ 2254(d) where it “applies a rule that contradicts the governing

law set forth” by the United States Supreme Court or “confronts a

12
set of facts that are materially indistinguishable from a decision

of [the Supreme Court] and nevertheless arrives at a result

different from [that] precedent.” Id. at 405-06. A state court’s

decision involves an unreasonable application of clearly

established federal law “if the state court identifies the correct

governing legal rule from [the Supreme] Court’s cases but

unreasonably applies it to the facts of the particular state

prisoner’s case.” Id. at 407. Factual determinations made by the

state court “shall be presumed to be correct,” and “[t]he applicant

shall have the burden of rebutting the presumption of correctness

by clear and convincing evidence.” 28 U.S.C.A. § 2254(e)(1) (West

Supp. 2004). In cases where § 2254(d) provides no barrier to

habeas relief and it is determined that a constitutional error

occurred in the state court proceedings, the petitioner must also

show “that the error had a ‘substantial and injurious effect or

influence in determining the jury’s verdict.’” See Fullwood v.

Lee, 290 F.3d 663, 679 (4th Cir. 2002) (quoting Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993)).

III.

A.

We begin with Simpson’s claim that his Sixth Amendment right

to confrontation was violated because the trial court permitted the

prosecution to cross-examine his expert, Dr. Claudia Coleman, about

13
diagnoses and opinions of mental health professionals who had

examined Simpson prior to the murder.

Dr. Coleman is an expert in clinical psychology, neurological

psychology, and forensic psychology. She was retained in 1989,

five years after the murder of Reverend Darter, to interview and

evaluate Simpson for purposes of mitigation. Dr. Coleman reviewed

Simpson’s history, medical records, and social services records,

and conducted a psychological examination. On direct examination,

Dr. Coleman testified that, based upon her evaluation, it was her

opinion that Simpson suffered from severe ADHD, and that this

condition, left untreated, had resulted in destructive, aggressive,

and disruptive behavior which was further exacerbated by Simpson’s

unstable social environment and a mixed personality disorder. As

a result, Dr. Coleman opined that Simpson suffered from severe

mental and emotional disturbances at the time of the murder and

that his capacity to conform his conduct to the requirements of the

law was impaired.

On cross-examination, the prosecutor questioned Dr. Coleman

about the medical records and social services records that she had

compiled, reviewed, and relied upon during the course of her

evaluation and, in particular, questioned her about the diagnoses

and opinions recorded by the physicians and psychologists in those

records. Dr. Coleman acknowledged that she had relied upon

information contained within the reports in formulating her expert

14
opinions, but testified that she disagreed with the information

contained within them that contradicted her diagnosis of ADHD. The

prosecution utilized this cross-examination to point out that none

of the prior professionals had arrived at a diagnosis of ADHD and

to suggest that the jury reject Dr. Coleman’s opinions offered in

mitigation.

The Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” U.S. Const. amend. VI.

At the time of Simpson’s third sentencing hearing, an unavailable

hearsay declarant’s statement was admissible “only if it [bore]

adequate ‘indicia of reliability.’” Ohio v. Roberts, 448 U.S. 56,

66 (1980). Reliability could be established if the evidence fell

“within a firmly rooted hearsay exception” or if there was “a

showing of particularized guarantees of trustworthiness.” Id.1

On direct appeal, the North Carolina Supreme Court rejected

Simpson’s claim that the prosecution’s cross-examination of Dr.

Coleman “resulted in a violation of his constitutional right to

confrontation,” and held that “[p]ursuant to [North Carolina Rule

1
In Crawford v. Washington, 124 S. Ct. 1354 (2004), the
Supreme Court overruled Ohio v. Roberts, 448 U.S. 56 (1980). When
the death sentence was imposed upon Simpson, however, Roberts was
the controlling precedent. See Yarborough v. Alvardo, 124 S. Ct.
2140, 2147 (2004) (“For purposes of 28 U.S.C. § 2254(d)(1), clearly
established law as determined by th[e] Court “refers to the
holdings, as opposed to the dicta, of th[e] Court’s decisions as of
the time of the relevant state-court decision.”) (internal
quotation marks omitted).

