McLeod v. Peguese

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-6551

RICHARD L. MCLEOD,

Petitioner - Appellant,

v.

JAMES V. PEGUESE, Warden,

Respondent - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge.
(1:05-cv-01589-AMD)

Argued: October 28, 2008 Decided: July 22, 2009

Before WILKINSON and AGEE, Circuit Judges, and John T.
COPENHAVER, Jr., United States District Judge for the Southern
District of West Virginia, sitting by designation.

Affirmed by unpublished opinion. Judge Copenhaver wrote the
opinion, in which Judge Wilkinson and Judge Agee joined.

ARGUED: Mitchell Scott Ettinger, SKADDEN, ARPS, SLATE, MEAGHER &
FLOM, L.L.P., Washington, D.C., for Appellant. Edward John
Kelley, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland, for Appellee. ON BRIEF: Douglas F. Gansler, Attorney
General of Maryland, Baltimore, Maryland for Appellee.

Unpublished opinions are not binding precedent in this circuit.
COPENHAVER, District Judge:

On October 27, 1992 a Maryland jury convicted Richard

Lawton McLeod of the murder of Jacqueline Roberson. He was

sentenced to life in prison without the possibility of parole.

The Court of Special Appeals of Maryland affirmed his conviction

on June 21, 1993, and his sentence on August 26, 1994. McLeod’s

petition for a writ of certiorari was denied by the Maryland

Court of Appeals on December 16, 1994. His petition for post-

conviction relief to the Circuit Court for Prince George’s

County, where he had been convicted, was denied on February 25,

1998; leave to appeal was also denied. On July 16, 2001 McLeod

filed a pro se petition under 28 U.S.C. § 2254 for a writ of

habeas corpus with the United States District Court for the

District of Maryland, which was denied as being time-barred.

Arguing that new evidence had been discovered that ought to

have been disclosed to him by the State under Brady v. Maryland,

373 U.S. 83 (1963), McLeod returned to the Circuit Court for

Prince George’s County and filed a motion to re-open his post-

conviction proceedings on April 22, 2003. Following a two-day

evidentiary hearing in January, 2004, that court issued a

statement of reasons, which included findings of fact, denying

the motion.

On June 1, 2005 this court granted McLeod’s motion for

authorization to file a second or successive § 2254 petition for

2
a writ of habeas corpus. See 28 U.S.C. § 2244(b)(3)(A).

Following a non-evidentiary hearing, the district court, on

March 30, 2007, dismissed the petition with prejudice. McLeod

v. Peguese, 482 F. Supp. 2d 658 (D. Md. 2007). The district

court did grant McLeod’s application for a certificate of

appealability. See 28 U.S.C. § 2253(c)(1)(A). This appeal

ensued.

Because McLeod has failed to meet the threshold requirement

of 28 U.S.C. § 2244(b)(2)(B)(ii), his successive § 2254 petition

must be dismissed. That is, McLeod has failed to show that the

facts underlying his due process Brady claim, if proven and

viewed in light of the evidence as a whole, would be sufficient

to establish by clear and convincing evidence that, but for

constitutional error, no reasonable factfinder would have found

him guilty of murder. See § 2244(b)(2)(B)(ii).

Proceeding nevertheless to the merits, as did the district

court, McLeod has not shown that the Circuit Court for Prince

George’s County made an objectively unreasonable determination

of the facts in light of all the evidence presented to it, or

that it unreasonably applied clearly established federal law as

determined by the Supreme Court of the United States. See §

2254(d).

We affirm.

3
 I.

Jacqueline Roberson, then twenty-eight years old, was last

seen waxing her car off to the side of Governor’s Bridge Road

near the entrance to Izaak Walton League Park in Bowie, Maryland

on August 10, 1987. Three days later Roberson’s nude body was

discovered in a wooded area approximately three hundred feet

from the road. Her body was found under leaves and branches,

face down, with her hands underneath her body and her legs

spread apart. Roberson’s clothing, consisting of a white

strapped t-shirt, a navy blue cut-off t-shirt and a pair of

light blue jeans which had been cut off and made into shorts,

were found next to her body. Her undergarments were found

beneath her. The cause of death was determined to be two stab

wounds to the abdomen, which had not been inflicted through the

clothing. There was no evidence of vaginal or anal penetration,

and an autopsy failed to reveal the presence of semen in or on

her person.

A red “WMZQ, Country FM” bandana and a knife were found at

or near the crime scene. Hair found on the bandana, which was

next to Roberson’s body, was determined to be that of a cat. No

fingerprints or blood residue were found on the knife, which was

discovered on the unpaved shoulder of Governor’s Bridge Road

approximately one-hundred and fifty feet east of the entrance to

Izaak Walton League Park. Six latent fingerprints were

4
discovered on Roberson’s car, none of which have been

identified.

On August 13, 1987, the same day Roberson’s body was

discovered, McLeod was arrested for the rape of fifteen year old

Lori Webb. Webb was raped in her home earlier that day, and at

the time of the rape was wearing a purple shirt and white shorts

with thin red stripes. McLeod subsequently pled guilty to

raping Webb and was sentenced to forty years in prison with

fifteen years suspended.

Detective Robert Edgar, and other members of the Prince

George’s County Police Department (“PGPD”), interviewed a number

of prospective witnesses and suspects in connection with the

Roberson murder between August 13, 1987 and February 1, 1988.

During this time, members of the PGPD interviewed Pamela Sue

Fike. Fike informed the PGPD that she was told by her brother,

Christopher Fike, that Harold Freese told him that “the

Saunders” were at Governor’s Bridge Road on August 10, 1987.

Pamela Fike’s brother also told her that he believed the

Saunders may have killed Roberson because “they are the type

that may do something like that.” Fike’s statement was

memorialized in an undated, but signed, witness statement.

On August 15, 1987, two days after McLeod’s arrest for the

rape of Webb, his mother, Barbara Bricker, found a pair of

shorts in McLeod’s room with a wax-like substance in the crotch

5
area. She immediately contacted the PGPD. Detective Edgar went

to Bricker’s home where he was given the shorts and other items

of McLeod’s clothing. At this point, McLeod became a suspect in

the Roberson murder.

