Koon v. Rushton

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-7462

ROBERT HOLLAND KOON,

Petitioner - Appellant,

v.

COLIE RUSHTON, Warden of McCormick Correctional Institution;
HENRY DARGAN MCMASTER, Attorney General of the State of
South Carolina,

Respondents - Appellees.

Appeal from the United States District Court for the District of
South Carolina, at Anderson. R. Bryan Harwell, District Judge.
(8:05-cv-02523-RBH)

Argued: December 4, 2009 Decided: February 5, 2010

Before TRAXLER, Chief Judge, and AGEE and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Richard Donald Dietz, KILPATRICK STOCKTON, LLP, Winston-
Salem, North Carolina, for Appellant. William Edgar Salter,
III, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia,
South Carolina, for Appellees. ON BRIEF: Adam H. Charnes,
Dustin T. Greene, KILPATRICK STOCKTON, LLP, Winston-Salem, North
Carolina, for Appellant. Henry Dargan McMaster, Attorney
General, Donald J. Zelenka, Assistant Deputy Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia,
South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Robert Holland Koon (“Koon”) appeals the judgment of the

United States District Court for the District of South Carolina,

which dismissed his petition for a Writ of Habeas Corpus

(hereinafter “habeas petition”) pursuant to 28 U.S.C. § 2254.

Pursuant to 28 U.S.C. § 2253(c), this Court granted a

certificate of appealability as to three issues. For the

following reasons, we affirm the judgment of the district court.

I.

A. State Proceedings

In January 1997, the offices of the Cherokee County, South

Carolina Department of Probation, Pardon, and Parole Services

(“probation office”) were burglarized. Several offices were

ransacked and a number of items were stolen, including money, a

cellular telephone, badges, two sets of handcuffs, a two-way

radio, and a .357 revolver.

Several days later, police received a call reporting that a

man armed with a gun was beating on the door of the residence of

Jerry Sutherland (“Sutherland”). When the officers arrived,

Sutherland pointed to the back of the home and told them “he’s

back in the bedroom.” J.A. 97. Upon entering the bedroom,

officers found Koon hiding under the bed. After his arrest,

officers searched the area and found a .357 revolver located

3
under the same side of the bed where Koon had been found. The

revolver was the gun stolen from the probation office and Koon

was then charged with grand larceny and second degree burglary.

At his arraignment, Koon requested an attorney. However,

before an attorney was provided, officers questioned Koon about

the burglary and Koon led them to the location of other items

stolen from the probation office, including badges, telephones,

and the two-way radio. During trial, the court granted a motion

to suppress that evidence (hereinafter “suppressed evidence”),

holding that the “state has failed to . . . prove” that “the

defendant was [not] denied right to counsel.” J.A. 90.

During preparation for trial, Koon communicated with the

trial court on several occasions. On April 3, 1998, Koon sent a

letter to the court, stating that he was “informing the court I

am asserting my rights under Faretta v. California to represent

my-self, to insure [sic] that matters raised in this letter and

other matters are raised at my trial.” J.A. 65. The trial court

forwarded the letter to Koon’s counsel, with the following

instructions: “If there needs to be a hearing with Mr. Koon or

you just need to speak with Judge Hayes about this letter,

please don’t hesitate to call our office.” J.A. 74.

Koon wrote several more letters to the trial court

requesting that the court issue subpoenas, but contradicting his

initial correspondence stating that he “may” represent himself,

4
J.A. 70, 71, noting his “possible (pro se) representation,” J.A.

71, and signing the letters as a “Pro Se Defendant.” J.A. 70,

71, 76. In these letters, Koon also made several references to

“my attorney,” Mitch Slade (“Slade”), informing the court that

Slade “may supeano [sic] additional witnesses,” J.A. 73, that

the court send a copy of its response to Koon and to his

attorney, and directing the court to contact “my atty. Mitch

Slade.” J.A. 76. The court returned these letters to Koon,

directing him “to make this request to your attorney.” J.A. 70.

During trial, the State called Sutherland as a witness.

