Blakeney v. Branker

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-15

ROGER M. BLAKENEY,

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 Charlotte. Richard L. Voorhees,
District Judge. (3:05-cv-00010-RLV)

Argued: September 23, 2008 Decided: March 5, 2009

Before MICHAEL, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished opinion. Judge King wrote the opinion,
in which Judge Michael joined. Judge Gregory wrote a separate
opinion concurring in part and dissenting in part.

ARGUED: Burton Craige, PATTERSON HARKAVY, L.L.P., Raleigh,
North Carolina, for Appellant. Edwin William Welch, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee. ON BRIEF: Jeffrey P. Bloom, Columbia, South Carolina,
for Appellant. Roy Cooper, North Carolina Attorney General,
Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
KING, Circuit Judge:

Roger M. Blakeney (“Blakeney” or “defendant”) appeals the

district court’s denial of his federal habeas corpus petition,

by which he seeks to have his North Carolina convictions and

death sentence vacated for alleged constitutional violations.

Blakeney contends that the district court erred in three

respects: (1) in denying him relief on the claim that his trial

counsel rendered ineffective assistance during sentencing

proceedings; (2) in denying him relief on the claim that the

prosecution withheld exculpatory evidence; and (3) by rejecting

his request for an evidentiary hearing on the claim that his

trial counsel was ineffective in failing to adequately challenge

the racial composition of the jury. As explained below, we are

constrained to affirm.

I.

A.

The pertinent details of Blakeney’s state trial and the

factual predicate for his prosecution were outlined by the

Supreme Court of North Carolina on direct appeal, as follows:

On 13 May 1996 defendant Roger McKinley Blakeney
(defendant) was indicted for the first-degree murder
of Callie Washington Huntley (the victim). Defendant
was also indicted for arson, common law robbery,
felonious breaking and entering, felonious larceny,
and felonious possession of stolen goods. Defendant
was tried capitally at the 25 August 1997 Criminal

2
Session of Superior Court, Union County. At the close
of the evidence, the state voluntarily dismissed the
larceny charge. In addition, the charge of felonious
possession of stolen goods was not submitted to the
jury. The jury found defendant guilty of first-degree
murder on the basis of malice, premeditation, and
deliberation and under the felony murder rule. The
jury also found defendant guilty of first-degree
arson, common law robbery, and felonious breaking and
entering. Following a capital sentencing proceeding,
the jury recommended a sentence of death for the
first-degree murder conviction, and the trial court
entered judgment in accordance with that
recommendation. The trial court also entered
judgments sentencing defendant to consecutive terms of
imprisonment for the remaining convictions.

The state presented evidence at trial which is
summarized as follows: On 15 April 1996, between the
hours of 10:00 a.m. and 12:00 noon, defendant, age
thirty-three, opened and crawled through a back window
in his mother’s home for the purpose of stealing
something of value that he could sell. Defendant
stole three of his mother’s rings, a brown leather
pouch, approximately $4.00 in change, a small
herringbone chain, and his mother’s savings account
deposit book. Defendant then telephoned his wife and
told her he would be home in a few minutes.

After defendant finished speaking with his wife,
the victim, age seventy-six, drove behind the house.
The victim had lived with defendant’s mother for over
twenty years. Defendant hid in a small room behind
the refrigerator as the victim entered the residence.
According to defendant’s confession, which was
admitted into evidence at trial, defendant entered the
kitchen, and the two began arguing. Defendant told
authorities that he turned to leave, but the victim
grabbed him. Defendant charged at the victim, grabbed
and wrestled a .22-caliber revolver out of the
victim’s hand, and hit the victim in the back of the
head with the butt of the gun. The victim fell
facedown on the kitchen floor and started bleeding.
According to defendant, after some additional period
of physical struggle, a metal can of kerosene was
accidentally spilled. Defendant also claimed that a
cigarette he was smoking fell out of his mouth at some

3
time during the struggle. According to defendant, at
some point, he pulled the victim off the floor, sat
him in a chair, and wrapped an electrical cord around
his hands and legs. Defendant then removed $78.00
from the victim’s wallet, exited the residence, and
departed the area in defendant’s vehicle.

Terry Lee Bivens (Bivens), defendant’s
longstanding friend, worked at a nearby business and
observed defendant departing his mother’s residence on
the day in question. Bivens recognized defendant’s
vehicle. Seconds later, Bivens noticed smoke coming
from the residence. Bivens and several other
witnesses looked on as the house began to burn.

Firefighters arrived at the scene and discovered
the victim’s wire-bound body as they fought the fire.
Agent Van Worth Shaw, Jr. (Agent Shaw), an arson
investigator for the State Bureau of Investigation
(SBI), determined that the fire had two distinct
points of origin and was caused by the use of a
flammable liquid. In contrast to defendant’s
statement, all accidental causes were eliminated
during the investigation, and Agent Shaw opined that
the fire was intentionally set. The investigation
revealed traces of kerosene on samples taken from the
couch in the den and on the victim’s clothing.

Dr. Robert Thompson, a forensic pathologist with
the Office of the Chief Medical Examiner, performed an
autopsy on the victim’s body. The autopsy revealed
that seventy-five percent of the victim’s skin was
charred. Dr. Thompson also observed that the victim
had received a wound to the back and a wound to the
left temporal area of the head, which resulted in
injury to the brain. Dr. Thompson opined that the
victim was conscious for approximately three to five
minutes after the fire started, that the victim died
within approximately ten minutes, and that the cause
of death was carbon monoxide poisoning produced by the
fire.

On 16 April 1996 law enforcement officers located
defendant at a friend’s residence, sitting in the
passenger seat of his vehicle. Defendant consented to
a search of his vehicle, where the officers found his
mother’s stolen jewelry, leather pouch, and savings

4
 deposit book in the glove compartment. The
authorities later recovered the .22-caliber revolver
that defendant had taken from the victim. Defendant
had exchanged the gun for a loan. The investigation
also revealed that bloodstains found on defendant’s
clothing were consistent with the victim’s blood.

Defendant did not present evidence during the
guilt-innocence phase of trial.

State v. Blakeney, 531 S.E.2d 799, 806-08 (N.C. 2000). 1 Specific

to the trial’s sentencing phase, the state supreme court

observed that

the state presented evidence of, and defendant
stipulated to, one conviction for robbery with a
dangerous weapon. The state’s evidence tended to show
that, in 1989, defendant robbed a grocery store and
struck the store owner in the back of the head with a

1
The state supreme court provided further details of the
murder and its aftermath, as follows:

defendant telephoned his wife from his mother’s
residence, before the victim arrived, and informed her
he would be home “in a few minutes.” The record
reveals, however, that defendant did not return home
as planned. Rather, defendant ran from the scene of
the crime and departed the area in his vehicle. One
of defendant’s longstanding friends waved at him, but
defendant did not respond. After departing the area,
defendant drove to “[Emanuel Blackman’s] shack out in
the country,” where he traded the victim’s gun for
cocaine and twenty dollars in cash. Defendant then
continued to drive through the country, stopping in
Pageland, South Carolina, where he traded more stolen
items for drugs. Rather than return home, as
originally intended, defendant then went to Kenneth
Funderburk’s house and remained there overnight. Law
enforcement officers apprehended defendant at this
residence the next afternoon.

Blakeney, 531 S.E.2d at 819 (alteration in original).

5
 gun. Evidence at trial also indicated that defendant
had a history of drug abuse.

* * *

[In considering the death penalty on the first-
degree murder conviction,] [t]he jury found four
aggravating circumstances: (1) defendant had been
previously convicted of a felony involving the use of
violence to the person, N.C.G.S. § 15A-2000(e)(3); (2)
the murder was committed while defendant was engaged
in the commission of first-degree arson, N.C.G.S.
§ 15A-2000(e)(5); (3) the murder was committed for
pecuniary gain, N.C.G.S. § 15A-2000(e)(6); and (4) the
murder was especially heinous, atrocious, or cruel,
N.C.G.S. § 15A-2000(e)(9).

Of the eight mitigating circumstances submitted,
one or more jurors found the following: (1) defendant
grew up in very unfortunate and difficult
circumstances in that he grew up in a physical and
psychological environment which significantly retarded
the proper development of his character and functional
abilities; (2) defendant’s father was absent from the
home since defendant was two or three years old; and
(3) defendant’s mother was in and out of the home and
involved in an alcoholic and verbally and sometimes
physically abusive relationship with Mr. Huntley, the
victim here, which the defendant witnessed.

Id. at 821, 824-25. On July 13, 2000, in his direct appeal, the

state supreme court affirmed Blakeney’s convictions and death

sentence. See id. at 826. Thereafter, on January 16, 2001, the

Supreme Court of the United States denied Blakeney’s petition

for a writ of certiorari. See Blakeney v. North Carolina, 121

S. Ct. 868 (2001).

B.

Blakeney filed a motion for appropriate relief (the “MAR”)

in the state superior court (the “MAR court”) on November 16,

6
2001, and amended the MAR on February 5, 2003, raising a total

of seven issues. By its Order of June 5, 2003, the MAR court,

in relevant part, deferred ruling on Blakeney’s claims that his

trial counsel had rendered ineffective assistance at sentencing

(the “ineffective assistance/sentencing claim”) and that the

prosecution had withheld various exculpatory evidence (the

“original exculpatory evidence claim”). See State v. Blakeney,

No. 96 CRS 4774-4777 (N.C. Super. Ct. June 5, 2003) (the “First

MAR Order”). 2 Also by the First MAR Order, the court rejected as

procedurally barred the claim that Blakeney, who is African-

American, had been unconstitutionally tried by an all-white jury

(the “substantive jury composition claim”).

In the meantime, on May 9, 2003, Blakeney had amended his

MAR for a second time, raising the claim that his trial counsel

had rendered ineffective assistance by failing to object to the

racial composition of the jury (the “ineffective assistance/jury

composition claim”). By its Order of November 12, 2003, the MAR

court rejected the ineffective assistance/jury composition claim

as both procedurally barred and without substantive merit. See

2
The First MAR Order is found at J.A. 847-933. (Citations
herein to “J.A. ” refer to the contents of the Joint Appendix
filed by the parties in this appeal.)

7
State v. Blakeney, No. 96 CRS 4774-4777 (N.C. Super. Ct. Nov.

12, 2003) (the “Second MAR Order”). 3

In January 2004, the MAR court conducted an evidentiary

hearing (the “MAR hearing”) on Blakeney’s ineffective

assistance/sentencing claim, as well as his original exculpatory

evidence claim. At that time, Blakeney filed a motion to

reconsider the MAR court’s prior rulings on his substantive jury

composition and ineffective assistance/jury composition claims,

which the court denied from the bench. On April 30, 2004,

Blakeney amended his MAR for the last time to conform with the

MAR hearing evidence, asserting that the prosecution had

withheld exculpatory evidence (the “exculpatory evidence claim”)

beyond that complained of in his original exculpatory evidence

claim. 4 By its Order and Memorandum Opinion of May 21, 2004, the

MAR court rejected, inter alia, Blakeney’s ineffective

assistance/sentencing and exculpatory evidence claims as lacking

substantive merit and being, in part, procedurally barred. See

3
The Second MAR Order is found at J.A. 934-64.
4
Blakeney has since abandoned his original exculpatory
evidence claim, but the claim asserted in the amended MAR of
April 30, 2004, which we refer to as the “exculpatory evidence
claim,” is now before us.

8
State v. Blakeney, No. 96 CRS 4774-4777 (N.C. Super. Ct. May 21,

2004) (the “Third MAR Order”). 5

The state supreme court, by Order of December 2, 2004,

denied Blakeney’s subsequent petition for a writ of certiorari.

See State v. Blakeney, 607 S.E.2d 650 (N.C. 2004).

C.

On January 31, 2005, Blakeney filed a petition for federal

habeas corpus relief, pursuant to 28 U.S.C. § 2254, in the

Western District of North Carolina. In his petition, Blakeney

raised twenty-one issues, including his ineffective

assistance/sentencing, exculpatory evidence, substantive jury

composition, and ineffective assistance/jury composition claims.

In response, the State filed an answer and a motion for summary

judgment. Thereafter, Blakeney responded to the State’s summary

judgment motion, and filed his own summary judgment motion, a

motion for discovery, and a motion for an evidentiary hearing.