Edgar first interviewed McLeod regarding Roberson’s murder

on February 1, 1988 at the Prince George’s County Detention

Center (“Detention Center”). During the interview, McLeod

denied any involvement in, or knowledge of, the murder and

provided a written statement. On that same day, and despite his

denials, McLeod was charged with the murder of Roberson and

related offenses. The following month, however, in March of

1988, the charges were nolle prossed.

Following withdrawal of the charges against McLeod, the

Roberson murder investigation remained at a standstill for more

than two years. At some point in 1991, Edgar decided to once

again actively pursue the case, enlisting the assistance of

Detective Douglas LaFoille to that end. During the summer of

1991, Edgar and LaFoille asked one of McLeod’s acquaintances to

send McLeod a letter designed to elicit an admission from McLeod

regarding his involvement in the Roberson murder. Upon receipt

of the letter, McLeod demanded that the letter’s true author

contact him.

During an October 2, 1991 interview conducted by Edgar and

LaFoille, McLeod again denied any involvement in the Roberson

6
murder. McLeod told the detectives that after being charged in

February of 1988, he was approached by a fellow inmate named

“Rick.” McLeod said that Rick, who was later determined to be

Richard Nelson, told him that he knew that McLeod had not

murdered Roberson and that he knew who did. At the time of the

interview, McLeod told the detectives that Nelson had provided

the name of Roberson’s killer, but McLeod could not recall the

name. Some 12 years later, however, during the circuit court’s

hearing in 2004 on McLeod’s motion to re-open the post-

conviction proceedings, McLeod testified that Nelson stated that

the murderer’s name was “Brian.” Nelson allegedly told McLeod

that Roberson was killed because she happened upon a drug deal

and was “in the wrong place at the wrong time.” McLeod informed

the detectives that Nelson had refused to speak with authorities

and would deny ever having discussed the murder. McLeod also

provided two written statements, one setting forth what he could

recall of his conversation with Nelson, and the other regarding

his whereabouts on the day of Roberson’s murder.

Nelson was known by the PGPD and the State’s Attorneys

Office to be a violent man with an extensive criminal history.

Following the 1991 interview with McLeod, the PGPD undertook

extensive efforts to locate him. At the time, the PGPD believed

Nelson was either a suspect, or a material witness, in the

Roberson murder. In furtherance of the effort to locate

7
Nelson, Edgar and LaFoille sought the assistance of state,

federal and international law enforcement agencies. The

detectives also contacted Nelson’s family members, friends and

acquaintances. In the fall of 1991, LaFoille was in contact

with Nelson’s ex-wife, Karen Clark. As will be seen, the extent

of the contacts, and the information exchanged between LaFoille

and Clark, are in sharp dispute. Ultimately, the efforts to

locate Nelson were to no avail. He was never found and his

whereabouts remain unknown.

In April of 1992, McLeod was indicted for Roberson’s

murder. Prior to trial, defense counsel moved to compel

discovery, complaining that the State had not complied with its

obligations under Brady. The trial court directed the State to

produce any witness statements arguably containing exculpatory

information. In an attempt to comply with the court’s

directive, the lead prosecutor, Laura Gwinn, sent defense

counsel a letter. The letter made no reference to Nelson’s ex-

wife, Karen Clark, and failed to disclose that the state

possessed Pamela Fike’s written statement regarding what she had

been told by her brother. The State did, however, provide the

defense with a list of prosecution witnesses containing eighty-

three names, including Fike’s. The defense attempted to locate

Fike, but was unable to do so.

8
 Beginning on October 21, 1992, McLeod was tried before a

jury for the murder of Roberson and carrying a dangerous weapon

openly with the intent to injure. The State presented evidence

that McLeod owned a bandana and a knife like those found at the

scene. The State also showed that McLeod lived in a home with

cats, which, according to the State, explained why cat hair was

found on the bandana. Members of McLeod’s family testified that

when they visited him at the Detention Center following his

arrest for the rape of Webb, they asked why he had been

arrested. According to McLeod’s step-father, William Bricker,

McLeod responded “rape, murder, something.” McLeod’s mother

testified that McLeod responded by asking “was it murder, was it

rape or what? He seemed very confused.” McLeod’s mother and

step-father testified further that when asked how he could rape

a fifteen year old, McLeod responded, “I thought she was older.”

When asked by his family to describe his victim’s clothing,

McLeod stated, according to his step-father, “[a] blue pullover

and blue shorts,” and according to his mother, “a pullover and

navy blue shorts.” The parties stipulated that Webb, who broke

down in front of the jury and could not complete her testimony,

would testify that she was raped in her home by McLeod on August

13, 1987, and would have identified her clothing. The clothing

Webb was wearing at the time of her rape was admitted into

evidence.

9
 The State offered, and the court admitted, the shorts

smudged with car wax recovered from McLeod’s room. The

Turtlewax® brand of car wax found on McLeod’s shorts was shown

to be the same brand of wax used by Roberson the day of her

murder. McLeod would typically wax his step-father’s racecar

once every two weeks, and the police recovered a container of

Turtlewax® from McLeod’s home. There was a dispute as to the

last time McLeod waxed his own car, and washed his clothing,

prior to the murder. McLeod’s mother testified that she

believed McLeod had waxed his car on August 7, 1987. The State

also offered evidence that McLeod gave his step-father

conflicting alibis regarding his whereabouts the night of

Roberson’s murder.

The State argued that McLeod may not have acted alone in

murdering Roberson. At trial, the defense specifically

referenced other possible suspects, namely, Brian Rose and Wayne

Hurley. Upon being called by the defense, Rose invoked his

Fifth Amendment rights and refused to answer any questions. In

closing, the State made reference to the defense’s claim that

Rose murdered Roberson, stating “[w]e heard a lot about Brian

Rose. . . . We heard that he has a red and white striped

bandana. We heard from his mom that he had a cat.” Based on

the forgoing, the State argued that the defendant had not

offered a reasonable hypothesis of innocence, and that based on

10
all the evidence, which cumulatively tended to show that McLeod

was involved in Roberson’s murder, he should be found guilty.

The defense argued, among other things, that in light of

the State’s theory that McLeod may not have been the one

wielding the knife, and because the evidence did not suggest

that Roberson was killed during the course of an attempted rape,

McLeod was not guilty of felony murder. The defense also argued

that other people were seen near the crime scene with red WMQZ

bandanas, and that the evidence implicated Rose to the same

extent as McLeod. In sum, the defense argued that the State had

not met its burden of proof. On October 27, 1992, the jury

convicted McLeod of first degree felony murder and carrying a

dangerous weapon openly with intent to injure. McLeod’s

requests for post conviction relief on the murder charge failed.

