PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TERRY ALVIN HYATT,
Petitioner-Appellant,
v.
No. 08-15
GERALD BRANKER, Warden, Central
Prison, Raleigh, North Carolina,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(1:05-cv-00055-LHT)
Argued: May 14, 2009
Decided: June 23, 2009
Before NIEMEYER, MOTZ, and TRAXLER,
Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opin-
ion, in which Judge Niemeyer and Judge Traxler joined.
COUNSEL
ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF,
WIDENHOUSE & FIALKO, Chapel Hill, North Carolina, for
Appellant. Valerie Blanche Spalding, NORTH CAROLINA
2 HYATT v. BRANKER
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee. ON BRIEF: Faith S. Bushnaq, BUSHNAQ LAW
OFFICE, PLLC, Charlotte, North Carolina, for Appellant.
Roy Cooper, Attorney General of North Carolina, Raleigh,
North Carolina, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
After a North Carolina jury convicted Terry Alvin Hyatt of
two counts each of murder, rape, kidnapping, and robbery, a
state court sentenced him to death. Hyatt now appeals the dis-
trict court’s denial of his petition for federal habeas relief.
Hyatt obtained a certificate of appealability as to whether the
state court violated his (1) Fifth and Fourteenth Amendment
rights in refusing to suppress incriminating statements made
by Hyatt without the benefit of counsel, (2) his Sixth Amend-
ment rights by denying his request to discharge his court-
appointed attorneys after the trial began, and (3) his Four-
teenth Amendment due process rights by failing to instruct the
jury on a lesser-included offense. For the reasons that follow,
we affirm the district court’s denial of habeas relief.
I.
We begin with a summary of the facts—first those relating
to Hyatt’s crimes and subsequent trial in state court and then
those relating to Hyatt’s post-conviction proceedings.
A.
On direct review of Hyatt’s conviction, the Supreme Court
of North Carolina fully set forth the facts relating to Hyatt’s
crimes. See State v. Hyatt, 566 S.E.2d 61, 65–67 (N.C. 2002).
We briefly summarize those facts here and later set forth addi-
HYATT v. BRANKER 3
tional facts as necessary to understand each of Hyatt’s partic-
ular claims.
On August 13, 1998, while intoxicated, Jerry Harmon vis-
ited the sheriff’s department in Buncombe County, North Car-
olina. He provided officers with information relating to the
murder of Betty Sue McConnell, which had occurred two dec-
ades earlier, in August 1979. Harmon stated that he and Terry
Hyatt abducted Ms. McConnell and that Hyatt then raped and
murdered her. Harmon also suggested that Lester Dean Helms
might have additional information about Hyatt. In October
1998, law enforcement officers interviewed Helms, who told
them that Hyatt kidnapped and murdered another woman—
Harriet Delaney Simmons—in April 1979.
Law enforcement officers then questioned Hyatt with
respect to these crimes. After Hyatt made incriminating state-
ments, the officers arrested him. A grand jury in Buncombe
County, North Carolina, subsequently indicted Hyatt for the
first-degree kidnapping, robbery with a dangerous weapon,
first-degree rape, and first-degree murder of both Ms. Sim-
mons and Ms. McConnell.
At trial, the State offered evidence that just after midnight
on April 14, 1979, Ms. Simmons left Raleigh, North Carolina,
and began driving to Nashville, Tennessee. Helms and Hyatt
encountered Ms. Simmons at a rest stop where she was hav-
ing car trouble. Ms. Simmons entered their van after they
offered to help. Helms and Hyatt then drove to a secluded,
wooded area, and Hyatt raped Ms. Simmons in the back of the
van. Hyatt, who was carrying a knife at the time, then took
Ms. Simmons into the woods. Helms heard Ms. Simmons
scream. Hyatt returned to the van alone with blood on his
shirt. A year later, the sheriff’s department located Ms. Sim-
mons’s remains and personal effects. An autopsy revealed
that Ms. Simmons died from multiple stab wounds to her
chest.
4 HYATT v. BRANKER
Regarding the murder of Ms. McConnell, the State offered
evidence that, on August 24, 1979, Jerry Harmon and Terry
Hyatt spent the day together. While drinking and driving
around, they encountered Ms. McConnell. Hyatt drove his
truck into Ms. McConnell’s car, pushing it off the road. He
then forced Ms. McConnell into the passenger seat of her car
and drove her to an isolated, wooded area near a river. Har-
mon followed behind them, and he watched as Hyatt raped
Ms. McConnell. Hyatt, again armed with a knife, took Ms.