15
of Evidence] 705, Dr. Coleman was properly cross-examined about

other diagnoses contained within psychiatric reports upon which she

relied, although she ultimately formed a differing diagnosis.”

Simpson, 462 S.E.2d at 213. In doing so, the state court noted

that the case was indistinguishable from State v. Allen, 367 S.E.2d

626, 630-31 (N.C. 1988), which had held that such contrary opinions

contained within the records and reports relied upon by an expert

may be highlighted for the purpose of impeaching the expert.

On federal habeas, Simpson argues that the state court applied

an improper evidentiary standard of review as evidenced by its

reference to Allen and the absence of any explicit analysis as to

whether the contrary opinions and diagnoses introduced via the

cross-examination of Dr. Coleman fell “within a firmly rooted

hearsay exception” or otherwise contained “particularized

guarantees of trustworthiness” as required under Roberts.

Consequently, he argues, the North Carolina court’s adjudication of

his claim was “contrary to” clearly established Supreme Court

precedent, and that we should grant habeas relief because the

opinions and diagnoses of the other mental health providers met

neither of the exceptions set forth in Roberts.

We disagree. Although the North Carolina Supreme Court did

not explicitly reference the Roberts inquiry, we cannot conclude

from this omission that it rested its determination solely upon a

conclusion that the cross-examination was appropriate under state

16
evidentiary rules. See Bell v. Cone, 125 S. Ct. 847, 853 (2005)

(per curiam) (noting that “[f]ederal courts are not free to presume

that a state court did not comply with constitutional dictates on

the basis of nothing more than a lack of citation”). Nor can we

otherwise conclude that the state court’s adjudication of the

constitutional claim resulted in a decision that was contrary to or

an unreasonable application of the principles of Roberts.

Under the North Carolina Rules of Evidence, “[t]he facts or

data in the particular case upon which an expert bases an opinion

or inference may be those perceived by or made known to him at or

before the hearing” and, “[i]f of a type reasonably relied upon by

experts in the particular field in forming opinions or inferences

upon the subject, the facts or data need not be admissible in

evidence.” N.C. Gen. Stat. § 8C-1, Rule 703. The expert is

“required to disclose such underlying facts or data on direct

examination or voir dire before stating the opinion,” if the

adverse party requests, and “may in any event be required to

disclose the underlying facts or data on cross-examination.” N.C.

Gen. Stat. § 8C-1, Rule 705.

Here, the North Carolina Supreme Court clearly identified the

issue before it as a Confrontation Clause challenge to the

admissibility of the underlying statements on cross-examination.

Only then did it turn to a discussion of North Carolina’s Rules of

Evidence and its Allen decision. In Allen, the North Carolina

17
court had noted little distinction between the “reasonable

reliance” standard articulated in North Carolina’s rule of evidence

governing expert testimony and the “inherently reliable” standard

it had applied to such testimony prior to the adoption of the rule.

And in State v. Huffstetler, 322 S.E.2d 110 (N.C. 1984), cited in

Allen, the court had specifically rejected the defendant’s

contention that his Sixth Amendment “right to confront his

accusers” was violated “because he could not cross examine the

person who actually performed some of the tests” upon which the

expert witness had relied. Id. at 119.

Under a fair reading of the North Carolina Supreme Court’s

decision in this case, and the Allen and Huffstetler cases cited

therein, it is apparent that the North Carolina court was well

aware of the Confrontation Clause claim before it, and followed its

prior holdings that reports which are of the “type reasonably

relied upon by experts in the particular field in forming opinions

or inferences” are “inherently reliable.” As such, they may be

brought out by the proponent on direct examination, or by the

adverse party on cross-examination, pursuant to Rule 703 or 705,

without running afoul of the Confrontation Clause. We cannot say

that this adjudication of Simpson’s confrontation claim is contrary

to Roberts simply because it referenced state evidentiary rules in

the analysis, nor do we view its adjudication of the claim as

18
having resulted in a decision that was unreasonable in light of the

governing Supreme Court precedents.2

B.