In March of 2001, nine years after his conviction, McLeod

requested that the red bandana and cat hairs recovered from the

scene be tested for DNA. The State, however, had destroyed

those items, McLeod’s shorts, Roberson’s clothing, and the

latent fingerprints taken from Roberson’s car.

II.

According to Karen Clark, she and Detective LaFoille were

in contact on numerous occasions in the fall of 1991. Clark

maintains that over the course of these contacts she informed

11
LaFoille of the following, which constitutes the core of the

Brady claim: Nelson was a violent drug addict; during the summer

of 1987 Nelson gave their son Richard Nelson III a red WMZQ

bandana and Nelson owned a matching bandana; at some point

during the summer of 1987 Nelson demanded the return of their

son’s bandana; 1 Nelson was adamant that the bandana be returned

but would not tell Clark why; during the summer of 1987 she met

with Nelson and gave him the son’s bandana; Nelson carried

knives and his favorite knife was wooden handled with brass

fittings, similar to the one found on the shoulder of Governor’s

Bridge Road not far from where Roberson’s body was discovered;

when she saw Nelson during the summer of 1987 she noticed that

he had a new knife and upon inquiry Nelson told her that he had

lost his favorite knife; and that Nelson had told her, before

they married in 1983, that he was present when a young woman

named Donna Dustin was murdered on November 17, 1973 in Anne

Arundel County. According to Clark, Nelson stated that Dustin’s

head had been slammed into the bumper of a car and that his

knife was used during the assault. Dustin’s body was found

1
Nelson was in a relationship and had a child with a woman
named Virginia Acree who testified to the circuit court on
January 13, 2004 that during the summer of 1987, Nelson
occasionally stayed with her at her apartment in Frederick,
Maryland.

12
approximately three miles from the spot where Roberson’s body

was found.

On August 16, 2002, Clark wrote to McLeod in prison

requesting the name and contact information of his attorney.

McLeod complied with her request and on August 23, 2002 Clark

met with McLeod’s counsel, Mitchell Ettinger. In addition to

the information allegedly provided to Detective LaFoille, Clark

told McLeod’s attorney that Nelson frequented Rips, a restaurant

where Roberson worked during the summer. Clark also stated that

Nelson was associated with Neil Vaughn, one of three individuals

who acknowledged being near the crime scene the day of

Roberson’s murder. Clark further informed counsel that during

the summer of 1987, Nelson lived with his then girlfriend

Virginia Acree and that Clark had received items from Nelson

that summer with cat hair on them. Clark provided a business

card containing the notation, “Hyattsville Chapter Izaak Walton

League.” The business card was allegedly from Nelson’s

briefcase, and the notation allegedly in Nelson’s handwriting.

Finally, Clark told counsel not only of the Donna Dustin murder,

but also that in the fall of 1980, prior to her 1983 marriage to

Nelson, he took her to a wooded area in Bowie, Maryland which he

referred to as his “shrine.” At the “shrine,” Nelson asked

Clark to lie on the ground and pose “in some particular

position.” Clark, who was under the impression Nelson wanted

13
her to pose in the nude, refused and walked away. Upon turning

to look back, Clark saw Nelson masturbating.

Following receipt of this information, McLeod’s attorney

contacted Acree who confirmed that Nelson stayed with her during

the summer of 1987. Acree stated that she owned a cat at the

time and that Nelson owned a number of bandanas, most of them

red. Acree also confirmed that Nelson was a violent man, and

that during the summer of 1987, he frequently used drugs.

As a result of this new information, on April 22, 2003

McLeod filed a motion in the Circuit Court for Prince George’s

County to re-open his post-conviction proceedings. The motion

requested that the court hold an evidentiary hearing regarding

alleged Brady violations. McLeod argued that the State failed

to disclose favorable and material information to the defense in

the form of Clark’s statements to Detective LaFoille. On

September 4, 2003 the circuit court scheduled an evidentiary

hearing. By order dated December 23, 2003, the court directed

the State and PGPD to produce all witness statements taken in

connection with the Roberson murder investigation. The only

statements produced were created on or before February 1, 1988.

The State confirmed that all evidence of the police

investigation and all prosecution files created after that date

had been lost or destroyed. The State did retain and produce

witness statements taken in connection with its initial 1987

14
investigation into the Roberson murder, including the statement

of Fike. Thus, in January of 2004, McLeod learned for the first

time of Pamela Fike’s statement that her brother had heard that

“the Saunders” were at Governor’s Bridge Road on August 10,

1987, and that her brother had speculated that “the Saunders”

may have been involved in Roberson’s murder because “they are

the type that may do something like that.”

In January of 2004 the circuit court held an evidentiary

hearing on McLeod’s motion to re-open the post-conviction

proceedings. The court heard testimony from, among others,

McLeod, Clark, Acree, Gwinn, Edgar and LaFoille. Testimony was

also received from the Chief Investigator of the Anne Arundel

County State’s Attorneys Office, David Cordle. In the course of

her continuing quest to learn of Nelson’s whereabouts, Clark

became aware that Cordle was interested in the 1973 murder of

Donna Dustin. Besides the Roberson murder, Clark believed

Nelson was involved in a number of other murders, and in late

1998 or early 1999 she had contacted Cordle to discuss the

murders of Dustin and a woman named Jeany Kline. Clark

contacted Cordle again in December of 2000, and on February 9,

2001 Cordle spoke with Detective LaFoille. At the hearing

numerous inconsistencies emerged regarding the content of the

conversations of each Clark and Cordle with LaFoille. See infra

pp. 29-34.

15
 In its July 11, 2004 statement of reasons, the circuit

court concluded that,

[w]hen examining the totality of the circumstances and
evidence presented at the hearing, as it relates to
the credibility of Karen Clark and Detective Douglas
LaFoille, the Court finds Detective LaFoille to be the
more credible witness. Consequently, the Court finds
further that no information linking Richard Nelson to
the murder of Jacqueline Roberson was provided by
Karen Clark to Detective LaFoille in the Fall of 1991
or at any time pertinent to the Defendant’s claim. . .
. [T]he Court finds that the statement of Pamela Sue
Fike, although arguably favorable, was not provided to
the defense. As to its materiality, however, it is
non-existent and the Court so finds.