After the parties submitted further memoranda on the cross-

motions for summary judgment, the district court issued its

Order of May 3, 2007, denying Blakeney’s habeas corpus petition,

summary judgment motion, and motions for discovery and an

evidentiary hearing, and granting the State’s summary judgment

5
The Third MAR Order is found at J.A. 2158-2300.

9
motion. See Blakeney v. Lee, No. 3:05-cv-00010 (W.D.N.C. May 3,

2007) (the “Habeas Corpus Order”). 6

Blakeney timely filed a motion to alter or amend judgment

and for relief from judgment under Federal Rules of Civil

Procedure 59(e) and 60(b), which the district court treated as a

Rule 59(e) motion seeking to relitigate its rejection of

Blakeney’s ineffective assistance/sentencing and exculpatory

evidence claims, and to challenge the denial of an evidentiary

hearing on his substantive jury composition and ineffective

assistance/jury composition claims. By its Order of June 11,

2007, the court concluded that, with respect to Blakeney’s

ineffective assistance/sentencing and exculpatory evidence

claims, his Rule 59(e) motion constituted an unauthorized

successive application for federal habeas corpus relief under 28

U.S.C. § 2244(b). See Blakeney v. Lee, No. 3:05-cv-00010

(W.D.N.C. June 11, 2007) (the “First Rule 59(e) Order”). 7 In its

First Rule 59(e) Order, however, the court further observed that

Blakeney had properly made in his Rule 59(e) motion the

contention that he was erroneously denied an evidentiary hearing

on his substantive jury composition and ineffective

assistance/jury composition claims. Accordingly, invoking this

6
The Habeas Corpus Order is found at J.A. 2954-3079.
7
The First Rule 59(e) Order is found at J.A. 3096-98.

10
Court’s precedent, the court gave Blakeney “the options of

deleting the claims subject to the requirements of successive

petitions or having his entire Rule 59(e) Motion treated as a

successive application for habeas relief.” First Rule 59(e)

Order 5-6 (citing United States v. Winestock, 340 F.3d 200 (4th

Cir. 2003)).

In accordance with the district court’s instructions,

Blakeney promptly filed a motion to amend his Rule 59(e) motion,

in which he opted to withdraw his contentions with respect to

his ineffective assistance/sentencing and exculpatory evidence

claims. By its Order of July 9, 2007, the court granted

Blakeney’s motion to amend his Rule 59(e) motion, but rejected

on the merits Blakeney’s remaining contention that he had been

erroneously denied an evidentiary hearing on his substantive

jury composition and ineffective assistance/jury composition

claims. See Blakeney v. Lee, No. 3:05-cv-00010 (W.D.N.C. July

9, 2007) (the “Second Rule 59(e) Order”). 8

On August 7, 2007, Blakeney timely noted this appeal. On

October 22, 2007, the district court granted a certificate of

appealability (the “COA”) on Blakeney’s ineffective

assistance/sentencing claim. On March 10, 2008, we expanded the

COA to include Blakeney’s exculpatory evidence claim, as well as

8
The Second Rule 59(e) Order is found at J.A. 3104-06.

11
the contention that the district court should have granted him

an evidentiary hearing on his ineffective assistance/jury

composition claim. 9 We possess jurisdiction over Blakeney’s

appeal pursuant to 28 U.S.C. §§ 1291 and 2253.

II.

We review de novo a district court’s denial of habeas

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

v. Ozmint, 350 F.3d 433, 438 (4th Cir. 2003). Insofar as the

MAR court adjudicated Blakeney’s habeas corpus claims on the

merits, its decision is entitled to deference pursuant to the

1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”).

See 28 U.S.C. § 2254(d). AEDPA mandates the use of a two-step

analysis to assess whether a habeas corpus petitioner is

entitled to relief. Under the first step of the analysis, we

may award relief only if (1) the state court adjudication of the

issue on its merits “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) the adjudication “resulted in a

decision that was based on an unreasonable determination of the

9
Blakeney has abandoned all contentions with respect to
his substantive jury composition claim.

12
facts in light of the evidence presented in the State court

proceeding.” Id. And, even if error is identified, habeas

corpus relief can only be granted, under the second step of the

AEDPA analysis, if the error had a “substantial and injurious

effect or influence in determining the jury’s verdict.” Brecht

v. Abrahmson, 507 U.S. 619, 637 (1993) (internal quotation marks

omitted). The state court’s factual determinations are presumed

to be correct and may be rebutted only by clear and convincing

evidence. See 28 U.S.C. § 2254(e)(1).

We are barred from conducting habeas corpus review “of a

state prisoner’s claims that are procedurally defaulted under

independent and adequate state procedural rules . . . unless the

prisoner can show cause for the default and demonstrate actual

prejudice as a result of the alleged violation of federal law,

or prove that failure to consider the claims will result in a

fundamental miscarriage of justice.” Lawrence v. Branker, 517

F.3d 700, 714 (4th Cir. 2008) (internal quotation marks

omitted). “A state rule is adequate if it is firmly

established, and regularly and consistently applied by the state

court.” Id. (internal quotation marks omitted).

Finally, we review a district court’s denial of an

evidentiary hearing for abuse of discretion. See Robinson v.

Polk, 438 F.3d 350, 367 (4th Cir. 2006).

13
 III.

On appeal, Blakeney’s COA authorizes him to contend that

the district court erred in three respects — in denying him

relief on his ineffective assistance/sentencing claim, in

denying him relief on his exculpatory evidence claim, and by

rejecting his request for an evidentiary hearing on his

ineffective assistance/jury composition claim. We assess these

contentions in turn.

A.

The ineffective assistance/sentencing claim essentially has

two aspects: first, whether trial counsel rendered ineffective

assistance by failing to collect relevant records and provide

them to Blakeney’s expert psychologist for the sentencing

proceedings (the “expert witness aspect”); and second, whether

counsel was ineffective in failing to conduct pretrial

interviews of, and then to call as character witnesses, several

of Blakeney’s family members and acquaintances (the “character

witness aspect”). Blakeney contends that the MAR court’s

adjudication on the merits of both aspects of his ineffective

assistance/sentencing claim “resulted in a decision that was

contrary to, or involved an unreasonable application of,”

Supreme Court precedent. 28 U.S.C. § 2254(d). The Supreme

Court explained in Williams v. Taylor that,

14
 [u]nder the “contrary to” clause, a federal habeas
court may grant the writ if the state court arrives at
a conclusion opposite to that reached by [the Supreme]
Court on a question of law . . . . Under the
“unreasonable application” clause, a federal habeas
court may grant the writ if the state court identifies
the correct governing legal principle from [the]
Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.

529 U.S. 362, 412-13 (2000).

Here, as recognized by the district court, the MAR court

correctly identified the controlling Supreme Court precedent,

including the Court’s seminal decision in Strickland v.

Washington, 466 U.S. 668, 687 (1984) (recognizing that

ineffective assistance claim requires showing (1) “that

counsel’s performance was deficient,” and (2) “that the

deficient performance prejudiced the defense”). See Habeas

Corpus Order 8. Accordingly, the relevant issue is whether the

MAR court unreasonably applied that precedent to the facts of

Blakeney’s case — that is, “whether the state court’s

application of clearly established federal law was objectively

unreasonable.” Williams, 529 U.S. at 409. We assess such issue

beginning with the expert witness aspect, followed by the

character witness aspect, of the ineffective

assistance/sentencing claim.

1.

a.

15
 The MAR court concluded that the expert witness aspect of

Blakeney’s ineffective assistance/sentencing claim failed on

both the performance and the prejudice prongs of the Strickland

test. See Third MAR Order 89. In adjudicating the expert

witness aspect, the MAR court provided an extensive discussion

of the relevant evidence in the MAR hearing record, but largely

abstained from explicitly resolving disputed issues of fact and

making credibility determinations. The court observed, however,

that “the evidence before [it] shows that all of this claim is

without merit.” Id. The court also invoked various authorities

applying Strickland and its Supreme Court progeny to justify the

rejection of Blakeney’s “claim[] of prejudicial error.” Id. at

33. Although the precise reason for the court’s decision is not

entirely clear, we must deem the decision to be reasonable if it

“is at least minimally consistent with the facts and

circumstances of the case.” Wright v. Angelone, 151 F.3d 151,

157 (4th Cir. 1998) (internal quotation marks omitted).

i.

According to the MAR court, Blakeney’s “experienced trial

counsel” — lead counsel Robert Huffman and co-counsel Harry

Crow, Jr. — retained Dr. Mark Worthen, an expert in clinical and

forensic psychology, to evaluate Blakeney for the sentencing

phase of the trial. See Third MAR Order 10, 89, 91. Worthen

produced a seventeen-page Forensic Psychological Evaluation (the

16
“Expert Report”), dated August 28, 1997, which was incorporated

by reference as part of the Third MAR Order. 10 The purpose of

Worthen’s evaluation, according to the Expert Report, was “to

describe Mr. Blakeney’s psychological functioning during the

time of the alleged offenses; to provide a social and

psychological history; to list any relevant psychiatric

diagnoses; and to comment on his propensity for violence within

the correctional system.” Expert Report 1. For the Expert

Report, Worthen relied on psychological testing of and

interviews with Blakeney, discussions with some of Blakeney’s

family members, and certain records provided by trial counsel

and obtained by Worthen himself. See Third MAR Order 105-06;

Expert Report 2.

Trial counsel obtained school and prison records on

Blakeney, and they provided those records to Dr. Worthen, along

with police statements and reports about the Huntley murder.

See Third MAR Order 89, 92. The prison records, from the North

Carolina Department of Correction, related to Blakeney’s

imprisonment from 1990 to 1995 on the prior robbery with a

dangerous weapon offense. See Expert Report 17. Lawyer Huffman

advised Worthen that “‘if you need anything else, please let me

10
The Expert Report is found at J.A. 2307-23.

17
know.’” See Third MAR Order 89 (quoting J.A. 1182). 11 When

Worthen did not follow up with any requests for further

information, Huffman presumed that Worthen was satisfied with

what had been provided. See id.

Dr. Worthen obtained records, on his own initiative, from

the Union County Mental Health Center upon learning from

Blakeney that he had also been seen there. See Third MAR Order

92. According to the Expert Report, those records reflected

that Blakeney had sought treatment for substance abuse from the

Union County Mental Health Center in September 1995, after being

released from prison. See Expert Report 6. The records also

reflect that, at that time, Blakeney was “anxious and

depressed,” and he was diagnosed with dependence on and

withdrawal from cocaine and alcohol. Id. at 6-7.

Dr. Worthen was unable to obtain records from the North

Carolina Department of Correction relating to Blakeney’s

reported participation in a drug and alcohol rehabilitation

treatment (“DART”) program, despite requesting them in two or

three letters and, perhaps, a phone call. See Third MAR Order

93. Trial counsel also made unsuccessful attempts to obtain the

DART records. See id. The Expert Report reflects that “Mr.

11
Where the MAR court quoted from transcripts of the MAR
hearing, we provide J.A. citations for those portions of the
transcripts.

18
Blakeney indicated that he participated in the DART program

through the Department of Correction[] when he was incarcerated

between 1990 and 1995”; that Worthen, “[u]nfortunately, . . .

was not able to obtain records regarding” any such treatment;

and that Worthen was “not sure if this indicates that Mr.

Blakeney actually never participated in DART or if the records

simply could not be located.” Expert Report 6. As the MAR

court later recognized, there were Department of Correction

records that, if produced, would have confirmed to Worthen that

Blakeney received “130 hours of instruction” in the DART program

prior to the Huntley murder. Third MAR Order 94; see also J.A.

1831 (Department of Correction letter of March 28, 1994,

reflecting that Blakeney completed four-week DART program at

Craggy Correctional Center).

During the trial preparations, “Dr. Worthen met [lawyer]

Crow in person twice, once when they met at Crow’s office and he

interviewed two or three of defendant’s family members, and once

with Huffman and Crow immediately before the sentencing phase of

defendant’s trial.” Third MAR Order 91. The Expert Report

reflects that Worthen met with Blakeney five times, conducted a

series of psychological tests on him, and interviewed three of

his family members: wife Tiney Blakeney, mother Gracie

Blakeney, and sister Peggy Blakeney. See Expert Report 2.

19
 Extensive details of Blakeney’s childhood, education, and

family life are provided in the Expert Report, which reflects,

inter alia, that Blakeney, the youngest of nine children, was

abandoned by his father as a toddler and spent his childhood

living in “embarrassing” and “terrible” conditions in houses

with no running water or electricity, filled with rats, snakes,

and roaches. See Expert Report 3. Blakeney was intermittently

cared for by his older siblings and by his mother Gracie, who

was in and out of the home, being absent more often after she

began dating Huntley when Blakeney was nine or ten years old.

