Underwood v. Harkleroad

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-6077

LAMONT CLAXTON UNDERWOOD,

Petitioner - Appellee,

v.

SID HARKLEROAD,

Respondent - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Graham C. Mullen,
Senior District Judge. (5:04-cv-00193-GCM)

Argued: September 21, 2010 Decided: January 12, 2011

Before TRAXLER, Chief Judge, HAMILTON, Senior Circuit Judge, and
Mark S. DAVIS, United States District Judge for the Eastern
District of Virginia, sitting by designation.

Reversed by unpublished per curiam opinion.

ARGUED: Clarence Joe DelForge, III, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellant. Milton Gordon
Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel Hill, North
Carolina, for Appellee. ON BRIEF: Roy Cooper, Attorney General
of the State of North Carolina, Raleigh, North Carolina, for
Appellant.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Following a jury trial, Lamont Claxton Underwood

(Underwood) of Salisbury, North Carolina was convicted in the

Superior Court, Watauga County, North Carolina of the

first-degree murder and first-degree kidnapping of a man who

dated his former fiancée. Underwood was sentenced to a term of

life imprisonment on the first-degree murder conviction and a

consecutive sentence of forty years on the first-degree

kidnapping conviction. After unsuccessfully challenging his

convictions on direct appeal and in state habeas proceedings,

Underwood filed an application for a writ of habeas corpus in

the United States District Court for the Western District of

North Carolina, pursuant to 28 U.S.C. § 2254. 1 On December 23,

2009, the district court granted Underwood a conditional writ of

habeas corpus, such that if the state court did not grant

Underwood a new trial within 180 days, Underwood had to be set

free. The State noted a timely appeal and moved for a stay of

the district court’s judgment in its entirety pending resolution

of this appeal. The district court granted the State’s motion

for a stay.

1
Underwood named Sidney Harkleroad, Administrator of the
Marion Correctional Institution in Marion, North Carolina, as
Respondent. For ease of reference, we refer to Respondent as
“the State” throughout this opinion.

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 For reasons that follow, we reverse the judgment of the

district court.

I

On January 30, 1996, a Watauga County, North Carolina grand

jury indicted Underwood for the first-degree kidnapping and

first-degree murder of Viktor Gunnarsson. Underwood pled not

guilty and proceeded to a jury trial, where he was represented

by attorneys Bruce Kaplan (Defense Counsel Kaplan) and Chester

Whittle, Jr. (Defense Counsel Whittle). 2

The State’s theory of the case was that Underwood, a former

law enforcement officer, was a jealous, jilted lover, who killed

Gunnarsson because he saw him as a romantic rival for the

affections of Kay Weden (Weden), Underwood’s former fiancée.

Underwood, Weden, and Gunnarsson all lived in Salisbury, North

Carolina. 3 The State theorized that Underwood had refused to

accept Weden’s decision to break up with him; that he had

stalked, spied on, and harassed Weden and her teenage son Jason

Weden; that Gunnarsson had begun to date Weden shortly before

his murder; and that, upon learning that Weden was dating

2
At times, for ease of reference, when referring to Defense
Counsel Kaplan and Defense Counsel Whittle collectively, we will
refer to them as “Defense Counsel.”
3
Salisbury is in Rowan County.

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Gunnarsson, Underwood kidnapped Gunnarsson from his apartment,

took him in the trunk of his 1979 Monte Carlo to a secluded area

approximately 109 miles away along the Blue Ridge Parkway in

Watauga County, where Underwood shot and killed Gunnarsson with

a .22 caliber rifle. In addition, the State theorized that

approximately three days later, Underwood also shot and killed

Weden’s mother, Catherine Miller (Miller), also of Salisbury,

because Miller had not been supportive of Weden’s relationship

with him. The indictment, however, only pertained to the first-

degree kidnapping and first-degree murder of Gunnarsson.