McConnell down to the river, out of Harmon’s sight. Harmon
heard Ms. McConnell scream. Upon his return, Hyatt told
Harmon that he had stabbed Ms. McConnell and thrown her
into the river. Hyatt then drove Ms. McConnell’s car into the
river some distance away. The next morning, a nearby resi-
dent discovered Ms. McConnell on his driveway. Ms.
McConnell was soaking wet, and her chest was covered with
blood. Prior to dying from the stab wounds to her chest, Ms.
McConnell stated that she "was picked up at work by two
guys" and then "stabbed and thrown into the river."
The jury convicted Hyatt on all counts and then recom-
mended sentences of death for both murder convictions. The
trial court entered two capital sentences and six consecutive
sentences of life imprisonment for the noncapital offenses.
The Supreme Court of North Carolina affirmed on direct
appeal, Hyatt, 566 S.E.2d at 80, and the United States
Supreme Court denied certiorari, Hyatt v. North Carolina,
537 U.S. 1133 (2003).
B.
On October 31, 2003, Hyatt filed his first post-conviction
motion for appropriate relief in the Superior Court of Bun-
combe County. He amended the motion on December 23,
2003. The state trial court denied relief on January 23, 2004,
and the Supreme Court of North Carolina denied certiorari.
HYATT v. BRANKER 5
Hyatt filed a second post-conviction motion for appropriate
relief in state court on April 15, 2005. The court denied Hyatt
relief, and the state supreme court again denied certiorari.
On December 10, 2007, Hyatt filed this federal habeas peti-
tion in the United States District Court for the Western Dis-
trict of North Carolina pursuant to 28 U.S.C. § 2254 (2006).
The district court denied relief but granted a certificate of
appealability on numerous issues, only two of which Hyatt
pursues before us, namely whether the state court denied
Hyatt counsel of his choice and whether that court erred in
failing to suppress certain incriminating statements that Hyatt
had made during his initial interrogation.
Hyatt noted a timely appeal. We granted a certificate of
appealability on one additional claim: whether the state court
committed constitutional error in refusing to instruct the jury
as to lesser-included offenses.
II.
We review the district court’s denial of a habeas petition de
novo. Tucker v. Ozmint, 350 F.3d 433, 438 (4th Cir. 2003).
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), however, limits the scope of our review of state
convictions. See Williams v. Taylor, 529 U.S. 362, 402–13
(2000). If the state court adjudicated a claim on its merits, a
federal court may only grant habeas relief if the state decision
"was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States," or "was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding." 28 U.S.C. § 2254(d) (2006);
see also Larry v. Branker, 552 F.3d 356, 365 (4th Cir. 2009).
"AEDPA also requires federal habeas courts to presume the
correctness of state courts’ factual findings unless applicants
rebut this presumption with ‘clear and convincing evidence.’"
6 HYATT v. BRANKER
Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007) (quoting
28 U.S.C. § 2254(e)(1) (2006)).
With this standard governing our review, we turn to Hyatt’s
contentions.
III.
Initially, Hyatt argues that North Carolina law enforcement
officers violated his rights under Miranda v. Arizona, 384
U.S. 436 (1966), and Edwards v. Arizona, 451 U.S. 477
(1981), by denying him assistance of counsel during a custo-
dial interrogation and by deceiving him during the course of
the interrogation. He further contends that the state court vio-
lated clearly established federal law by failing to suppress the
incriminating statements he made when interrogated in this
assertedly unconstitutional manner.
A.
Hyatt’s argument rests on the facts surrounding his initial
interrogation by law enforcement officers. On November 19,
1998, Tim Shook, a special agent with the North Carolina
State Bureau of Investigation, and Anne Benjamin, a detective
with the Buncombe County Sheriff’s Department, visited
Hyatt at his home. They told Hyatt that they were investigat-
ing a murder that had occurred earlier in that year; Hyatt then
offered to provide a DNA sample to clear his name. Hyatt
voluntarily drove his truck to the Buncombe County Public
Health Department for a blood draw.
After Hyatt gave the blood sample, he and the officers
drove to the Buncombe County sheriff’s office. Upon arrival
at the interview room, Agent Shook explained that the officers
were actually investigating the abduction, rape, and murder of
Betty Sue McConnell. The officers told Hyatt (falsely) that
they possessed fingerprint evidence connecting him to the
scene of the crime. Hyatt’s demeanor changed, and he became
HYATT v. BRANKER 7
silent. Agent Shook read Hyatt his Miranda rights, and Hyatt
signed an acknowledgement to this effect. Hyatt agreed to
speak with the officers, but he asked to speak with his father
first.