See id. Gracie Blakeney and Huntley both drank heavily and

frequently fought, and Gracie “would alternate between

neglecting the children and indulging [defendant].” Id.

Blakeney’s school performance was “below average,” and he

withdrew from school in the ninth grade. Id. at 5. He

thereafter attempted to return to high school three different

times, but “he had to find work in order to survive,” making “it

difficult for him to stay in school despite his several

attempts.” Id. Blakeney had six children with five different

women, including two children with Tiney Blakeney, whom he

married in February 1996. See id. at 5-6. Tiney Blakeney told

Dr. Worthen “that her husband has had problems with alcohol and

other drugs, but she characterized him as a good father who is

able to relate to and discipline the children better than she.”

20
Id. at 6. Tiney Blakeney also “indicated that she and Mr.

Blakeney had arguments about finances and the fact that he was

spending some of their money on alcohol and other drugs rather

than the family, but she had not contemplated a separation or

divorce.” Id.

The Expert Report contains a narrative of Blakeney’s

description to Dr. Worthen of the events surrounding the Huntley

murder, including Blakeney’s reports of having not slept “for

most of the previous three or four days and nights prior to the

alleged offense” and of having consumed alcohol and smoked

marijuana and crack cocaine during that time period. Expert

Report 7. Nevertheless, according to the Expert Report, “Mr.

Blakeney stated that at the time of the alleged offense he was

not intoxicated and he was not feeling particularly bad.” Id.

The Expert Report also observes that Blakeney gave a written

statement to police the day after the Huntley murder that did

not include information about his conduct over the days prior to

the murder (including his sleeplessness and substance abuse).

See id. at 9. With respect to details of the murder itself,

Blakeney’s description of events to Dr. Worthen “varie[d]

somewhat from that given to law enforcement officers in [the]

written statement,” and Worthen assumed that the statement to

police, being closer in time to the murder, was “more accurate.”

Id.

21
 During a screening test for alcoholism, the Expert Report

reflects, Dr. Worthen “suspect[ed] that Mr. Blakeney tended to

minimize problems associated with alcohol use when answering the

. . . questions.” Expert Report 10. Similarly,

Mr. Blakeney also minimized the extent of his drug
(including alcohol) use and related problems on . . .
a substance abuse evaluation instrument. After
talking with Mr. Blakeney’s attorney, it became
apparent that Mr. Blakeney was afraid that if he
acknowledged his drug use it would somehow hurt his
case. After his attorney advised him that it was
crucial to be open and honest . . . , Mr. Blakeney
acknowledged that he has had a long term problem with
crack cocaine and that he has been a regular user of
alcohol and marijuana.

Id. On one psychological test, “Mr. Blakeney likely answered

‘true’ to some test items indicative of more severe

psychopathology than he actually exhibits, either in an attempt

to look more disturbed or as a ‘cry for help.’” Id. at 11.

The Expert Report includes a diagnosis of “Personality

Disorder, Not Otherwise Specified (Mixed Personality Disorder)

with avoidant, dependent, anti-social, and narcissistic traits,”

as well as cocaine, marijuana, and alcohol dependence. Expert

Report 14. It also observes that “Mr. Blakeney endorsed some

symptoms of dependent, avoidant, and anti-social personality

disorder during [the] interview procedure,” and that his sister

Peggy Blakeney “indicated that she has observed her brother to

exhibit signs of anti-social, narcissistic, avoidant, and

dependent personality disorder.” Id. at 13-14. The Expert

22
Report concludes that “[t]he substance abuse diagnoses are

relevant” in that “[t]he violence that occurred would not have

taken place had Mr. Blakeney not chosen to seek out more money

for more drugs,” and “[i]t is also likely that Mr. Blakeney’s

rational judgment was impaired, at least slightly, by the

chronic use of alcohol and other drugs and the fact that he had

reportedly been awake for most of the previous three days and

nights.” Id. at 16. According to the Expert Report, “Mr.

Blakeney presumably did not plan well in advance to kill Mr.

Huntley . . . but when confronted by Mr. Huntley, he reacted.

It was at this time that the poor judgment caused by chronic

drug abuse, and alleged lack of sleep, was a factor.” Id. The

Expert Report acknowledges, however, that there was

no evidence that Mr. Blakeney was experiencing more
severe effects of alcohol and other drug abuse such as
delusions, hallucinations, or perceptual disturbances,
acute physical withdrawal, or memory blackout at the
time of the alleged offenses. Thus, while Mr.
Blakeney’s ability to adequately consider the
consequences of his actions was impaired to some
extent, he was not so impaired that he lost
significant awareness of his circumstances nor did he
significantly lose his ability to control his
behavior.

Id. With respect to the diagnosis of personality disorder, the

Expert Report opines that such disorder rendered Blakeney “more

vulnerable to the temporary stress-reducing properties of drugs

and consequently, drug addictions,” and that it “also adversely

affected [Blakeney’s] ability to adequately consider the

23
consequences of his actions on others, due to his narcissism and

anti-social attitudes.” Id. at 16-17. Finally, the Expert

Report reflects Dr. Worthen’s opinion — based on Blakeney’s lack

of “a past history of violence in the [prison] setting” or

“psychopathic personality” — that Blakeney “poses no greater

risk for violence than the average prisoner” and does not

“pose[] an imminent threat to other inmates.” Id. at 17.

In his trial testimony, Dr. Worthen “repeated much of the

information stated in [the Expert Report].” Third MAR Order 91.

According to lawyer Crow, he “‘thought Dr. Worthen’s testimony

in court went over fairly well. We basically had him go over

the report that he provided in front of the jury and he did a

good job of presenting that information. . . . [H]e did not

give the impression that he had not been adequately prepared.’”

Id. at 89 (quoting J.A. 1159-60). 12

Thereafter, at the MAR hearing, Blakeney’s post-conviction

counsel presented records not obtained by trial counsel nor

provided to Dr. Worthen prior to trial, including the following:

Blakeney’s DART and other records from the North Carolina

Department of Correction; state Division of Social Services

records concerning Blakeney’s wife, Tiney Blakeney; employment

12
Our review of Dr. Worthen’s trial testimony confirms
that it closely covered the contents of the Expert Report.

24
records for Blakeney; and records concerning victim Huntley’s

prior conviction for driving under the influence of alcohol

(“DUI”). See Third MAR Order 90. Lawyer Huffman acknowledged

during the MAR hearing that all of these records, except

Huntley’s DUI records, “were the types of records he would have

provided Dr. Worthen prior to defendant’s trial if he had

collected them.” Id. For his part, Worthen testified at the

MAR hearing that he did not consider it his responsibility to

locate witnesses or to actively collect records, but he

acknowledged there are some instances when he might send a

letter regarding records on the theory that an agency would

respond better to a letter from a doctor than an attorney. See

id. at 91-92. In Blakeney’s case, Dr. Worthen understood that,

in general, trial counsel would locate witnesses and obtain

records, although Worthen volunteered to try to obtain records

from the North Carolina Department of Correction and from the

Union County Mental Health Center. See id. at 92.

Dr. Worthen further testified at the MAR hearing that he

had reconsidered his prior diagnosis of Blakeney based on new

information, including the records obtained by Blakeney’s post-

conviction counsel, which they provided to Worthen after the

trial. See Third MAR Order 92. “Specifically, Dr. Worthen

testified: ‘I would now diagnose the defendant with depressive

disorder not otherwise specified. It was not a diagnosis I

25
assigned at the time and I would not diagnose him with a

personality disorder, which I did at the time.’” Id. (quoting

J.A. 1245). Additionally, Worthen testified that he “would now

‘render an opinion . . . [t]hat [defendant] was under the

influence of a mental or emotional disturbance at the time of

the crime.’” Id. (quoting J.A. 1245-46) (alterations in

original). When asked whether “‘the capacity of the defendant

to appreciate the criminality of his conduct or to conform his

conduct with the requirements of law was impaired,’” Worthen

stated “his opinion that defendant ‘was impaired at the time of

the crime.’” Id. at 92-93 (quoting J.A. 1246). 13

Dr. Worthen attributed the change in diagnosis to the

following (collectively, the “post-conviction information”):

● His post-trial review of community member
affidavits and interviews with family members
(including a re-interview of sister Peggy
Blakeney and interviews of four other siblings),
which indicated “that defendant ‘experienc[ed]
symptoms of depression prior to the crime,’”
Third MAR Order 93 (quoting J.A. 1248), and
“‘exhibited positive character traits which . . .
would argue against the personality disorder
diagnosis,’” id. at 96 (quoting J.A. 1267);

13
Blakeney contends that Dr. Worthen’s revised opinion
would have supported two statutory mitigating circumstances at
sentencing: (1) that “[t]he capital felony was committed while
the defendant was under the influence of mental or emotional
disturbance,” and (2) that “[t]he capacity of the defendant to
appreciate the criminality of his conduct or to conform his
conduct to the requirements of law was impaired.” N.C. Gen.
Stat. § 15A-2000(f)(2), (6).

26
 ● Records from the North Carolina Department of
Correction, including what Worthen referred to as
“a previous diagnosis of depression” made while
Blakeney was incarcerated before the Huntley
murder, id. at 93;

● The DART records reflecting Blakeney’s 130 hours
of instruction during his prior incarceration,
see id. at 93-94; 14

● Additional Department of Correction records,
which constituted “‘more substantive evidence . .
. that [Blakeney] did not exhibit behavior
problems [while incarcerated], including signs of
anti-social personality disorder,’” id. at 94
(quoting J.A. 1253);

● North Carolina Division of Social Services
records concerning problems in Tiney Blakeney’s
home (including Tiney’s own alcohol abuse), which
records: “‘provide[d] information regarding the
level of [depression-inducing] stress that the
defendant was under at the time leading up to the
crime’”; “‘corroborate[d] information from
[Blakeney’s] family . . . that they were having
trouble in the home’”; and provided Worthen “‘a
better understanding of [Blakeney’s]
psychological condition at the time, and helped
[him] to put together how [Blakeney’s] substance
abuse and the depression were interacting to
cause a deterioration in his functioning,’” id.
at 94 (quoting J.A. 1254-55); and

● Blakeney’s employment records, providing
“‘further evidence that although his employment
history was certainly not perfect, he had sought
and obtained employment after his previous

14
Dr. Worthen testified that the DART records “to some
extent go[] to the question of whether or not [Blakeney] had a
personality disorder, how truthful he was being,” and that such
records also “demonstrated that he at least had some motivation
to try to overcome his alcohol and other drug problems.” J.A.
1251.

27
 incarceration’” — a fact that “‘goes against the
. . . impression [Worthen] had at the time [of
trial] that [Blakeney] was exhibiting some
narcissistic and anti-social personality
traits,’” id. at 95 (quoting J.A. 1257).

Worthen testified that, if he had been provided the post-

conviction information prior to trial, he “‘would not have come

to that conclusion [i.e., the personality disorder diagnosis],

because there’s information that would argue against the

diagnosis of a personality disorder.’” Id. (quoting J.A. 1259).

Worthen explained, inter alia, that he now saw Blakeney’s drug

use “‘as being signs and symptoms of substance dependence itself

and the depressant disorder, and as a reaction to the stress he

was under, as opposed to being symptomatic of a personality

disorder.’” Id. (quoting J.A. 1259). 15

Nevertheless, in testifying at the MAR hearing to his new

diagnosis, “Dr. Worthen admitted that when he interviewed

15
According to Worthen, the newly obtained records were
also relevant to him in the following ways: the additional
Department of Correction Records reflecting Blakeney’s lack of
behavior problems while incarcerated corroborated Worthen’s 1997
trial testimony regarding his opinion about Blakeney’s future
adjustment in prison, see Third MAR Order 94; the employment
records demonstrated that Blakeney “passed certain urinalysis
testing at work, which tends to show that ‘there were some
periods of time where he was not using . . . drugs,’” id. at 95-
96 (quoting J.A. 1260); and Huntley’s DUI records corroborated
what Blakeney and his sister Peggy told Worthen about their
childhood environment, i.e., “‘that their stepfather was
drinking a lot, had an alcohol problem, and that this cause was
a source of stress within the home,’” id. at 96 (quoting J.A.
1261).

28
defendant prior to trial, defendant ‘did not report that he was

experiencing depressive symptoms at . . . the time of the

evaluation, and it was not clear to [Dr. Worthen] whether he was

experiencing depressive symptoms at the time of the crime.’”