Sutherland testified that Koon came to his house on the day of

his arrest and showed him the stolen gun. Sutherland testified

that Koon left after showing him the gun and returned later

“beating on the door.” J.A. 172. At that point, Sutherland’s

step-son and/or his wife became frightened and called the

police. Sutherland testified that as officers arrived, Koon ran

into the woods. Sutherland and his wife later found Koon in a

back area of the home, at which point the officers returned and

found Koon.

During cross-examination, defense counsel questioned

Sutherland concerning his version of events, his relationship

with Koon, and his drinking habits. Sutherland testified that

he and Koon were friends and that he drinks everyday. Defense

counsel did not question Sutherland about or impeach his

5
credibility as to his two previous convictions of providing

false information to a law enforcement officer.

Regarding this decision, defense counsel later testified at

the state post-conviction hearing (“PCR hearing”) that “[w]hen

we first started working on this case, Mr. Koon thought that Mr.

Sutherland was gonna [sic] offer some testimony that would of

[sic] been helpful to him. I mean they were, they had been

friends for a long time. And he thought that he would be a . .

. more favorable witness.” J.A. 333. However, by the time the

trial arrived, Sutherland was “no longer allied with the

defendant,” J.A. 333, and counsel testified that “I think our

position, mine and Mr. Koon’s position . . . was that

[Sutherland] was just too drunk to remember what was going on.”

J.A. 334. Although he could not “recall specifically” why he

did not use Sutherland’s past convictions, J.A. 335, he

maintained that the defense’s goal was to show “that [Sutherland

and Koon] were friends and that he was a, a drunk or that he was

drunk . . . a lot of times when these events were going on.”

J.A. 336.

The defense called two witnesses at trial, who testified

that Koon was with them the evening of the burglary. Koon also

testified in his own defense and explained the presence of his

fingerprints on a ledger card in the probation office by

testifying that he looked at the card in the presence of

6
probation officers during a fee dispute prior to the burglary.

Koon explained his connection with the stolen gun by testifying

that a man named Charles Blackwell (“Blackwell”) had earlier

shown him the gun, Koon then drove Blackwell to Sutherland’s

home for the purpose of selling the gun, and that Sutherland

purchased the gun from Blackwell. On the day of his arrest,

Koon testified that he had been drinking with Sutherland, that

everything was “like a blur,” J.A. 227, and that he could not

remember why he was under the bed next to the stolen gun.

During cross-examination the State questioned Koon about

the suppressed evidence, asking whether he had ever seen the

stolen items and what he did with them. Defense counsel

objected to the line of questioning; however, the trial court

allowed the State to continue, finding that Koon had waived his

rights by taking the stand. Ultimately, Koon testified either

that he was not sure whether he had seen some of the items, or

denied seeing the suppressed evidence other than while in police

custody. The State never impeached Koon on the veracity of

these statements, nor did the State contradict Koon’s testimony.

Koon was convicted of burglary and grand larceny. He was

sentenced to life without parole for second degree burglary and

five years, consecutive, for grand larceny.

Koon appealed the trial court’s decision to the South

Carolina Court of Appeals, which affirmed the conviction. Koon

7
then filed a post-conviction relief (“PCR”) application with the

South Carolina Court of Common Pleas (“PCR court”), alleging

multiple errors and attesting that “he is being held in custody

unlawfully due to the ineffective assistance of counsel.” J.A.

351. The PCR court conducted a hearing and found that Koon

“failed to carry his burden of proof to show that his trial

counsel’s representation fell below reasonable professional

norms or that he was prejudiced by the alleged deficient

representation.” J.A. 367.

Koon then petitioned for Writ of Certiorari to the Supreme

Court of South Carolina, which was denied on its merits. Koon’s

motion for reconsideration/rehearing en banc was denied.

B. Habeas Proceedings

In 2005, Koon filed a habeas petition in the district

court. The petition listed numerous issues, including those

raised here, as well as various other claims of trial error and

ineffective assistance of counsel. In response, the State filed

a motion for summary judgment and Koon filed a response in

opposition.

The magistrate judge recommended granting summary judgment

to the State and dismissing all claims except Claim 7: “whether

[the state] court’s summary conclusion that [Koon] was not

prejudiced by the failure to impeach Sutherland was an

8
unreasonable application of Strickland.” J.A. 505. The

magistrate judge found that defense counsel’s failure to impeach

Sutherland on his prior convictions fell below the applicable

reasonableness standard and that the error prejudiced Koon.