The officers handcuffed Hyatt, and Agent Shook, Detective
Benjamin, and Pat Hefner, the captain of the Buncombe
County Sheriff’s Department, drove him to his father’s house.
He remained handcuffed throughout the visit. Hyatt and his
father first spoke on the back porch. Hyatt told his father that
he was in trouble for something that had occurred a long time
ago. According to Hyatt’s father, Hyatt stated, "I want you to
get me a lawyer." Although Hyatt and his father whispered,
Hyatt’s father testified that Agent Shook, who stood ten or
twelve feet away, was close enough to hear their conversa-
tion, including Hyatt’s request for a lawyer. Agent Shook
acknowledged that he "could hear most everything" but
unequivocally testified that he did not hear Hyatt ask for
counsel. Agent Shook did, however, recall that Hyatt’s father
instructed Hyatt to retain a lawyer. Detective Benjamin stood
farther away, approximately twenty feet, and testified that she
heard very little of the discussion. Captain Hefner remained
in the front yard.
Hyatt and his father then walked to the front porch, where
Hyatt’s girlfriend, Cindy Spalding, awaited. Agent Shook and
Detective Benjamin followed Hyatt around to the front. Spal-
ding testified that at that time Hyatt asked his father to find
him an attorney. Agent Shook again testified that he did not
hear Hyatt request counsel. Once again, Detective Benjamin
and Captain Hefner stood too far away to hear their conversa-
tion.
Hyatt and the officers returned to the sheriff’s department.
Hyatt remained in handcuffs during the trip. Once in the inter-
rogation room, Hyatt stated that his "daddy wanted him to call
a lawyer." Detective Benjamin, however, told Hyatt that he
was 41 years old and that he needed to decide for himself
8 HYATT v. BRANKER
whether he wanted the assistance of counsel. Agent Shook
and Detective Benjamin both testified that Hyatt never
expressly asked for an attorney.
During the interrogation that followed, Hyatt made a series
of incriminating statements. He stated that he was guilty of
robbing someone but denied killing anyone. He nonetheless
asked what would happen to him if he did admit to killing Ms.
McConnell. He then acknowledged that he was present when
Ms. McConnell was murdered but contended that Harmon
raped and killed her. After Agent Shook asked him about the
murder of Ms. Simmons, Hyatt terminated the interview. The
officers then formally arrested Hyatt.
Meanwhile, after Hyatt left his father’s house, Hyatt’s
brother telephoned Hyatt’s father, who explained that "[the
police] have just taken your brother out of here in handcuffs
for murder." The brother then called a local attorney, Sean
Devereux, and asked him to represent Hyatt. Both Hyatt’s
father and his brother told Devereux that Hyatt had requested
the assistance of an attorney. Devereux called the sheriff’s
department, stated that he represented Hyatt, and asked the
officers to cease the interrogation. But the officers at the sher-
iff’s department refused, stating that Hyatt had not invoked
his right to counsel.
Devereux drove to the sheriff’s office, again explained that
he represented Hyatt, and attempted to speak with him. But
the law enforcement officers and assistant district attorneys
refused Devereux’s request. During the interrogation, the offi-
cers did not inform Hyatt that Devereux had arrived at the
sheriff’s office and claimed to represent him. Only after Hyatt
terminated the interrogation did the officers permit Devereux
to see him. Devereux then witnessed a conversation in which
Hyatt reportedly asked Detective Benjamin, "Why did you lie
to me about a lawyer? You know that I asked for a lawyer."
Detective Benjamin replied, "No, you didn’t, Terry. You
HYATT v. BRANKER 9
asked to speak to your father, but you never asked for a law-
yer."
B.
Prior to trial, Hyatt moved to suppress the incriminating
statements set forth above on the ground that the law enforce-
ment officers denied his request for assistance of counsel. The
state trial court held a suppression hearing, during which
Agent Shook, Detective Benjamin, Sean Devereux, Hyatt’s
father, Hyatt’s brother, and Cindy Spalding testified.
