Davis v. Branker

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-2

PHILLIP ANTWAN DAVIS,

Petitioner - Appellant,

v.

GERALD J. BRANKER, Warden, Central Prison, Raleigh, North
Carolina,

Respondent - Appellee.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Frank D. Whitney,
District Judge. (1:05-cv-00029-FDW)

Argued: October 28, 2008 Decided: January 7, 2009

Before TRAXLER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished opinion. Judge Traxler wrote the
opinion, in which Judge King and Senior Judge Hamilton joined.

ARGUED: Shelagh Rebecca Kenney, CENTER FOR DEATH PENALTY
LITIGATION, Durham, North Carolina, for Appellant. Alana
Danielle Marquis Elder, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas K.
Maher, CENTER FOR DEATH PENALTY LITIGATION, Durham, 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Unpublished opinions are not binding precedent in this circuit.
TRAXLER, Circuit Judge:

Phillip Antwan Davis pleaded guilty to the capital murder

of his aunt, Joyce Miller, and cousin, Caroline Miller.

Following a capital sentencing hearing before a North Carolina

jury, Davis was sentenced to death for the murder of Joyce and

to life imprisonment for the murder of Caroline. After

unsuccessfully challenging his death sentence on direct appeal

and in state post-conviction proceedings, Davis filed a petition

for a writ of habeas corpus in federal district court. See 28

U.S.C.A. § 2254 (West 2006). Because the North Carolina Supreme

Court’s decision was not contrary to, or an unreasonable

application of established Supreme Court precedents, nor based

on an unreasonable determination of the facts in light of the

evidence presented in the state court, we affirm.

I.

In May 1996, Phillip Davis brutally murdered his aunt,

Joyce Miller, and seventeen-year-old cousin, Caroline Miller, in

the home they shared in Asheville, North Carolina. Two foster

children, ages two and four, were present in the home when Joyce

was murdered. Davis was eighteen years old and a senior in high

school at the time. The circumstances of the crimes, and the

events leading up to them, are described in detail in the

opinion of the North Carolina Supreme Court:

2
 Approximately one week before the murders,
[Joyce] told her brother, Billy Davis that she was
missing $800.00. Caroline believed that defendant had
taken the money because he had recently purchased
clothing and a gold chain. [Joyce] obtained a receipt
for the clothes and returned them. Caroline was
hiding the gold chain from defendant so that she and
[Joyce] could take it to a pawn shop. Several days
before the murders, defendant stated to Caroline,
“Well, if I don’t get my chain, it’s only going to
hurt you in the long run.”

On 24 May 1996, defendant shot and killed his
cousin Caroline. On the same day, he killed [Joyce]
by shooting her and cutting her with a meat cleaver.
[Billy] Davis visited [Joyce’s] home in the evening
and found [Joyce] lying in a pool of blood. Niconda
Briscoe, defendant's girlfriend, arrived at
approximately the same time as [Billy] and called for
emergency assistance.

A paramedic with the Buncombe County Emergency
Medical Service arrived at the Miller residence at
7:32 p.m. He noted blood smeared on the outside of
the door. He discovered severed fingers on the floor
in the foyer and [Joyce's] body in a large pool of
blood. The two foster children were in the living
room looking into the foyer. As the paramedic entered
the living room to escort the children out, he
observed Caroline in her bedroom on the bed. After
checking her pulse, he determined that she, too, was
dead.

Meanwhile, between 7:30 and 8:00 p.m., defendant
attempted to cash a check in the amount of $360.00,
bearing the name of [Joyce’s] former husband, at the
Bi Lo grocery store on Hendersonville Road. The
manager refused to cash it, as she did not believe it
was legitimate. According to the manager, defendant
appeared to be “really calm.”

At approximately 8:00 p.m., defendant went to
Dillard’s in the Asheville Mall and tried on clothing
in the men’s department. The sales receipt showed
that defendant purchased six clothing items at 8:08
p.m. for $231.61 using a credit card in [Joyce’s]
name. When questioned by the cashier, defendant told
her that the credit card belonged to his aunt and that

3
she knew he was using it. Two of the items defendant
purchased were identical to the ones [Joyce] had
returned several days prior to the murders.

At 8:21 p.m., a driver for the Blue Bird Cab
Company was dispatched to the Amoco station on
Hendersonville Highway. A person matching defendant’s
description approached the driver and said, “It’s me.
I'll be with you in a couple minutes.” He returned
with two bags and asked the driver to take him to
Pisgah View Apartments.

Defendant entered unit 29-D of Pisgah View
Apartments; showed an acquaintance, Felicia Swinton,
the clothes he had purchased; changed clothes; and
left to attend a party in West Asheville. He spent
approximately twenty minutes in Swinton’s apartment
and acted “normal.”

Kendall Brown and Ryan Mills, friends of
defendant’s, heard that [Joyce] and Caroline had been
murdered and went to the party to pick up defendant.
During the ride back to the Miller residence,
defendant asked Brown if it “was ... true about the
murders” and said he “wanted to know what all had
happened.” When they arrived at the residence,
defendant sat on the curb; started crying; and said,
“Please don't let them take me.”

Later that evening, Sergeant David Shroat took a
statement from defendant at the Asheville Police
Station. Defendant first told Sergeant Shroat that he
did not know what had happened; then blamed others;
and finally stated, “My life is over; I did it.”