Thus, the magistrate judge found that “genuine issues of fact

remain as to whether the PCR court’s summary conclusion that the

petitioner was not prejudiced by the failure to impeach

Sutherland was an unreasonable application of Strickland.” J.A.

505.

After the parties filed timely objections to the

magistrate’s report, the district court adopted the report and

recommendation, except as to Claim 7. As to that issue, the

district court found that Koon “has not shown that his attorney

was ineffective under Strickland regarding the cross-examination

of Sutherland and there was not an unreasonable application of

federal law by the state court.” J.A. 564. In accordance with

these findings, the district court granted summary judgment to

the State on all issues and denied Koon’s habeas petition.

Koon timely appealed the district court’s order denying his

habeas petition. This Court has appellate jurisdiction pursuant

to 28 U.S.C. §§ 1291 and 2254 and granted a certificate of

appealability as to three issues: (1) whether Koon’s right to

self-representation was violated; (2) whether Koon’s counsel was

ineffective for failing to impeach Sutherland; and (3) whether

9
Koon was improperly questioned about the suppressed evidence

during cross-examination.

II.

The decision of a district court on a matter of habeas

corpus relief is reviewed de novo and under the standards set

forth in 28 U.S.C. § 2254. Bell v. Ozmint, 332 F.3d 229, 233

(4th Cir. 2003). Under the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), if the issue on appeal was

adjudicated in state court, as it was here, this Court

may award habeas corpus relief . . . only if the
adjudication “resulted in a decision that was contrary
to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States” or “resulted in a
decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.”

Cummings v. Polk, 475 F.3d 230, 237 (4th Cir. 2007) (quoting 28

U.S.C. § 2254(d)).

In Bell v. Cone, the Supreme Court held that a state

court’s decision is “contrary to” clearly established federal

law “if the state court applies a rule different from the

governing law set forth in our cases, or if it decides a case

differently than we have done on a set of materially

indistinguishable facts.” 535 U.S. 685, 694 (2002). A state

court’s decision is an “unreasonable application” of federal law

10
“if the state court correctly identifies the governing legal

principle from our decisions but unreasonably applies it to the

facts of the particular case.” Id. However, “it is not the

province of a federal habeas court to reexamine state-court

determinations on state-law questions.” Estelle v. McGuire, 502

U.S. 62, 67-68 (1991).

III.

A. Right to Self-Representation

Koon argues that that he made repeated requests to proceed

pro se to the trial court and that he never waived his right to

represent himself. Koon contends that the trial court violated

his Sixth Amendment rights by either ignoring or denying his

requests and by failing to conduct a hearing on the issue, which

he argues was required under Faretta v. California, 422 U.S. 806

(1975). Koon claims that, because a violation of the Sixth

Amendment is a structural error, it requires automatic reversal

of his convictions.

The PCR court considered this claim in the context of

whether Koon’s counsel was ineffective for failing to request a

Faretta hearing and held that Koon’s “testimony concerning his

desire to proceed pro se was not credible. [He] admitted at

trial that Mr. Slade represented him well.” J.A. 353. The

Supreme Court of South Carolina considered the same issue, as

11
well as whether the trial court violated Koon’s rights by

failing to conduct a Faretta inquiry sua sponte. The Supreme

Court of South Carolina noted that Koon’s “request to proceed

pro se was considered by this Court in its review of the

petition for a writ of certiorari, both in the context of

ineffective assistance of counsel and trial court error,” J.A.

465, and found that both arguments lacked merit.

In Faretta, the Supreme Court held that “a State may [not]

hale a person into its criminal courts and there force a lawyer

upon him, even when he insists that he wants to conduct his own

defense.” 422 U.S. at 807. This is because, “implicit . . . in

the Sixth Amendment’s guarantee of a right to the assistance of

counsel, is ‘the right of the accused personally to manage and

conduct his own defense in a criminal case.’” Id. at 817

(quoting United States v. Plattner, 330 F.2d 271, 274 (2d Cir.