After listening to their testimony and considering legal
arguments, the state trial court denied Hyatt’s motion to sup-
press. In so doing, the court made a series of factual findings:
[Hyatt] talked to his father on the porch of the resi-
dence where his father was, and [Agent] Shook was
close enough to hear what—some of what he was
saying, that is, [Hyatt] said he was in trouble from
something a long time ago and that he was going to
have to go back to the Sheriff’s Department with the
officers. And at that time, there was some discussion
between the Defendant and his father, wherein the
Defendant said to get him a lawyer, a hired lawyer,
meaning a private attorney.
And then he, the Defendant, told the officers that his
father wanted him to get an attorney. That this state-
ment was repeated at that place.
....
[At the sheriff’s department, Hyatt] did not ask for
a lawyer but rather repeated the statement that his
father wanted him to have a lawyer.
Thus, with respect to the conversation with his father, the
court found that Hyatt did ask his father "to get him a lawyer"
10 HYATT v. BRANKER
and that Agent Shook overheard parts of the conversation
between father and son. But the court’s findings are ambigu-
ous as to whether Shook actually heard Hyatt request an attor-
ney. As to the conversation at the sheriff’s office, the court
found that Hyatt did not invoke his right to counsel, "but
rather repeated the statement that his father wanted him to
have a lawyer."
The trial court did not rest its denial of Hyatt’s suppression
motion on any finding as to whether a law enforcement offi-
cer heard Hyatt’s request for counsel. Rather, the trial court
held that "up until [Hyatt] was formally arrested" at the con-
clusion of the interrogation, "he was not in custody." Thus,
the trial court found that Hyatt’s Miranda and Edwards rights
did not attach until the officers "formally arrested" him. The
court further concluded that Hyatt voluntarily waived any
rights he did possess.
On direct appeal, the Supreme Court of North Carolina
affirmed but on alternative grounds. The court assumed that
Hyatt was in custody during the interrogation but found no
error in admitting Hyatt’s incriminating statements because he
had not invoked his right to counsel. Hyatt, 566 S.E.2d at 69-
71. The state supreme court found that (1) "neither Agent
Shook nor Detective Benjamin heard [Hyatt’s] alleged invo-
cation of his right to counsel" while at his father’s house, id.
at 71, (2) Hyatt’s statement that his "daddy wanted him to call
a lawyer" did not "constitute an unambiguous request for
counsel," id., and (3) because law enforcement officers need
not "inform a suspect of his lawyer’s efforts to contact him,"
id. at 72, the officers did not violate Hyatt’s right to counsel
by refusing to permit Devereux to meet with Hyatt during the
interrogation or by failing to inform Hyatt that Devereux had
arrived at the sheriff’s office.
C.
During the course of a custodial interrogation, "if a suspect
requests counsel at any time during the interview, he is not
HYATT v. BRANKER 11
subject to further questioning until a lawyer has been made
available or the suspect himself reinitiates conversation."
Davis v. United States, 512 U.S. 452, 458 (1994) (citing
Edwards, 451 U.S. at 484-85). Whether a suspect has invoked
counsel is "an objective inquiry." Id. at 459. "It requires, at a
minimum, some statement that can reasonably be construed to
be an expression of a desire for the assistance of an attorney."
McNeil v. Wisconsin, 501 U.S. 171, 178 (1991). "But if a sus-
pect makes a reference to an attorney that is ambiguous or
equivocal in that a reasonable officer in light of the circum-
stances would have understood only that the suspect might be
invoking the right to counsel, [Supreme Court] precedents do
not require the cessation of questioning." Davis, 512 U.S. at
459. Rather, a suspect "must articulate his desire to have
counsel present sufficiently clearly that a reasonable police
officer in the circumstances would understand the statement
to be a request for an attorney." Id.
1.
We first address Hyatt’s argument that he requested coun-
sel during his conversations with his father. To invoke a right
to counsel, the suspect himself must request an attorney and
a representative of the state must hear that request. See id. at
458-59. Thus, this claim turns on a single question of fact
hotly disputed by the parties: whether a law enforcement offi-
cer heard Hyatt make an unequivocal request for counsel. As
noted above, under AEDPA, we must "presume the correct-
ness of state courts’ factual findings unless applicants rebut
this presumption with clear and convincing evidence,"
Schriro, 550 U.S. at 473-74 (quotation omitted).