Defendant described the following series of
events to the detectives. Earlier in the week,
defendant found a gun in the closet and test-fired it
in the back yard. At approximately 5:30 p.m. on 24
May 1996, he entered Caroline's bedroom with the gun
in order to get his clothes. Caroline was lying on
her bed. He went to the right side of the bed,
pointed the gun at her, and fired twice. He then
walked around to the other side of the bed and fired a
third shot at her. After killing Caroline, defendant
ate a sandwich and watched television. [Joyce]
arrived at the residence at approximately 7:00 p.m.
with the two foster children. When defendant heard

4
her entering, he hid behind the door. After she
entered, defendant shot her in the back. He shot
[Joyce] only one time because he had “[n]o more
bullets.” [Joyce] attempted to reach the telephone,
but defendant pulled the cord from the receptacle.
When she tried to leave the house, he took a meat
cleaver from the kitchen and struck her with it ten or
twelve times with his eyes closed as he stood on top
of her in the foyer.

Immediately thereafter, defendant placed his
clothes in a white plastic garbage bag along with the
meat cleaver. He took two VCRs, one from Caroline's
bedroom and one from [Joyce’s], and put them in
another plastic bag along with [Joyce’s] brown purse.
He also took [Joyce’s] black purse. At approximately
7:15 p.m., he placed the two plastic bags on the front
passenger floorboard of [Joyce’s] vehicle. Defendant
then drove to the Asheville Mall, where he used
[Joyce’s] credit cards to purchase clothing.

From the Asheville Mall, defendant drove to Oak
Knoll Apartments and placed the two plastic bags in
the Dumpster. He then drove to the Amoco station,
where he threw the black purse and the gun into a
wooded area behind the station. He told the taxi cab
driver whom he had called that he would be there in a
minute, returned to [Joyce’s] vehicle, and retrieved
the shopping bags containing the clothing he had
purchased at Dillard's.

Defendant left [Joyce’s] vehicle at the Amoco
station and traveled in the taxi to Pisgah View
Apartments, where he changed clothes. He then put the
stolen credit cards and keys to [Joyce’s] vehicle in a
garbage can near Swinton’s apartment. Defendant drove
around downtown Asheville with his friend Kelby Moore
and smoked marijuana.

At 10:30 p.m., defendant arrived at the party in
west Asheville. Defendant danced for a while at the
party before Brown and Mills took him to [the Miller]
residence. Upon completing his statement, defendant
went to sleep under the table in the interview room.

The autopsy of [Joyce] revealed that she had a
single gunshot wound to the left side of the head,
amputation of two fingers, and fifteen individual and

5
 clustered injuries consistent with being inflicted by
a meat cleaver. The autopsy of Caroline revealed
three separate gunshot wounds, one to the head with
stippling around the entrance wound indicating a close
range shot; one to the chest; and one to the arm.

Investigators found that Caroline's bedroom was
in disarray and that a VCR and television were
missing. A large amount of cash and some jewelry were
discovered in a book bag in Caroline’s room. In
[Joyce’s] bedroom, drawers had been pulled out and
items had been dumped on the bed. Investigators found
an empty jewelry box, a checkbook, and a box of checks
on the floor. A second VCR was missing from the
entertainment center in Miller’s bedroom. Miller’s
truck, a red Bravada, was also missing.

Police officers recovered two VCRs, jewelry,
clothes, a bloody meat cleaver, and a brown purse
containing [Joyce’s] bank cards from a Dumpster at the
Oak Knoll Apartments. Additionally, they found
[Joyce’s] credit cards in a trash bag near Pisgah View
Apartments. [Joyce’s] Bravada truck, two gloves, a
black purse, and a Colt .32 revolver with five spent
casings in the cylinder were discovered near the Amoco
station.

State v. Davis, 539 S.E.2d 243, 251-53 (N.C. 2000).

Davis pleaded guilty to two counts of first-degree murder.

At the conclusion of the capital sentencing proceeding, the jury

recommended a sentence of death for the murder of Joyce, based

upon the following aggravating circumstances: (1) that the

murder was committed by Davis while he was engaged in the

commission of armed robbery; (2) that the murder was committed

for pecuniary gain; (3) that the murder was especially heinous,

atrocious, or cruel; and (4) that the murder was part of a

course of conduct that included the commission by Davis of other

crimes of violence against other persons. At least one juror
6
found fifteen of fifty submitted mitigating circumstances, but

no juror found the existence of the submitted mitigating

circumstance that Davis had shown remorse for his conduct and

had asked for his family’s forgiveness. 1 The jury found the

mitigating circumstances insufficient to outweigh the

aggravating circumstances, and recommended a sentence of death

for the murder of Joyce. 2

1
The mitigating circumstances found were (1) that Davis’s
age was mitigating; (2) that Davis pleaded guilty with no plea
agreement or promise of leniency; (3) that Davis cooperated and
disclosed the location of the physical evidence associated with
the crimes; (4) that Davis’s mother suffered from major
depression and drug addiction, so as to render her a neglectful
and frequently absent parent throughout Davis’s childhood and
teenage years; (5) that as a consequence of his mother’s drug
addition, Davis never received any long-term and stable
nurturance from his mother; (6) that Davis was aware of his
mother’s illegal activities, including larceny, shoplifting, and
the purchase and sale of illegal drugs; (7) that Davis’s mother
did not provide proper supervision and guidance for him during
his formative years; (8) that both of Davis’s grandparents died
within one year of each other when Davis was 16 years of age;
(9) that after the death of his grandparents, no person was ever
granted legal custody of Davis; (10) that Davis was on track to
earn his high school diploma; (11) that Davis was accepted by
North Carolina A&T University; (12) that at the end of his
senior year, Davis had applied and been accepted to become a
member of the United States Air Force; (13) that Davis never had
any permanent or even long-term relationship with an appropriate
male role model; (14) that Davis has friends and family members
who still love and support him; and (15) that Davis had a
borderline personality disorder.
2
With regard to the murder of Caroline, the jury found as
aggravating circumstances: (1) that the murder was committed by
Davis while engaged in the commission of armed robbery; and (2)
that the murder was part of a course of conduct in which Davis
engaged that included the commission by Davis of other crimes of
(Continued)
7
 On appeal, the North Carolina Supreme Court affirmed the

conviction and imposition of the death sentence for the murder

of Joyce, and the United States Supreme Court denied certiorari.