Simpson next argues that he is entitled to habeas relief

because the state trial court excluded allegedly relevant

mitigating evidence during the penalty phase of his trial, in

violation of the Eighth and Fourteenth Amendments to the United

States Constitution.

Under the Eighth Amendment, juries may not be precluded from

considering any relevant, mitigating “facets of the character and

record of the individual offender” during capital sentencing

proceedings. Skipper v. South Carolina, 476 U.S. 1, 8 (1986); see

2
The State argued that Simpson’s application for federal
habeas relief should also be denied under § 2254(d) because it was
not “clearly established” that the Confrontation Clause even
applied to state capital sentencing proceedings when Simpson’s
death sentence became final in 1995. Compare Maynard v. Dixon, 943
F.2d 407, 414 n.5 (4th Cir. 1991); Bassette v. Thompson, 915 F.2d
932, 939 (4th Cir. 1990); with Proffitt v. Wainwright, 685 F.2d
1227, 1254 (11th Cir. 1982). The Supreme Court of North Carolina,
however, has held that the Confrontation Clause applies to capital
sentencing hearings, see State v. McLaughlin, 462 S.E.2d 1, 19
(N.C. 1995), and did not address or reject Simpson’s Confrontation
Clause claim based upon a holding that the right was inapplicable
to capital sentencing proceedings. Because we conclude that the
North Carolina court’s denial of habeas relief on the merits of the
Confrontation Clause issue was not contrary to or an unreasonable
application of Supreme Court precedent pertaining to that Clause,
we need not reach the question of whether it would also be
appropriate to deny relief under § 2254(d) on the basis that it was
not “clearly established” that the protections of the Confrontation
Clause applied to the state sentencing proceedings at the time.

19
also Eddings v. Oklahoma, 455 U.S. 104, 113-14 (1982) (“Just as the

State may not by statute preclude the sentencer from considering

any mitigating factor, neither may the sentencer refuse to

consider, as a matter of law, any relevant mitigating evidence.”);

Lockett v. Ohio, 438 U.S. 586, 604 (1978) (holding that juries may

“not be precluded from considering, as a mitigating factor, any

aspect of a defendant’s character or record and any of the

circumstances of the offense that the defendant proffers as a basis

for a sentence less than death”) (footnote omitted).

During the penalty phase of Simpson’s trial, the prosecution

presented overwhelming evidence of the brutal nature of this crime,

not the least of which was Simpson’s sixteen-page detailed

confession of the events. Simpson’s Eighth Amendment claim arises

from limitations placed by the trial court upon the scope of the

testimony offered by Simpson’s social worker, Ms. Landreth.

Ms. Landreth’s testimony regarding Simpson was derived from

his foster care records and her personal interactions with him from

the time that he was ten years old until he was seventeen years

old. Specifically, she testified that Simpson was placed into the

foster care system when he was ten days old, and that he remained

there until he reached the age of majority. She offered extensive

and detailed testimony regarding the difficulties that her office

had in establishing a permanent plan for Simpson and the frequent

relocations of Simpson within the foster care system, including

20
brief stays with his grandmother that did not work out for him and

that were particularly disappointing to him. She also testified

regarding the effect these moves had upon his education and, in

particular, testified that he developed academic and behavioral

problems during this time period.

Ms. Landreth also provided testimony regarding Simpson’s

family history. She testified that Simpson’s older brother Joe,

Jr., had been institutionalized, that Simpson’s grandmother kept

and raised his older brother Daryl, that his younger brother

Anthony had been released to be adopted, and that his younger

sister Charita was allowed to live with and be raised by their

mother. However, Ms. Landreth testified that neither of Simpson’s

parents wanted to release him for adoption. She testified that

Simpson was aware of the location of his siblings as he grew up,

and that she and Simpson “often talked about his brothers and

sisters and his family.” J.A. 144. According to Ms. Landreth,

Simpson “had a great deal of frustration and a great deal of lack

of understanding about why his siblings could be raised by family

members and he could not be.” J.A. 144.