Here, Agent Shook and Detective Benjamin testified that
neither ever heard Hyatt request counsel. Hyatt’s father testi-
fied to the contrary. The state supreme court credited the testi-
mony of Agent Shook and Detective Benjamin over that of
Hyatt’s father. Hyatt, 566 S.E.2d at 71. Although Hyatt chal-
lenges this finding, he fails to show that the state court’s deci-
12 HYATT v. BRANKER
sion was "unreasonable" based on the evidence available, and
he offers no "clear and convincing evidence" that the state
court erred.1 Accordingly, we must defer to the state court’s
finding that law enforcement officers did not hear Hyatt
request counsel while at his father’s house. Given this finding,
the state court did not err in holding that Hyatt did not then
invoke his right to counsel.
2.
Next, Hyatt maintains that his statement during the interro-
gation at the sheriff’s office—that his "daddy wanted him to
call a lawyer"—sufficed to invoke counsel and that the
Supreme Court of North Carolina erred in finding to the con-
trary. We disagree. Federal law requires a suspect to make an
unequivocal request for counsel. Davis, 512 U.S. at 461–62.
The state court’s holding—that Hyatt’s statement at the sher-
iff’s office did not unequivocally express a desire for an
attorney—does not constitute an unreasonable application of
federal law.
3.
Finally, Hyatt claims that law enforcement officers
deceived him by failing to inform him of Devereux’s presence
at the sheriff’s office during the interrogation and that this
deceit constitutes a constitutional violation. The Supreme
Court’s decision in Moran v. Burbine, 475 U.S. 412 (1986),
compels us to reject this argument.
1
The state supreme court initially noted in passing that "[t]he state’s evi-
dence was uncontroverted . . . that neither Agent Shook nor Detective
Benjamin heard [Hyatt] request an attorney while at his father’s resi-
dence." Hyatt, 566 S.E.2d at 68. Hyatt points out that his father testified
that Agent Shook stood near enough to hear Hyatt’s request for counsel.
The state supreme court, however, later specifically addressed the testi-
mony of Hyatt’s father, but credited Agent Shook’s sworn testimony that
he did not hear Hyatt request counsel. Id. at 70–71.
HYATT v. BRANKER 13
In Moran, as here, police failed to inform a suspect that his
lawyer had attempted to contact him. Id. at 417-18. The
Supreme Court held that this event, "outside of the presence
of the suspect and entirely unknown to him . . . ha[d] no bear-
ing on the [suspect’s] capacity to comprehend and knowingly
relinquish a constitutional right." Id. at 422. The Court recog-
nized that this information "would have been useful" to the
suspect and that "it might have affected his decision to con-
fess." Id. But the Court found that law enforcement officers
need not "supply a suspect with a flow of information to help
him calibrate his self-interest in deciding whether to speak or
stand by his rights." Id.
In the case at hand, the state court found that the law
enforcement officers had no constitutional obligation to
inform Hyatt of Devereux’s presence at the sheriff’s depart-
ment. Hyatt notes that Moran contains dicta suggesting that
"egregious . . . police deception might rise to a level of a due
process violation." Id. at 432. But the Supreme Court has not
yet found such "egregious" conduct to exist in any case and
has not otherwise provided standards to determine what con-
stitutes such "egregious" conduct. Hyatt, therefore, can pre-
sent no authority to demonstrate that the officer’s conduct
here was "egregious" under clearly established Supreme
Court precedent.2
In sum, Hyatt provides no basis for us to disturb the state
court’s holding that Hyatt waived his right to counsel during
a custodial interrogation in "full awareness of both the nature
of the right being abandoned and the consequences of the
decision to abandon it." Moran, 475 U.S. at 421.
2
Moreover, Hyatt fails to cite Supreme Court precedent showing that
the officers’ use of ruses—first misleading Hyatt about the subject of their
investigation and then falsely asserting the existence of fingerprint
evidence—violated his constitutional rights.
14 HYATT v. BRANKER
IV.
Hyatt next maintains that the state court violated his Sixth
Amendment right to trial counsel of his choice by denying his
motion to dismiss his court-appointed attorneys.
A.
On the fifth day of trial, Friday, January 14, Hyatt inter-
rupted jury selection and asked the court to dismiss his
appointed attorneys. He argued that his attorneys had a con-
flict of interest, evidenced by their failure to obtain certain
medical records. The court allowed a brief recess during
which Hyatt obtained counsel—again Sean Devereux—to
argue this motion. Appearing for this limited purpose, Dever-
eux asked the court to adjourn determination of Hyatt’s oral
motion until the next day of court, Tuesday, January 18, 2000.
The court agreed to do so.