Third MAR Order 93 (quoting J.A. 1249) (alterations in

original). And indeed, Worthen had testified at trial that

Blakeney, during a pretrial evaluation, “‘denied any suicidal

thoughts or plans other than very fleeting suicidal thoughts,

which he said he would not carry out. He denied any symptoms of

depression.’” Id. at 106 (quoting J.A. 87, 1304). “When asked

to explain the meaning of ‘he denied any symptoms of

depression,’ Dr. Worthen replied, ‘I asked him . . . if he

experienced certain symptoms of depression and he said no.’”

Id. (quoting J.A. 1304-05).

Moreover, on cross-examination at the MAR hearing, Dr.

Worthen retreated from his characterization of “a previous

diagnosis of depression” in Blakeney’s North Carolina Department

of Correction records, see Third MAR Order 93, explaining that

he merely assumed the relevant document — a “‘summary report’”

reflecting that Blakeney had been referred to a staff

psychologist because of admitted feelings of depression —

further indicated that there was an “‘official diagnosis’” of

depression. Id. at 101 (quoting J.A. 1285). Worthen also

agreed that it is “‘common for someone going into a period of

29
long term confinement to have situational depression,’” and that

“‘[m]ight . . . have been what [the Department of Correction]

document referred to.’” Id. at 102 (quoting J.A. 1285-86).

Additionally, it was established on cross-examination that the

Union County Mental Health Center report of September 1995,

diagnosing Blakeney with dependence on and withdrawal from

cocaine and alcohol, was “‘basically square with the diagnosis

that [Dr. Worthen] testified to at trial in this case,’” except

that Worthen also diagnosed marijuana dependence and did not

include “‘the withdrawal diagnoses . . . because [he] couldn’t

determine whether or not [Blakeney] was in a state of withdrawal

at that time.’” Id. at 103 (quoting J.A. 1291) (some

alterations in original).

To corroborate Dr. Worthen’s new diagnosis, Dr. James E.

Bellard, an expert in the field of forensic psychiatry, also

testified at the MAR hearing. See Third MAR Order 111. Bellard

performed a post-conviction evaluation of Blakeney, an

evaluation that involved meeting with Blakeney “on three

occasions and spend[ing] about six hours with him,” as well as

“review[ing] many documents provided by defendant’s post-

conviction counsel.” Id. 16 “Dr. Bellard’s diagnosis of

16
Dr. Bellard also interviewed defendant’s sister, Peggy
Blakeney. See J.A. 1426.

30
defendant’s mental status at the time of the crime ‘was that of

. . . major depression of moderate [to] severe severity[,]

without psychotic features.’” Id. (quoting J.A. 1428). Bellard

opined that, “at the time of the crime, defendant was under the

influence of severe mental or emotional disturbances.” Id. at

112. More specifically, Bellard described his belief that

Blakeney “‘was suffering from a major depression, which he had

been suffering for at least two months, and . . . he was

suffering from the effects of the dependencies on at least

cocaine and alcohol and probably marijuana. And at the time of

the crime was also under the influence of cocaine, marijuana,

and alcohol.’” Id. (quoting J.A. 1437-38). Bellard further

opined that Blakeney’s “‘capacity . . . to appreciate the

criminality of his conduct or to conform his conduct to the

requirements of law’ was impaired.” Id. (quoting J.A. 1438)

(alteration in original). On this point, Bellard explained that

“‘with that combination of chemicals in the system, combined

with the depression, I believe [Blakeney’s] ability to make

reasonable decisions and weigh[] options was impaired. And so

in general you can support and corroborate Dr. Worthen’s revised

opinion as to depression and the presence of these mental health

impairments.’” Id. at 113 (quoting J.A. 1438). 17

17
Although, in evaluating Blakeney, Dr. Bellard reviewed
(Continued)
31
 The MAR court noted Dr. Bellard’s MAR hearing testimony

about factors in Blakeney’s life history significant to his

overall mental status, including the following:

that defendant “shows a family history [for]
alcoholism”; that defendant’s parents “split up by age
two and [defendant] didn’t ever have a relationship
with his father past that point”; that “no specific
person . . . took a specific interest in [Blakeney]”;
that things at defendant’s home were “pretty chaotic”;
that defendant “didn’t do well in school”; that
defendant “was promoted socially several times and
left school in the ninth grade”; [and] that defendant
had “a brother who died in the mid-eighties that was
very close to him.”

Third MAR Order 113 (quoting J.A. 1439-44) (some alterations in

original). On cross-examination, Bellard agreed that there was

no indication that Blakeney had been diagnosed with depression

prior to the Huntley murder, including during his 1990-1995

various documents, including those included in the post-
conviction information, his MAR hearing testimony reflects that
the major depression diagnosis was largely based on his
interviews with Blakeney and his sister Peggy. Specifically,
Dr. Bellard testified that Blakeney and Peggy were “able to
describe [seven symptoms of depression] for a period of at least
two months before [the Huntley murder].” J.A. 1431. According
to Bellard, “[i]t’s possible but speculative that [Blakeney] had
clinical signs for long before that.” Id. When asked how he
“would . . . rate Roger Blakeney’s depression at the time of the
incident,” Bellard responded that, “based on [Blakeney’s] report
and his sister’s report, I would rate him as moderate to
severe.” Id. at 1433. Bellard also noted that there “is a
minor distinction” between his diagnosis of major depression and
Dr. Worthen’s diagnosis of depressive disorder, but that both of
the diagnoses were of “active disorders about depression.” Id.
at 1448.

32
incarceration in North Carolina and his September 1995 visit to

the Union County Mental Health Center. See id. at 114, 116.

Bellard also acknowledged that Blakeney had “‘some things that

would satisfy some of the criteria . . . for personality

disorders,’” but he clarified that “‘the vast majority of

individuals’” also satisfy some of the personality disorder

criteria, and that he did not “‘think [Blakeney] has a

personality disorder.’” Id. at 116 (quoting J.A. 1461).

Finally, the MAR court accepted Dr. Pamela Laughon as an

expert in the field of psychology on behalf of Blakeney. See

Third MAR Order 118. “She opined that it is ‘customary’ for

trial attorneys to collect information, such as documents and

records, and provide them to any psychologist evaluating a

client.” Id. (quoting J.A. 1691).

ii.

In ruling against Blakeney on the expert witness aspect of

his ineffective assistance/sentencing claim, the MAR court

invoked our decision in Byram v. Ozmint, 339 F.3d 203 (4th Cir.

2003), among various other authorities applying Strickland and

its Supreme Court progeny. See Third MAR Order 34

(characterizing Byram as “a case having similarities to the case

at bar”). We recognized in Byram that, to satisfy Strickland’s

performance prong, “the defendant ‘must show that counsel’s

performance was deficient’” by “produc[ing] evidence that

33
‘counsel’s representation fell below an objective standard of

reasonableness.’” 339 F.3d at 209 (quoting Strickland, 466 U.S.

at 687, 688). More specifically, we observed that

[a] failure to obtain available records . . . does not
show that counsel’s investigation was inadequate.
Attorneys will not be found ineffective unless they
fail to make a reasonable investigation for possible
mitigating evidence. And the reasonableness of an
investigation, or a decision by counsel that
forecloses the need for an investigation, must be
considered in light of the scarcity of counsel’s time
and resources in preparing for a sentencing hearing
and the reality that counsel must concentrate his
efforts on the strongest arguments in favor of
mitigation.

Id. at 210 (internal citations and quotation marks omitted). We

further observed in Byram, on the prejudice prong of Strickland,

that “[a] showing of prejudice requires the defendant to prove

that ‘counsel’s errors were so serious as to deprive the

defendant of a fair trial.’” Id. at 209 (quoting Strickland,

466 U.S. at 687). And we explained that, “[i]n the context of a

capital sentencing proceeding, the question is whether ‘but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.’” Id. (quoting, inter alia,

Strickland, 466 U.S. at 694). Finally, we concluded that where,

“[i]n light of the wealth of information presented by trial

counsel [at sentencing], additional information [contained in

unobtained records] would have added little[,] [t]here was no

‘reasonable probability’ that the outcome would have been

34
different had trial counsel conducted an even more exhaustive

investigation.” Id. at 211.

Applying these principles in Byram, we first rejected

Byram’s claim that his trial counsel rendered deficient

performance at sentencing by deciding not to present

psychological evidence, on the ground that counsel made a

reasonable strategic decision in recognition of the potential

harm posed by such evidence. See 339 F.3d at 210. Notably, we

also recognized that trial counsel was not obligated “to ‘shop

around’ for a favorable expert opinion after an evaluation

yield[ed] little in mitigating evidence.” Id. Furthermore, we

rejected trial counsel’s failure to obtain certain records as a

basis for the ineffective assistance claim, under Strickland’s

performance and prejudice prongs, on the grounds that reasonable

efforts were made to obtain those records and that, in any

event, they “would have added little” to “the wealth of

information presented by trial counsel” in support of Byram’s

mitigation case. Id. at 210-11.

b.

For Blakeney to prevail in these habeas corpus proceedings

on the expert witness aspect of his ineffective

assistance/sentencing claim, we would have to conclude that the

MAR court unreasonably applied Supreme Court precedent in

rejecting such claim under both the performance and prejudice

35
prongs of Strickland. Blakeney contends that he is entitled to

relief on the premise that Dr. Worthen’s initial personality

disorder diagnosis — the diagnosis to which Worthen testified

during the trial’s sentencing phase — was the result of trial

counsel’s failure to obtain and provide the post-conviction

information. Blakeney asserts that the personality disorder

diagnosis “was harmful to Blakeney, and did not support the

submission of any statutory mental health mitigators.” Br. of

Appellant 24 (emphasis omitted). And, Blakeney maintains that,

[i]f Dr. Worthen had been provided access to the
[post-conviction information], he would have abandoned
the damaging diagnosis of [personality disorder], and
recognized that Blakeney was suffering from
depression. There is at least a reasonable
probability that had the jury understood that
defendant was suffering from a depressive disorder and
resulting substance abuse, as opposed to an anti-
social personality disorder, at least one juror would
have reached a different conclusion.

Id. at 28-29. Unfortunately for Blakeney, though we are willing

to assume that he has satisfied Strickland’s performance prong,

we cannot rule in his favor on the prejudice prong.

Specifically, even accepting that the MAR court found Dr.

Worthen’s post-conviction diagnosis of depressive disorder to be

credible — a dubious notion in light of the evidence highlighted

in the Third MAR Order, including Worthen’s testimony that

Blakeney had originally endorsed symptoms of personality

disorder and denied symptoms of depression — the court could yet

36
reject the proposition that Worthen’s change in diagnosis

depended on the post-conviction information. As the district

court observed in its Habeas Corpus Order, “[a]ssuming arguendo

that the post-conviction diagnosis is the more accurate one, Dr.

Worthen did not need counsel’s help to diagnose Blakeney with a

depressive disorder.” Habeas Corpus Order 10. This is evident

from the MAR hearing testimony of Dr. Bellard, corroborating

Worthen’s post-conviction diagnosis, in that Bellard relied for

his major depression diagnosis on sources of information that

were available to Worthen when he made his initial diagnosis of

personality disorder. See id. at 12. Specifically,

[l]ike Dr. Worthen’s [initial diagnosis], Dr.
Bellard’s diagnosis was based upon his
interview/evaluations with Blakeney and his interview
with [Blakeney’s sister] Peggy. According to Dr.
Bellard, Blakeney reported experiencing seven
identifiable symptoms of the illness of depression at
the time of the [Huntley] murder. Significantly,
Blakeney and Peggy were able to describe those
symptoms as having existed for at least two months
prior to the murder.

Id. at 11; see also supra note 17. Moreover, those factors of

Blakeney’s life history noted by the MAR court as being

significant to Bellard in assessing Blakeney’s overall mental

status — his family history of alcoholism, the absence of his

father or another adult role model, the chaotic nature of his

home life, his lack of success in school, and the loss of his

brother — were largely known to Worthen prior to trial and

37
discussed in his Expert Report. In these circumstances,

Worthen’s MAR hearing “testimony that it was the [post-

conviction information] that made his diagnosis of depressive

disorder possible is unconvincing.” Habeas Corpus Order 12.

