PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JEFFREY KARL MEYER,
Petitioner-Appellant,
v.
GERALD J. BRANKER, Warden, No. 06-26
Central Prison, Raleigh, North
Carolina,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Louise W. Flanagan, Chief District Judge.
(5:03-hc-00866-FL)
Argued: September 25, 2007
Decided: November 13, 2007
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Niemeyer and Judge Shedd joined.
COUNSEL
ARGUED: Paul MacAllister Green, Durham, North Carolina, for
Appellant. Valerie Blanche Spalding, Special Deputy Attorney Gen-
eral, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee. ON BRIEF: M. Gordon Widenhouse,
Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel Hill, North Caro-
2 MEYER v. BRANKER
lina, for Appellant. Roy Cooper, Attorney General of North Carolina,
Raleigh, North Carolina, for Appellee.
OPINION
WILKINSON, Circuit Judge:
Nearly twenty years ago, Jeffrey Karl Meyer pled guilty to two
counts of first degree murder for fatally stabbing an elderly couple
during the commission of a robbery. Since then, three separate capital
juries have sentenced him to death, and the North Carolina Supreme
Court has twice vacated his sentence on direct appeal due to irregular-
ities in the sentencing proceedings. Throughout this time, Meyer’s
guilt has never been in doubt, and he has never argued that he did not
commit the crimes in question.
Meyer now challenges his third capital sentence, raising claims
relating to the effectiveness of his counsel, his awareness of the con-
sequences of his plea, and the sentencing court’s refusal to admit
potentially mitigating evidence. These claims have been heard and
rejected by the same state courts that twice vacated Meyer’s earlier
death sentences. We have reviewed Meyer’s claims with care, and we
affirm the district court’s dismissal of Meyer’s federal habeas peti-
tion.
I.
A.
The North Carolina Supreme Court has provided a detailed account
of the facts of Meyer’s case on direct appeal, see State v. Meyer, 353
N.C. 92, 540 S.E.2d 1 (2000), so we need only summarize the salient
evidence here.
On December 1, 1986, Jeffrey Karl Meyer and Mark Thompson
broke into a home owned by Paul and Janie Kutz. At the time, Meyer
and Thompson were heavily armed and dressed in the clothing of
"ninja" warriors: "oriental assassins from feudal times, highly trained
MEYER v. BRANKER 3
in martial arts and stealth." State v. Meyer, 330 N.C. 738, 741, 412
S.E.2d 339, 341 (1992). Meyer and Thompson, soldiers stationed at
Fort Bragg, North Carolina, had been planning to rob the elderly
Kutzs for some time.
Upon entering the house, Meyer and Thompson encountered the
sixty-eight year-old Mr. Kutz. Meyer initially shot Mr. Kutz with a
blow gun, a martial arts weapon that launches sharp darts from a hol-
low tube. After Mr. Kutz continued to advance, Meyer stabbed him
with a butterfly knife. Meyer and Thompson proceeded to stab Mr.
Kutz above the left eye, above the right collar bone, across the neck,
twice in the upper left chest, in the rib cage, above the left elbow, four
times in the back of his chest, and to the left and right of his spine.
In addition, defensive wounds were found on Mr. Kutz’s left hand,
demonstrating an attempt to fend off an attacker. Testimony at trial
indicates that Mr. Kutz may have remained alive and conscious for
between thirty seconds and five minutes after the stab wounds were
inflicted.
Meyer and Thompson then proceeded to stab and kill the sixty-two
year-old Mrs. Kutz with butterfly knives. Mrs. Kutz, who was found
in a bedroom down the hallway from Mr. Kutz, was stabbed approxi-
mately twenty-five times. She also displayed defensive wounds on her
hands. Due to the fact the autopsy found Mrs. Kutz’s lungs markedly
expanded with trapped air and blood, it is likely that Mrs. Kutz
remained alive after receiving the stab wounds.
Overwhelming evidence linked Meyer and Thompson to the
crimes. First, in the early morning hours after the killing, a military
police officer, Robert Provalenko, intercepted Meyer and Thompson,
dressed in "ninja" pants and boots, as they drove through a restricted
area of Fort Bragg. In their car, Officer Provalenko found jewelry, a
TV, and credit cards that were later found to be stolen from the Kutzs’
house, as well as a significant arsenal of weaponry, including butter-
fly knives, nunchucks, and a blowgun.
Second, forensic evidence placed Meyer and Thompson at the
scene of the crime. A police investigation found footprints consistent
with ninja boots in the dirt around the house, as well as on a dining
room chair. Human blood consistent with the type of both victims was
4 MEYER v. BRANKER
present on the butterfly knives recovered by Provalenko, and fibers
found on one or both of the knives were consistent with the uphol-
stery of the chair in which Mr. Kutz’s body was found, a blue blanket
found with Mrs. Kutz’s body, and the pink nightgown worn by Mrs.
Kutz at the time of her death. Fibers from the blanket and sheets in
the Kutzs’ bedroom were also found on the "ninja" clothing worn by
both Meyer and Thompson on the night of the murders.
Third, Dale Wayne Wyatt, a soldier stationed at Fort Bragg waiting
to appear in court on a worthless-check charge, testified that he met
Meyer on December 3, 1986 in a holding facility during his detention.
According to Wyatt, Meyer confessed to shooting Mr. Kutz with a
blowgun and then stabbing him. Meyer also told Wyatt that he had
been dressed as a "ninja" at the time of the crime.
On February 2, 1987, Meyer was indicted on one count of burglary,
two counts of armed robbery, and two counts of first degree murder.
On May 12, 1988, Meyer pled guilty to the robbery and burglary
charges. Four days later, Meyer pled guilty to two counts of first
degree murder. The trial judge accepted the murder pleas and, in open
court, confirmed that Meyer had discussed the charges with counsel,
understood what they meant, and knew he would be sentenced to
either life imprisonment or death on each count. The pleas were
accepted and recorded the next day after the State’s presentation of
their factual basis.