Davis initiated state post-conviction proceedings in May 2002,

which were denied in December 2003, and the North Carolina

Supreme Court denied certiorari.

Davis thereafter filed his § 2254 petition for federal

habeas relief. The magistrate judge issued a report and

recommendation that the petition be denied. The district court

agreed and issued an opinion denying relief, but granted a

certificate of appealability on the issue of whether the trial

court erred in excluding evidence of various correspondence

Davis mailed to his mother while he was awaiting trial. We

granted a certificate of appealability on the issue of whether

the trial court erred in submitting, as separate aggravating

violence against other persons. As mitigating circumstances,
one or more jurors found the same fifteen circumstances found in
Joyce’s case and, additionally, that Davis had no significant
history of prior criminal activity, that Davis had signed a
waiver of his constitutional rights and that Davis had a mental
age of fifteen. The jury found that the mitigating
circumstances were insufficient to outweigh the aggravating
circumstances, but that the aggravating circumstances were not
sufficiently substantial to impose the death penalty when
considered with the mitigating circumstances, and recommended a
sentence of life imprisonment.

8
circumstances, that Joyce’s murder was committed in the course

of an armed robbery and for pecuniary gain.

II.

We review the district court’s denial of federal habeas

relief on the basis of a state court record de novo. See Tucker

v. Ozmint, 350 F.3d 433, 438 (4th Cir. 2003). However, because

the state court adjudicated Davis’s claims on the merits, we

review the matter in light of the limits on federal habeas

review of a state conviction that are imposed by 28 U.S.C.A.

§ 2254(d). When a habeas petitioner’s constitutional claim has

been “adjudicated on the merits in State court proceedings,” we

may not grant relief unless the state court’s 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).

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 set of facts that are materially

indistinguishable from a decision of [the Supreme] Court and

9
nevertheless arrives at a result different from [that]

precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). 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 2006).

Finally, even if constitutional error occurs, habeas relief

will only be granted if the trial error “had substantial and

injurious effect or influence in determining the jury’s

verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)

(internal quotation marks omitted). However, “[i]f we are in

‘grave doubt’ as to the harmlessness of an error, the habeas

petitioner must prevail.” Fullwood v. Lee, 290 F.3d 663, 679

(4th Cir. 2002) (quoting O’Neal v. McAninch, 513 U.S. 432, 436

(1995)). Such “‘[g]rave’ doubt exists when, in light of the

entire record, the matter is so evenly balanced that the court

feels itself in ‘virtual equipoise’ regarding the error’s

harmlessness.” Id. (quoting O’Neal, 513 U.S. at 435).

10
 III.

A.

We begin with Davis’s claim that his constitutional rights

were violated by the state court’s denial of his motion to

admit, as mitigating evidence, correspondence that Davis sent to

his mother, Phyllis Davis, while he was incarcerated and

awaiting trial for the murders of Joyce and Caroline. 3

1.

Davis did not testify during the sentencing proceeding, but

he called a number of family members and friends, as well as Dr.

Jerry Noble, the clinical psychologist who evaluated Davis for

trial, to offer testimony in mitigation. The evidence included

testimony about Davis’s difficult childhood, his mother’s drug

abuse and criminal activity, her accompanying absence and

neglect during Davis’s childhood, and Davis’s efforts and

successes in overcoming this troubled childhood. There was also

testimony about the difficulties Davis had experienced while

living with Joyce and Caroline, and his remorse for having

murdered them. The North Carolina Supreme Court summarized the

mitigating evidence as follows:

3
The correspondence consisted of both letters and cards
with handwritten notes, all of which we refer to as “the
letters.”

11
Defendant’s mother was a drug addict, habitual felon,
and mental patient who could not care for him, and his
father took no responsibility for him. Since his
childhood, defendant alternated between the homes of
friends and relatives because his mother was
periodically incarcerated or incapacitated. Defendant
was a good athlete, but his parents never attended his
athletic or school events. When he was thirteen years
old, defendant sustained a closed-head injury when he
intervened in an argument between his mother and a
drug addict, who hit defendant with a baseball bat.

In the summer of 1995, defendant moved in with
[Joyce] and Caroline and obtained a job at a Food Lion
grocery store. He made the school football team and
stopped working in September when football season
began. Teammates described defendant as a leader and
a hard worker. In December of 1995, defendant began
working as a bag boy at a Bi Lo grocery store where he
was described as a good worker. Defendant’s high
school principal described him as a normal and well-
behaved student. Defendant was “on track” to graduate
from high school, was accepted into North Carolina A &
T State University, and had passed an Air Force
entrance test.

There was constant rivalry between defendant and
Caroline to the extent that Caroline packed up
defendant’s belongings on more than one occasion.
There was also tension between defendant and his aunt.
On one occasion, [Joyce] pointed a pistol at defendant
and said that when she gave him an order, “she
expected it to be done.” Witnesses described
defendant as remorseful and noted that he cried
whenever he discussed the murders.

A clinical psychologist, Dr. Jerry Noble,
testified as an expert witness. Dr. Noble performed a
postarrest valuation and determined that defendant’s
basic psychological, emotional, and nurturing needs
had been neglected. Defendant had an IQ of only 78,
but he never repeated a grade or had any special-
education classes. According to Dr. Noble, defendant
had four significant mental disorders on 24 May 1996:
(1) borderline intellectual functioning, (2)
borderline personality disorder, (3) cannabis abuse,
and (4) acute stress disorder. The borderline
personality disorder caused defendant to be
12
 emotionally unstable and impulsive and to have
difficulties in interpersonal relationships. Dr.
Noble described defendant as anxious, depressed,
immature, and prone to unravel during periods of
stress. Defendant’s conduct in eating a sandwich and
watching television after he killed Caroline was
consistent with acute stress disorder, disassociation,
and derealization. According to Dr. Noble, defendant
could not fully remember, did not understand, and was
genuinely bewildered about [Joyce’s] death. Following
the homicides, defendant exhibited suicidal thoughts,
increased interest in religion, and signs of remorse.