Accordingly, we agree with the district court that,

“[w]hatever the reason for Dr. Worthen’s original diagnosis, the

record indicates that he had the necessary resources to make a

diagnosis of depressive disorder prior to trial. As such, any

prejudice arising from the original diagnosis is not

attributable to trial counsel and cannot support an

ineffectiveness of counsel claim.” Habeas Corpus Order 14

(citing McHone v. Polk, 392 F.3d 691, 706 (4th Cir. 2004)

(concluding that any ineffectiveness arising from expert’s

failure to utilize readily available evidence is attributable to

expert rather than to counsel and, thus, cannot support

Strickland claim)); see also Byram, 339 F.3d at 211 (recognizing

lack of prejudice resulting from counsel’s failure to obtain

records, where additional information in those records “would

have added little”). 18 We thus affirm the district court’s

18
To the extent that Blakeney contends that he was
prejudiced by his trial counsel’s failure to obtain the DART
records, because the prosecution used the absence of such
records to paint Blakeney as a liar, we agree with the district
court’s rejection of such contention:

(Continued)
38
denial of habeas corpus relief on the expert witness aspect of

the ineffective assistance/sentencing claim.

2.

a.

The MAR court also concluded that the character witness

aspect of Blakeney’s ineffective assistance/sentencing claim

failed on both the performance and the prejudice prongs of the

Ultimately, [Blakeney] cannot show that he was
prejudiced by counsel’s failure to obtain the DART
records. The absence of DART records was only one
example of several cited by the prosecutor as evidence
that Blakeney was untruthful and that Dr. Worthen did
not believe what Blakeney had told him. The
prosecutor argued, without objection, that Dr. Worthen
did not believe what Blakeney had told him about the
arson and murder and that he did not believe the
answers that Blakeney had given to some of the
questions on the psychological tests. Indeed, Dr.
Worthen testified at sentencing that the story
Blakeney had told the police was likely more accurate
than the very different story that Blakeney had told
him about the crimes. He also testified that on the
questionnaires he administered, Blakeney minimized his
substance abuse problems, and that he (Dr. Worthen)
had to adjust for that in making his diagnosis. Dr.
Worthen testified that he likewise had to adjust for
the fact that Blakeney exaggerated some symptoms of
psychological problems on at least one of the tests
that he took. The jury, therefore, had ample evidence
to conclude that Dr. Worthen doubted Blakeney’s
veracity. As such, there is no reasonable probability
that the jury would have returned a life sentence had
the prosecutor not been able to argue that the absence
of the DART records was evidence that Blakeney was not
truthful.

Habeas Corpus Order 16-17.

39
Strickland test. See Third MAR Order 54. According to the MAR

court, “[t]rial counsel’s pretrial investigative efforts were

well within the acceptable ‘wide range of reasonable

professional assistance’ required by the first prong of the

Strickland test and not the source of prejudice that is the

second prong of the Strickland test.” Id. (quoting Strickland,

466 U.S. at 689). Importantly, the court supported its ruling

with explicit findings of fact and legal analysis.

i.

The MAR court found that “[o]ne of trial counsel’s most

significant pretrial investigative efforts involved [lawyer]

Crow’s discussions with defendant,” which provided counsel with,

inter alia, “information about defendant’s background and

family,” “information about defendant’s prior criminal

conviction and sentence,” and “information about defendant’s

presence in his mother’s house on” the day of the Huntley

murder. Third MAR Order 54. “While preparing for trial, Crow

asked defendant about people who were not his family members to

whom trial counsel might talk about testifying as character

witnesses.” Id. at 59. Blakeney suggested Jerry Leak, his

former supervisor at the City of Monroe Sanitation Department,

and Crow then spoke with Leak but did not call him as a witness.

See id. at 59, 60. Blakeney “also told Crow that there were

people working at the jail who could testify about how he had

40
gotten along while incarcerated and awaiting trial.” Id. at 59.

“Crow questioned Officer Tim Phillips and Deputy Sheriff Andrew

Simmerson, obtained a basic good report from them concerning

defendant’s conduct in jail, and thereafter called Phillips and

Simmerson to testify at trial that defendant had been a good

inmate.” Id.

As for family members, Crow “was well acquainted with”

Blakeney’s sister, Peggy Blakeney, whom Crow “had previously

represented” and known “for about three or four years before he

represented defendant.” Third MAR Order 60. Counsel also

conducted pretrial interviews with Blakeney’s mother, Gracie

Blakeney, and wife, Tiney Blakeney. See id. Peggy, Gracie, and

Tiney Blakeney are apparently the family members referred to in

the MAR court’s finding that Crow “talked to some of defendant’s

family members and sized them up to determine whether he thought

they would make good witnesses for the defense.” Id. at 63.

Counsel ultimately decided, with respect to Peggy, Gracie,

and Tiney, to call only Peggy as a witness. “Crow knew that

being a witness can be difficult,” but that Peggy “had the

composure to be a witness.” Third MAR Order 63. By contrast,

Crow “ruled out” calling Gracie and “did not feel that Tiney

. . . would be a good witness.” Id. With specific regard to

Tiney,

41
 Crow decided not to call [her] as a witness at trial
because he thought she might present some testimonial
evidence that could hurt defendant’s case. More
precisely, Crow thought that evidence from [Tiney]
concerning defendant’s use of alcohol and drug abuse
would be the proverbial two-edged sword that cuts both
ways and would hurt defendant in the eyes of the jury.

Id. at 61. Counsel decided to present evidence on Blakeney’s

background through the defense’s expert psychologist, Dr.

Worthen, rather than family members (other than Peggy), because,

as Crow explained, “‘I just felt like we could get all we needed

in through Dr. Worthen without putting on people as witnesses

who might not be able to express themselves as well as Dr.

Worthen.’” Id. at 63-64 (quoting J.A. 1118). Crow added that

“‘I liked the Blakeney family, but it helps to have somebody

who’s experienced and has some composure to testify.’” Id. at

64 (quoting J.A. 1118).

During the trial’s sentencing phase, counsel called a total

of four witnesses: Dr. Worthen, Peggy Blakeney, and jail

personnel Phillips and Simmerson. See Third MAR Order 60.

Counsel also “encouraged family members to attend defendant’s

trial to show support for defendant.” Id. at 60-61. During the

trial, counsel spoke with several family members “who were

present for the trial and could have testified about their

knowledge of defendant.” Id. at 61. “[C]ounsel made a tactical

decision,” however, “not to call as witnesses any of defendant’s

42
family and friends other than those witnesses who were called to

testify.” Id. Crow believed

“that we could bring out what we needed to bring out
about [Blakeney’s] family background, through the
information that Dr. Worthen got, and it was going to
be presented by an experienced witness, and I thought
that would come over a lot better than by presenting
the individual family members who [we were not] real
sure could handle testifying.”

Id. (quoting J.A. 1127) (second alteration in original). Crow

also explained that one of the reasons he decided not to call

the additional family members “‘was the fact that I really had

no prior contact with [them],’” explaining that “‘[i]t’s hard to

make a [really] good decision about something like that, with

such short contact. I already had pretty well in my mind what I

was going to do. That would require a change of strategy that I

didn’t feel comfortable with.’” Id. at 64 (quoting J.A. 1164)

(third alteration in original).

During the MAR hearing, “[w]hen asked to reply to the

allegation that trial counsel provided professional services

below the requirements of Strickland by failing to adequately

interview defendant’s family members and other character

witnesses,” Crow responded as follows:

“Hindsight is twenty, twenty. I interviewed and
talked to the people that [they, the family members]
made . . . available to us, and that I ultimately felt
comfortable with. I guess the bottom line, I talked
to those people that came forward and I urged them —
and I would have talked to anybody else, any other
family member that had — had they brought along with

43
 them. It’s their family. I felt that they were the
ones who could involve the other family members better
than anybody else. That’s all I know to answer.”

Third MAR Order 63 (quoting J.A. 1158-59) (alterations in

original). 19 According to the MAR court,

Crow thought that defendant’s family members were “all
good people,” but he also knew that none of them were
“what you might call leading citizens [in] the
community.” None of defendant’s family members held
public office; none were members of any profession
(e.g., ministers, lawyers, doctors, bankers). Thus,
Crow did not call as witnesses at trial all of
defendant’s brothers and sisters.

Id. at 64 (quoting J.A. 1118). 20

19
Crow similarly testified at the MAR hearing that “‘I
guess in hindsight I should have gone out and hunted each one
down and talked to them. Ideally that’s what I should have
done, no question about that. I told Gracie, I told Tiney, I
told Peggy, this is your son, this is your brother, people come
to my office, bring other family members, we can talk. And
those were the ones that came.’” Third MAR Order 64 (quoting
J.A. 1165).
20
Notably, Crow’s “leading citizens in the community”
testimony came in response to the State’s questions about
whether any Blakeney family member was “a college graduate,” “a
leading citizen in the community,” a holder of “any elective
office,” or a professional such as a “minister[], lawyer[],
doctor[], banker[,] etc.” J.A. 1118-19. Crow offered that,
“[f]or better or worse, that’s true, they weren’t. But they’re
good people. I don’t want to disparage any. They’re — from
what I know about them, they’re all fine, honorable people.”
Id. at 1119. The State then responded that it “didn’t mean to
suggest otherwise” by its questions. Id. With this context, it
does not seem, as the MAR court suggested, that Crow indicated
that he did not call more family members as witnesses because
they were not “leading citizens in the community” or members of
any profession.

44
 Post-conviction counsel presented fourteen character

witnesses at the MAR hearing — eight family members (including

Peggy, Gracie, and Tiney Blakeney) and six non-relatives

(including former supervisor Leak). The MAR court observed

that, “[i]n general, they each testified that they believed

defendant was a man of good character and a nice person, and

that they would have testified to that effect if they had been

called as witnesses at defendant’s 1996 trial.” Third MAR Order

64-65. The court concluded, however, that “the stated basis of

their opinions and the nature of their responses during cross-

examination were such that their opinions would have no more

than a de minimis [e]ffect on a reasonably objective juror

evaluating the evidence and the aggravating and mitigating

circumstances in defendant’s case.” Id. at 65; see also id. at

65-85 (detailing character witnesses’ MAR hearing testimony).

ii.

In denying relief on the character witness aspect of

Blakeney’s ineffective assistance/sentencing claim, the MAR

court concluded, with respect to the performance prong of

Strickland, that “[t]rial counsel’s investigation of defendant’s

background and his circumstances in life was objectively

reasonable,” that “[t]here was no inattention to this matter by

trial counsel,” and that there was nothing to indicate “that

what trial counsel knew of defendant would have led a reasonable

45
attorney to investigate further.” Third MAR Order 85. The

court further ruled that, “[a]lthough trial counsel interviewed

far fewer potential witnesses than postconviction counsel

presented at the [MAR] hearing, trial counsel’s interviewing of

potential witnesses was objectively reasonable performance that

was [not] below the requirements of the first prong of the

Strickland test.” Id. at 86. The court distinguished Wiggins

v. Smith, 539 U.S. 510, 524 (2003) (deeming counsel ineffective

for “abandon[ing] their investigation of petitioner’s background

after having acquired only rudimentary knowledge of his history

from a narrow set of sources”). See Third MAR Order 85

(observing that “there was in the case at bar nothing remotely

approaching the egregious neglect of the counsel in Wiggins”).

And, the MAR court drew favorable comparisons to three of our

decisions: Tucker v. Ozmint, 350 F.3d 433, 441-42 (4th Cir.

2003) (concluding that counsel’s performance “far surpassed the

inadequate performance described in Wiggins,” in that counsel,

inter alia, “presented an expert psychologist who gave the jury

a full picture of Tucker’s disturbing social history”); Byram,

339 F.3d at 210 (rejecting ineffective assistance claim where,

“[u]nlike in Wiggins, . . . counsel here spent considerable time

developing a picture of Byram’s life”); and Bacon v. Lee, 225

F.3d 470, 481 (4th Cir. 2000) (observing that “Bacon’s counsel

could reasonably have concluded. . . that the evidence they had

46
developed . . . would give the jury an accurate picture of

Bacon’s personality and that further investigation into Bacon’s

background would not be fruitful”). See Third MAR Order 86.