B.
No fewer than four capital juries have been impaneled to sentence
Meyer.
Meyer’s first capital sentencing proceeding began on June 3, 1988.
This sentencing hearing ended in a mistrial, however, after Meyer
escaped from the Cumberland County Jail and failed to appear in
court during the presentation of his own evidence. Meyer was recap-
tured a week later.
A second sentencing jury was impaneled on October 24, 1988. At
this hearing, the State presented the evidence discussed above demon-
MEYER v. BRANKER 5
strating how Meyer committed the crimes. In mitigation, Meyer pre-
sented expert testimony which indicated that, at the time of the
crimes, he suffered from a dissociative personality disorder, a mental
illness which causes a person to detach himself from reality. After
hearing the evidence, the jury recommended the death sentence for
each first degree murder. The North Carolina Supreme Court subse-
quently vacated Meyer’s death sentences on direct appeal because the
jury instructions had erroneously required unanimity in the finding of
mitigating circumstances. See Meyer, 412 S.E.2d at 343-44.
A third sentencing hearing was held in late August 1995. The State
and Meyer both presented substantially the same evidence they had
presented at the previous proceeding, and the jury again recom-
mended the death sentence for each first degree murder. Meyer
directly appealed his sentence to the North Carolina Supreme Court,
and the Court again vacated the death sentences and remanded for a
new trial. This time, the Court found error when the trial judge con-
ducted an unrecorded in-chambers conference without Meyer’s pres-
ence. See State v. Meyer, 345 N.C. 619, 623, 481 S.E.2d 649, 652
(1997).
The capital sentencing proceeding from which Meyer now seeks
habeas relief, his fourth, began on January 28, 1999. The State pre-
sented substantially the same evidence it had at the two previous sen-
tencing proceedings. This time, the defense did not present mental
health testimony; instead, defense counsel, in his opening statement,
argued that the motive for Meyer’s crime was theft, not violence:
"They did not intend to hurt anyone." The defense counsel’s closing
argument was that Meyer’s intent involved fantasy and theft, that the
murders were unplanned and spontaneous, and that Meyer was men-
tally ill.
After deliberations, the jury found four aggravating factors for each
of the two murders: (1) the capital felony was committed while the
defendant was engaged in the commission of or an attempt to commit
burglary, (2) the capital felony was committed while the defendant
was engaged in the commission of or an attempt to commit robbery,
(3) the murder for which the defendant stands convicted was part of
a course of conduct that included another crime of violence against
another person, and (4) the capital felony was especially heinous,
6 MEYER v. BRANKER
atrocious, or cruel. See N.C. Gen. Stat. § 15A-2000(e) (2005). In miti-
gation, the jury found only one statutory mitigating circumstance sub-
mitted — the fact that Meyer had no prior criminal history — and
rejected all nine of the proffered non-statutory mitigating factors. See
id. § 15A-2000(f).
Based on these findings, on February 3, 1999, the jury recom-
mended the death sentence for each of the first degree murders and
the court duly imposed these sentences. On December 21, 2000, the
North Carolina Supreme Court found no error and affirmed the two
death sentences. See Meyer, 540 S.E.2d at 18. Meyer subsequently
petitioned the United States Supreme Court for a writ of certiorari.
The Court denied the writ on October 1, 2001. See Meyer v. North
Carolina, 534 U.S. 839 (2001).
C.
Meyer next sought post-conviction relief from his capital sentence.
In April 2002, Meyer filed a motion for appropriate relief ("MAR")
in state court, seeking review of various claims of error that arose out
of his state court proceedings. On January 10, 2003, the state MAR
court denied all of Meyer’s claims on the pleadings. Both the North
Carolina and United States Supreme Courts subsequently denied
Meyer’s petitions for a writ of certiorari.
On November 20, 2003, Meyer filed a petition under 28 U.S.C.
§ 2254 for a writ of habeas corpus in the United States District Court
for the Eastern District of North Carolina. In his petition, Meyer
raised twenty-five claims of error. On February 20, 2004, the district
court dismissed five claims without prejudice on initial review, and,
six months later, the district court granted the State’s motion for sum-
mary judgment on all of the remaining claims. Meyer subsequently
filed a timely notice of appeal, and this court granted Meyer a certifi-
cate of appealability on the issues discussed below. This court has
jurisdiction under 28 U.S.C. §§ 1291 and 2253.
II.
We review de novo the district court’s dismissal of Meyer’s habeas
petition. Allen v. Lee, 366 F.3d 319, 323 (4th Cir. 2004) (en banc);
Booth-El v. Nuth, 288 F.3d 571, 575 (4th Cir. 2002).
MEYER v. BRANKER 7
Under 28 U.S.C. § 2254(d), a district court may only grant federal
habeas relief for state prisoners when state court proceedings:
(1) 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
(2) 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. § 2254(d) (2000).
In the present case, we focus on the question of whether the state
court decision "was contrary to, or involved an unreasonable applica-
tion of, clearly established Federal law." 28 U.S.C. § 2254(d)(1).
The Supreme Court has carefully defined the relevant terms of this
provision. A state court decision is "contrary to" clearly established
Supreme Court precedent if "the state court applies a rule that contra-
dicts the governing law set forth in [the Supreme Court’s] cases" or
"confronts a set of facts that are materially indistinguishable from a
decision of [the Supreme Court] and nonetheless arrives at a result
different from [its] precedent." Williams v. Taylor, 529 U.S. 362, 405-
06 (2000); see also Lenz v. Washington, 444 F.3d 295, 300 (4th Cir.
2006). "An ‘unreasonable application’ occurs when a state court iden-
tifies the correct governing legal principle from [the Supreme]
Court’s decisions but unreasonably applies that principle to the facts
of [a] petitioner’s case." Rompilla v. Beard, 545 U.S. 374, 380 (2005)
(internal quotations omitted).