Davis, 539 S.E.2d at 253.

Phyllis Davis was one of the witnesses called to testify on

Davis’s behalf, and she offered extensive testimony of her

neglect of Davis during his childhood, her absence from his

life, and her drug abuse and criminal history. Most recently,

Phyllis testified that she was arrested in April 1996 for

violating her probation, approximately one month prior to

Davis’s arrest for the murders of Caroline and Joyce. She was

sentenced to 300 days in a North Carolina prison.

In October 1996, five months after Davis’s arrest but

before Phyllis was released from prison, Davis wrote the first

of several letters to his mother. Some of the letters are

postmarked during the time period that Phyllis was imprisoned,

and others are postmarked after her release from prison in

January 1997. In the letters, Davis wrote that he was sorry for

what he had done and asked for forgiveness. He expressed

13
interest and concern for his mother’s well-being, as well as his

love for her.

Davis attempted to introduce the content of the letters,

both by having his mother read them and as separate exhibits, as

additional mitigating evidence “to show the relationship between

Phillip Davis and his mother,” J.A. 335, of his remorse for

having murdered Joyce and Caroline, and to “corroborate

[Phyllis’s] testimony and the testimony of Dr. Noble.” J.A.

833. The state objected to the letters as inadmissible, self-

serving hearsay. Unlike hearsay testimony of statements made by

a defendant in the presence of a testifying witness which are

often admitted in capital sentencing proceedings, the state

contended that the letters written by Davis were immune from any

type of cross-examination and were without any indicia of

reliability or trustworthiness that would counsel in favor of

their admissibility.

The trial court denied Davis’s request that Phyllis be

allowed to read the letters into evidence and to introduce them

as separate exhibits, but the court allowed Phyllis to testify

about their correspondence and her relationship with her son. 4

4
The trial court initially denied the request that Phyllis
be allowed to read the letters into evidence, but reserved final
ruling on the admissibility of the letters until the close of
the defendant’s case, at which point the trial court heard
(Continued)
14
The trial court noted that the letters were written by Davis

after the murders and to his mother, a likely witness on his

behalf, and that Phyllis “was unable to see [Davis] at the time

the statements were written, and . . . unable to make any

observation as to his demeanor or attitude or any other conduct

that he might be engaged in at the time he was writing the

letter to her.” J.A. 834.

The trial court also ruled that the letters were cumulative

to the testimony of several of the mitigation witnesses,

including Phyllis. Phyllis testified that Davis had written her

from jail, talked to her about his feelings, and “was very sorry

for what he had done to our family.” J.A. 353. Phyllis also

testified that she was able to speak with Davis by telephone

during this time period. She testified that Davis had

difficulty talking about the murders and that he cried when he

did speak of them. After her release from prison, Phyllis was

also able to visit Davis once a month and to talk to him on the

telephone between her visits. She testified that Davis was

remorseful and that he would “get[] upset if [she] sa[id]

anything about Joyce or Caroline’s name.” J.A. 356. Davis

would “get real watery-eyed, which, in turn, ma[de her] cry, so

arguments and considered the matter in light of all the evidence
presented.

15
[she] tr[ied] not to talk about it.” J.A. 356. As noted by the

trial court, Phyllis was allowed to “testif[y] without objection

that [Davis] expressed his remorse to her in the same letters,”

and “that he had expressed remorse to her in conversations with

her. She further testified that she had a loving relationship

and that he said he had loved her.” J.A. 834.

In addition to Phyllis, a number of additional witnesses,

including family members and friends, testified about Davis’s

expressions of remorse after the murders. Davis’s brother

testified that he and Davis would cry together during his visits

to the prison and that Davis had demonstrated that he was “sorry

for what he’s done.” J.A. 746. Davis’s aunt testified that

Davis wrote her and “asked [her] and the rest of the family to

please forgive him because that is something that he never meant

to happen.” J.A. 793. She also testified that Davis told her

he was sorry for what he had done and that she believed he was

remorseful. Davis’s cousin testified that she also visited

Davis and “believed [Davis] [wa]s remorseful.” J.A. 804.

Davis’s friend, Ryan Mills, testified that when he and

Davis got to the Miller home after the murders, Davis “sat down

on the curb and cried.” J.A. 223. Another friend testified

that Davis cried during their telephone call, “stated he wished

he had not done what he had done that night,” and “was very

upset about it.” J.A. 121. Colonel Roy Parker, a teacher at

16
Davis’s high school, testified that Davis “was in tears” when

they visited. J.A. 525. Parker testified that Davis “seemed to

be very saddened by what he had done and everything else

associated with it, as you would expect from somebody in that

position.” J.A. 525. Sandra Darity, whom Davis described as a

second mother to him, testified that Davis wrote her that “his

mother is sticking with him now when he needs her most,” J.A.

702, and “that he loves her for that,” J.A. 703. He also told

Darity that he was praying for her and her family, asked Darity

to pray for him, and told Darity that he was “still the same

Phillip that used to spend the night all the time. I can’t

believe I did this.” J.A. 703. He also told Darity that “‘I

made a mistake by putting myself here, but a good mother might

have helped prevent it, also.’” J.A. 705. Davis’s former

principal, Richard Green, testified that he visited Davis two or

three times and each time Davis told him that he was sorry for

what he had done and “appeared to be remorseful.” J.A. 829.

Green testified that he “sincerely th[ought] [Davis was]

remorseful over what happened to Caroline and Joyce Miller.”