The North Carolina Court of Appeals summarized the evidence

from Underwood’s jury trial as follows:

The State’s evidence at trial tended to show that
on 7 January 1994, the body of Viktor Gunnarsson
(“Gunnarsson”) was found near Deep Gap, North Carolina
by a North Carolina Department of Transportation
employee. The body was located about 300 feet from a
ramp to the Blue Ridge Parkway in Watauga County.
Gunnarsson had been dead for weeks and the cause of
death, as determined by the Chief Medical Examiner,
was a gunshot wound to the head. Two .22 caliber
bullets were removed from Gunnarsson’s head and the
contents of his stomach revealed partially digested
potatoes, suggesting that he died within [four to
five] hours of eating. Gunnarsson had not been seen
since 3 December 1993, when he had dinner with Kay
Weden (“Weden”), a former girlfriend of defendant. As
a part of Gunnarsson’s dinner he had eaten potatoes.

Weden had ended a relationship with defendant in
December of 1993. During her relationship with
defendant, she received several anonymous threatening
letters. One such letter stated that a .22 caliber
bullet had been fired into her house. A deputy

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sheriff later found a .22 caliber bullet lodged in the
exterior of her home near her son’s bedroom.

Defendant was employed in December of 1993 at
Salisbury High School as a Salisbury police officer.
An examination of the typewriters at the school
revealed that the same typewriter ribbon had been used
to type Weden’s address and a letter that had been
sent to her.

Defendant possessed a .22 caliber pistol and
rifle, and was issued a Colt .38 revolver while
serving as deputy sheriff in Lincoln County. The
inventory records at the Lincoln Police Department
showed that the gun had been turned in but the actual
weapon was never located. Several witnesses testified
that they had seen defendant in possession of a .38
caliber weapon just prior to the December murders.

On the night of 3 December 1993, Gunnarsson’s car
was parked at the Weden residence. Defendant drove by
Weden’s house and saw Gunnarsson’s car. Shirley
Scott, a woman in the car with defendant, testified
that they drove by Weden’s house twice that night.
Jason Weden, Weden’s son, testified that he saw
defendant drive by the house around 11:00 p.m.
Defendant called his friend, Rick Hillard, at 11:30
p.m. and gave him a license plate number and asked him
to perform a check on the license plate number.
Defendant received a call shortly thereafter during
which Scott heard Hillard say, “Viktor Gunnarsson.”
The license plate number was for a vehicle registered
to Gunnarsson. His address was listed in the
Salisbury phone directory.

In December 1993 or January 1994, defendant took
his 1979 Monte Carlo to a car wash and had it
thoroughly cleaned, including having the trunk carpet
shampooed. When police searched the car on 1 February
1994, scratches were observed inside the trunk
compartment and a mark that resembled a footprint was
seen on the underside of the trunk lid. The trunk mat
was removed from the car. Mitochondrial DNA and
microscopic sequences were taken from hairs found on
the trunk mat of defendant’s car.

On 6 December 1993, defendant visited a
restaurant where he knew that Weden would be dining

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 with her mother, Catherine Miller (“Miller”), and
friends. Defendant stated to Weden that Miller had
ruined their relationship and that he wished something
would happen to Miller so Weden would know how he
felt.

On 9 December 1993, the body of Miller was found
in her home. She had been shot twice in the head with
.38 caliber bullets. The .38 caliber bullets that
were taken from Miller’s body were consistent with
having been fired by a Colt .38 Detective Special.

Troy Hamlin (“Agent Hamlin”) and Dr. Joseph A.
DiZinno (“Dr. DiZinno”) were two of the witnesses
qualified by the court as experts. Agent Hamlin,
special agent with the North Carolina State Bureau of
Investigation, testified as an expert in the field of
hair examination and comparison. After conducting a
microscopic examination and comparison of the known
hair samples of Gunnarsson and the hairs found on
defendant’s trunk mat, Agent Hamlin testified that the
hairs were microscopically consistent and could have
originated from Gunnarsson.

Dr. DiZinno, an employee of the Federal Bureau of
Investigation, was qualified as an expert in the field
of hair examination and mtDNA analysis. Dr. DiZinno
has training in microscopic hair examination and has
performed mtDNA research and analysis. He is the
chief of DNA analysis unit number 2 where mtDNA tests
are conducted. He performed a DNA sequencing from one
of the hairs located on defendant’s trunk mat and
compared it to the mtDNA sequence obtained from a
known blood sample of Gunnarsson. Dr. DiZinno opined
that the DNA sequence from the hair and the DNA
sequence from the blood sample were identical. He
concluded that Gunnarsson could not be excluded as a
source of the hairs from defendant’s trunk mat.