State v. McLeod, No. CT92-0611X, slip op. at 25 (Md. Cir. Ct.

Prince George’s County June 11, 2004).

In the second § 2254 petition heard by the district court,

McLeod contends that the circuit court unreasonably concluded

that the State did not withhold exculpatory information in the

form of Clark’s statements to Detective LaFoille and erred as a

matter of law in finding Fike’s statement to be immaterial. On

March 30, 2007, following a non-evidentiary hearing, the

district court dismissed McLeod’s petition by memorandum

opinion. McLeod, 482 F. Supp. 2d 658.

III.

We review the district court’s dismissal of McLeod’s

petition for a writ of habeas corpus de novo. See McNeil v.

Polk, 476 F.3d 206, 210 (4th Cir. 2007); Buckner v. Polk, 453

16
F.3d 195, 198 (4th Cir. 2006); see also LeFevers v. Gibson, 238

F.3d 1263, 1266 (10th Cir. 2001).

A.

A successive habeas corpus petition such as McLeod’s cannot

be filed without first obtaining pre-filing authorization

(“PFA”) from the court of appeals. See 28 U.S.C. §

2244(b)(3)(A); In re Williams, 330 F.3d 277, 279 (4th Cir.

2003). In granting McLeod’s PFA motion, this court determined

that McLeod made a “prima facie showing” that the claims in his

petition satisfied the requirements of § 2244(b)(2)(B). See §

2244(b)(3)(C). In pertinent part, § 2244(b) provides,

(2) A claim presented in a second or successive habeas
corpus application under section 2254 that was not
presented in a prior application shall be dismissed
unless--

. . . .

(B)(i) the factual predicate for the claim
could not have been discovered previously
through the exercise of due diligence; and

(ii) the facts underlying the claim, if
proven and viewed in light of the evidence
as a whole, 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.

§ 2244(b)(2). In this circuit as in others, “prima facie

showing” is understood to mean, “a sufficient showing of

possible merit to warrant a fuller exploration by the district

17
court. . . . If in light of the documents submitted with the

[PFA motion] it appears reasonably likely that the [motion]

satisfies the stringent requirements for the filing of a second

or successive petition, we shall grant the [motion].” Williams,

330 F.3d at 281 (quoting Bennett v. United States, 119 F.3d 468,

469-70 (7th Cir. 1997)). The grant of a PFA motion, however, is

“tentative in the following sense: the district court must

dismiss the motion that we have allowed the applicant to file,

without reaching the merits of the motion, if the court finds

that the movant has not satisfied the requirements for the

filing of such a motion.” Bennett, 119 F.3d at 470 (citing §

2244(b)(4)).

Enacted as part of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), which “greatly restricts the

power of federal courts to award relief to state prisoners who

file second or successive habeas corpus applications,” §

2244(b)(2)(B) is “one of two narrow exceptions” to the rule that

a claim not presented in an earlier § 2254 petition must be

dismissed. 2 Tyler v. Cain, 533 U.S. 656, 661 (2001). The

district court held, and the parties do not dispute, that McLeod

could not have discovered Clark’s alleged communication with

2
The other narrow exception, found in § 2244(b)(2)(A) for
certain claims based on new rules of constitutional law, does
not apply here.

18
Detective LaFoille prior to August of 2002. Similarly, McLeod

had no means of discovering the existence of Fike’s written

statement prior to January of 2004 when it was produced by the

State. The district court, therefore, correctly found that “the

factual predicate for the claim could not have been discovered

previously through the exercise of due diligence.” §

2244(b)(2)(B)(i).

In order to “squeeze through the narrow gateway” created by

§ 2244(b)(2)(B), Felder v. McVicar, 113 F.3d 696, 698 (7th Cir.

1997), McLeod was also required to prove to the district court

that “the facts underlying the claim, if proven and viewed in

light of the evidence as a whole, 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.” §

2244(b)(2)(B)(ii). If McLeod failed to make such a showing, the

district court was obliged to dismiss the petition without

reaching the merits. Section 2244(b)(4) directs that “[a]

district court shall dismiss any claim presented in a second or

successive application that the court of appeals has authorized

to be filed unless the applicant shows that the claim satisfies

the requirements of this section.” See United States v.

Winestock, 340 F.3d 200, 205 (4th Cir. 2003) (“When the

application is thereafter submitted to the district court, that

19
court must examine each claim and dismiss those that are barred

under § 2244(b) . . . .”). Respect for the finality of criminal

judgments provides the impetus for the heavy burden placed on

successive § 2254 petitioners by § 2244(b)(2)(b)(ii). See

Calderon v. Thompson, 523 U.S. 538, 558 (1998) (“Section 2244(b)

. . . is grounded in respect for the finality of criminal

judgments.”). While noting this requirement, the district court

proceeded to the merits of McLeod’s petition without applying §

2244(b)(2)(B)(ii) to the underlying facts.

Under § 2244(b)(2)(B)(ii), a petitioner must not only show

that reasonable doubt exists in light of the new evidence, but

that no reasonable juror would have found him guilty beyond a

reasonable doubt. Thus, the question initially to be resolved

is, assuming the information allegedly disclosed by Clark to

LaFoille had been turned over to the defense, and Fike’s

statement was also disclosed, whether this new evidence, viewed

in conjunction with all the evidence, clearly and convincingly

establishes that no reasonable fact finder would have found

McLeod guilty.

In an attempt to shoulder his heavy burden and satisfy §

2244(b)(2)(B)(ii), McLeod characterizes the State’s case at

trial as extremely weak and entirely circumstantial. He first

points to the fact that the initial charges against him were

nolle prossed, and contends that the evidence that was deemed

20
insufficient when the initial charges were dropped in February

of 1988, was the same evidence relied upon when he was indicted

in April of 1992. McLeod also argues that the primary evidence

relied upon by the State to tie him to Roberson’s murder was the

red bandana with cat hair on it, and the knife. According to

McLeod, the defense, through Clark, would have established the

following, taken verbatim from McLeod’s brief:

• During the summer 1987, Nelson possessed two red
WMZQ bandanas, one that he wore and one that he gave
to his and Clark's minor son.

• During the summer 1987, Nelson demanded that Clark
take the WMZQ red bandana from her son and return it
to Nelson, and that Clark complied.