J.A. 832. Reverend Carson Moseley also talked to Davis about

the murders and testified that “[w]henever [Davis] talks about

what happened, it’s with tears. He’s very emotional at that

point, so there’s not a lot of talk about it other than I

17
believe regret [is] in his heart. Very emotional whenever we’ve

spoken about it.” J.A. 810.

Finally, Dr. Noble testified that he saw “signs of remorse”

in Davis, as well as mental disorders consistent with one who

“feels guilt, anxiety, depression, remorse about his actions.”

J.A. 649. Dr. Noble testified that Davis had problems with

“suicidal thinking since the homicides” and “some trouble with

sleep, with nightmares, with instrusive detailed images about

these deaths.” J.A. 649. He saw “signs of remorse in his

increased interest in religious pursuits,” “a statement to

police of remorseful emotions,” and “indications of remorse in

some of his test results.” J.A. 649. Dr. Noble also read to

the jury the responses given by Davis that Dr. Noble believed

were indicative of remorse, as follows:

“I want to know how I got myself into such a mess.” “I
regret even being born.” “I feel that my life is
over.” “I suffer when I think or dream about what I’ve
done.” “I’ve failed in life.” “What pains me is the
thought of what I’ve done, and I regret doing it.” “I
wish I was never born.”

J.A. 650.

On appeal, the North Carolina Supreme Court affirmed the

trial court’s exclusion of the letters from evidence because

they lacked sufficient indicia of reliability and were

cumulative of other evidence introduced by the defendant at

trial. See Davis, 539 S.E.2d at 260 (noting that “while the

18
rules of evidence do not apply in a sentencing proceeding, the

trial judge still must determine the admissibility of evidence

subject to general rules excluding evidence that is repetitive

or unreliable”); see also State v. Raines, 653 S.E.2d 126, 137

(N.C. 2007) (“[W]hile the Rules of Evidence only serve as

guidelines in capital penalty proceedings, the trial court may

properly exclude hearsay statements which lack sufficient

indicia of reliability or lack a proper foundation.”). The

court noted, for example, that Davis had presented evidence of

his relationship with his mother and that a number of family and

friends had testified that Davis “constantly cried and expressed

remorse about what he had done when they visited him during his

incarceration.” 539 S.E.2d at 261. In addition, the court

noted that there was “evidence in the record that defendant

frequently cried during the capital sentencing proceeding.” Id.

(emphasis added). The court concluded

that the letters would have offered substantially the
same evidence as the testimony of defendant’s mother
and other witnesses. Defendant was allowed to present
to the jury evidence of remorse and of a loving
relationship with his mother. In any event, the
letters were unreliable in that they were written by a
defendant facing a capital sentencing proceeding to a
likely witness in the proceeding. As such, we hold
that the trial court properly excluded the letters as
cumulative and unreliable.

Id. In the alternative, the court held that, “[a]ssuming

arguendo that the trial court erred in excluding the letters

19
from evidence, such error was harmless beyond a reasonable

doubt.” Id. (citing N.C. Gen. Stat. § 15A-1443(b); State v.

Jones, 451 S.E.2d 826, 848 (N.C. 1994)).

2.

In these federal habeas proceedings, Davis asserts that the

state court’s exclusion of the letters impermissibly restricted

his constitutional right to present mitigating evidence,

contrary to the Supreme Court’s rulings in Lockett v. Ohio, 438

U.S. 586 (1978) (plurality opinion), and its progeny. Davis

also relies upon the Supreme Court’s decision in Green v.

Georgia, 442 U.S. 95 (1979) (per curiam), asserting that the

state trial court erred in applying its evidentiary rules to

exclude the letters as additional evidence of remorse. We

disagree.

Under the Eighth and Fourteenth Amendments to the United

States Constitution, in order to constitutionally impose a

capital sentence, the sentencer 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.” Lockett, 438 U.S. at 604. In Lockett, the Supreme

Court declared an Ohio death penalty statute unconstitutional

because it specified only three factors that could be considered

by the sentencer in mitigation of the offense. See id. at 608.

20
In Eddings v. Oklahoma, 455 U.S. 104 (1982), the Court extended

Lockett to a case in which the state court refused to consider,

as a matter of law, any mitigating evidence of the defendant’s

violent family history and abuse. See id. at 112-13. “Just as

the State may not by statute preclude the sentencer from

considering any mitigating factor,” the Court held, “neither may

the sentencer refuse to consider, as a matter of law, any

relevant mitigating evidence.” Id. at 113-14; accord Skipper v.

South Carolina, 476 U.S. 1, 6-8 (1986) (reversing imposition of

death sentence where trial judge excluded as irrelevant evidence

of the defendant’s good behavior in jail awaiting trial).

In Green v. Georgia, the Supreme Court held that that the

Due Process Clause of the Fourteenth Amendment may require the

admission of mitigating evidence even if state law rules of

evidence would exclude it. There, the Court reversed the death

sentence based upon the trial court’s application of Georgia’s

hearsay rule to prohibit a witness’s testimony that the

defendant’s accomplice in the capital murder had confessed to

shooting and killing the victim after ordering the defendant to

run an errand. See Green, 442 U.S. at 96-97. In doing so, the

Court held that “[t]he excluded testimony was highly relevant to

a critical issue in the punishment phase of the trial” and that

“substantial reasons existed to assume its reliability.” Id. at

21
97 (citing Lockett, 438 U.S. at 604-05). In particular, the

Court noted that:

[the accomplice] made his statement spontaneously to a
close friend. The evidence corroborating the
confession was ample, and indeed sufficient to procure
a conviction of [the accomplice] and a capital
sentence. The statement was against interest, and
there was no reason to believe that [the accomplice]
had any ulterior motive in making it. Perhaps most
important, the State considered the testimony
sufficiently reliable to use it against [the
accomplice], and to base a sentence of death upon it.