State v. Underwood, 518 S.E.2d 231, 234-36 (N.C. Ct. App. 1999),

cert. denied as improvidently granted, 535 S.E.2d 33 (N.C.

2000).

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 Of relevance to the issues on appeal, early in his opening

statement for the defense, Defense Counsel Whittle told the

jury:

Now, as has been said to y’all while you were
getting picked as jurors, this is a totally
circumstantial case. There aren’t any eyewitnesses to
any event. But there is an eyewitness who supposedly
saw someone after Mr. Gunnarsson’s body was found out
there in Deep Gap. Mr. LC Underwood was put in a
line-up and the individual sat there and looked at him
with six other guys: No, he isn’t the person I saw.

We have a confession by someone else who said he
killed Mr. Underwood [sic]. We have someone who saw
someone outside of Ms. Miller’s house at the time of
her murder, the Clerk of Court down there in Rowan
County, and a composite sketch was made. It was not
Mr. Underwood.

(J.A. 563). Next, in thirteen sentences, Defense Counsel

Whittle briefly recounted Underwood’s law enforcement career.

At the conclusion of such recounting, Defense Counsel Whittle

told the jury: “This is all stuff you’ll hear from the witness

stand.” (J.A. 564). The following court day, the State filed

motions in limine seeking (among other things) to bar defense

counsel from eliciting testimony about a purported confession by

a third party (Brandon Shelton) through the investigating

officers. The State represented that Shelton “got drunk” and

confessed to killing Gunnarsson, but later recanted the

confession, and argued that defense counsel could only introduce

evidence of the confession through Shelton during the

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presentation of the defense’s case. The trial court granted the

State’s motion.

The State took approximately three weeks to present its

case. During the State’s case, the defense drew out the

substance of the promised line-up and composite drawing evidence

during cross-examination of various witnesses, but was prevented

by the judge’s order from drawing out any evidence regarding the

alleged third-party confession to Gunnarsson’s murder. After

the State rested, the defense rested without presenting any

evidence which, under the North Carolina rules of criminal

procedure, entitled the defense to make the final closing

argument to the jury. The order of closing statements went

defense-State-defense. During the defense’s initial closing

statement, no mention was made of: (1) the “eyewitness who

supposedly saw someone after Mr. Gunnarsson’s body was found out

there in Deep Gap,” and failed to pick Underwood out of a

line-up; (2) the “confession by someone else who said he killed

Mr. [Gunnarsson]”; or (3) the composite sketch of a person who

did not resemble Underwood created from a description by the

Clerk of Court for Rowan County of the person he saw “outside of

Ms. Miller’s house at the time of her murder . . . .” (J.A.

563).

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 At the beginning of the State’s closing statement, over

defense counsel’s objection, the State highlighted the defense’s

failure to present any evidence regarding these three matters.

In closing rebuttal statement, Defense Counsel Kaplan and

Defense Counsel Whittle each specifically addressed the line-up

and composite drawing evidence referred to during the defense’s

opening statement by pointing out to the jury that the defense

had drawn out the substance of such evidence during the

defense’s cross-examination of various State witnesses. And,

although Defense Counsel never specifically addressed the

confession issue during closing rebuttal statement, each

reminded the jury during such statement that the defense need

not present any evidence in the case, and Defense Counsel Kaplan

explained that the defense decided not to present any evidence

“because the State has not proven its case beyond a reasonable

doubt.” (J.A. 2767).

On July 21, 1997, the jury returned a unanimous verdict of

guilty as to the first-degree kidnapping and the first-degree

murder charges. Underwood was sentenced to life imprisonment

plus forty years. Underwood filed a direct appeal making

numerous claims of reversible error. In a published opinion,

the North Carolina Court of Appeals rejected all such claims,

holding that Underwood “received a fair trial, free from

prejudicial error.” State v. Underwood, 518 S.E.2d 231, 241

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(N.C. Ct. App. 1999). The North Carolina Supreme Court

ultimately denied Underwood’s request for certiorari review.