Simpson’s specific complaint stems from the trial court’s

refusal to allow Ms. Landreth also to testify that Simpson had been

placed in foster care immediately upon his birth because his

parents had severely abused his older brother Joe, Jr., and to

allow Ms. Landreth to elaborate upon a conversation she had with

21
Simpson about the adoption decision made by his parents. On voir

dire, Ms. Landreth testified that Simpson had a number of questions

as to why he could not stay in one place, which led to discussions

about adoption and his parents’ unwillingness to give him up for

adoption. However, Ms. Landreth testified that “[h]is reaction was

not to not being adopted, but rather to not having a permanent

place to stay, and his reactions ranged from being really sad and

tearful to being very angry.” J.A. 98. Simpson also takes issue

with the trial court’s refusal to allow Ms. Landreth, who had been

qualified as an expert in child placement and permanency planning,

to testify that Simpson was under the influence of mental and

emotional disturbances as he grew up and that his ability to

conform his conduct to the requirements of the law was impaired.

The state trial court ruled that Ms. Landreth could testify

that Simpson was placed into foster care at birth and to testify

without restriction “about any discussion she had about his being

moved so many times and his reaction to that.” J.A. 100. However,

the court ruled that the abuse of Joe, Jr., prior to Simpson’s

birth was not relevant, mitigating evidence, and that Simpson’s

parents’ refusal to release him for adoption was not admissible

because this was something Ms. Landreth had told Simpson in

response to questions he had asked about the lack of a permanent

place to stay.

22
 On direct appeal, the North Carolina Supreme Court rejected

Simpson’s claim with regard to the first two categories of

evidence, holding that Ms. Landreth’s additional testimony

regarding Joe, Jr., and Simpson’s parents was not relevant to the

mitigation of Simpson’s crime. With regard to the balance of the

excluded testimony by Ms. Landreth, the North Carolina Supreme

Court assumed, without deciding, that it was error for the trial

court to exclude the evidence, but concluded that any error was

harmless because the testimony would have been merely cumulative of

Dr. Coleman’s expert testimony.

On federal habeas review, we must deny relief if the North

Carolina Supreme Court’s adjudication of Simpson’s Eighth Amendment

claim resulted in a decision that was neither contrary to nor an

unreasonable application of Supreme Court precedent. However, even

if we assume that the excluded testimony of Ms. Landreth would have

supported one or more of the mitigating circumstances Simpson

offered to the jury, we must still deny habeas relief unless “the

error had a ‘substantial and injurious effect or influence in

determining the jury’s verdict,’” Fullwood, 290 F.3d at 679

(quoting Brecht, 507 U.S. at 637), or we are “in ‘grave doubt’ as

to the harmlessness of [the] error,” id. (quoting O’Neal v.

McAninch, 513 U.S. 432, 436 (1995)).

In order for an error to have a substantial and injurious
effect or influence, it must have affected the verdict.
Because juries have a limited number of responses to give
in a criminal trial--guilty, innocent, or cannot

23
 decide--an error is harmless when the error did not
substantially sway or substantially influence the
response.

Thus, if the evidence is not merely sufficient, but
so powerful, overwhelming, or cumulative that the error
simply could not reasonably be said to have substantially
swayed the jury’s judgment, then the error is not
harmful. On the other hand, if the federal court is in
grave doubt about whether the trial error had a
substantial and injurious effect or influence on the
verdict and therefore finds itself in virtual equipoise
about the issue, the error is not harmless.

Cooper v. Taylor, 103 F.3d 366, 370 (4th Cir. 1996) (en banc)

(citations and internal quotation marks omitted).