Id. at 97. In light of “these unique circumstances,” the Court

held, “the hearsay rule may not be applied mechanistically to

defeat the ends of justice.” Id. (internal quotation marks

omitted); see also Fullwood, 290 F.3d at 693 (noting that “under

certain circumstances, ‘the Due Process Clause of the Fourteenth

Amendment may require the admission of mitigating evidence even

if state-law rules of evidence (e.g., hearsay) would exclude

it’” (alteration omitted) (quoting Boyd v. French, 147 F.3d 319,

326 (4th Cir. 1998)).

As we have previously held, however, neither Lockett and

its progeny nor Green compel the conclusion that a state court

is required to present a capital jury with any evidence the

defendant proffers as mitigating, no matter how irrelevant,

unreliable, or cumulative, or that a state’s normal evidentiary

rules must always yield to allow the introduction of such

evidence:

22
 [T]he principles developed in Lockett and Eddings do
not eviscerate all state evidentiary rules with
respect to mitigating evidence offered in capital
sentencing proceedings. For example, the application
of the hearsay rule to exclude evidence offered in
mitigation of the death penalty is clearly not a per
se constitutional violation. It is permissible to
exclude on hearsay grounds mitigating evidence which
is “only [of] cumulative probative value.”

Fullwood, 290 F.3d at 693 (citations and alteration omitted)

(quoting Buchanan v. Angelone, 103 F.3d 344, 348-49 (4th Cir.

1996)); see also Hutchins v. Garrison, 724 F.2d 1425, 1437 (4th

Cir. (1983) (“We find no indication that Eddings and Lockett

preempt all state rules of evidence. Both cases speak about

types of evidence, not evidentiary rules.”); cf. Lockett, 438

U.S. at 604 n.12 (noting that the opinion did not “limit[] the

traditional authority of a court to exclude, as irrelevant,

evidence not bearing on the defendant’s character, prior record,

or the circumstances of his offense”). In Buchanan, we

explicitly rejected a defendant’s claim that the trial court

impermissibly excluded hearsay testimony offered by his expert

mental health witness for the purpose of providing additional

support for the conclusion that the defendant had acted under

extreme emotional stress, because the expert’s “testimony

provided ample evidence to explain his opinion” and “the

statements would have had only cumulative probative value.” 103

F.3d at 349. We also noted that the excluded testimony

“lack[ed] the inherent reliability of the statement excluded in

23
Green,” which had been “against the declarant’s penal interest,

made spontaneously to a close friend, and . . . relied [upon by

the state] to convict the declarant of capital murder.” Id.

In this case, the state court, having heard the testimony,

observed the witnesses, and reviewed the letters, similarly

ruled that the letters were cumulative to the ample other

evidence of remorse. In addition, the court ruled that the

letters, having been written by Davis while awaiting trial on

the capital murder offenses and to his mother, a likely

mitigation witness on his behalf, lacked the requisite

reliability or trustworthiness to render them critical or

admissible under its rules of evidence. We cannot say that the

trial court’s decision, as affirmed by the state appellate

court, was contrary to, or an unreasonable application of the

clearly established Supreme Court precedents discussed above, or

that the state court’s factual determination was unreasonable in

light of the evidence presented to it. There was abundant

testimony regarding Davis’s remorse and his relationship with

his mother, much of which pertained to statements Davis made

directly to the testifying witnesses who were in a position to

evaluate his tone of voice and, in some cases, to observe his

demeanor. Davis was not precluded from offering any type or

category of mitigating evidence, and the letters were only of

cumulative probative value. Additionally, the content of the

24
letters, which is self-serving, does not rise to the level of

the critical relevancy of the accomplice’s confession in Green,

nor bear upon its “inherent reliability.” Buchanan, 103 F.3d at

349. Indeed, the Court in Green, in ruling that the

accomplice’s confession was improperly excluded there, placed

decided emphasis upon the fact that the confession bore the very

indicia of reliability that the state court found lacking in the

letters offered in this case. See Green, 442 U.S. at 97. While

we might have decided the question of reliability differently

were we presented with it ab initio, we cannot say that the

ruling of the state trial court was an unreasonable one.

3.

Finally, we note that the North Carolina Supreme Court held

that, even assuming error, the exclusion of the letters was

harmless beyond a reasonable doubt. See Davis, 539 S.E.2d at

261 (citing N.C. Gen. Stat. § 15A-1443(b) (“A violation of

defendant’s rights under the Constitution of the United States

is prejudicial unless the appellate court finds that it was

harmless beyond a reasonable doubt. The burden is upon the

State to demonstrate, beyond a reasonable doubt, that the error

was harmless.”)). Applying the Brecht harmlessness standard

applicable in federal habeas proceedings, the district court

ruled that Davis had failed to show that the exclusion of the

letters had a “substantial and injurious effect or influence” on

25
the outcome of Davis’s sentence. Brecht, 507 U.S. at 637

(internal quotation marks omitted). We agree. 5

As pointed out by the district court, the circumstances of

Joyce’s murder were particularly gruesome and the circumstances

surrounding it, chilling. After killing Caroline, Davis ate a

sandwich and watched television for an hour, lying in wait for

Joyce to come home. When Davis heard Joyce approach, he hid

behind the door and, as she entered her home, shot her in the

back. As Joyce struggled to reach the telephone, Davis ripped

the cord from the wall. Finding himself out of bullets, Davis

then retrieved a meat cleaver from the kitchen and struck Joyce

with it fifteen times to finish the task. And he did so in the

5
In his appeal to the North Carolina Supreme Court, Davis
acknowledged that he had only specifically argued that the
letters were relevant “to show and explain his relationship with
his mother, to show remorse, and to corroborate Phyllis’[s] and
other testimony,” J.A. 934 (internal quotation marks omitted),
but attempted to argue a host of additional reasons why the
trial court should have admitted the evidence. The appellate
court obviously rejected these eleventh-hour arguments,
specifically noting that “[i]n the present case, defense counsel
[had] requested that [Phyllis] be allowed to read the letters to
the jury and proffered the exhibits as evidence tending to show
defendant’s remorse and relationship with his mother,” Davis,
539 S.E.2d at 260, and ruling “that the letters would have
offered substantially the same evidence as the testimony of
defendant’s mother and other witnesses . . . of remorse and of a
loving relationship with his mother,” id. at 261. Davis’s
similar attempts to expand his claim on federal habeas are
barred and, in any event, we too have concluded that the
exclusion of the letters, even if error, was harmless under the
Brecht standard.