State v. Underwood, 535 S.E.2d 33 (N.C. 2000).

On October 4, 2001, Underwood filed a Motion for

Appropriate Relief (MAR) in state court, pursuant to North

Carolina General Statute § 15A-1415, arguing that he was

subjected to ineffective assistance of counsel by virtue of

numerous shortcomings of Defense Counsel, including “fail[ing]

to call key witnesses regarding prior statements they had given

and facts that were known about them that would have aided in

[his] defense.” (J.A. 255). Underwood complained in his MAR

that, “During opening arguments, defense counsel, Chester

Whittle told the jury we intended to call a person who was an

eyewitness who had observed a person coming out of the wooded

area at the approximate time the State claimed the victim was

killed. Unfortunately, this critical witness was not called on

Defendant’s behalf.” (J.A. 257). Underwood also complained

that Defense Counsel was ineffective for failing to call various

named witnesses, each of whom, according to Underwood, would

have testified in support of his theory that a man named Brandon

Shelton had truthfully confessed to Gunnarsson’s murder.

Notably, although Underwood alleged the content of the testimony

these potential witnesses might have given at his trial had they

been called by the defense, he failed to submit any evidence

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whatsoever to the MAR court in support of this claim as required

by North Carolina law. See N.C. Gen. Stat. § 15A-1420(b)(1) (“A

motion for appropriate relief made after the entry of judgment

must be supported by affidavit or other documentary evidence if

based upon the existence or occurrence of facts which are not

ascertainable from the records and any transcript of the case or

which are not within the knowledge of the judge who hears the

motion.”).

To prevail on a claim of ineffective assistance of counsel,

a defendant must show both that “counsel’s representation fell

below an objective standard of reasonableness,” Strickland v.

Washington, 466 U.S. 668, 688 (1984), and 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 MAR court addressed and denied as without merit

all of Underwood’s claims of ineffective assistance of counsel

in summary fashion and without a hearing. Ultimately, the MAR

court denied Underwood’s MAR in toto, and the North Carolina

Court of Appeals denied Underwood’s petition for certiorari.

Underwood then filed his application for a writ of habeas

corpus, pursuant to 28 U.S.C. § 2254. Notably, subsection (d)

of § 2254 provides:

(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

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 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). 4

Of relevance to the present appeal, Underwood claimed in

his federal habeas petition that he was subjected to ineffective

assistance of counsel solely by virtue of Defense Counsel

Whittle having “promised” the jury in opening statement for the

defense to present, but then Defense Counsel never presenting,

exculpatory evidence regarding: (1) a line-up in which an

eyewitness did not identify him as the man she saw coming out of

the wooded area near where Gunnarsson’s body was found; (2) a

composite drawing of a man seen outside Miller’s house at the

time of her murder whom did not resemble him; and (3) a

third-party confession to Gunnarsson’s murder. 5 (J.A. 563).

4
Although § 2254 refers to a habeas “application,” we use
the word “petition” interchangeably with the word “application.”
5
Underwood attached to his supporting brief in favor of his
federal habeas petition statements taken by law enforcement
officers indicating that a man named Brandon Shelton told his
wife, Heather Shelton, and his friend Robbie Smith that he
killed Gunnarsson, because Gunnarsson had had an affair with his
(Continued)
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 The State filed a combined answer and motion for summary

judgment. Because the MAR court rejected Underwood’s

ineffective assistance of counsel claims in summary fashion, the

district court was obliged to conduct an independent examination

of the record, but nonetheless apply § 2254(d)(1)’s deferential

standard of review in deciding whether to grant Underwood a writ

of habeas corpus. Bell v. Jarvis, 236 F.3d 149, 158 (4th Cir.