On that Tuesday, Devereux filed a written motion on
Hyatt’s behalf, asking the court to discharge appointed coun-
sel and substitute retained counsel. Devereux explained that
attorneys Tony Lynch and David Belser were "prepared to
step in" and that Hyatt’s family could retain them "immedi-
ately." Lynch and Belser were not, however, present in the
courtroom, and Hyatt admits that he had not yet actually
retained them. Nonetheless, Hyatt swore in an affidavit and
his attorney represented orally in open court that Hyatt was in
a position to retain them if permitted to do so by the trial
court. Hyatt also claimed that communication with his court-
appointed lawyers had "broken down."
In support of Hyatt’s motion, Devereux argued that "the
Sixth Amendment right to counsel extends to counsel of one’s
own choosing." But he also noted that "[c]learly the disposi-
tion of this motion is within the court’s discretion. There are
countervailing concerns. . . . There are a number of cases that
HYATT v. BRANKER 15
have upheld the court’s denial either of change of counsel or
continuance under similar circumstances."
Although the State argued that Hyatt had not shown his
appointed counsel to be ineffective, it did not oppose substitu-
tion of counsel. The State did, however, object to any continu-
ance of the trial. The trial court then asked whether Hyatt
would request a continuance, and Devereux stated that "I
think that motion will probably be made by counsel in this
case. As your Honor knows, I’ve limited my appearance to
arguing this motion. I don’t want to make that decision for
anyone else."
B.
The trial court then denied Hyatt’s motion to substitute
counsel. First, the court found that "implicit in [Hyatt’s
motion] is a prospective motion to continue the case." And the
court decided that it would not delay or continue the trial to
allow Hyatt to change counsel. Second, the court determined
that Hyatt had not shown his appointed counsel ineffective
and that the court had cured the cause for Hyatt’s displeasure
with appointed counsel by issuing a subpoena for the medical
records. The court noted that Hyatt had offered nothing "sub-
stantively or inferentially" to show that his conflict with his
appointed counsel was "so great as to result in any lack or
total lack of communication between counsel and client so as
to prevent an adequate defense." Finally, the trial court stated
that Hyatt could, if he wished to do so, hire additional attor-
neys to assist his court-appointed counsel.
On direct appeal, the Supreme Court of North Carolina first
noted that Hyatt did not "allege ineffective assistance of coun-
sel." Hyatt, 566 S.E.2d at 77. Then, quoting the trial court’s
finding that Hyatt’s motion to substitute counsel contained an
"implicit . . . prospective motion to continue," the state
supreme court rejected Hyatt’s Sixth Amendment claim. Id. at
77-78. The court reasoned that a trial court may reject "a
16 HYATT v. BRANKER
defendant’s request to substitute retained counsel where he or
she offered no justifiable basis for the replacement and where
doing so would obstruct the orderly procedure of trial." Id. at
78.
C.
In United States v. Gonzalez-Lopez, the Supreme Court
held that the Sixth Amendment provides a criminal defendant
the right to "the counsel he believes to be best." 548 U.S. 140,
146 (2006).3 The court rejected the contention that, to show
a constitutional violation from a denial of substitution of
counsel, a criminal defendant must demonstrate that the origi-
nal counsel "was ineffective within the meaning of Strickland
v. Washington." Id. at 144-48. Rather, because "[d]eprivation
of the right is ‘complete’ when the defendant is erroneously
prevented from being represented by the lawyer he wants,"
"[w]here the right to be assisted by counsel of one’s choice is
wrongly denied, . . . it is unnecessary to conduct an ineffec-
tiveness or prejudice inquiry to establish a Sixth Amendment
violation." Id. at 148. Indeed, "deprivation of the right to
counsel of choice . . . unquestionably qualifies as structural
error." Id. at 150 (citation omitted).
The Supreme Court clearly explained in Gonzalez-Lopez,
however, that the right to choose counsel is not without limit.
Particularly relevant here, a trial court maintains "wide lati-
tude in balancing the right to counsel of choice against the
3
The Supreme Court issued its opinion in Gonzalez-Lopez four years
after the Supreme Court of North Carolina ruled on Hyatt’s direct appeal.
Nonetheless, citing Caplin & Drysdale, Chartered v. United States, 491
U.S. 617, 624–25 (1989), and similar cases, Hyatt maintains that
Gonzalez-Lopez merely stated a rule dictated by precedent, and thus that
rule may form a basis for AEDPA relief. Because Hyatt’s challenge fails
even under Gonzalez-Lopez, we need not parse precisely what federal law
was "clearly established" on this point at the time of the Supreme Court
of North Carolina’s ruling.