As is apparent from the Supreme Court’s explication of 28 U.S.C.
§ 2254(d)(1), federal courts are to accord considerable deference to
state courts in their review of state habeas proceedings. Williams, 529
U.S. at 412-13. We keep this deference in mind as we take up
Meyer’s claims in the order he presents them.
III.
Meyer first claims that his guilty pleas were not voluntary and
intelligent, in violation of his Sixth and Fourteenth Amendment
8 MEYER v. BRANKER
rights, since he did not know he was admitting guilt of premeditated
and deliberate murder.
A.
Meyer’s short-form indictment for murder charged that he "unlaw-
fully, willfully, and feloniously did of malice aforethought kill and
murder, with force and arms," the Kutzs, "in violation of North Caro-
lina General Statutes Section 14-17." This statute provides, in relevant
part:
A murder which shall be perpetrated by means of a
nuclear, biological, or chemical weapon of mass destruction
as defined in G.S. 14-288.21, poison, lying in wait, impris-
onment, starving, torture, or by any other kind of willful,
deliberate, and premeditated killing, or which shall be com-
mitted in the perpetration or attempted perpetration of any
arson, rape or a sex offense, robbery, kidnapping, burglary,
or other felony committed or attempted with the use of a
deadly weapon shall be deemed to be murder in the first
degree.
N.C. Gen. Stat. § 14-17 (2005).
Meyer pled guilty to two counts of "first degree murder," as
defined by N.C. Gen. Stat. § 14-17. In open court during his plea pro-
ceeding, Meyer stated that he discussed his pleas with counsel and
that he understood the nature of the charges against him, and every
element of those charges. In addition, Meyer confirmed understanding
of the fact that he would be subject to either life imprisonment or the
death sentence for each of the two murders.
The State subsequently presented the factual basis for Meyer’s
pleas. The trial court held that the factual basis was sufficient to sup-
port the pleas, and, in doing so, made a finding of fact that, in addition
to felony murder, the State had proved beyond a reasonable doubt that
there was substantial evidence regarding the elements of premedita-
tion and deliberation.
MEYER v. BRANKER 9
The trial court’s finding was crucial because of North Carolina’s
"merger" rule. The "merger" rule states that, in cases of felony mur-
der, the underlying felony is unavailable as an aggravating factor for
capital sentencing because it is essential to (and therefore "merges"
with) the conviction itself. However, if both the underlying felony and
premeditation and deliberation are proven beyond a reasonable doubt,
the underlying felony becomes available as an aggravating factor. See
State v. Goodman, 298 N.C. 1, 14-15, 257 S.E.2d 569, 579-80 (1979).
This is because premeditation and deliberation provide the necessary
elemental support for the first degree murder conviction. Id.
Now, on habeas after his fourth sentencing proceeding, Meyer
argues that his plea was not a voluntary and intelligent waiver of his
constitutional rights. See Boykin v. Alabama, 395 U.S. 238 (1969).
Meyer contends, supported by affidavits, that he did not know he was
pleading guilty to premeditated and deliberate murder or that his plea
would allow the State to submit to the jury his underlying felonies as
aggravating factors at his sentencing proceeding. He thus argues that
he should be permitted to rescind his pleas.
B.
The state MAR court rejected Meyer’s argument, and reasonably
so. A valid guilty plea requires the defendant to have "a full under-
standing of the charges against him and the possible consequences of
his plea." See Brady v. United States, 397 U.S. 742, 749 n.6 (1970).
We have no reason under § 2254(d) to doubt the conclusion of the
MAR court that Meyer voluntarily pled with full knowledge of both
the charges against him and the consequences of his pleas.
First, Meyer contends he was unaware that his pleas constituted an
admission of premeditated and deliberate murder. Since there is only
one common law crime of murder in North Carolina, and it is clear
that Meyer understood he was pleading guilty to that crime, we reject
this contention.
North Carolina General Statute § 14-17, the statute to which Meyer
pled guilty, incorporates, unchanged, the definition of murder that
existed at common law. State v. Davis, 305 N.C. 400, 422, 290 S.E.2d
574, 588 (1982). This court has stated that "it is abundantly clear that
10 MEYER v. BRANKER
under North Carolina law, there is only one common law crime of
murder." Hartman v. Lee, 283 F.3d 190, 198-99 (4th Cir. 2002).
Common law murder is "the unlawful killing of a human being by
a person with ‘malice aforethought.’" Schad v. Arizona, 501 U.S. 624,
648 (1991) (Scalia, J., concurring in part and concurring in the judg-
ment). Several different theories of the case can supply the mens rea
of "malice aforethought" necessary for a common law murder convic-
tion: "an intention to kill or grievously injure, knowledge that an act
or omission would probably cause death or grievous injury, an inten-
tion to commit a felony, or an intention to resist lawful arrest." Id. It
has never been constitutionally necessary, however, to allege a spe-
cific theory in a murder indictment. See, e.g., Schad v. Arizona, 501
U.S. 624, 632 (1991) (plurality opinion); State v. Braxton, 352 N.C.
158, 173-75, 531 S.E.2d 428, 436-38 (2000) (holding the North Caro-
lina short-form murder indictment constitutional). This is because the
"intent to commit a felony" and "premeditation and deliberation," to
use two examples, are not necessary elements of common law mur-
der, but rather two theories that can supply the required mens rea of
"malice aforethought." It is thus consistent with our Constitution for
a defendant to be charged solely with "first degree murder," rather
than felony or premeditated and deliberate murder.
Furthermore, it is well known that a defendant’s guilty plea itself
serves as a "conviction," supplying "both evidence and verdict."