On Strickland’s prejudice prong, the MAR court “re-weighed

the evidence in aggravation against the totality of available

mitigating evidence.” Third MAR Order 88 (citing Wiggins, 539

U.S. at 534; Tucker, 350 F.3d at 442). The court explained

that, in particular, it considered the following circumstances:

(a) that several of the witnesses demonstrated an
obvious bias in favor of defendant based on their past
close familial relationship to him; (b) that several
of the witnesses based their opinion that defendant
was a man of “good character” on factors not normally
considered to be indicia of good character; (c) that
considerable evidence of record shows that defendant
is not a man of good character (e.g., the evidence of
his history of substance abuse and his commission of
armed robbery, larceny, assault, arson, and murder);
(d) that defendant did not introduce any significant
evidence affirmatively proving that he is in fact a
man of good character; and, (e) that evidence of
record shows that after defendant completed the DART
program while serving five years confinement and after
he was placed on probation, defendant disregarded the
lessons he should have learned and returned to the
costly and debilitating practice of using illegal
drugs.

Id. at 87. This assessment led the court to conclude that trial

counsel’s failure to interview and call more character witnesses

was not “the source of prejudice that is the second prong of the

Strickland test.” Id. at 86.

b.

47
 In these habeas corpus proceedings, Blakeney contends that

he is entitled to relief because “counsel’s unreasonably limited

investigation resulted in a failure to discover readily

available evidence of their client’s positive character and past

behavior, the very kind of evidence that could compel at least

one juror to find the client’s life to be worth saving.” Br. of

Appellant 22 (citing Wiggins, 539 U.S. at 537). According to

Blakeney, the additional character witnesses who testified at

the MAR hearing would have “provided important positive evidence

to counter the State’s demonization of Blakeney” at trial. Id.

at 24.

Of the eight family members and six non-relatives, Blakeney

specifically discusses in this appeal the MAR hearing testimony

of five of them:

● Union County Deputy Sheriff Curtis Parker, “who
had known Blakeney all his life, and testified
that [the Huntley murder] was ‘out of character’
for him”;

● Leak, Blakeney’s former supervisor while employed
by the City of Monroe, “who spoke positively
about [Blakeney’s] work”;

● Blakeney’s brother, Jimmy Blakeney, who
corroborated that Blakeney completed the DART
program during his prior incarceration;

● Gracie Blakeney, who “admitted that she and
Huntley exposed her son to extensive alcohol
abuse and violence,” and who “expressed love for
her son and her desire that mercy be shown for
his culpability in” Huntley’s death; and

48
 ● Tiney Blakeney, who “shed light on the chaotic
household in which [Blakeney] was living before
the crime,” testified about his drug abuse, and
described him as a nonviolent “good person” whom
she loved.

Id. at 10-12. Blakeney generally describes the other non-

relative witnesses, with one exception, as “life-long citizens

of Union County, gainfully employed, and without criminal

records,” who testified that Blakeney “had performed good deeds

and positive acts in the community, that he did not have a

juvenile criminal history, [and] that he was usually

nonviolent.” Id. at 11 & n.2. Similarly, Blakeney’s family

member witnesses “[a]ll are life-long residents of Union County,

and none has a criminal record. All articulated positive

memories about Blakeney and described his positive

characteristics, along with his debilitating background and the

dysfunctional household in which he grew up.” Id. at 11.

According to Blakeney, the MAR court’s ruling on the

prejudice prong of Strickland means that “a family member cannot

credibly testify for a defendant because of bias,” and a

defendant “cannot have any positive character traits, since he

has committed a bad act.” Br. of Appellant 33. Blakeney

asserts that the MAR court ruling cannot stand. Otherwise,

contrary to Supreme Court precedent, “no defendant could ever

present family witnesses or mitigating lay testimony because the

murder conviction — the ultimate evidence of bad character —

49
would always preclude any testimony about good character

traits.” Id. (citing, inter alia, Wiggins, 539 U.S. at 535).

Although we may assume that Blakeney has satisfied

Strickland’s performance prong, as we did with respect to the

expert witness aspect of the ineffective assistance/sentencing

claim, we again cannot rule in his favor on the prejudice prong

of Strickland. 21 Simply put, whatever else the merits of the MAR

court’s prejudice ruling, the additional character evidence

testimony was substantially cumulative and, thus, can reasonably

be said to “have no more than a de minimis [e]ffect on a

reasonably objective juror evaluating the evidence and the

aggravating and mitigating circumstances in defendant’s case.”

Third MAR Order 65. As the district court recognized, “[t]he

testimony of Blakeney’s friends and family at the MAR hearing

was largely repetitive of the evidence offered at sentencing

through Dr. Worthen and Peggy.” Habeas Corpus Order 19.

Moreover, “the additional mitigating evidence, when combined

with what the jury learned at sentencing, would [not] have been

enough to outweigh the aggravating evidence in this case.” Id.

at 24.

21
Because we assume that Blakeney has satisfied the
performance prong of Strickland, we express no views (contrary
to the depiction of this opinion by our dissenting colleague) on
the reasonableness of trial counsel’s performance or the MAR
court’s assessment thereof.

50
 Accordingly, the character witness aspect of Blakeney’s

ineffective assistance/sentencing claim fails for lack of a

sufficient showing of prejudice. See Tucker, 350 F.3d at 445

(recognizing that trial counsel’s failure to expose impeachment

evidence against prosecution expert was non-prejudicial, where

expert’s testimony was cumulative and, “[c]onsidering the

aggravating and mitigating circumstances present in this case,”

confidence in outcome of trial was not undermined); Byram, 339

F.3d at 211 (concluding there was no prejudice resulting from

failure to present additional information about Byram’s

childhood, where “the evidence presented before the [state post-

conviction relief] court was largely cumulative”). We therefore

affirm the district court’s denial of habeas corpus relief on

this aspect of such ineffective assistance claim.

B.

Next, we turn to Blakeney’s exculpatory evidence claim,

which also has two aspects: first, whether the prosecution

withheld, in contravention of his due process rights as

recognized in Brady v. Maryland, 373 U.S. 83 (1963), the DART

records from the North Carolina Department of Correction (the

“DART records aspect”); and second, whether the prosecution

committed a Brady violation by failing to reveal the fact that

Blakeney had confessed to the Huntley murder after Detective

Ronnie Honeycutt of the Union County Sheriff’s Department told

51
him “it was time for him to stop hurting his family and hurting

himself and tell the truth” (the “confession aspect”). As the

Supreme Court has explained,

[t]here are three components of a true Brady
violation: The evidence at issue must be favorable to
the accused, either because it is exculpatory, or
because it is impeaching; that evidence must have been
suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.

Strickler v. Greene, 527 U.S. 263, 281-82 (1999). We assess

whether the MAR court unreasonably applied Brady and its Supreme

Court progeny to the facts of Blakeney’s case, beginning with

the DART records aspect, followed by the confession aspect, of

the exculpatory evidence claim.

1.

The MAR court concluded that the DART records aspect of

Blakeney’s exculpatory evidence claim failed on the merits

because, inter alia, “[d]efendant has not shown that the

Department of Correction was acting on behalf of either the

prosecutor or any state law enforcement agency investigating the

murder of Callie Huntley at the time of the alleged non-

disclosures.” Third MAR Order 131 (citing, inter alia, Kyles v.

Whitley, 514 U.S. 419, 437 (1995), for proposition that duty to

disclose encompasses material in possession of prosecutor as

well as material “known to the others acting on the government’s

behalf in the case, including the police”). The MAR court

52
further concluded that “the information allegedly withheld was

not ‘material’ to either defendant’s conviction or sentence.”

Id. at 135 (citing Strickler, 527 U.S. at 289, for proposition

that, to establish prejudice, petitioner must show “a reasonable

probability that the result of the trial would have been

different if the suppressed documents had been disclosed to the

defense” (internal quotation marks omitted)).

Without reaching the issue of whether the Department of

Correction was acting on behalf of the prosecution when it

failed to disclose the DART records, we conclude that Blakeney

has not made a sufficient showing of prejudice. See supra note

18 (quoting Habeas Corpus Order 16-17). We thus affirm the

district court’s denial of habeas corpus relief on the DART

records aspect of Blakeney’s exculpatory evidence claim.

2.

The MAR court rejected the confession aspect of the

exculpatory evidence claim as both procedurally barred and

lacking in substantive merit. See Third MAR Order 124, 129-31.

The district court concluded that the MAR court’s procedural

ruling — that Blakeney had abandoned the confession aspect on

direct appeal, thus triggering the North Carolina General

Statute section 15A-1419(a)(3) bar on collateral review — was

premised on a misreading of the issue. See Habeas Corpus Order

42-43. The court thus proceeded to analyze the merits of the

53
confession aspect, but rejected Blakeney’s request for habeas

corpus relief thereon. See id. at 43. In this appeal, the

parties dispute whether the confession aspect was procedurally

defaulted. Because we conclude that it fails on the merits, we

need not reach the procedural default question. See Eaton v.

Angelone, 139 F.3d 990, 994 n.1 (4th Cir. 1998) (“Because we

agree with the district court’s denial of Eaton’s

ineffectiveness claim on the merits, we need not resolve the

thorny issue of procedural default.”).

Blakeney contends that “Detective Honeycutt revealed for

the first time at the MAR hearing that Blakeney’s confession

came only after the detective made an appeal to Blakeney’s

humanity . . . . Such an [empathetic], emotional response to an

appeal to Blakeney’s feelings for his family would have been

contrary to the picture the prosecution sought to paint of

Blakeney as cold, calculating, anti-social and devoid of any

feelings for anyone but himself.” Br. of Appellant 40-41.

Unfortunately for Blakeney, however, no Brady violation

occurred, because Blakeney, as a participant in the conversation

with Honeycutt, is presumed to know what was said. See United

States v. Roane, 378 F.3d 382, 402 (4th Cir. 2004) (“We have

explained that information actually known by the defendant falls

outside the ambit of the Brady rule.” (citing Fullwood v. Lee,

290 F.3d 663, 686 (4th Cir. 2002))). In these circumstances, we

54
affirm the district court’s denial of habeas corpus relief on

the confession aspect of Blakeney’s exculpatory evidence claim.

C.

Finally, we assess Blakeney’s contention that he is

entitled to an evidentiary hearing on his ineffective

assistance/jury composition claim. The premise of the

ineffective assistance/jury composition claim is that Blakeney’s

trial counsel was constitutionally ineffective in failing to

object to the prosecution’s jury selection under Swain v.

Alabama, 380 U.S. 202, 223 (1965) (recognizing that inference of

purposeful discrimination would be raised on evidence that

prosecutor, “in case after case, whatever the circumstances,

whatever the crime and whoever the defendant or the victim may

be,” removes qualified African-American prospective jurors who

have survived challenges for cause, so that no African-Americans

“ever serve on petit juries”). Of course, by its decision in

Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court

“replaced Swain’s threshold requirement to prove systemic

discrimination under a Fourteenth Amendment jury claim, with the

rule that discrimination by the prosecutor in selecting the

defendant’s jury sufficed to establish the constitutional

violation.” Miller-El v. Dretke, 545 U.S. 231, 236 (2005).

Nevertheless, Blakeney maintains that Swain survives Batson,

relying on Miller-El. In deciding whether the district court

55
abused its discretion in denying Blakeney an evidentiary hearing

on his ineffective assistance/jury composition claim under

Swain, we first review the procedural history of this and

related claims pursued by Blakeney, and then turn to our

analysis.

1.

Blakeney first challenged the composition of his jury at

trial, having unsuccessfully made written and oral motions to

dismiss the jury venire based on an alleged under-representation

of African-American citizens. The state supreme court affirmed

on direct appeal, concluding that the difference in the makeup

of the jury venire and the general population was not

statistically significant, and observing that Blakeney had

failed to allege (as required to sustain his claim) that the

under-representation of African-American citizens was the result

of systemic exclusion in the jury selection process. See State

v. Blakeney, 531 S.E.2d 799, 808-09 (N.C. 2000). Also on direct

appeal, Blakeney asserted ineffective assistance of trial

counsel for failure to make a Batson objection to the

prosecution’s peremptory challenge to one African-American

prospective juror, Robert Crawford. See id. at 814. The state

supreme court concluded that “defendant has not demonstrated

that his counsel was ineffective by failing to make a Batson

objection. Rather, defendant has shown only that he is black

56
and that the State peremptorily struck one black prospective

juror. This is insufficient to establish a prima facie case of

racial discrimination.” Id. at 815 (internal quotation marks

omitted).