HYATT v. BRANKER 17
needs of fairness, and against the demands of its calendar." Id.
at 152 (citations omitted).
Recognizing that a trial court may deny a motion to substi-
tute counsel to preclude delay of an ongoing trial, Hyatt rests
his argument on the contention that, in his case, the trial court
wrongly concluded that his motion to substitute counsel
would require a continuance. Hyatt directs us to portions of
the trial transcript where his counsel stated that substitute
counsel was immediately available, and he provides affidavits
asserting the same.4 But this evidence is insufficient to over-
come the trial court’s finding that a motion to continue was
"implicit" in Hyatt’s motion to change attorneys.
Hyatt’s own attorney admitted that new counsel would
"probably" file a motion to continue. The trial court certainly
could rely on this assertion. Moreover, in exercising its "wide
latitude," the trial court properly drew on its experience in
determining whether a motion to change counsel in the midst
of a capital case involving two victims, two murder charges,
and two different accomplices would require a delay of the
4
The parties dispute at length whether a federal court on habeas review
may consider these affidavits—one by Devereux and one by Belser. The
State contends that no state court considered them on the merits, and thus
we may not consider them on federal habeas; Hyatt disagrees. We need
not resolve this dispute, however, because the affidavits have no bearing
on the issue before us. In his affidavit, Devereux states that alternative
counsel could have "immediately assume[d] representation of Terry
Hyatt," even without a continuance. Belser similarly asserts that, although
"not completely comfortable with taking over a capital trial that had
already begun," he was willing to represent Hyatt if the court granted
Hyatt’s motion to discharge appointed counsel and Hyatt secured adequate
funds. Whether new counsel would have immediately "undertaken"
Hyatt’s representation is beside the point. Rather, the issue before us is
whether the trial court reasonably determined—based on the nature of the
case before it and the representations of the parties—that a motion to sub-
stitute counsel would likely require a continuance after new counsel had
"undertaken" the representation. The Devereux and Belser affidavits do
not address this issue.
18 HYATT v. BRANKER
trial. Given these facts, the trial court could reasonably
believe that, in order to be effective, any new attorney would
require a continuance after undertaking the defense. In such
a complicated and weighty case, new counsel would undoubt-
edly need time to study the state’s allegations and evidence,
the procedural history of the case, and—in consultation with
the accused—formulate a defense strategy.
Accordingly, we have no basis to disturb the state court’s
finding that Hyatt’s motion to substitute counsel contained an
"implicit" motion to continue. Because the state court reason-
ably believed that granting Hyatt’s motion would necessitate
delay, the court acted within its discretion in rejecting the
request.5 That decision was neither contrary to nor an unrea-
sonable application of clearly established Supreme Court pre-
cedent.
V.
Finally, Hyatt argues that the trial court erred in denying
his request for a jury instruction on the lesser-included
offense of second-degree murder. On appeal, the Supreme
Court of North Carolina affirmed, finding that "there was no
evidence upon which the jury could find [Hyatt] guilty of
second-degree murder" because Hyatt "did not negate any of
the elements of first-degree murder." Hyatt, 566 S.E.2d at 73.
A.
In challenging this holding, Hyatt relies heavily on Beck v.
Alabama, 447 U.S. 625 (1980). There the Supreme Court held
5
Hyatt makes much of the fact that the trial court denied his motion not
only because of its finding with respect to delay, but also because Hyatt
had not shown that his court-appointed attorneys were ineffective. It is
true that the state court rejected Hyatt’s claim on multiple grounds. But its
finding with respect to delay provides an appropriate and sufficient basis
for its ruling.
HYATT v. BRANKER 19
that capital defendants have a constitutional right to receive a
jury instruction on a lesser-included offense "when the evi-
dence unquestionably establishes that the defendant is guilty
of a serious, violent offense—but leaves some doubt with
respect to an element that would justify conviction of a capital
offense." Id. at 637. The Court found that the failure to give
the jury a "third option" other than conviction on a capital
charge or outright acquittal "would seem inevitably to
enhance the risk of an unwarranted conviction." Id. The
Supreme Court later cautioned, however, that "due process
requires that a lesser included offense instruction be given
only when the evidence warrants such an instruction." Hopper
v. Evans, 456 U.S. 605, 611 (1982).