In this case, the aggravating evidence supporting the

imposition of the death sentence was quite compelling. According

to Simpson’s confession, which was consistent with the physical

evidence, he and Eury approached Reverend Darter’s home, accepted

his hospitality and assistance, and then plotted and planned to

return the next day to rob him. When they returned, Simpson forced

his way into the home, attacked Reverend Darter, who was 92 years

old at the time, strangled him with his bare hands while demanding

money, and then strangled him with a belt that had been tied around

his neck until it broke. He then tied a second, stronger belt

around Reverend Darter’s neck to strangle him, and used this belt

to tie the Reverend’s neck to the bedpost. To “finish him off,”

Simpson then beat Reverend Darter with a glass bottle until it

broke and bloodied him and used a razor blade to slit the

24
Reverend’s arms from his biceps to his wrists. Simpson, 462 S.E.2d

at 199.

Weighed against this aggravating evidence, Simpson advanced

mitigating evidence that he had been raised since birth in a foster

care setting, that he was never placed permanently with a foster

family, and that as a result of this lack of permanency, he was

mentally and emotionally impaired and had difficulty controlling

his behavior. Indeed, at the conclusion of the sentencing hearing,

one or more jurors found, as mitigating circumstances, that Simpson

committed the murder while under the influence of a mental or

emotional disturbance, that his mental or emotional age was a

mitigating circumstance, that his development was adversely

affected by the lack of permanence in his life due to the frequent

foster home and school placement changes, that he was taken into

and then removed from the home and care of his grandmother during

which time his brother, Daryl, continued to remain in the home and

care of his grandmother, that he experienced mental or emotional

disturbance beginning at an early age, that his mental or emotional

disturbance adversely affected his ability to perform in school,

and that his mental or emotional disturbance adversely affected his

ability to sustain employment.

Having throughly reviewed the record in this case, it is clear

that Simpson’s jury was provided with substantial evidence of

Simpson’s unfortunate childhood and the problems he developed as a

25
result of his lack of a permanent home, yet unanimously found this

background to be insufficient (even combined with six additional

mitigating circumstances not related to his background) to outweigh

the heinous nature of the murder of Reverend Darter. We are

satisfied that the additional testimony of Ms. Landreth, excluded

by the state trial court, would have added little to the factual

description of Simpson’s background, and that the North Carolina

Supreme Court’s holding that Ms. Landreth’s opinion testimony, also

excluded by the trial court, was largely cumulative of the opinions

expressed by Dr. Coleman, a forensic psychologist that had been

retained and qualified to evaluate and offer expert opinions

regarding Simpson’s mental and emotional status in the context of

his background. In sum, given the strength of the aggravating

evidence compared to the relative weakness of the admitted and

excluded evidence offered in mitigation, we are confident that the

exclusion of the additional testimony by Ms. Landreth did not have

a substantial and injurious effect or influence on the outcome of

the sentencing proceeding. Therefore, even if we assume that the

state trial court’s exclusion of the testimony violated Simpson’s

Eighth Amendment right to introduce relevant, mitigating evidence,

he is not entitled to federal habeas relief as a result of the

error.

26
 C.

Simpson’s final claim is that his plea of guilty was not given

knowingly and voluntarily, as required by Godinez v. Moran, 509

U.S. 389 (1993).

It is well settled that “[a] criminal defendant may not be

tried unless he is competent, and he may not waive his right to

counsel or plead guilty unless he does so competently and

intelligently.” Godinez, 509 U.S. at 396 (internal citation and

quotation marks omitted). However, “[a] finding that a defendant

is competent to stand trial . . . is not all that is

necessary. . . . In addition to determining that a defendant who

seeks to plead guilty . . . is competent, a trial court must

satisfy itself that the waiver of his constitutional rights is

knowing and voluntary.” Id. at 400; see also Brady v. United

States, 397 U.S. 742, 748 (1970) (“Waivers of constitutional rights

not only must be voluntary but must be knowing, intelligent acts

done with sufficient awareness of the relevant circumstances and

likely consequences.”). The competency inquiry focuses on “the

defendant’s mental capacity; the question is whether he has the

ability to understand the proceedings.” Godinez, 508 U.S. at 401

n.12. The “‘knowing and voluntary’ inquiry, by contrast, is to

determine whether the defendant actually does understand the

significance and consequences of a particular decision and whether

the decision is uncoerced.” Id. “The standard for determining

27
whether a guilty plea is constitutionally valid is whether the

guilty plea represents a voluntary and intelligent choice among the

alternative courses of action open to the defendant. In applying

this standard, courts look to the totality of the circumstances

surrounding the guilty plea, granting the defendant’s solemn

declaration of guilt a presumption of truthfulness.” Walton v.