1964)). Thus, “[u]nless the accused has acquiesced in . . .

representation, the defense presented is not the defense

guaranteed him by the Constitution, for, in a very real sense,

it is not his defense.” Id. at 821. Accordingly, a defendant’s

choice to proceed pro se “must be honored out of ‘that respect

for the individual which is the lifeblood of the law.’” Id. at

834 (quoting Illinois v. Allen, 397 U.S. 337, 350-51 (1970)

(Brennan, J., concurring)).

12
 The Faretta Court also cautioned that, because “[w]hen an

accused manages his own defense, he relinquishes . . . many of

the traditional benefits associated with the right to counsel .

. .[,] in order to represent himself, the accused must

‘knowingly and intelligently’ forgo those relinquished

benefits.” 1 Id. at 835. Thus, the right attaches when a

defendant “clearly and unequivocally declare[s] to the trial

judge that [the defendant] want[s] to represent himself and

d[oes] not want counsel.” Id. at 835.

Although Faretta recognized the importance of the right to

self-representation, “courts have assumed that the right to

self-representation and the right to representation by counsel,

while independent, are essentially inverse aspects of the Sixth

Amendment and thus that assertion of one constitutes a de facto

waiver of the other.” United States v. Singleton, 107 F.3d 1091,

1096 (4th Cir. 1997). Thus, “[a] trial court evaluating a

defendant’s request to represent himself must ‘traverse . . . a

1
Contrary to Koon’s assertions, Faretta does not require a
formal hearing. Instead, Faretta requires that a defendant
“should be made aware of the dangers and disadvantages of self-
representation, so that the record will establish that ‘he knows
what he is doing and his choice is made with eyes open.’”
Faretta, 422 U.S. at 835 (quoting Adams v. United States ex rel.
McCann, 317 U.S. 269, 279 (1942)). The Faretta Court “did not
lay down detailed guidelines concerning what tests or lines of
inquiry a trial judge is required to conduct to determine
whether the defendant’s decision was ‘knowing and intelligent.’”
United States v. Gallop, 838 F.2d 105, 109 (4th Cir. 1988).

13
thin line’ between improperly allowing the defendant to proceed

pro se, thereby violating his right to counsel, and improperly

having the defendant proceed with counsel, thereby violating his

right to self-representation.” Fields v. Murray, 49 F.3d 1024,

1029 (4th Cir. 1995) (en banc). Ultimately though, “[o]f the

two rights, . . . the right to counsel is preeminent and hence,

the default position.” Singleton, 107 F.3d at 1096; Tuitt v.

Fair, 822 F.2d 166, 174 (1st Cir. 1987) (“Where the two rights

are in collision, the nature of the two rights makes it

reasonable to favor the right to counsel . . . .”).

Thus, it follows that “[a] defendant can waive his Faretta

rights,” McKaskle v. Wiggins, 465 U.S. 168, 182 (1984), and

those rights may be more easily waived than the right to

counsel. See Singleton, 107 F.3d at 1096; Williams v. Bartlett,

44 F.3d 95, 100 (2d Cir. 1994) (“Once asserted, . . . the right

to self-representation may be waived through conduct indicating

that one is vacillating on the issue or has abandoned one’s

request altogether.”); Dorman v. Wainwright, 798 F.2d 1358,

1365-66 (11th Cir. 1986) (“[U]nlike other constitutional rights,

the right to be one’s own counsel can easily be overlooked or

waived if a defendant does not properly invoke the right or

inadvertently waives it through some procedural misstep.”);

Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982) (“A

waiver may be found if it reasonably appears to the court that

14
defendant has abandoned his initial request to represent

himself.”).

We find that Koon waived his right to self-representation

and thus the PCR court and the Supreme Court of South Carolina

did not decide contrary to, or unreasonably apply, Faretta and

McKaskle. 2 After his initial assertion of his Faretta rights,

Koon displayed equivocating, contradicting, and vacillating

behavior. He stated in a letter to the trial court that he

“may” represent himself, J.A. 70, 71, and noted his “possible

(pro se) representation.” J.A. 71 (emphasis added). Koon also

never stated while in front of the trial court that he wished to

proceed pro se, although he had multiple opportunities to do so.