A Beck challenge does not question whether the prosecutor
presented evidence sufficient to sustain a conviction of a capi-
tal offense. See Hogan v. Gibson, 197 F.3d 1297, 1305 (10th
Cir. 1999) ("A Beck claim is not the functional equivalent of
a challenge to the sufficiency of the evidence for conviction
. . . ."). Rather, Beck requires a lesser-included offense
instruction when the evidence at trial merely casts "some
doubt" on a necessary element of the capital charge. Beck,
447 U.S. at 637; see also Larry, 552 F.3d at 364.
North Carolina defines first-degree murder as the "unlawful
killing of another human being with malice and with premedi-
tation and deliberation." State v. Bonney, 405 S.E.2d 145, 154
(N.C. 1991); see also N.C. Gen. Stat. § 14-17 (2007). The
state defines second-degree murder as the "unlawful killing of
a human being with malice but without premeditation and
deliberation." State v. Thibodeaux, 532 S.E.2d 797, 806 (N.C.
2000) (quotation omitted; emphasis added). Thus, to have a
constitutional entitlement to a jury instruction for second-
degree murder under Beck, Hyatt must show that evidence
presented to the jury creates some doubt with respect to either
premeditation or deliberation. See Larry, 552 F.3d at 366-67.
In North Carolina, "[p]remeditation means that the act was
thought over beforehand for some length of time, however
20 HYATT v. BRANKER
short." State v. Taylor, 669 S.E.2d 239, 256 (N.C. 2008) (quo-
tation omitted). And "[d]eliberation means an intent to kill,
carried out in a cool state of blood, . . . and not under the
influence of a violent passion or a sufficient legal provoca-
tion." Id. (quotation omitted).
B.
Hyatt maintains that, for several reasons, the state trial
court erred in failing to instruct the jury on second-degree
murder.
First, Hyatt argues that the two principal witnesses against
him—Helms and Harmon—were unbelievable, and so the
jury could have doubted the reliability of their testimony that
Hyatt committed the murders. Hyatt presents an affidavit
from Harmon’s ex-wife in which she states that, after the trial,
Harmon told her that "he was so drunk and drugged up that
he may have raped [the victim] and killed her himself but he
just didn’t remember." This argument misses the mark. The
evidence on which Hyatt relies may create some doubt as to
the identity of the murderer, but it does not speak to whether
the murderer of Ms. McConnell or Ms. Simmons acted with
premeditation or deliberation. That is, the evidence may have
diminished the strength of the State’s first-degree murder case
against Hyatt, but it did not suggest that Hyatt was guilty of
second-degree murder in lieu of the capital offense. Thus, this
provides no basis for a Beck claim.
Second, Hyatt maintains that the absence of certain kinds
of evidence in the State’s case establishes his entitlement to
a Beck claim. He asserts that the State presented no evidence
that he had previously known the victims, that he planned the
crimes or otherwise prepared to kill the victims, or that he
attempted to conceal the crimes. To be sure, these all consti-
tute ways in which the State could have proven premeditation
and deliberation. See State v. Fisher, 350 S.E.2d 334, 337–38
(N.C. 1986). But, if we accepted Hyatt’s argument, a capital
HYATT v. BRANKER 21
defendant would be entitled to a lesser-included jury instruc-
tion whenever the state fails to introduce evidence as to every
possible means of proving premeditation or deliberation. In
Hopper, however, the Supreme Court made clear that a capi-
tal defendant is entitled to a Beck instruction only when evi-
dence warrants such an instruction. 456 U.S. at 611. Hyatt’s
argument here fails to present any evidence casting some
doubt as to premeditation and deliberation.
Finally, Hyatt directs us to Harmon’s trial testimony. Har-
mon testified that prior to killing Ms. McConnell, Hyatt told
her, "We’re not going to hurt you. We’re just going to f—
you, and then I’m going to let you go." Hyatt claims that this
evidence suffices under Beck to warrant a second-degree mur-
der jury instruction with respect to the murder of Ms. McCon-
nell. But this lone statement, in and of itself, casts no doubt
on premeditation or deliberation. Hyatt carried a knife while
making this statement. He also apparently raped Ms. McCon-
nell after making the statement and then murdered her some-
time after the rape, providing sufficient time to premeditate
and deliberate. Under these circumstances, we find that the
state court did not unreasonably apply federal law in finding
that the statement did not raise "some doubt" as to whether
Hyatt premeditated or deliberated.
VI.
For these reasons, the judgment of the district court is
AFFIRMED.