Angelone, 321 F.3d 442, 462 (4th Cir. 2003) (internal citation

omitted).

As recounted above, Simpson confessed to the murder of

Reverend Darter shortly after his arrest, describing in detail how

he and Eury planned the crime, forced their way into the residence,

and carried out the gruesome murder. After unsuccessfully

attempting to suppress the confession on the grounds that it was

coerced, Simpson withdrew his plea of not guilty and entered a plea

of guilty to first degree murder, conspiracy to commit murder, and

armed robbery. Under the plea agreement, Simpson reserved his

right to appeal the state trial court’s denial of his motion to

suppress the confession and the prosecution agreed to dismiss the

charge of first degree burglary.

On March 4, 1985, the state trial judge accepted Simpson’s

plea of guilty after questioning him twice concerning the

voluntariness of the plea.3

3
After engaging Simpson in the first series of questions, the
trial court realized that he had forgotten to swear Simpson to tell
the truth and repeated the colloquy a second time.

28
Q: Now Mr. Simpson, I will ask you again the various
questions. Are you able to hear me and understand me?

A: Yes, sir.

. . . .

Q: Have you had time to talk to your lawyers about your
cases?

A: Yes, sir.

Q: Are you satisfied with the services of your lawyer?

A: Yes, sir.

. . . .

Q: Have either of your lawyers done anything in
representing you that you did not authorize them to do or
did not approve of their doing?

A: No, sir.

Q: You understand that you are pleading guilty to
murder in the first degree and conspiracy to commit
murder and armed robbery?

A: Yes, sir.

Q: Do you understand these three charges?

A: Yes, sir.

Q: And that upon your plea of guilty that you could be
sentenced to death or life imprisonment on the murder
case?

A: Yes, sir.

Q: Either under the felony murder or the premeditated
and deliberated murder, you understand that?

A: Yes, sir.

. . . .

29
 Q: Do you understand that you have the right to plead
not guilty and be tried by a jury?

A: Yes, sir.

Q: And by pleading guilty that you waive certain rights
that you have if you plead not guilty?

A: Yes, sir.

Q: How do you plead to this charge, guilty or not
guilty?

A: Guilty.

Q: Are you in fact guilty?

A: I am guilty.

Q: You have heard what your lawyers said a minute ago
about the plea arrangement, do you understand that?

A: Yes, sir.

Q: Except for what you lawyer said has anyone made any
promises to you or threatened you in any way to influence
you to plead guilty?

A: No, sir.

Q: Have you entered a plea of guilty to each of the
charges of your own free will, knowing and understanding
what you are doing ---

A: Yes, sir, I am guilty.

Q: ---And the consequences thereof?

A: Yes, sir.

. . . .

Q: Do you have any questions or statement to make about
what I have just said to you?

A: No.

J.A. 36-39.

30
 In 1997, Simpson filed his MAR in state court asserting that,

notwithstanding this colloquy, his plea had not been entered

knowingly and voluntarily. Specifically, Simpson claimed that “his

mental and developmental condition caused by his chaotic upbringing

prevented him from fully understanding what he was doing.” J.A.

1207. Simpson also claimed that “he pled guilty based on a

misunderstanding about the penalty and that he was pressured to

plead guilty” by his attorneys. J.A. 1207.

The state MAR court held an evidentiary hearing on the claim,

during which Simpson again presented the testimony of Ms. Landreth

and Dr. Coleman, as well as testimony by Dr. Minta Saunders. Ms.