Furthermore, in Koon’s letters to the court, he made

several references to “my attorney,” informing the court that

Slade “may supeano [sic] additional witnesses,” J.A. 73, that

the court send a copy of its response to himself and to his

attorney, and directing the court to contact “my atty. Mitch

Slade.” J.A. 76 (emphasis added). Clearly, Koon invited and

accepted the participation of Slade in his defense, and “[a]

2
Neither court cited Faretta or McKaskle. However, “to
avoid [the] pitfall of rendering decision[s] ‘contrary to’
federal law, [the] state court need not cite or even be aware of
relevant Supreme Court cases, ‘so long as neither the reasoning
nor the result of the state-court decision contradicts them.’”
Barbe v. McBride, 521 F.3d 443, 456 n. 19 (4th Cir. 2008)
(quoting Early v. Packer, 537 U.S. 3, 8 (2002)).

15
defendant’s invitation to counsel to participate in the trial

obliterates any claim that the participation in question

deprived the defendant of control over his own defense.”

McKaskle, 465 U.S. at 182. Thus, Koon’s “pro se efforts were

undermined primarily by his own, frequent changes of mind

regarding counsel’s role.” Id.

Consequently, the PCR court’s and the Supreme Court of

South Carolina’s decisions were not contrary to, or an

unreasonable applicable of, Supreme Court precedent under

Faretta or McKaskle.

B. Ineffective Assistance of Counsel Claim

Koon argues that defense counsel’s failure to impeach

Sutherland with evidence that he had twice been convicted of

giving false statements to the police was deficient performance

under Strickland v. Washington, 466 U.S. 668 (1984), which

worked to his prejudice. Koon contends that “there is no

evidence that trial counsel’s decision not to impeach Mr.

Sutherland was part of any trial strategy,” Appellant’s Br. 25,

and Sutherland’s testimony was “central to the prosecution’s

case.” Appellee’s Br. 24 (quotation omitted).

The PCR court considered the issue and held that “[t]rial

counsel testified at the PCR evidentiary hearing that the most

beneficial information that he got out on cross examination of

16
Southerland [sic] was that he was a chronic drunk and that his

memory was not reliable. Trial counsel’s testimony concerning

his strategy with regard to Southerland [sic] was credible.”

J.A. 362. The court, citing Strickland, found that “the

Applicant failed to carry his burden to show that trial

counsel’s representation fell below the standard of professional

reasonableness for a criminal defense attorney in this regard.”

Id. Furthermore, the court held that “the Applicant also failed

to carry his burden of proof to show a reasonable probability

that the outcome of the trial would have been different but for

trial counsel’s alleged deficient representation.” Id.

A petitioner asserting a claim for ineffective assistance

of counsel must satisfy two prongs. First, the petitioner “must

show that counsel’s performance was deficient.” Strickland, 466

U.S. at 687. Counsel’s performance is deficient if “counsel

made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.

Specifically, the petitioner must show that counsel’s

performance falls “below an objective standard of

reasonableness,” measured “under prevailing professional norms.”

Id. at 688. The defendant must also “overcome the presumption

that, under the circumstances, the challenged action might be

considered sound trial strategy.” Id. at 689 (internal

quotations omitted). Ultimately, “[j]udicial scrutiny of

17
counsel’s performance must be highly deferential,” and “a court

must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.”

Id.

Strickland’s second prong directs that “[a]n error by

counsel, even if professionally unreasonable, does not warrant

setting aside the judgment of a criminal proceeding if the error

had no effect on the judgment.” Id. at 691. Thus, “the

defendant must show that the deficient performance prejudiced

the defense.” Id. at 687. However, “[i]t is not enough for the

defendant to show that the errors had some conceivable effect on

the outcome of the proceeding.” Id. at 693. Instead, “[t]he

defendant must show that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694.

The PCR court’s conclusion that Koon failed to carry his

burden of showing that his counsel was ineffective was not

contrary to or an unreasonable application of Strickland. The

defense had the articulable strategy of showing that Sutherland

was a chronic drunk and thus his recollection of events was

unreliable. Pursuant to Strickland, it was not unreasonable for

the PCR court to find that counsel’s strategy was within “the

wide range of professionally competent assistance.” Strickland,

466 U.S. at 690.

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 Moreover, even if defense counsel’s performance fell below

the objective standard of reasonableness, Koon did not show that

there was a reasonable probability that, but for the deficiency,

the result of his trial would have been different. Although

Sutherland’s testimony was beneficial to the Government’s case,

it was not crucial. Koon had the gun in his constructive

possession when he was arrested, and his fingerprints were found

on a ledger card in the probation office. In addition, officers

testified that an eyewitness reported that he saw a man armed

with a gun pounding on Sutherland’s door, which was presumably

Koon. Consequently, it was not unreasonable for the PCR court

to find that Koon did not carry his burden as to the second

Strickland prong.