Boykin, 395 U.S. at 242, 243 n.4 (internal quotations omitted). A
defendant who pleads guilty admits that he has committed the crimes
with which he is charged and waives "his right to [a] trial before a
jury." Brady, 397 U.S. at 748. In the case of "first degree murder,"
this means the defendant admits to unlawfully killing another human
being with "malice aforethought." If evidence exists to support a find-
ing of multiple theories that can supply the required mens rea, the
defendant’s plea serves as an admission to all of those theories. See
State v. Silhan, 302 N.C. 223, 263, 275 S.E.2d 450, 478 (1981) (hold-
ing that a guilty plea means, "nothing else appearing, that [the defen-
dant] is guilty upon any and all theories available to the state").
Given the above, it is clear that Meyer voluntarily pled guilty with
full knowledge of the charges he was facing. Meyer was charged with
first degree murder, and the Constitution requires no more. A murder
MEYER v. BRANKER 11
indictment does not have to allege premeditation and deliberation
with specificity.
At Meyer’s plea colloquy, the court carefully explained to Meyer
that he was facing two counts of first degree murder. Meyer con-
firmed that he understood the nature of the charges, having discussed
them with counsel. Meyer thus pled with full knowledge that his
guilty plea was an admission to killing the Kutzs with "malice afore-
thought," under any theory available to the State. Since the State pos-
sessed overwhelming evidence that Meyer acted with premeditation
and deliberation, his pleas made premeditation and deliberation an
admitted fact.1
Second, Meyer contends he was unaware of the consequences of
1
Meyer separately claims that the state court’s finding that he acted
with premeditation and deliberation violated his Sixth Amendment right
to trial by jury under Apprendi v. New Jersey, 530 U.S. 466 (2000).
Apprendi requires a jury to find, beyond a reasonable doubt, any facts
that increase the authorized maximum sentence for a criminal conviction.
Id. at 482-84. Meyer argues that the maximum punishment for felony
murder, with no additional findings of fact, is life imprisonment. The
trial judge’s finding of premeditation and deliberation thus potentially
increased Meyer’s maximum sentence by enabling submission of his
underlying felonies as aggravating factors, since the presence of aggra-
vating factors is necessary for a death sentence.
We reject this claim. As discussed above, Meyer’s pleas made premed-
itation and deliberation an admitted fact. He thus waived his right to a
jury determination on the issue. Furthermore, even if we assume
arguendo that Meyer only pled guilty to felony murder, he still would
have been exposed to the death sentence. Meyer’s sentencing jury found
two aggravating factors — that Meyer’s murders were part of a "course
of conduct" that included another crime of violence against another per-
son and "especially heinous, atrocious, or cruel," see N.C. Gen. Stat.
§ 15A-2000(e) (2005) — independent of the trial judge’s finding. The
presence of these factors means that Meyer would have always been
exposed to a death sentence; therefore, Apprendi is not implicated.
Finally, the trial judge’s finding in no way displaced the jury’s ability to
consider the aggravating factors necessary to support imposition of the
death penalty. Meyer’s death sentence rested on four aggravating factors,
and all four were found by a sentencing jury beyond a reasonable doubt.
12 MEYER v. BRANKER
his plea, since he did not know his admission of guilt would permit
the State to submit his underlying felonies as aggravating factors dur-
ing his sentencing. We reject this argument because, even if true, it
does not entitle Meyer to relief.
For a guilty plea to be constitutionally valid, a defendant must be
made aware of all the "direct," but not the "collateral," consequences
of his plea. Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364,
1365 (4th Cir. 1973); see also Brady, 397 U.S. at 755. "Direct" conse-
quences have "a definite, immediate, and largely automatic effect on
the range of the defendant’s punishment." Cuthrell, 475 F.2d at 1366.
A consequence is "collateral" when it is uncertain or beyond the direct
control of the court.
Given this, the "direct" consequence of a guilty plea to first degree
murder is straightforward: the defendant is eligible to be sentenced to
death, depending on the recommendation of a sentencing jury. Con-
versely, the fact that a particular aggravating factor will be submitted
to a jury is merely a "collateral" consequence. This is because, at the
moment a plea is accepted, there is nothing "definite," "immediate,"
or "automatic" about the impact of any particular aggravating factor.
The aggravating factor’s impact will be determined by a sentencing
jury, and "nothing is . . . predictable" as to how the sentencing jury
may weigh the aggravating circumstance. State v. Smith, 352 N.C.
531, 551, 532 S.E.2d 773, 786 (2000).
Applying these principles to Meyer’s claim, it is clear that Meyer
was adequately informed of the direct consequences of his plea. The
court specifically told Meyer at his plea colloquy that he would be
sentenced to life in prison or death on each separate count, "depend-
ing upon the recommendation of a sentencing jury." Meyer confirmed
that he understood his potential punishment: this knowledge of the
"direct" consequences of his plea is all that is constitutionally
required. The fact that Meyer’s plea enabled his underlying felonies
to be submitted as aggravating factors was merely a "collateral" con-
sequence of his plea. Whether or not he had knowledge of this fact
is therefore irrelevant to the constitutional validity of his plea.
MEYER v. BRANKER 13
IV.
Meyer next claims that his trial lawyer’s failure to inform him of
the consequences of his plea constituted ineffective assistance of
counsel.
A.
As evidentiary support for his state motion for appropriate relief,
Meyer submitted an affidavit from the public defender who advised
his guilty plea. In this affidavit, Meyer’s trial counsel attested to the
fact that she had never informed Meyer of two implications of his
guilty plea: (1) that it would serve as an admission of the fact that he
acted with premeditation and deliberation and (2) that it would there-
fore automatically make Meyer’s underlying felonies available as
capital aggravating factors.
Now, Meyer contends on habeas that his attorney’s failure to
advise him of these implications violated his constitutional right to
effective assistance of counsel. According to Meyer, he pled guilty
solely to escape the death penalty. With allegedly no knowledge he
was admitting guilt of premeditated and deliberate murder, and given
the State’s overwhelming evidence against him, Meyer claims he pled
guilty because it could potentially produce a sentencing advantage.