Landreth testified that, in her opinion, Simpson’s frequently

changing foster care placements adversely affected his decision-

making skills and caused him to be dependent upon authority figures

for decision-making. Dr. Coleman testified that, based upon her

evaluation in 1989, Simpson’s ADHD had a moderate effect upon his

ability to process, remember, and reflect upon information, and to

consider, generate, and weigh alternatives. This effect, in turn,

had “some negative influence on [his] decisionmaking capabilities”

in 1985. J.A. 1131. She acknowledged, however, that she had not

reviewed the plea colloquy from March of 1985 in formulating her

opinion, and testified that she was only “asked the general

question of whether or not [Simpson’s] ADHD would affect his

decision-making capabilities,” not any “specific question” about

31
his plea hearing. J.A. 1134-35. Dr. Saunders, a clinical

psychologist who evaluated Simpson and testified at his first

sentencing hearing, opined that Simpson suffered from auditory

problems, ADHD, and a borderline personality disorder that rendered

him unable to make a knowing and voluntary plea.

Simpson’s trial attorney also testified at the MAR hearing.

In her view, Simpson appeared at times to have difficulty focusing,

but she believed he understood her when she discussed the case.

Although she testified that “there were times when . . . I don’t

think he heard a word that we said,” she also pointed out that

“there were other times when he would sit there and he was much

calmer and we tried to talk to him and tell him what was going on

and why we felt he should plead guilty, and I felt like he knew

what we were saying. If I didn’t, I wouldn’t have pled him guilty

at the time.” J.A. 1103. Although counsel acknowledged having

serious reservations at the time about recommending that Simpson

plead guilty to the murder charge, they ultimately decided that it

was the best option in view of the detailed confession.

Simpson also testified at the MAR hearing, asserting generally

that he did not understand the implications of the guilty plea and

that he only pled guilty because he thought he would avoid a death

sentence by doing so. Simpson’s specific testimony, however,

reveals a great deal of understanding of the significance and

consequences of his decision. For example, Simpson testified that

32
trial counsel advised him to plead guilty after their motion to

suppress the confession had been denied. He testified that counsel

discussed with him the fact that he could still appeal the denial

of the motion to suppress. Simpson testified that counsel

explained that:

once I entered the guilty plea [the] only thing that
probably could happen was the jury might would feel kind
of sympathetic toward me. . . . [T]hey said I go in the
courtroom and plead not guilty and the statement come up
saying I’m guilty as sin, there’s no way a jury believe
nothing I got to say. That’s what they said, “Your best
bet go ahead and plead guilty and maybe things will work
out that they might feel sympathetic for you and give you
life.”

J.A. 1015. In sum, Simpson admitted that he understood what the

“defense strategy at the time was going to be by entering the

guilty plea[] maybe the jury would have some mercy and sentence

[him] to life in prison.” J.A. 1015. Simpson testified that he

understood that, after the guilty plea was entered, a jury would be

chosen to hear the evidence and determine whether or not to impose

a sentence of life or death and admitted that he was never told or

informed by his attorneys that his plea of guilty would result in

a life sentence rather than death.

In response, the state presented the testimony of Dr. Robert

Rollins, a forensic psychiatrist who evaluated Simpson for

competence to stand trial in 1984. It was Dr. Rollins’ opinion

that Simpson was competent to stand trial, that he had an

understanding of his legal situation, and that he was able to

33
cooperate with his attorneys at the time. He diagnosed Simpson

with a mixed personality disorder marked by antisocial and

emotionally unstable features. He testified that he did not make

a diagnosis of ADHD at the time, but felt that it was a reasonable

one. Dr. Rollins also testified that, in preparation for the MAR

hearing, he was asked to review the case and render an opinion as

to whether Simpson was also competent to enter a guilty plea in

March of 1985. Dr. Rollins testified that Simpson’s ADHD would have

had “some impairment of his overall function,” but that based upon

his assessment “it wouldn’t be such to make him not competent.”

J.A. 1164. He further testified that, although he had no

independent recollection as to whether Simpson “appeared to

understand the questions that [he] asked of him back at that time

period,” he had noted in his report at the time an “opinion that

Simpson was capable of understanding.” J.A. 1165.