26
presence of two young children whom Joyce had brought home with

her.

As also noted by the district court, “Davis’s actions in

the immediate aftermath of that murder appeared anything but

remorseful.” J.A. 1018. His first order of business was to go

shopping with Joyce’s money, checks, and credit cards, and, more

specifically, to return to Dillard’s to repurchase the items of

clothing that Joyce had just returned and which had apparently

brought about, at least in part, his murderous plan. With his

purchases in hand, Davis then went to a friend’s home to change

clothes and show off his new purchases, all the while acting

calmly and normally to those he encountered. He spent the

remainder of the evening cruising, smoking marijuana with

friends, and dancing at a nearby party until his friends found

him and returned him to the crime scene.

In contrast to this aggravating evidence, Davis’s jury was

presented with substantial evidence of Davis’s difficult

childhood, as well as his attempts to overcome this disadvantage

and the assistance he received from family members in his

attempts to do so. The jury also heard numerous accounts by

friends, family members, and clergy, as well as the mental

health professional who evaluated Davis, regarding Davis’s

personal expressions of remorse for having committed the

murders. And, the jury was able to personally observe Davis’s

27
demeanor, including his crying during the proceeding.

Ultimately, the jury found as an aggravating circumstance that

the murder of Joyce was “especially heinous, atrocious and

cruel,” an aggravating circumstance not submitted for Caroline’s

murder, and imposed the death sentence for Joyce’s murder.

Given the strength of the aggravating evidence presented in

Joyce’s case, compared to the relative weakness of the admitted

and excluded evidence of Davis’s relationship with his mother

and of his remorse for the murder of his aunt, we agree with the

district court’s determination that Davis failed to demonstrate

that the exclusion of the letters had a substantial and

injurious effect or influence on the outcome of the sentencing

proceeding. Therefore, even if we assume that the trial court’s

exclusion of the letters violated Davis’s constitutional right

to introduce mitigating evidence, he is not entitled to federal

habeas relief as a result of the error.

B.

Davis’s second argument arises from the trial court’s

decision to submit, as separate aggravating circumstances, that

the murder of Joyce was committed while Davis was engaged in the

commission of armed robbery, see N.C. Gen. Stat. § 15A-

2000(e)(5), and that the murder was committed by Davis for

pecuniary gain, see N.C. Gen. Stat. § 15A-2000(e)(6).

28
 After murdering Caroline and Joyce, Davis stole two VCRs,

the keys to Joyce’s car, Joyce’s purses containing bank cards

and credit cards, and personal checks, and fled the scene with

the stolen items in Joyce’s vehicle. Within an hour, he

attempted to cash a $360 check at a grocery store and purchased

six items of clothing at a department store using Joyce’s credit

card. Some of those items of clothing were identical to those

that Joyce had returned under the apparent belief that Davis had

purchased them with money he had stolen from her. Davis then

drove to Oak Knoll Apartments, where he discarded the VCRs in a

dumpster, and to an Amoco gas station, where he abandoned the

car and discarded his aunt’s black purse.

Under North Carolina law, “it is error to submit two

aggravating circumstances when the evidence to support each is

precisely the same,” but “where the aggravating circumstances

are supported by separate evidence, it is not error to submit

both to the jury, even though the evidence supporting each may

overlap.” State v. East, 481 S.E.2d 652, 664 (N.C. 1997).

Based upon the evidence submitted in Davis’s case, the trial

court found that submission of both the armed robbery and the

pecuniary gain aggravating circumstances was appropriate because

each was supported by separate evidence. To further channel the

jury’s consideration of these aggravating circumstances, the

court instructed the jury that the evidence regarding the

29
checks, money, and credit cards could be considered for purposes

of the pecuniary gain circumstance, whereas the evidence

regarding the keys, vehicle, and VCRs could be considered for

purposes of the armed robbery circumstance. The trial court

rejected Davis’s contention that this amounted to the

impermissible submission of double or duplicative aggravating

circumstances and, thereby, skewed the process in favor of

death. The Supreme Court of North Carolina affirmed, concluding

that the two distinct aggravating circumstances presented were

based upon sufficient, independent evidence and did not violate

Davis’s constitutional rights. See Davis, 539 S.E.2d at 270.

In these proceedings, Davis does not claim that the

evidence was insufficient to support the separate aggravating

circumstances. Rather, Davis asserts that the state court

arbitrarily divided the evidence so as to support the two

separate aggravating circumstances and that this division did

not represent different aspects of Davis’s character or the

circumstances of the crimes he committed that evening.

Contending that the aggravating circumstances are duplicative,

Davis argues that their joint submission was the equivalent to

submitting an invalid aggravating circumstance that

unconstitutionally skews the weighing process in favor of death.

See Stringer v. Black, 503 U.S. 222, 232 (1992) (“[W]hen the

sentencing body is told to weigh an invalid factor in its

30
decision, a reviewing court may not assume it would have made no

difference if the thumb had been removed from death’s side of

the scale. When the weighing process itself has been skewed,

only constitutional harmless-error analysis or reweighing at the

trial or appellate level suffices to guarantee that the

defendant received an individualized sentence.”).