Meyer further contends, however, that had he known the "prohibi-
tively high cost" of his plea — that his underlying felonies would
automatically become aggravating factors at sentencing — he would
have insisted on going to trial to contest premeditation and delibera-
tion. This failure to inform him of consequences that would have
changed his plea decision, Meyer says, violated his Sixth and Four-
teenth Amendment right to effective assistance of counsel.
B.
The state MAR court denied Meyer’s argument on the pleadings.
The MAR court found that Meyer was unable to satisfy the well-
known test for ineffective assistance of counsel enunciated in Strick-
land v. Washington, 466 U.S. 668 (1984). Since the state court’s deci-
sion was certainly not an "unreasonable application of clearly
14 MEYER v. BRANKER
established" Supreme Court precedent, see 28 U.S.C. § 2254(d), we
affirm the district court’s dismissal of Meyer’s claim.
In Strickland, the Supreme Court developed a two-prong test for
evaluating ineffective assistance of counsel claims. In order to suc-
ceed on such a claim, a defendant must show: (1) that his counsel’s
performance did not reach "an objective standard of reasonableness,"
and (2) that his counsel’s deficient performance prejudiced the
defense. Strickland, 466 U.S. at 687-88.
The Strickland approach applies in the context of a guilty plea, and
the Supreme Court has clarified the contours of the "prejudice" stan-
dard for situations when there is no trial. In Hill v. Lockhart, 474 U.S.
52 (1985), the Court held that, in the plea context, counsel’s deficient
performance is prejudicial only if "there is a reasonable probability
that, but for counsel’s errors, [the defendant] would not have pleaded
guilty and would have insisted on going to trial." Hill, 474 U.S. at 59.
This is an objective inquiry, see Hooper v. Garraghty, 845 F.2d 471,
475 (4th Cir. 1988), and dependent on the likely outcome of a trial
had the defendant not pleaded guilty. Hill, 474 U.S. at 59-60.
We need not address the performance of Meyer’s counsel because,
as the state MAR court notes, Meyer is unable to show that he suf-
fered "prejudice" under Strickland and Hill. In particular, Meyer can-
not demonstrate that he would have insisted on going to trial if he
knew his underlying felonies would become aggravating factors at
sentencing.
The State had overwhelming evidence of Meyer’s guilt and that he
acted with premeditation and deliberation. Under North Carolina law,
a defendant acts with premeditation if he forms an intent to kill for
a period of time, however short, before the act. State v. Holt, 342 N.C.
395, 397-98, 464 S.E.2d 672, 673 (1995). He acts with deliberation
if the homicide is in "furtherance of a fixed design," rather than a
reaction to some lawful cause or legal provocation. Id. Meyer’s
actions easily satisfy this standard: he entered the Kutzs’ house armed
with a small arsenal of weaponry, brutally stabbed Mr. Kutz many
times long after he was incapacitated, and subsequently stabbed Mrs.
Kutz multiple times. The wanton manner in which the Kutzs were
repeatedly attacked indicates that Meyer intended to kill the Kutzs,
MEYER v. BRANKER 15
and that he did so deliberately. Thus, it is beyond peradventure that,
if he had proceeded to trial, Meyer would have been found guilty of
first degree murder, and premeditated and deliberate action.
Thus, it is unlikely that Meyer would have gone to trial, even if he
was aware that his plea conceded premeditation and deliberation.
Meyer’s sole goal was to avoid the death penalty. With virtually no
chance of establishing actual innocence or successfully contesting
premeditation and deliberation, a guilty plea may have offered his
best chance of not being sentenced to death. A guilty plea demon-
strates remorse, and, since the same jury sits during the guilt and pen-
alty phases of a capital trial, see N.C. Gen. Stat. § 15A-2000(a)(2)
(2005), it also lessens the exposure of jurors to the often dramatic evi-
dence of the crime. Faced with virtually no chance to succeed on the
merits at trial, Meyer has not convinced us that an objective defendant
would have insisted on going to trial, even if only to contest premedi-
tation and deliberation.
In so deciding, we note that this case demonstrates an important
point: sometimes it is the nature of the evidence, rather than the acts
of the lawyer, that "prejudice" the defendant. Meyer committed horri-
ble crimes, and three separate juries sentenced him to death for his
actions. At some point, even the most brilliant attorney will be unable
to prevent such an outcome.
V.
With his third claim, Meyer argues that the failure of his sentencing
attorneys to present mental health mitigation testimony constituted
ineffective assistance of counsel.
A.
At his 1988 sentencing hearing, Meyer introduced testimonial evi-
dence from two psychiatrists. First, Dr. Selwyn Rose testified that
Meyer was obsessed with Dungeons and Dragons, a role-playing
game set in medieval times, and that this obsession caused "defendant
to retreat into a fantasy world of Ninja warriors." Meyer, 412 S.E.2d
at 342. Second, Dr. Thomas E. Radecki testified that Meyer "was so
16 MEYER v. BRANKER
out of touch with reality . . . I don’t think that he really appreciated
that he was really killing people. I think that he was living out a game,
living out a fantasy . . . . I really don’t think he appreciated really seri-
ously what he was doing. He’s a very sick man . . . ." Id.
After hearing this testimony, the jury unanimously found that
Meyer had committed his crime "while . . . under the influence of
mental or emotional disturbance," a statutory mitigating factor in
North Carolina. N.C. Gen. Stat. § 15A-2000(f)(2) (2005). Despite the
presence of this mitigating factor, however, the jury sentenced Meyer
to death.