C. Use of Suppressed Evidence

During cross-examination, the State questioned Koon about

the suppressed evidence, asking him whether he had seen the

stolen address book, walkie-talkies, or handcuffs. Koon

responded that he had not, or could not remember whether he had.

During questioning, defense counsel objected to the use of the

suppressed evidence. The trial court found that the evidence

was admissible for impeachment purposes, and found that Koon had

“waived his right to remain silent. Once he takes the stand

[the State is] entitled to ask him everything that he knows.”

19
J.A. 283. Koon raised the issue again on appeal, but the South

Carolina Court of Appeals did not reach the issue of whether the

trial court erred. Instead, that court found that “any error in

the trial judge’s ruling is harmless” because “Koon was not

prejudiced by the latitude afforded the State’s cross-

examination because nothing incriminating resulted from it.”

J.A. 302.

Koon argues that “[a]lthough a defendant may be impeached

with excluded evidence if he testifies about that evidence

during his direct testimony, the Government may not ‘smuggle in’

tainted evidence by raising it for the first time on cross-

examination.” Appellant’s Br. 36-37. Koon contends that this

error was not harmless, because “this case turned on the

credibility of the witnesses” and “the prosecution’s use of the

excluded evidence plainly damaged Mr. Koon’s credibility to the

jury.” Appellant’s Br. 41.

Assuming, but not deciding, that the trial court correctly

applied South Carolina Rule of Evidence 611(b), 3 the South

3
Rule 611(b) differs from the federal rule. Consistent
with the federal rule, the Supreme Court in United States v.
Havens held that a “defendant’s statements made in response to
proper cross-examination reasonably suggested by the defendant’s
direct examination are subject to otherwise proper impeachment
by the government, albeit by evidence that has been illegally
obtained and that is inadmissible on the government’s direct
case, or otherwise, as substantive evidence of guilt.” 446 U.S.
620, 627-28 (1980) (emphasis added). However, the South
(Continued)
20
Carolina Court of Appeals’ decision was not unreasonable in any

case when it found that error, if it existed, did not prejudice

Koon. Counsel never contradicted Koon’s assertions that he had

only seen the evidence in photographs or not at all, nor did

counsel point out that Koon had known the location of these

items after the robbery. Koon never admitted in front of the

jury that he possessed the items at any time or that he knew the

location of the items, and the State did not contradict him.

Koon only admitted that he had seen the probation officer’s

address book when he was in the office to report or in

photographs after he was taken into custody, and that he could

not remember whether he had seen the specific badges and

handcuffs.

Furthermore, a “harmless-error standard applies in

determining whether habeas relief must be granted because of

constitutional error of the trial type.” Brecht v. Abrahamson,

507 U.S. 619, 638 (1993). The applicable test requires a

showing that “the error ‘had a substantial and injurious effect

or influence in determining the jury’s verdict.’” Id. at 637

(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

Carolina Rule directs that “[a] witness may be cross-examined on
any matter relevant to any issue in the case, including
credibility.” SCRE 611(b).

21
This Court has found that, “[i]n applying Brecht’s harmless

error analysis, we must grant a habeas petition if we are in

‘grave doubt’ as to the harmlessness of the error. ‘‘Grave

doubt’ exists when, in light of the entire record, the matter is

so evenly balanced that the court feels itself in ‘virtual

equipose’ regarding the error’s harmlessness.’” Richmond v.

Polk, 375 F.3d 309, 335 (4th Cir. 2004) (quoting Fullwood v.

Lee, 290 F.3d 663, 679 (4th Cir. 2002)) (internal citations

omitted). For the reasons detailed above, we find that any

error, if it exists, was harmless.

IV.

For the foregoing reasons, we conclude that the district

court did not err in denying Koon’s habeas petition.

Accordingly, the judgment of the district court is

AFFIRMED.

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