2000) (en banc). The district court acknowledged that Underwood

did not present to the MAR court a sworn statement by Shannon

Tedders, Robbie Smith, Brandon Shelton, nor Heather Shelton

regarding the substance of any potential testimony they could

have offered. The district court nonetheless held that it did

not need to consider the content of any statements by these

individuals “in order to determine whether defense counsel were

ineffective in failing to fulfill their promise to present

exculpatory evidence.” (J.A. 3023).

Ultimately, the district court granted Underwood a

conditional writ of habeas corpus, such that if the State did

wife, that Shannon Tedders could not identify Underwood as the
man she saw leaving the woods near her home on the alleged date
of Gunnarsson’s murder, and that Terry Osborne saw a man near
Catherine Miller’s home on the day she was murdered who was not
Underwood.

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not retry Underwood in 180 days, Underwood had to be set free. 6

Although acknowledging that the evidence mentioned in opening

statements may not have been actually exculpatory, and that

Underwood had failed to present such evidence to the state MAR

court, the district court held that defense counsels’ mere

“promise to present” such evidence and then failing to do so

amounted to constitutionally deficient performance which

prejudiced the defendant. J.A. 3023.

The State thereafter noted this timely appeal.

II

“A district court’s decision to grant habeas relief is

reviewed de novo.” Frazer v. South Carolina, 430 F.3d 696, 703

(4th Cir. 2005). Thus, we are, as was the district court,

obliged to conduct an independent examination of the record, but

nonetheless apply § 2254(d)’s deferential standard of review in

deciding whether Underwood is entitled to habeas relief. Bell,

236 F.3d at 158. Underwood’s current ineffective assistance of

counsel claim is based upon representations made during the

defense’s opening statement to the jury that the jury would hear

certain allegedly exculpating evidence, but then resting without

calling any witnesses in such regard and not addressing the

6
The district court stayed this order pending appeal.

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omissions in its initial closing statement. On appeal, the

State concedes that Underwood fairly presented the substance of

this claim in his MAR, and thus, we are not faced with

considering the merits of a procedural default defense. Thus,

the overarching issue in the present appeal is whether the MAR

court’s denial of Underwood’s current ineffective assistance of

counsel claim constitutes a decision that was contrary to, or

involved an unreasonable application of Strickland, 466 U.S. at

668, 28 U.S.C. § 2254(d)(1), 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)(2). See Sharpe

v. Bell, 593 F.3d 372, 382-84 (4th Cir. 2010) (analyzing

ineffective assistance of counsel claim under § 2254’s

deferential standard).

As previously stated, to prevail on a claim of ineffective

assistance of counsel under Strickland, a defendant must show

both that “counsel’s representation fell below an objective

standard of reasonableness,” id., 466 U.S. at 688, and 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 first requirement is commonly

known in the relevant jurisprudence as Strickland’s deficient

performance prong, while the second is commonly known in the

relevant jurisprudence as Strickland’s prejudice prong. See,

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e.g., Wong v. Belmontes, 130 S. Ct. 383, 384 (2009). Having

independently examined the record, we hold the MAR court’s

denial of Underwood’s current ineffective assistance of counsel

claim did not constitute a decision that was contrary to, or

involved an unreasonable application of Strickland, nor 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)(2).

A

With respect to the line-up evidence referred to during the

defense’s opening statement, Underwood cannot establish

Strickland’s deficient performance prong. First, Defense

Counsel Kaplan elicited the substance of this evidence during

his cross-examination of Watauga County Deputy Sheriff Paula

Townsend, who was the lead investigator in the Watauga County

case concerning the murder of Gunnarsson. During such

cross-examination, Deputy Sheriff Townsend either admitted or

directly stated that: (1) on or about January 11, 1994, she

interviewed a person who lived in the vicinity of where

Gunnarsson’s body was found; (2) as a result of such interview,

an order was obtained to have Underwood be part of a line-up;