At Meyer’s 1995 sentencing hearing, the defense introduced the
prior testimony of Dr. Rose, who had passed away in the interim
between the two hearings. At least one juror subsequently found each
of two statutory mitigating factors: that Meyer acted "under the influ-
ence of mental or emotional disturbance," N.C. Gen. Stat. § 15A-
2000(f)(2) (2005), and that Meyer’s "capacity . . . to appreciate the
criminality of his conduct or to conform his conduct to the require-
ments of law was impaired." Id. § 15A-2000(f)(6). Moreover, at least
one juror found the non-statutory mitigating factor that Meyer’s "con-
tact with reality was impaired." Despite the presence of these statu-
tory and non-statutory mitigating factors, however, the jury again
sentenced Meyer to death.
As Meyer’s 1999 sentencing hearing approached, Meyer’s defense
counsel reevaluated his sentencing strategy. Writing a memo to his
case file, Meyer’s counsel noted that none of the seven experts who
had evaluated Meyer had been able to produce compelling evidence
that Meyer suffered from mental health problems. Meyer’s counsel
concluded in a separate memo that "[t]he psychological stuff that has
been discovered has not been very compelling and really does not
begin to explain his bizarre and horrendous actions. . . . We have got-
ten zilch credit for his mental health background in the past and it has
come off as less than compelling."
Meyer did not offer expert mental health mitigation testimony at
his 1999 sentencing hearing, the one from which he now appeals. No
statutory mitigating factors pertaining to mental illness were proffered
to the jury at this proceeding, and the jury rejected all nine of the
MEYER v. BRANKER 17
proffered non-statutory mitigating factors, including that Meyer had
"emotional problems," "low self-esteem," and "was immature."
Meyer now contends that his attorney’s failure to present the avail-
able mental health mitigation testimony at his 1999 sentencing hear-
ing violated his right to effective assistance of counsel. As the ABA
Guidelines for Appointment and Performance of Defense Counsel in
Death Penalty Cases note, mental health mitigation evidence is
extremely important to capital sentencing juries, see Commentary to
ABA Guideline 4.1 (noting that "mental health experts are essential
to defending capital cases"), and defense counsel therefore "should
consider" including it at trial. ABA Guideline 10.11.F.2. Thus, Meyer
argues that reasonably competent attorney performance demands the
presentment of available mental health mitigation evidence at trial,
absent some "weighty tactical advantage" to be gained by its with-
holding. With no such "weighty advantage" present in this case,
Meyer contends that his counsel’s failure to present mental health
mitigation testimony constituted ineffective assistance.
B.
The state MAR court rejected this argument, finding that the pre-
sentation of mental health mitigation testimony would not have
changed the outcome of the 1999 sentencing proceeding. We find the
MAR court’s judgment to be a reasonable application of existing pre-
cedent under § 2254(d), as Meyer is unable to satisfy either the "per-
formance" or the "prejudice" prong of the Supreme Court’s Strickland
test.
First, the considered decision of Meyer’s counsel not to offer men-
tal health mitigation testimony does not constitute objectively unrea-
sonable performance under Strickland. It is a cardinal tenet of the
Supreme Court’s ineffective assistance jurisprudence that "strategic
choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable." Strickland, 466 U.S.
at 690. This "highly deferential" standard is necessary because it is
"all too easy" to second guess counsel’s efforts after they have proven
unsuccessful. Id. at 689. Since adverse outcomes can make perfectly
reasonable judgments look questionable in retrospect, "every effort
18 MEYER v. BRANKER
[must] be made to eliminate the distorting effects of hindsight." Id. at
689.
In the sentencing context, this "highly deferential" standard means
that defense counsel have the flexibility to vary their approach given
their client’s unique circumstances. See Lovitt v. True, 403 F.3d 171,
179 (4th Cir. 2005) ("In many cases, counsel’s decision not to pursue
a particular approach at sentencing reflects not incompetence, but
rather a sound strategic choice."). This is exactly as it should be: the
touchstone of effective representation must be sound, evidence-based
judgment, rather than a set of mandates counsel must programmati-
cally follow without deviation. "No particular set of detailed rules for
counsel’s conduct can satisfactorily take account of the variety of cir-
cumstances faced by defense counsel or the range of legitimate deci-
sions regarding how best to represent a criminal defendant."
Strickland, 466 U.S. at 688-89.
Given the above, it is clear that the decision of Meyer’s counsel not
to present mental health mitigation evidence does not constitute defi-
cient performance under Strickland. After carefully evaluating the
outcome of Meyer’s two previous sentencing trials, and the impact
psychiatric testimony had on jurors in those cases, Meyer’s counsel
made a valid strategic choice to try something different.2
2
Meyer relies on the Supreme Court’s recent decisions in Rompilla v.
Beard, Wiggins v. Smith, 539 U.S. 510 (2003), and Williams v. Taylor to
argue that strategies devised after investigation of the law and facts are
not unassailable on collateral review. However, Meyer’s argument
ignores a crucial fact about these three cases: in each of the cases, the
Supreme Court’s decision was largely based on the fact that defense
counsel did not even look at a potentially important source of mitigating
evidence. See Rompilla, 545 U.S. at 383 (failing to examine the defen-
dant’s court file from his previous conviction); Wiggins, 539 U.S. at 534
(failing to conduct a thorough investigation into the defendant’s back-
ground); Williams, 529 U.S. at 395-96 (failing to "conduct an investiga-
tion that would have uncovered extensive records graphically describing
Williams’ nightmarish childhood," seek prison records, and return a
phone call from a potential witness on the defendant’s behalf).
Meyer’s counsel carefully investigated the possibility of presenting
mental health testimony and made a reasoned judgment not to, largely
based on its previous lack of success. This type of competent perfor-
mance is different in kind from the actions of counsel in Rompilla, Wig-
gins, and Williams.