Thereafter, in his MAR, Blakeney asserted his substantive

jury composition claim, alleging that “[t]he prosecution used

its peremptory challenges to excuse all eligible African-

American jurors” from his trial as part of a pattern of

discrimination, J.A. 731, and citing three other Union County

cases as evidence. The MAR court rejected the substantive jury

composition claim as procedurally barred for having been

“previously determined on the merits upon an appeal”; waived by

Blakeney’s failure to raise the three other Union County cases

at trial; and without merit in light of the disparate facts of

one of the other Union County cases (in which the defendant was

Native American and did not challenge the jury composition on

direct appeal), and the failure of jury composition challenges

in the remaining two Union County cases. First MAR Order 78,

81-84.

Blakeney then amended his MAR to raise the ineffective

assistance/jury composition claim, repeating his allegation that

“[t]he prosecution used its peremptory challenges to excuse all

eligible African-American jurors” from his trial, and further

asserting that “trial counsel failed to investigate and present

57
available and credible evidence that the prosecutor’s conduct

impermissibly excused all African-American jurors not only in

[his] case, but in prior capital cases in Union County.” J.A.

840. Blakeney again raised the three other Union County cases,

and he invoked Swain, Batson, and Miller-El. The MAR court

rejected the ineffective assistance/jury composition claim as

procedurally barred and without substantive merit. First, the

court observed that, contrary to Blakeney’s allegation of

peremptory challenges being used to exclude “African-American

jurors” from his trial, only one African-American prospective

juror (Crawford) was peremptorily challenged. See Second MAR

Order 3. Additionally, the court observed that Blakeney’s

assertion about discrimination in other Union County cases was

not supported by the three other Union County cases cited. See

id. at 4. The court also observed that the three other Union

County cases, as well as Blakeney’s own case, “are matters of

record affirmatively showing an absence of prosecutorial

misconduct during jury selection.” Id. at 11. The court

concluded that the ineffective assistance/jury composition claim

was procedurally barred for having been raised in Blakeney’s

direct appeal, by way of his Batson-related ineffective

assistance claim. See id. at 16. Further, the court rejected

the claim on the merits by ruling that, because Blakeney could

not establish ineffective assistance for failure to make a

58
Batson objection, he could not do so for failure to make a Swain

objection. As the MAR court explained, “a defendant can not

establish either an ‘old’ Swain violation or a ‘new’ Batson

violation unless he can prove that a prosecutor in his case

engaged in racially discriminating use of peremptory

challenges.” Id. at 20.

In these habeas corpus proceedings, the district court

considered and rejected the ineffective assistance/jury

composition claim on the merits. As an initial matter, the

court properly recognized that the relevant state court decision

for AEDPA purposes in these proceedings is that of the state

supreme court on direct appeal. See Habeas Corpus Order 32-33

(citing Goins v. Angelone, 226 F.3d 312, 320 (4th Cir. 2000)).

The district court then observed that,

[o]rdinarily, the Court would review the North
Carolina Supreme Court’s decision to determine whether
it was contrary to or an unreasonable application of
established Federal law. However, [Blakeney] does not
challenge that court’s adjudication of this issue in
any way. In fact, he does not directly acknowledge
that he raised a Batson-related [ineffective
assistance] claim on direct appeal. He does not
assign error to the state Supreme Court’s factual or
legal conclusions rejecting his Batson-related
[ineffective assistance] claim. Most importantly, he
has not directed this Court to any relevant
circumstances from his trial or the record on appeal
that would constitute evidence of discriminatory
intent on the part of the prosecutors when they used a
peremptory challenge to strike Robert Crawford (e.g.
racially suspect comments by the prosecutors during
voir dire, similarities between voir dire answers by
white jurors who were not excused by the prosecutor

59
 and those of Robert Crawford, etc.). Because
[Blakeney] has not alleged error on the part of the
state Supreme Court or challenged that court’s
conclusion that there is no evidence in the record on
appeal of discriminatory intent by the prosecutor when
he removed Robert Crawford, he has waived any argument
in this Court that the state Supreme Court was
incorrect in either its factual or legal conclusions.

Since [Blakeney] waived any challenge to the
North Carolina Supreme Court’s conclusion that there
is no evidence of discriminatory intent by the
prosecutor when he removed Robert Crawford, his
support for a prima facie case of a Batson violation
by the State consists solely of the following evidence
presented in his MAR and in the instant claim: 1)
[Blakeney] is African-American; 2) prosecutors used a
peremptory strike to excuse Robert Crawford, an
African American, from [Blakeney’s] jury; and 3) in
three other Union County capital cases, prosecutors
allegedly struck all African American jurors who were
not struck for cause. [Blakeney] refers to the three
prior Union County capital cases as “Swain” evidence
and argues that under Swain[, 380 U.S. at 222-24], he
is entitled to show the prosecutor’s systemic use of
peremptory challenges to strike African-American
jurors over time. It appears that [Blakeney’s]
argument is that had trial counsel made a Batson
objection and presented evidence from [the three other
Union County cases], it would have been sufficient to
establish a prima facie case of discriminatory intent
on the part of the prosecutors when they excused
Robert Crawford.

Habeas Corpus Order 33-35 (internal citations and quotation

marks omitted).

The district court concluded that, even “[a]ssuming that

Swain’s prima facie evidentiary standard survived Batson,

[Blakeney’s] evidence of ‘historical systemic exclusion’ is

insufficient to raise an inference of discriminatory intent in

his own case.” Habeas Corpus Order 35. The court therefore

60
ruled that Blakeney’s ineffective assistance/jury composition

claim failed on the first prong of Strickland, in that trial

counsel was not deficient in failing to challenge the exclusion

of Crawford from Blakeney’s jury. See id. at 37. Additionally,

the court observed that, even if counsel had been deficient,

Blakeney could not make Strickland’s requisite showing of

prejudice. See id. at 37-38. Finally, the court denied

Blakeney’s request for an evidentiary hearing on the ineffective

assistance/jury composition claim, on the ground that Blakeney

failed to establish one of the six factors in Townsend v. Sain,

372 U.S. 293, 312-13 (1963), a showing necessary to qualify him

for such a hearing. See Habeas Corpus Order 38. Thereafter, in

its Second Rule 59(e) Order, the court stood by its denial of

Blakeney’s evidentiary hearing request.

2.

On appeal, Blakeney challenges the district court’s grounds

for rejecting his ineffective assistance/jury composition claim

pursuant to Strickland, but he does not specifically address the

court’s ruling that he failed to demonstrate entitlement to an

evidentiary hearing under Townsend. A habeas corpus petitioner

is not entitled to an evidentiary hearing in the district court

if he “‘failed to develop the factual basis of a claim’ in state

court unless certain statutory requirements are satisfied.”

61
Fullwood, 290 F.3d at 681 (quoting 28 U.S.C. § 2254(e)(2)). 22

Even if § 2254(e)(2) presents no bar to an evidentiary hearing,

however, “that does not mean he is entitled to an evidentiary

hearing — only that he may be.” Id. (internal quotation marks

omitted). And, as the district court recognized, petitioner

must also establish one of the six factors set forth in

Townsend, 372 U.S. at 312-13. Those six factors are:

(1) the merits of the factual dispute were not
resolved in the state hearing; (2) the state factual
determination is not fairly supported by the record as
a whole; (3) the fact-finding procedure employed by
the state court was not adequate to afford a full and
fair hearing; (4) there is a substantial allegation of
newly discovered evidence; (5) the material facts were
not adequately developed at the state-court hearing;
or (6) for any reason it appears that the state trier
of fact did not afford the habeas applicant a full and
fair fact hearing.

Townsend, 372 U.S. at 313. Simply put, Blakeney has not offered

us any basis to conclude that the district court abused its

discretion in ruling that he failed to satisfy one of the six

Townsend factors. Accordingly, we affirm the court’s denial of

22
Under 28 U.S.C. § 2254(e)(2), a habeas corpus
petitioner, in order to be accorded an evidentiary hearing in
the district court, must show that his habeas claim relies on “a
new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable” or on “a factual predicate that could not have been
previously discovered through the exercise of due diligence,”
and that “the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.”

62
Blakeney’s request for an evidentiary hearing on his ineffective

assistance/jury composition claim.

IV.

Pursuant to the foregoing, we affirm the district court.

AFFIRMED

63
GREGORY, Circuit Judge, concurring in part and dissenting in
part:

Blakeney contends that he was prejudiced by trial counsel’s

failure to interview and present mitigating evidence from

several witnesses who were available and willing to testify at

the sentencing proceeding. 1 I agree and, therefore, dissent from

the majority’s denial of relief on Blakeney’s claim that his

trial counsel rendered ineffective assistance during the

sentencing phase of the trial. I concur in the majority’s

judgment to deny Blakeney relief on his other claims.

Trial counsel’s ineffectiveness was prejudicial because

their lack of investigation deprived Blakeney of witness

testimony that was crucial to his mitigation defense. They did

not call Blakeney’s wife, five of his six siblings, or members

of his community as witnesses. Although trial counsel’s

1
Blakeney also claimed that his counsel rendered
ineffective assistance because they failed to provide his
expert, Dr. Worthen, with sufficient information to make an
appropriate diagnosis. Although it seems clear that trial
counsel inadequately prepared Dr. Worthen, and that Dr.
Worthen’s testimony probably had a prejudicial effect on the
jury, I agree with the majority that Blakeney’s claim was
undermined when his own witness, Dr. Bellard, testified at the
MAR hearing that Dr. Worthen could have reached a proper
diagnosis with the limited information supplied by counsel.
Thus, Blakeney could not demonstrate that counsel’s ineffective
assistance caused the prejudice that resulted from Dr. Worthen’s
diagnosis.

64
decision not to call character witnesses is a strategic one to

which enormous deference is owed, United States v. Terry, 366

F.3d 312, 317 (4th Cir. 2004), we are not obliged to give such

deference when, as here, counsel’s conduct is unreasonable and

unjustifiable. If the Sixth Amendment is to have meaning, we

cannot simply elevate counsel’s flawed performance to the status

of strategy. This is especially so in capital sentencing

proceedings.

During the sentencing phase of the trial, Blakeney’s trial

counsel presented three lay witnesses and one expert, Dr. Mark

Worthen. Two of the lay witnesses, correctional officers from

the county jail, testified that Blakeney did not commit

infractions while in jail. (J.A. 56-60.) The third lay

witness, Peggy Blakeney Ratcliff, one of Blakeney’s six

siblings, (J.A. 143-51) testified that their family was

extremely poor and that Mr. Huntley, the victim, and Gracie

Blakeney, Blakeney’s mother, often drank too much. (J.A. 146-

51.) Trial counsel did not seek further testimony from Ms.

Ratcliff about Blakeney’s background or Mr. Huntley as a step-

father. 2 The testimony of the three lay witnesses represented

2
Evidence came in during the MAR hearing that the victim
had physically abused Blakeney’s mother and engaged in sexually
inappropriate behavior with Blakeney’s sisters.

65
only twelve pages of the entire trial transcript. (J.A. 56-60,

143-51.) Crow, one of Blakeney’s attorneys, testified that he

strategically chose to call only Ms. Ratcliff as a witness

because he knew her well. 3 (J.A. 2217.)

Trial counsel stated that they did not want to put

Blakeney’s wife on the stand for the strategic reason that she

would highlight his drug use. Yet, evidence of Blakeney’s drug

use was prevalent throughout the record without her testimony.

The drug use was emphasized specifically in Dr. Worthen’s

report, yet trial counsel thought that the doctor’s testimony

was the most effective way to present mitigation evidence.

Blakeney’s wife could have presented evidence of their

chaotic family life. She testified at the MAR hearing that her

oldest daughter, age fourteen, was in a violent relationship

with her twenty-one-year-old husband, Aaron. When Blakeney came

to his step-daughter’s aid, Aaron pulled a gun on him. 4 This was

not the first time that things became physical in that

household, yet Blakeney did not respond violently then or ever.

(J.A. 1646-47.) This was important testimony to be heard in

3
Crow served as Ms. Ratcliff’s counsel three or four years
prior to Blakeney’s trial. (J.A. 2217.)

4
This is exactly what the victim did to Blakeney in the
underlying offense.

66
juxtaposition to Blakeney’s prior criminal record and the

government’s attempt to portray Blakeney as a man prone to

violence.

The majority’s characterization of the other five siblings’

testimony presented at the MAR hearing as cumulative is

incorrect. All of Blakeney’s siblings were available and willing

to be interviewed and provide unique testimony. Claree Blakeney

Griffin testified at the MAR hearing and offered a portrait of

Blakeney quite different from that painted by the government.

She described her brother as a gentle and giving man, testifying

that when the father that abandoned all seven children became

ill as an elderly man, it was Blakeney who traveled to stay with

him and take care of him until “he got better on his feet.”