• Nelson possessed and wore on his belt a wood-handled
knife with brass fittings on each end, matching
exactly the description of the knife found at or near
the crime scene.

• During the summer 1987, Clark noticed that Nelson
had a new knife and when she inquired what happened to
old knife, he told her that he had “lost it.”

• During the summer 1987, Nelson lived with a woman
named Virginia Acree, who has confirmed that she lived
with Nelson and that she owned a cat having the same
color fur as the cat hairs found on the red WMZQ
bandana. Acree also confirms that Nelson regularly
wore red bandanas.

• Nelson had a long history of violence, particularly
toward women, and during the summer 1987 was heavily
using drugs.

• Nelson took Clark to a wooded area in Bowie,
Maryland, which Nelson call his “shrine,” and asked
her to lie on the ground naked while he masturbated.
This sexual practice is consistent with the crime
scene evidence presented by the State, namely that
Roberson disrobed before being stabbed, that her

21
 clothes were found folded underneath her body, and
that there was no evidence of physical rape trauma or
the presence of seminal fluid on or in the victim.

• The wooded area Nelson referred to as his “shrine”
is within three miles of where Roberson was murdered
and is the very location where Dustin's nude and
beaten body was found in 1973. Nelson admitted to
Clark to having “wailed on” Dustin with a knife and
accurately described injuries to Dustin that were
never released to the public.

• Nelson frequented a restaurant in Bowie, Maryland
known as Rips and was known to spend a considerable
amount of time there. Roberson, a school teacher,
worked at Rips during the summer months as a waitress,
thus providing a possible social nexus that never
existed between the victim and any putative suspect,
including McLeod.

• Nelson was a friend to Neil Vaughn, who acknowledged
to police that he was in Izaac Walton Park on the day
that Roberson was murdered.

• Nelson possessed a business card on which he wrote
the name of the park where Roberson was last seen
waxing her car.

(McLeod’s Opening Br. at 29-30) (emphasis in original). McLeod

contends that had he been advised of the statements Clark says

she made to LaFoille, the defense would have been able to “train

the beacon directed at McLeod upon Nelson” who McLeod claims is

the more likely perpetrator of Roberson’s murder. (McLeod’s

Reply Br. at 9).

The State argues that even assuming McLeod’s factual

allegations are true, they do not satisfy § 2244(b)(2)(B)(ii).

While admitting that a red bandana with cat hair, and a knife,

were part of the State’s case at trial, the State argues that

22
other evidence clearly implicated McLeod in Roberson’s murder.

That evidence being: when asked by his family the reason for his

arrest following the Webb rape, McLeod replied that it was

either rape or murder; Roberson was 28 years old when she was

murdered, Webb was 15 at the time of her rape, and when informed

of Webb’s age following his arrest for her rape, McLeod

responded by saying he thought she was older; when asked by his

family to describe his victim’s clothing, McLeod’s description

matched Roberson’s blue clothing, not Webb’s purple and white

clothing; McLeod was placed in the vicinity of the murder the

day it was committed by the pair of shorts smudged with the same

brand of wax Roberson used to wax her car; and McLeod gave

conflicting alibis to his step-father. (State’s Resp. Br. at

22-24). In reply, McLeod notes that he waxed his step-father’s

race car frequently, and that none of the fingerprints on

Roberson’s car were his. He points out that the allegedly

conflicting alibis were regarding his whereabouts the evening of

August 10, 1987, while Roberson was murdered in the afternoon.

McLeod characterizes his statement that he thought his victim

was older as unremarkable and defensive.

With respect to his victim’s clothing, McLeod contends that

the record does not support the inference the State sought to

draw at trial. Yet, the evidence was as follows. The day of

her rape, Webb was wearing a purple shirt and white shorts with

23
thin red stripes. An evidence technician testified that at the

time of her murder, Roberson was wearing a navy-blue t-shirt

with the sleeves cut off, a white strapped t-shirt and a “pair

of light blue jeans.” (J.A. at 190-91). McLeod’s mother

testified that McLeod indicated his victim was wearing “a

pullover and navy blue shorts.” (J.A. at 119). McLeod’s step-

father testified that McLeod “mentioned blue. A blue outfit,”

and upon further questioning stated a “blue pullover and blue

shorts.” (J.A. at 98-99). While not an exact description of

Roberson’s clothing, McLeod’s response is more likely a

description of Roberson’s predominantly blue outfit as opposed

to Webb’s outfit of purple and white.

McLeod attempts to diminish the incriminating force of his

uncertainty regarding whether he had been arrested for rape or

murder by noting that his mother testified he appeared

disoriented at the Detention Center. Having been asked whether

she visited McLeod at the Detention Center following his August

13, 1987 arrest, Mrs. Bricker testified: “We did. And there was

a lot of confusion during that time.” (J.A. at 117). She also

testified that when McLeod was asked what he had been arrested

for, McLeod “asked was it murder, was it rape or what? He

seemed very confused.” (J.A. at 118). McLeod, though, was not

a suspect in the Roberson murder until August 15, 1987, when his

mother provided Detective Edgar with his wax smudged shorts.

24
McLeod’s being “confused” does not explain away the

incriminating fact that he included murder, along with rape, as

a possible reason for what was his rape arrest.

The only mention of the effect of Fike’s statement on the §

2244(b)(2)(B)(ii) inquiry is the State’s contention that its

limited evidentiary value is self-evident. Fike’s statement

regarding what her brother told her, which was what someone else

told him –- namely, that the Saunders were at Governor’s Bridge

Road on the date that Roberson was murdered -- is the epitome of

inadmissible hearsay. See Md. R. Evid. 5-802. McLeod has

offered no evidence that “the Saunders” were involved in the

Roberson murder, and the mere speculation of Fike’s brother that

the Saunders “are the type that may do something like that” is

sheer conjecture. The circuit court’s conclusion that the

materiality of Fike’s statement is “non-existent” is supported

by the fanciful nature of the statement. McLeod, No. CT92-

0611X, slip op. at 25.

Undoubtedly, accepting Clark’s assertions regarding what

she told Detective LaFoille in the fall of 1991 as true, and

assuming that the information had been turned over to the

defense, McLeod could have attempted to show that Nelson

murdered Roberson. That a jury would have been convinced that

Nelson was the perpetrator, and McLeod was not involved, is far

from a foregone conclusion. Even assuming Clark’s testimony was

25
believed, it would not negate the several incriminating

statements made by McLeod at the Detention Center. Still, a

reasonable juror may well have found that the evidence regarding

Nelson created enough doubt as to McLeod’s guilt to acquit him.