MEYER v. BRANKER 19
Thus, although the ABA Guidelines, which emphasize the impor-
tance of mental health mitigation evidence, may be of some relevance
in determining what constitutes reasonable performance in a capital
trial, see Rompilla, 545 U.S. at 387, Wiggins, 539 U.S. at 524, they
certainly cannot be dispositive in and of themselves. No per se rule
requires the presentment of such evidence at trial. In fact, there are
many strategically valid reasons why defense counsel, given the cir-
cumstances of an individual case, may decide not to offer mental
health mitigation testimony: it may not be persuasive; it may appear
to be a "flight into theory" without proper grounding in the facts of
the case; or, as is the case here, the testimony may have been used
unsuccessfully in a previous sentencing hearing. A programmatic rule
requiring the presentation of mental health mitigation testimony —
which Meyer essentially asks us to create in this case — would ignore
the very basic fact that different circumstances often require different
strategies. Such a per se rule would also potentially place lawyers in
a very difficult position: forced to present mental health evidence,
defense counsel could be challenged for ineffective assistance in the
event the evidence is impeached.
The bottom line is thus very simple: after twice presenting mental
health mitigation testimony unsuccessfully, Meyer’s counsel, after
carefully considering and memorializing the testimony of seven
experts, decided to adopt a new approach. This decision could hardly
be termed unreasonable.
Second, even if we assume arguendo that Meyer’s counsel did per-
form deficiently in not presenting mental health mitigation testimony,
Meyer would still be unable to satisfy the "prejudice" prong of the
Strickland standard. To establish prejudice, a defendant must show
"there is a reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694. Meyer can make no such showing in this
case. As discussed in the previous section, the State possessed over-
whelming evidence of Meyer’s crimes. As the state MAR court noted,
two previous sentencing juries heard mental health mitigation testi-
mony and both sentenced Meyer to death.3 Meyer offers no argument
3
Even though Meyer’s prior capital sentences were reversed on appeal,
Meyer offers nothing to suggest any "reasonable probability" that a sub-
20 MEYER v. BRANKER
as to why the presentation of such testimony would have produced a
different outcome in this case. As we have mentioned previously,
sometimes the nature of the evidence, rather than counsel’s judgment
calls, "prejudice" the defendant. This is such a case.
VI.
With his fourth claim, Meyer again alleges that he received ineffec-
tive assistance of counsel, this time because of his sentencing coun-
sel’s failure to present available testimony of remorse.
A.
At his 1995 sentencing proceeding, Meyer presented testimony
from his mother and a Catholic priest with whom he regularly visited
in an attempt to demonstrate he was remorseful for his actions. After
deliberating, the jury unanimously rejected the non-statutory mitigat-
ing circumstance that Meyer "expressed remorse" for his crime.
In August 1998, Meyer’s sentencing counsel wrote a memo to his
trial file concerning whether remorse should be a central focus of
Meyer’s strategy at his re-sentencing. Reflecting on the 1995 sentenc-
ing hearing, he noted that the presentation of remorse testimony "hurt
us last time," since "the jury unanimously rejected it as a mitigating
circumstance, and [the prosecutor] argued somewhat effectively" that
Meyer lacked remorse. To Meyer’s sentencing counsel, the question
of presenting remorse evidence was straightforward: the only way he
would feel comfortable putting forward remorse evidence would be
if Meyer himself testified. He did not think this was a viable option,
however, because Meyer did not "show any remorse or empathy to
the victims, at least when I talk with him," a fact reflected in "his
courtroom demeanor."
Later in 1998, a social worker met with Meyer to do a mitigation
investigation in preparation for his 1999 sentencing hearing. Accord-
sequent jury would have reached a different conclusion. See Strickland,
466 U.S. at 694. In all events, the overwhelming evidence against Peti-
tioner affords an ample basis to uphold the state post-conviction court’s
finding of no prejudice, quite independently of the results of any prior
proceeding.
MEYER v. BRANKER 21
ing to the social worker, during one of her "lengthy interviews" with
Meyer, he "became overcome by his emotions and cried." The social
worker also noted that Meyer was "very sorry for his part in the
Kutzs’ tragic deaths" and that she found Meyer’s expressions of
remorse "completely genuine." The social worker informed Meyer’s
sentencing counsel of Meyer’s displays of remorse, but she was not
called to testify at his 1999 sentencing hearing, despite being willing
to do so.
Meyer now argues that his counsel was constitutionally ineffective
for failing to present the available evidence regarding his remorse.
Meyer’s argument on this claim proceeds similarly to his argument
discussed earlier concerning his counsel’s failure to present mental
health mitigation evidence. Meyer first notes that there is broad con-
sensus on the fact that evidence of remorse is extremely important to
capital sentencing juries. See, e.g., Scott E. Sundby, The Captial Jury
and Absolution: The Intersection of Trial Strategy, Remorse, and the
Death Penalty, 83 Cornell L. Rev. 1557, 1560 (1998). Given this,
Meyer argues that it constitutes ineffective assistance to fail to present
such potentially effective mitigating evidence. See ABA Guidelines
10.11.L ("Counsel at every stage of the case should take advantage
of all appropriate opportunities to argue why death is not suitable
punishment for their particular client.").
B.
The state MAR court rejected this claim, refusing to second-guess
defense counsel’s trial strategy. For reasons similar to those articu-
lated above in our discussion of Meyer’s mental health mitigation
claim, we do not think the MAR court’s judgment is a "unreasonable
application of clearly established federal law." See 28 U.S.C.
§ 2254(d). Meyer is again unable to satisfy either prong of the Strick-
land standard.
First, the considered and memorialized decision of Meyer’s sen-
tencing counsel not to present evidence of remorse does not come
close to constituting objectively unreasonable performance under
Strickland. As discussed previously, no "hard-edged rules" define the
contours of reasonable attorney performance. Rompilla, 545 U.S. at
381. Instead, the unique circumstances of a defendant’s case must
22 MEYER v. BRANKER
determine what constitutes reasonable performance. And within this
broad spectrum of viable strategic options, legal judgments based on
thorough investigation are virtually unassailable on collateral review.