(J.A. 1400.) Blakeney cooked, cleaned, and helped his father

pay the bills. This was but one example of Blakeney’s actions

that supported Griffin’s testimony that her brother has a “good

heart.” (J.A. 1402.)

Griffin’s testimony was corroborated by another sister,

Catherine Taylor. Taylor added her own unique story to help

describe why she thought her brother was a good person. When

she was having personal problems, Blakeney offered to drive

Taylor from North Carolina to Cleveland and then take the bus

back. (J.A. 1602-03.) She said that he was always there when

she needed him. (Id.) It is mystifying that trial counsel

67
disregarded the entire family, when the MAR transcript of

Taylor’s testimony seemed to be especially coherent and

believable.

Like his sisters’ testimony, Jimmy Blakeney’s (“Jimmy”)

testimony could have helped his brother. Not only could Jimmy

have corroborated Blakeney’s assertion that he had completed the

DART program, but he also had his own unique story demonstrating

Blakeney’s positive character traits. Jimmy lived next door to

the Wilsons, an elderly couple whom Blakeney would take shopping

and fishing. Blakeney also did chores and ran errands for the

couple without compensation. (J.A. 1630.)

The majority did not explain how it was reasonable for

trial counsel to discount five siblings, saying that they could

not handle testifying, after meeting only one sibling, who

seemed worthy of the stand. (Maj. Op. 43.) The information the

family could have provided was vital because his family offered,

among other things, an alternative portrayal to contrast the

government’s image of a man who had thoughtless disregard for

the elderly and personal suffering.

The MAR court stated that trial counsel talked to

Blakeney’s family members and “sized them up” in order to decide

who should testify for Blakeney. Counsel met Blakeney’s wife

and mother and decided they did not have enough “composure” to

testify. (Maj. Op. 42.) It is clear that trial counsel based

68
their decision on the way that these women spoke and their level

of education, calling it “composure.” In fact, it seems that

after trial counsel met these women, they prejudged the rest of

Blakeney’s large family, deciding that if these women lacked

“composure” then no one in his family was worth interviewing.

The majority appears to approve of Crow’s stated reason for

not calling these family members: “I really had no prior

contact with [them] . . . [i]t’s hard to make a [really] good

decision about something like that, with such short contact.”

(Maj. Op. 43.) It is hard to believe that the majority was

satisfied with this excuse given that Crow’s “short contact”

with Blakeney’s family members was the result of his failure to

attempt to meet them. It is not clear whether counsel ignored

Blakeney’s family because they lacked composure or because Crow

“had no prior contact with them,” but each excuse is inadequate

on its own and indefensible when joined with the other. How can

it be reasonable to conclude that a person lacks composure

without meeting him or her? Clearly, trial counsel’s excuses

are unjustifiable.

In finding that trial counsel were reasonable in failing to

interview and offer Blakeney’s family as witnesses, the MAR

court stated:

Crow thought that defendant’s family members were “all
good people,” but he also knew that none of them were
“what you might call leading citizens of the

69
 community.” None of defendant’s family members held
public office; none were members of any profession
(e.g., ministers, lawyers, doctors, bankers.) Thus
Crow did not call as witnesses at trial all of
defendant’s brothers and sisters.

(J.A. 2221.) Needless to say, one need not be a minister,

lawyer, doctor, or banker to be a respected or leading member of

one’s community. All of the people who testified for Blakeney

at the MAR hearing were hardworking members of the community

and, with the exception of one, none had criminal records.

Trial counsel prejudged these potential witnesses and discounted

them because they did not have fancy letters after their names.

The MAR court, district court, and majority called this strained

reasoning “strategy,” and concluded that it satisfied

Strickland. I disagree.

Even if trial counsel did not believe that Blakeney’s

family members were “upstanding citizens” worthy of the stand,

had trial counsel interviewed them they would have led to

witnesses such as Union County Deputy Sheriff George Curtis

Parker. Parker testified at the MAR hearing that he had known

Blakeney all of his life, that the incident was “out of

character” for Blakeney, and that he would have testified at the

sentencing proceeding. (J.A. 1375-88.) Parker was a law

enforcement officer with the Sheriff’s Office for seventeen

years before retiring. His testimony certainly would have been

persuasive at the sentencing proceeding, because unlike the

70
prison guards trial counsel presented at sentencing, Parker knew

Blakeney’s family intimately and had known Blakeney personally

since he was a boy. Given the nature of Parker’s close

relationship with the family, a minimal amount of investigation

would have led trial counsel to him. In fact, most of the

information that would have aided in Blakeney’s mitigation

defense could have been easily obtained.

The majority and the courts before it found Blakeney’s

trial counsel effective because they accepted Crow’s decision to

place all of the responsibility for mitigation investigation on

Blakeney’s family: “I guess the bottom line, I talked to those

people that came forward and I urged them—and I would have

talked to anybody else, any other family member that had-had

they brought along with them. It’s their family.” (J.A. 2220.)

One must appreciate Crow’s honesty. He admitted that he allowed

his mitigation investigation to begin and end with the efforts

of Blakeney’s family. He admitted that he was willing to talk

to anyone provided they came to him, but forged no independent

investigation despite the fact that such investigation could

have revealed defense theories and character witnesses. This

type of responsibility shifting has been rejected as ineffective

in relevant case law.

In Gray, this Court did not allow trial counsel to rely on

the petitioner’s failure to aid in his own defense. 529 F.3d at

71
225-26, 230 (finding that trial counsel was not allowed to rely

on defendant’s instruction “not to spend another f’ing penny on

this trial” because “he didn’t need a psychiatrist” and “[t]here

was nothing wrong with him.”). In Rompilla, the defendant told

his trial counsel that his background was unexceptional, yet the

Supreme Court did not allow trial counsel to end their

investigation there. 545 U.S. at 381. Investigation is as

important to a proper defense as oral argument in court, and it

is an especially essential element in the defense of a capital

case. It is ironic that Blakeney’s counsel shifted

responsibility for the investigation onto the same family that

they determined lacked composure. Even a cursory evaluation of

trial counsel’s performance reveals that it fell well below

professional norms and greatly prejudiced Blakeney.

The majority stated that the MAR court drew favorable

comparisons to three of our decisions, implying that the MAR

court’s analysis was sound when it was not. (Maj. Op. 46.)

Unlike in Tucker v. Ozmint, this Court cannot conclude that the

“psychologist ... gave the jury a full picture of [the

defendant’s] ... disturbing social history.” 350 F.3d at 441-

42. Unlike the doctor in Tucker, Dr. Worthen could not have

presented a full picture of Blakeney to the jury, because, as

acknowledged, he lacked the complete picture. In this case,

72
Blakeney’s family could have provided the full picture, but no

one interviewed them to obtain it.

The MAR court and the majority correctly characterized

Bacon v. Lee, where we stated:

“[C]ounsel could reasonably have concluded, based on
their earlier investigation, that the evidence they
had developed . . . would give the jury an accurate
picture of [the petitioner’s] . . . personality and
that further investigation into . . . [the
petitioner’s] background would not be fruitful.”

225 F.3d at 481. In contrast, here further investigation would

certainly have been fruitful in developing Blakeney’s mitigation

defense. Had trial counsel done even minimal investigation,

they would have discovered that Blakeney’s family could have

presented valuable information to the jury. This information

would have supplemented the doctor’s testimony with mitigating

evidence relating to Blakeney’s benevolent conduct, kind heart,

and good character.

It is unclear how Byram is analogous, since this Court

stated, “Unlike in Wiggins, . . . counsel here spent

considerable time developing a picture of [petitioner’s] . . .

life.” 5 339 F.3d at 210. The record reflects that trial counsel

5
In Byram, we held that the petitioner had not shown that
his trial counsel’s performance fell below an objective standard
of reasonableness. Id. at 209. One member of Byram’s defense
team logged 623.5 hours of pre-trial preparation while the other
member met with Byram at least thirty times. Id. at 210.
Blakeney’s trial counsel logged a total of 506.47 hours working
(Continued)

73
did not spend a considerable amount of time developing a picture

of Blakeney’s life. The cases cited by the MAR court, and

relied upon by the majority, are inapposite to the case at bar.

The MAR court proffered, and the majority tacitly accepts,

some troubling reasons to justify its finding that trial counsel

was not ineffective in failing to interview Blakeney’s family.

The court’s first stated reason for concluding that trial

counsel’s failure to interview and call Blakeney’s family as

character witnesses was not a “source of prejudice” was that

“several of the witnesses demonstrated an obvious bias in favor

of defendant based on their past close familial relationship to

him.” (Maj. Op. 47.) The MAR court seems to suggest that courts

must discredit the testimony of family members who love the

defendant. Is “obvious bias . . . based on . . . close familial

on Blakeney’s entire case. (J.A. 2167-69.) Most of trial
counsel Crow’s hours were in court. Despite the fact that one
member of Byram’s defense team logged more hours in pre-trial
preparation than the total of both of Blakeney’s defense
attorneys during the entire case, this is not dispositive as we
did not base our decision in Byram merely on the number of hours
logged by the attorneys. Byram’s defense team hired a forensic
psychologist and a forensic psychiatrist. Id. Byram’s defense
team carefully analyzed the findings of the doctors and decided
not to present the testimony of either, which was a strategic
decision based on the potentially prejudicial findings of the
doctors. Id. Blakeney could only wish that his trial counsel
had understood the potentially prejudicial effect of Dr.
Worthen’s diagnosis and supplemented it with mitigation
evidence.

74
relationship” not just a convoluted way of describing love? If

this Court were to adopt the logic of the MAR court, then we

would have to disregard the testimony of all family members even

when, as here, they possess valuable mitigation evidence.

The court went on to state that “several of the witnesses

based their opinion that defendant was a man of ‘good character’

on factors not normally considered to be indicia of good

character.” (Id.) Yet as shown above, his siblings offered

specific conduct as evidence to support their assertions that

Blakeney had a kind heart and was a good person. Additionally,

the court stated that “considerable evidence of record shows

that defendant is not a man of good character (e.g., the

evidence of his history of substance abuse and his commission of

armed robbery, larceny, assault, arson, and murder).” (Id.)

This is an especially troubling assertion. Under the court’s

standard, no person with a history of criminal convictions and

substance abuse could be considered a good person no matter how

many years he was sober or how many good deeds he had done.

Under the court’s standard, there would be no need to have

character witnesses at all because if a man were convicted of a

crime, he would be, per se, a man of bad character.

Most surprisingly, the court said, “[D]efendant did not

introduce any significant evidence proving that he is in fact a

man of good character.” (Id.) However, Blakeney presented

75
fourteen character witnesses, many of whom said wonderful and

unique things about him and supported their testimony with

specific evidence. By the MAR court’s standard, it seems there

is nothing Blakeney could have presented to demonstrate good

character.

Finally, the MAR court justified its finding that Blakeney

was not prejudiced by his counsel’s deficient performance by

stating: “[E]vidence of record shows that after defendant

completed the DART program while serving five years confinement

and after he was placed on probation, defendant disregarded the

lessons he should have learned and returned to the costly and

debilitating practice of using illegal drugs.” (Id.) Blakeney,

however, argues that he was prejudiced by Dr. Worthen’s

statements doubting that he had completed the DART program

because the prosecutor exploited it in closing argument to cast

doubt on other aspects of his life. The MAR court’s conclusion

that Blakeney was not prejudiced by the DART inference because

he had relapsed is unpersuasive. Blakeney never claimed he was

drug-free; he merely attempted to demonstrate that he had

completed the DART program in an effort to rid himself of drugs.

Although he was telling the truth about an important aspect of

his mitigation defense, he was impugned at the sentencing

proceeding as being a liar. This was clearly prejudicial.

76
 Blakeney’s trial counsel’s failure to investigate is

indefensible and led to a meager mitigation defense: Dr.

Worthen’s poorly informed diagnosis could not mitigate the

evidence against Blakeney, his sister’s testimony was but a

small piece of the full story his family could have provided,

and the two correctional officers’ testimony paled in comparison

to that of the Deputy Sheriff. Trial counsel admitted that the

evidence on guilt was stacked against Blakeney, which only

increased the necessity to develop the mitigation defense that

was readily available if they had properly investigated the

case, assessed the witnesses, and presented the evidence at the

sentencing phase of the trial. Blakeney was practically left

defenseless at the sentencing proceeding. In this matter of

life or death, the Sixth Amendment certainly requires more of

counsel. Thus, I dissent.

77