This, however, does not satisfy § 2244(b)(2)(B)(ii). McLeod’s

burden was to show, by clear and convincing evidence, that no

reasonable juror would have found him guilty; not merely that it

is conceivable that he could have been acquitted. The evidence

that would have been received at trial as a result of the

information Clark claims to have conveyed to LaFoille does

present an alternative theory of Roberson’s murder. Yet, as the

state has pointed out, it would not have rebutted or called into

question much of the State’s case against McLeod.

Even accepting as proven fact the evidence allegedly

provided by Clark, and that to which it leads, such evidence

would be insufficient, when viewed in light of the evidence as a

whole, to establish by clear and convincing evidence that no

reasonable juror would have found the defendant guilty. McLeod

thus failed to satisfy § 2244(b)(2)(B)(ii) and dismissal of his

petition was appropriate.

26
 IV.

Had McLeod’s petition satisfied § 2244(b)(2)(B)(ii),

dismissal was nevertheless appropriate on the merits. Under the

AEDPA,

(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment
of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
claim—

(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the
United States; or

(2) resulted in a decision that was based on
an unreasonable determination of the facts
in light of the evidence presented in the
State court proceeding.

28 U.S.C. § 2254(d).

A.

Turning first to § 2254(d)(2), McLeod contends that the

conclusion of the Circuit Court for Prince George’s County that

the State did not withhold evidence favorable to him, consisting

of Karen Clark’s alleged statements to Detective LaFoille, was

an objectively unreasonable determination of the facts. In

reaching its conclusion, the circuit court was presented with a

pure question of fact that centered primarily on whether Clark

or LaFoille was the more credible witness. If, consistent with

27
her testimony, Clark conveyed the information regarding Nelson

to LaFoille, the State likely violated McLeod’s due process

rights under Brady; if not, no Brady violation occurred. But

the question presented for review is a narrow one. It is

whether, applying the § 2254 framework, it was objectively

unreasonable for the circuit court to conclude that Clark did

not convey the information regarding Nelson to LaFoille in the

fall of 1991 and, as a consequence, to disregard Clark’s version

of events.

In the context of federal habeas challenges to state court

judgments, “a determination of a factual issue made by a State

court shall be presumed to be correct. The applicant shall have

the burden of rebutting the presumption of correctness by clear

and convincing evidence.” § 2254(e)(1). See Cagle v. Branker,

520 F.3d 320, 323 (4th Cir. 2008). Discussing federal court

collateral review of state court factual determinations under §

2254(d)(2), and noting federalism’s call for deference, the

Supreme Court in Miller-El v. Cockrell stated,

[f]actual determinations by state courts are presumed
correct absent clear and convincing evidence to the
contrary, § 2254(e)(1), and a decision adjudicated on
the merits in a state court and based on a factual
determination will not be overturned on factual
grounds unless objectively unreasonable in light of
the evidence presented in the state-court proceeding,
§ 2254(d)(2).

28
537 U.S. 322, 340 (2003). Deference, however, does not imply

abandonment or abdication of judicial review and does not by

definition preclude relief. Id. (“A federal court can disagree

with a state court's credibility determination and, when guided

by AEDPA, conclude the decision was unreasonable or that the

factual premise was incorrect by clear and convincing

evidence.”).

At the circuit court’s hearing on McLeod’s motion to re-

open the post-conviction proceedings, LaFoille testified that

“everything and anything” was done to locate Nelson in the fall

of 1991. (J.A. at 1041). LaFoille also testified that he did

not recall meeting Clark. Clark, however, saved two message

slips, dated October 14th and 22nd of 1991, both evidencing

LaFoille’s attempts to contact Clark. One of the message slips

contains LaFoille’s contact information, which he testified was

both accurate and in his handwriting. It is undisputed,

therefore, that some interaction between Clark and LaFoille

occurred. McLeod argues that the circuit court’s conclusion was

unreasonable because there was no conflict between Clark’s

testimony that she provided LaFoille with the information

regarding Nelson, and LaFoille’s testimony that he did not

recall meeting Clark. But simply because Clark claims to have

told LaFoille certain information, which he does not recall

receiving, does not mean that Clark in fact conveyed the

29
information. It is just as likely, as the circuit court found,

that LaFoille does not remember receiving the information

because Clark never conveyed it to him. Indeed, if Clark did

not in the fall of 1991 inform LaFoille of the bandanas and

knives that she connects in a variety of ways to Nelson, it

makes sense that Detective LaFoille would not, twelve years

later, recall meeting her.

In late 1998 or early 1999, after seeing a reference to

Investigator Cordle’s investigation into the death of Donna

Dustin on the Bowie High School website, Clark called Cordle to

discuss the deaths of Dustin, and another murder victim, Jeany

Kline. During the call, Clark asked Cordle to describe the

cause of Kline’s death. Cordle, however, was not familiar with

the details of the Kline murder which had occurred outside his

jurisdiction. While nothing came of this initial call by Clark,

Cordle testified that Clark was interested in locating her ex-

husband, Nelson.

Clark contacted Cordle again on December 6, 2000.

According to Cordle’s testimony, during a December 7, 2000

meeting, Clark was once again interested in locating Nelson

because Clark believed Nelson had been involved in Dustin’s

murder and because “she wanted some resolution of what may have

happened to him.” (J.A. at 905). Following this December 7th

meeting, Cordle and Clark were in contact hundreds of times.

30
Throughout the course of their communications, Clark conveyed a

great deal of information pertaining to her belief that Nelson

was involved in a number of murders. 3 Some of the information

provided by Clark to Cordle implicated Nelson in certain murders

in the Bowie, Maryland area, particularly Dustin’s. Regarding

Nelson’s involvement in the Roberson murder, Cordle testified,

“I don’t recall her saying that he admitted to being involved.”

(J.A. at 910).

At some point between December of 2000 and February of 2001

Clark told Cordle that in October of 1991 LaFoille attempted to

contact her seeking to locate Nelson. However, despite Cordle’s

testimony that Clark was very open and detail oriented in

discussing her attempts to locate Nelson and determine his

involvement in the various murders, Cordle never testified that

Clark told him that she provided LaFoille any information

regarding Nelson’s involvement in the Roberson murder.