See, e.g., Strickland, 466 U.S. at 688-90.
In this case, as with the previous claim, Meyer’s counsel had the
benefit of a trial run. Meyer’s counsel memorialized his belief that
Meyer was not remorseful, and that Meyer’s courtroom demeanor had
not conveyed remorse to the jury. These determinations were based
not only on the counsel’s own personal interactions with Meyer, but
also, and more importantly, on his perception of the effect remorse
evidence had at Meyer’s earlier sentencing proceeding. Holding that
such a reasoned determination constituted objectively unreasonable
performance would be worse than folly: it would essentially require
capital defense counsel to present evidence of remorse, even if, in
their considered judgment, the evidence would affirmatively hurt their
defendant’s case. Strickland does not require any such outcome.
Second, even if we assume arguendo that Meyer’s counsel did per-
form deficiently in not presenting remorse evidence, our discussion of
"prejudice" in the immediately preceding section on mental health
mitigation evidence would be equally applicable here. Given the over-
whelming evidence against Meyer and the fact that two previous sen-
tencing juries, one having heard testimony on remorse, sentenced
Meyer to death, Meyer is simply unable to demonstrate that "there is
a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different." Strickland,
466 U.S. at 694.
VII.
Finally, Meyer claims that the state court’s exclusion of his co-
perpetrator’s life sentence from evidence at his sentencing proceeding
was constitutional error under Lockett v. Ohio, 438 U.S. 586 (1978).
A.
In 1989, Meyer’s co-perpetrator Mark Thompson was tried and
convicted by a jury on precisely the same charges faced by Meyer.
MEYER v. BRANKER 23
See State v. Thompson, 328 N.C. 477, 483, 402 S.E.2d 386, 389
(1991). After a sentencing hearing, Thompson was sentenced to two
consecutive terms of life imprisonment for murder, an additional con-
secutive life term for first degree burglary, and forty years imprison-
ment for the combined counts of robbery with a dangerous weapon.
Id.
At Meyer’s 1999 sentencing hearing, the one from which he now
appeals, Meyer asked the court to submit Thompson’s life sentences
as a non-statutory mitigating circumstance. The trial court declined to
submit this mitigating circumstance, and Meyer subsequently
appealed the trial court’s decision.
On direct appeal, the North Carolina Supreme Court rejected
Meyer’s claim, noting that, under North Carolina law, "a codefen-
dant’s sentence for the same murder is irrelevant" at a sentencing
hearing. State v. Meyer, 540 S.E.2d at 7. The reason for this is simple:
"a codefendant’s lesser sentence does not reduce the moral culpability
of the killing or make it less deserving of the penalty of death than
other first degree murders. The accomplices’ punishment is not an
aspect of the defendant’s character or record nor a mitigating circum-
stance of the particular offense." Id. (internal quotations omitted).
Meyer now challenges the North Carolina Supreme Court’s deci-
sion, arguing that the trial court’s refusal to admit Thompson’s life
sentence as mitigating evidence violated his Eighth and Fourteenth
Amendment rights.
B.
We think the North Carolina Supreme Court reasonably rejected
Meyer’s claim. It is entirely within North Carolina’s prerogatives to
prohibit the admission of an accomplice’s sentence at trial.
Under Lockett v. Ohio and its progeny, a capital sentencing jury
must have the opportunity to "‘consider[ ], as a mitigating factor, any
aspect of a defendant’s character or record and any of the circum-
stances of the offense that the defendant proffers as a basis for a sen-
tence less than death.’" Eddings v. Oklahoma, 455 U.S. 104, 110
24 MEYER v. BRANKER
(1982) (quoting Lockett, 438 U.S. at 604 (plurality opinion)). Since
a co-perpetrator’s sentence is neither an aspect of the defendant’s
character or record nor a circumstance of the offense, however, it is
within "the traditional authority of a court to exclude" such evidence
as "irrelevant." Lockett, 438 U.S. at 604 n.12 (noting that courts may
exclude "evidence not bearing on the defendant’s character, prior
record, or the circumstances of his offense").
Thus, we find no error with the North Carolina Supreme Court’s
decision to prohibit Meyer from entering Thompson’s sentence into
evidence. It was entirely within its prerogatives as a sovereign entity
to exclude evidence of a co-perpetrator’s sentence. There are perfectly
plausible reasons to do so: for example, the state may want to encour-
age an individualized determination of moral culpability, or the state
may simply think that such evidence is irrelevant. See McKoy v.
North Carolina, 494 U.S. 433, 440 (1990) (noting that evidence is
irrelevant if it does not "tend[ ] logically to prove or disprove some
fact or circumstance which a fact-finder could reasonably deem to
have mitigating value").
We in no way suggest that courts are prohibited from considering
a co-perpetrator’s sentence. Not only would such a per se judgment
prohibit a state from adopting sentencing guidelines that require sen-
tences to be measured comparatively to those received in similar
cases, but it would also contravene state courts’ ability to structure
their own evidentiary rules. Instead, our ruling is much narrower: we
hold only that the Constitution does not mandate admission of a co-
perpetrator’s sentence.4 Beyond this, the individual determination is
in the able hands of each individual state.
4
Meyer argues that, under the Supreme Court’s decision in Parker v.
Dugger, 498 U.S. 308 (1991), evidence of an accomplice’s lesser sen-
tence is a mitigating factor that falls under the auspices of Lockett. We
disagree. The Court in Parker stated that the trial court should have con-
sidered a codefendant’s sentence in mitigation because Florida law
deemed such evidence to have mitigating value. See Parker, 498 U.S. at
315-16. At no point, however, did the Parker Court suggest that the con-
sideration of such evidence is constitutionally mandated.
MEYER v. BRANKER 25
VIII.
For the foregoing reasons, the district court’s dismissal of Meyer’s
petition for a writ of habeas corpus is
AFFIRMED.