At the conclusion of the evidentiary hearing, and after

examining the state court and MAR record, including the transcript

of the plea and plea hearing, the state MAR court found that

Simpson was competent to enter the plea of guilty, that he was not

misled by his counsel, and that his plea was voluntarily,

intelligently, and understandingly made in compliance with Godinez.

The MAR court found unpersuasive Dr. Saunders’ testimony that

Simpson was not able to make a knowing decision, pointing out that

Dr. Saunders was not present when Simpson was questioned or when he

34
entered the guilty plea. Furthermore, Dr. Saunders did not review

the transcript of the plea proceeding. She also had not questioned

Simpson about his understanding of the plea and, although her

opinion regarding his decision-making abilities was based upon the

information that was available to her and reviewed in March of

1985, she did not alert Simpson’s attorneys of any such problem or

talk to counsel at the time about Simpson’s decision.

The state MAR court also found that Simpson’s testimony at the

evidentiary hearing demonstrated that he understood the strategy

behind pleading guilty at the time, and that he understood the

possibility that the jury might sentence him to death even if he

pled guilty. According to the findings of the state MAR court,

Simpson knew that it was his decision to plead guilty, and

“presented no credible evidence that [his attorneys] ever

affirmatively told him he would receive a life sentence if he

entered the plea of guilty to first-degree murder of Reverend

Darter.” J.A. 1212. The state court also found that:

Simpson’s sworn representations to Judge Rousseau in open
court contradict his present allegations that he really
did not understand the consequences of his guilty pleas,
and that because of his severe mental and emotional
disorders, he was unable to make an informed, knowing,
and intelligent decision to enter the pleas. Judge
Rousseau carefully questioned Simpson twice about the
guilty pleas, Simpson’s condition at the time, the plea
arrangement, Simpson’s understanding of the charges and
the consequences, Simpson’s understanding that he still
faced the possibility of the jury recommending a death
sentence, Simpson’s satisfaction with his attorneys, the
constitutional right to a jury trial on guilt, and

35
 whether Simpson entered the pleas of his own free will,
understanding what he was doing.

J.A. 1212. Finally, the court observed that, despite the

neurological, mental, and emotional disorders which affected his

decisionmaking skills, it appeared that “Simpson could handle most

of the practical aspects of daily living,” and “was able to

communicate with people and respond appropriately to questions.”

J.A. 1209. Hence, the court concluded that Simpson had failed to

show that, despite his in-court representations, he was not able to

and did not knowingly and voluntarily enter the pleas of guilty.

The evidence on which Simpson relies is primarily Dr.
Saunders’ opinions and the testimony from Dr. Coleman and
Ms. Landreth concerning Simpson’s limited decision-making
skills. . . . Dr. Saunders did not take into account
what was actually said or explained to Simpson before his
plea or the actual Court proceedings when he pled guilty.
Even accepting Dr. Coleman’s and Ms. Landreth’s testimony
concerning Simpson’s limitations, that does not
necessarily mean that on March 4, 1985, Simpson did not
know what he was doing. The persuasive evidence from the
people who were there is that Simpson understood what he
was doing.

J.A. 1213.

We hold that the state MAR court reasonably concluded that the

evidence failed to support an assertion that Simpson did not enter

his plea knowingly and voluntarily. Simpson’s own testimony

revealed that, although hindsight and three death sentences now

tell him that he had nothing to lose by going to trial on the

murder charge, he was aware of what he was doing when he pled

guilty to the murder of Reverend Darter, understood why he was

36
doing it and what he hoped to gain by doing it, and understood the

risks and possible outcomes of that decision. Simpson has failed

to demonstrate, by clear and convincing evidence, that the factual

determinations made by the state MAR court on this issue are not

entitled to a presumption of correctness, see 28 U.S.C.A.

§ 2254(e)(1), that the state court’s factual determinations were

unreasonable in light of the evidence presented in those

proceedings, or that the state court’s adjudication of this claim

was contrary to or an unreasonable application of clearly

established federal law, see 28 U.S.C.A. § 2254(d).

IV.

For the foregoing reasons, we affirm the district court’s

denial of Simpson’s petition for writ of habeas corpus.

AFFIRMED

37