At Clark’s behest, Cordle called LaFoille at his home in

Michigan on February 9, 2001. According to Cordle, during their

3
In addition to her effort to link Nelson to the Roberson
murder, Clark attempted to link him to the murders of Dustin,
Kline, and Tom King, a man who in Clark’s words was “an
associate of Rick’s [Nelson] that went missing.” (J.A. at 961).
Clark also contacted the police in an attempt to establish
Nelson’s role in the death of several people she claims Nelson
mentioned were buried on a farm in Mitchville, Maryland. The
farm was searched, but no bodies were discovered.

31
conversation, LaFoille “stated that when he retired he may have

taken a couple of boxes [of notes] and some personal records

with him when he moved out to the Midwest.” (J.A. at 879).

During cross-examination, LaFoille testified that he made no

such assertion and that his reference to files during the

conversation was to files in Maryland. Cordle’s notes of the

February 9th conversation read, “JW [Jimmy Weidemeyer] was very

tight with Nelson.” (J.A. at 1299). 4 LaFoille denied making

such a statement. There were other contacts, or attempted

contacts, between Cordle and LaFoille, but their extent and

existence are disputed. Cordle testified that LaFoille did not

return two of his phone calls, made in March and April of 2001,

and further that he spoke with LaFoille at some point between

February and April of 2001, but made no record of the

conversation because LaFoille informed him that he was too busy

to search for records regarding Nelson. LaFoille, however,

testified that he returned all of Cordle’s phone calls.

Ultimately, the circuit court conceded that it was “perplexed by

the discrepancies between the testimony of Detective LaFoille

and that of Investigator Cordle.” McLeod, No. CT92-0611X, slip

op. at 24.

4
Jimmy Weidemeyer was a suspect in the Dustin murder.

32
 McLeod maintains that the inconsistencies between

LaFoille’s testimony and that of Cordle, and other witnesses,

rendered all of LaFoille’s testimony unreliable. While there

were discrepancies between the testimony of LaFoille and Cordle,

these discrepancies do not render unreliable that which LaFoille

said. Even if LaFoille told Cordle that he “may” have documents

pertaining to the Roberson case, this does not mean that he did

have them. Indeed, Cordle’s notes of the February 9, 2001

conversation, upon which McLeod relies in arguing that Cordle,

not LaFoille, accurately testified to the content of that

conversation, make no reference to LaFoille’s possession of

notes or files. Further, as found by the circuit court,

LaFoille’s testimony was bolstered by the testimony of Detective

Edgar and Gwinn:

Detective Robert Edgar, to whom Detective
LaFoille reported, testified that he never heard of
Karen Clark before the matter herein was filed. As the
lead investigator, he was also actively involved in
the search for Richard Nelson, and in the course of
his interviews with Mr. Nelson's acquaintances and
family members, no one directed him to, or even
mentioned, Karen Clark. Similarly, Assistant State's
Attorney Laura Gwinn had not heard of Karen Clark
prior to the filing of this Motion.

McLeod, No. CT92-0611X, slip op. at 20-21 (internal citation

omitted). Finally, while any discrepancies between the

testimony of Cordle and LaFoille may bear on LaFoille’s

credibility, his credibility alone is not dispositive of whether

33
Clark, in fact, conveyed the information regarding Nelson to him

in the fall of 1991.

After hearing Clark’s testimony, in its statement of

reasons, the circuit court found that,

From her testimony, it is clear to this Court
that Ms. Clark is fixated on her former husband, his
whereabouts, and his actions over approximately the
past twenty-five years. Ms. Clark’s continued focus
on Mr. Nelson, whom she has admittedly not seen since
1989, seems to have emerged with single-minded
determination in 1998 when she initially contacted
Investigator Cordle, some seven years after her
alleged conversations with Detective LaFoille.

McLeod, No. CT92-0611X, slip op. at 18. One need only look to

Clark’s testimony to see the reasonableness of the circuit

court’s finding. Clark’s description of Nelson’s courtship of

her is of interest. She testified that prior to their marriage,

though the two never dated, Nelson stalked and beat her.

According to Clark, the reason she married and subsequently had

a child with Nelson was because “[h]e threatened to murder my

family if I didn’t.” (J.A. at 959). Yet, despite this

brutality, Clark repeatedly testified to her desire to locate

Nelson.

Clark testified that after LaFoille contacted her in the

fall of 1991, she met with him on three occasions and spoke with

him on the telephone several times. According to Clark, the

first face-to-face meeting occurred when LaFoille came to

Clark’s place of work, the McEldon Library at the University of

34
Maryland, and the two spoke for two hours. It is during this

time that Clark claims to have informed LaFoille of much of the

evidence McLeod contends implicates Nelson in the Roberson

murder. Clark submitted an affidavit stating, and she testified

that, in October of 1991 she accompanied LaFoille to the police

station to look at photographs. During the third alleged

meeting, Clark claims to have provided LaFoille with Nelson’s

address book, which she obtained in 1987. According to Clark,

the address book was never returned.

Despite Clark’s testimony that she met with LaFoille on

three occasions, once for two hours, she could not recall his

height. (J.A. at 947). In a February 2001 email to LaFoille,

Clark wrote,

I don’t know if you remember me, but you came to see
me in College Park to ask some questions about my ex-
husband . . . which were somehow related to a case you
were investigating about a woman that was murdered at
Allen’s Pond. I don’t remember what year that was,
but Rick has been missing since Sept. 1989. I was
wondering if you ever managed to locate Rick, etc. I
also remember discussing with you his relationship to
some older members of the Pagan Motorcycle gang in
Bowie as well as some other issues.

(J.A. at 1129). McLeod argued to the circuit court that

LaFoille’s response to the email, “I remember a lot of what you

are talking about,” (id.), proves he remembered speaking with

Clark. As noted by the circuit court, however, LaFoille’s

response does not necessarily show he remembered meeting Clark.

35
In any event, acknowledging that Clark and LaFoille spoke to

each other at some point does not compel the conclusion that

Clark disclosed the information regarding Nelson as she now

claims.