In Jones v. United States, 527 U.S. 373 (1999) (plurality

opinion), however, the Supreme Court declined the opportunity to

equate duplicative aggravating factors to invalid aggravating

factors. There, the defendant argued that two nonstatutory

aggravating factors found by the jury were duplicative, vague

and overbroad, in violation of the Eighth Amendment.

Specifically, the jury had unanimously found (1) victim impact

evidence (i.e., the victim’s personal characteristics and the

effect of the instant offense on her family); and (2) victim

vulnerability evidence (i.e., the victim’s young age, her slight

stature, her background, and her unfamiliarity with San Angelo,

Texas). Because personal characteristics necessarily included

those things included in the victim vulnerability charge, the

defendant argued that charging both impermissibly skewed the

process in favor of a death sentence. In rejecting the

challenge, a plurality of the Court noted that:

We have never before held that aggravating factors
could be duplicative so as to render them
constitutionally invalid, nor have we passed on the

31
 “double counting” theory that the Tenth Circuit
advanced in [United States v.] McCullah[, 76 F.3d 1087
(10th Cir. 1996)] and the Fifth Circuit appears to
have followed here. What we have said is that the
weighing process may be impermissibly skewed if the
sentencing jury considers an invalid factor. See
Stringer v. Black, 503 U.S. 222, 232 (1992).
Petitioner’s argument (and the reasoning of the Fifth
and Tenth Circuits) would have us reach a quite
different proposition – that if two aggravating
factors are “duplicative,” then the weighing process
necessarily is skewed, and the factors are therefore
invalid.

Id. at 398 (emphasis added) (footnote omitted). However, the

plurality declined to answer the question of whether duplicative

factors, as opposed to an invalid factor, necessarily skew the

process in favor of death. Rather, it ruled that “the factors

as a whole were not duplicative – at best, certain evidence was

relevant to two different aggravating factors” and that “any

risk that the weighing process would be skewed was eliminated by

the District Court’s instruction that the jury should not simply

count the number of aggravating and mitigating factors and reach

a decision based on which number is greater but rather should

consider the weight and value of each factor.” Id. at 399-400

(internal quotation marks and alteration omitted).

Here, the trial court relied upon North Carolina law, which

allows the submission of aggravating circumstances that are

supported by separate evidence, see East, 481 S.E.2d at 664, and

submitted both aggravating circumstances to the jury with the

appropriate explanation. In addition, the trial court

32
specifically instructed the jury not to merely add up the number

of aggravating circumstances against the number of mitigating

circumstances:

You should not merely add up the number of aggravating
circumstances and mitigating circumstances. Rather,
you must decide from all the evidence what weight to
give to each circumstance and then weigh the
aggravating circumstances so valued against the
mitigating circumstances so valued, and finally
determine whether the mitigating circumstances are
insufficient to outweigh the aggravating
circumstances.

J.A. 884-85.

Given the Supreme Court’s opinion in Jones, we cannot say

that the state trial court’s decision to submit both the

pecuniary gain circumstance and the armed robbery circumstance

was contrary to or an unreasonable application of Supreme Court

precedent. 6 In addition, we do not view the aggravating

circumstances as duplicative. Although in some cases the

evidence may only be susceptible of the conclusion that an armed

robbery was attempted or effectuated for pecuniary gain,

6
Davis’s reliance upon our decision in United States v.
Tipton, 90 F.3d 861 (4th Cir. 1996), and its reliance upon the
Tenth Circuit’s decision in McCullah are misplaced. Our
decision in Tipton predates the Supreme Court’s decision in
Jones and, in any event, we do not evaluate whether the state
court’s determination is contrary to or an unreasonable
application of our precedent in federal death penalty cases.
See Bustos v. White, 521 F.3d 321, 325 (4th Cir. 2008). Rather,
we review the ruling to determine whether the decision is
contrary to or an unreasonable application of Supreme Court
precedent. See id.; 28 U.S.C.A. § 2254(d).

33
pecuniary gain is not an element of the offense of robbery and

armed robbery is not necessarily synonymous with a goal of

achieving pecuniary gain. Indeed, there are a number of

scenarios in which material items may be taken in the course of

an armed robbery and murder for reasons wholly unrelated to the

desire for pecuniary gain, such as to escape, avoid detection,

or implicate another person in a murder. In this case, the

evidence was clearly susceptible to the conclusion that there

were, in fact, two independent aggravating circumstances: Davis

took the car and VCRs (which were quickly abandoned) not for

pecuniary gain, but rather to make the murders appear to be

related to a random armed robbery or to implicate others (which

he, in fact, attempted to do when he was questioned by the

police), whereas Davis’s immediate attempts to cash a check and

his use of Joyce’s credit card to purchase clothing were

consistent with a separate intent to benefit financially from

his crime. While there may be some overlap, the aggravating

circumstances were sufficiently independent to justify separate

submissions to the jury for its consideration. Here, the trial

court divided the evidence in accordance with state law.

However, as was the case in Jones, “at best, certain evidence

was relevant to two different aggravating factors” and “any risk

that the weighing process would be skewed was eliminated by the

District Court’s instruction that the jury should not simply

34
count the number of aggravating and mitigating factors and reach

a decision based on which number is greater but rather should

consider the weight and value of each factor.” Id. at 399-400

(internal quotation marks and alteration omitted). Accordingly,

Davis is not entitled to federal habeas relief on this basis.

IV.

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

grant of summary judgment to the state. Because the North

Carolina Supreme Court’s decision was not contrary to, or an

unreasonable application of established Supreme Court

precedents, nor based on an unreasonable determination of the

facts in light of the evidence presented in the state court,

Davis is not entitled to federal habeas relief.

AFFIRMED

35