Of all of Clark’s assertions, perhaps the most notable is

her belated description of Nelson’s behavior at what he referred

to as “the shrine.” While the shrine was purportedly in

relation to the murder of Dustin, not Roberson, Clark’s story is

consistent with the lack of semen in or on Roberson’s person,

and the fact she was not vaginally or anally penetrated. Yet,

despite her claim that she divulged a mass of information

regarding Nelson in the fall of 1991, Clark, by her own

admission, inexplicably neglected to inform LaFoille of what

occurred when she and Nelson visited the shrine in the fall of

1980. (J.A. at 938-39, 958). Clark’s first mention of the

shrine was to Cordle at some point after she contacted him a

second time on December 6, 2000. While Nelson’s alleged

behavior at the shrine is consistent with Roberson’s injuries,

Clark could have fabricated the story after learning the details

of Roberson’s murder through the media or other sources. It is

also possible that Nelson was somehow involved in the Roberson

murder. But inculpation of Nelson does not necessarily

exculpate McLeod. At trial the State argued that McLeod may not

have acted alone in murdering Roberson, and evidence of Nelson’s

36
involvement in the murder does not negate the other evidence

incriminating McLeod. Finally, on cross examination in 2004,

Clark suddenly recalled that,

[s]hortly before he [Nelson] went missing, my last
phone call with him was basically that he had
information about this [the Roberson] case. Although,
nothing specifically, he didn’t say the name.
Although he said a woman murdered in Bowie up by
Allen’s Pond and that people were going to try and
kill him because of what he knew.

(J.A. at 955). Yet, this critical, and damning, piece of

information was omitted from Clark’s affidavit, which was

executed over a year earlier on August 23, 2002, describing the

information she possessed implicating Nelson in the murders of

Dustin, Kline and Roberson.

Based on its conclusion that LaFoille, not Clark, was the

more credible witness, the circuit court found that McLeod

failed to demonstrate that the State withheld evidence favorable

to him in violation of Brady. Rejecting McLeod’s contention

that the circuit court’s finding was objectively unreasonable

under § 2254(d)(2) and (e)(1), the district court stated that,

this court is not persuaded that the state court's
findings, and in particular its determinations of
credibility of the witnesses, can be called
"unreasonable" by a "clear and convincing" standard in
light of the entirety of the evidence presented in
the state court proceedings. . . . As the fact finder,
the state court weighed the credibility of the
witnesses, and undertook to resolve the many conflicts
in the evidence. After considering all the testimonial
and documentary evidence presented, the state court
concluded that LaFoille's testimony, as supported by

37
 that of his supervisor Edgar, was more credible than,
and should be weighed more significantly than, that of
Clark.

McLeod, 482 F. Supp. 2d at 666.

Like the instant appeal, Cagle v. Branker involved review

of a district court’s dismissal of appellant’s § 2254 petition

challenging the credibility determination of a state court.

Affirming, this court stated,

for a federal habeas court to overturn a state court's
credibility judgments, the state court's error must be
stark and clear. Indeed, "federal habeas courts
[have] no license to redetermine credibility of
witnesses whose demeanor has been observed by the
state trial court, but not by them." Marshall v.
Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74
L.Ed.2d 646 (1983).

Cagle, 520 F.3d at 324 (internal citation omitted). While the

evidence does not compel the credibility determination reached

by the state court, it certainly provides a sufficient basis for

purposes of section 2254(d)(2) to support such a determination.

See Wilson v. Ozmint, 352 F.3d 847, 860 (4th Cir. 2003). The

circuit court witnessed first hand the testimony of Clark,

LaFoille, Cordle and the other witnesses and the circuit court’s

statement of reasons provides a thorough review of that

testimony. In deeming LaFoille the more credible witness, the

circuit court did not act unreasonably, let alone commit “stark

and clear error.” This being the case, the presumption of

correctness mandated by § 2254(e)(1) stands unrebutted. McLeod

38
has failed to show that the circuit court’s factual finding

resulted in a decision based on an unreasonable determination of

the facts in light of the evidence as required by § 2254(d)(2).

B.

With respect to § 2254(d)(1), McLeod argues that the

circuit court erred as a matter of law in finding Fike’s written

statement to be immaterial under Brady. See supra p. 25. As

this court has noted, § 2254(d)(1) “is quite deferential.”

Mosley v. Branker, 550 F.3d 312, 319 (4th Cir. 2008). To be

entitled to relief, a petitioner must show that “the state court

decision was either contrary to, or an unreasonable application

of, clearly established federal law as determined by the Supreme

Court.” Robinson v. Polk, 438 F.3d 350, 354-55 (4th Cir. 2006)

(citing § 2254(d)(1)). A decision is contrary to clearly

established federal law “if the state court arrives at a

conclusion opposite to that reached by th[e] [Supreme] Court on

a question of law or if the state court decides a case

differently than th[e] [Supreme] Court has on a set of

materially indistinguishable facts.” Williams v. Taylor, 529

U.S. 362, 413 (2000). A state court unreasonably applies

clearly established federal law if it “identifies the correct

governing legal principle from th[e] [Supreme] Court's decisions

but unreasonably applies that principle to the facts of the

39
prisoner's case.” Id. The circuit court committed no such

error here.

For purposes of Brady, evidence withheld by the state is

material “if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the

proceeding would have been different.” United States v. Bagley,

473 U.S. 667, 682 (1985). While finding the statement “at least

arguably favorable to the defense,” the circuit court determined

that “the justification for Ms. Fike’s brother’s suspicion,

that being ‘they are the type that may do something like that,’

strains the Court’s ability to conclude that such information

could reasonably be taken to put the whole case in a different

light as to undermine confidence in the verdict, and the Court

declines to do so.” McLeod, No. CT92-0611X, slip op. at 11-12.

Thus, after identifying the appropriate legal standard, the

circuit court concluded that Fike’s statement was not material.

The district court correctly found this conclusion not to be an

unreasonable application of federal law as determined by the

Supreme Court, and rightly left the decision of the circuit

court undisturbed.

40
 V.

McLeod’s second § 2254 petition was appropriately dismissed

because it failed to satiate the demanding threshold requirement

of § 2244(b)(2)(B)(ii). Even had § 2244(b)(2)(B)(ii) been met,

McLeod failed to show that the circuit court made an

unreasonable factual determination under § 2254(d)(2), or

unreasonably applied federal law under § 2254(d)(1).

Accordingly, the judgment below is

AFFIRMED.

41