(3) the line-up included Underwood and five other men with

similar physical characteristics to Underwood and who were

identically dressed in slacks and a military green colored

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jacket; (4) the men in the line-up were asked to wear a military

green colored jacket, because the line-up witness had told her

and other investigators that “the person she saw had a jacket

that same color” and investigators “had seized jackets that same

color from the defendant’s residence,” (J.A. 1571); (5) she was

present during the line-up; (6) the men in the line-up were

asked to look one way and then the other way for the witness’s

viewing; (7) the witness was given all the time she needed to

look at the men in the line-up; and (8) the witness did not

identify anyone in the line-up. The elicitation of this

testimony on cross-examination was consistent with Defense

Counsel Whittle’s reference to the eyewitness near Deep Gap who

failed to identify Underwood and one-hundred percent fulfilled

Defense Counsel Whittle’s promise during opening statement that

the jury would “hear” about “all [this] stuff . . . from the

witness stand.” (J.A. 564). Second, during closing rebuttal

statement, Defense Counsel Kaplan and Defense Counsel Whittle

each specifically addressed the line-up evidence by pointing out

to the jury that the defense had drawn out the substance of such

evidence on cross-examination. Third, Defense Counsel Whittle

and Defense Counsel Kaplan each reminded the jury during such

statement that the defense need not present any evidence in the

case, and Defense Counsel Kaplan explained that the defense

decided not to present any evidence “because the State has not

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proven its case beyond a reasonable doubt.” (J.A. 2767). In

light of all these circumstances, Defense Counsel’s handling of

the promised line-up evidence did not fall outside the wide

range of professionally competent assistance, and thus,

Strickland’s deficient performance prong is not met. 466 U.S.

at 690.

B

With respect to the composite drawing evidence promised

during the defense’s opening statement, Underwood cannot

establish Strickland’s deficient performance prong. First,

Defense Counsel Whittle elicited the substance of such evidence

during his cross-examination of North Carolina State Bureau of

Investigation Special Agent Don Gale and Rowan County Deputy

Sheriff Terry Anger. Special Agent Gale assisted the Rowan

County Sheriff’s Department with its investigation into the

murders of Miller and Gunnarsson. During cross-examination,

Special Agent Gale either admitted or directly stated that: (1)

a composite drawing was made in connection with the Miller case;

(2) Terry Osborne provided the information for the composite

drawing; (3) at the time Terry Osborne provided such

information, he was a high school teacher; (4) by the time of

Underwood’s trial, Terry Osborne was the Clerk of Court for

Rowan County; (5) the composite drawing was determined by the

investigators to be someone who they “were considering a witness

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at that time or a potential witness at that time,”; and (6) to

his knowledge, Terry Osborne never identified Underwood as the

person in the composite drawing. (J.A. 2107). Deputy Sheriff

Anger was the lead investigator for the Rowan County Sheriff’s

Department concerning the murders of Miller and Gunnarsson.

During cross-examination, Deputy Sheriff Anger either admitted

or stated that a composite drawing was made to locate a

potential witness in connection with Miller’s murder and the

person in the composite was never identified. As was the case

with the line-up evidence, these elicitations on cross-

examination one-hundred percent fulfilled Defense Counsel

Whittle’s promise during opening statement that the jury would

“hear” about “all [this] stuff . . . from the witness stand.”

(J.A. 564). Second, Defense Counsel Kaplan and Defense Counsel

Whittle each specifically addressed the composite drawing

evidence during the defense’s closing rebuttal statement by

pointing out to the jury that the defense had drawn out the

substance of such evidence on cross-examination. Third, Defense

Counsel Whittle and Defense Counsel Kaplan each reminded the

jury during such statement that the defense need not present any

evidence in the case, and Defense Counsel Kaplan explained that

the defense decided not to present any evidence “because the

State has not proven its case beyond a reasonable doubt.” (J.A.

2767). As was the case with the line-up evidence, in light of

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all these circumstances, Defense Counsel’s handling of the

composite drawing evidence did not fall outside the wide range

of professionally competent assistance, and thus, Strickland’s

deficient performance prong is not met. 466 U.S. at 690.

C

Lastly, we consider Underwood’s ineffective assistance of

counsel claim with respect to the evidence of a third-party

confession. At the outset, we emphasize this claim’s narrow

scope on federal habeas review, given the state of the

evidentiary record before the MAR court. Underwood presented no

evidence to the MAR court regarding a third-party confession,

and, thus, we are precluded from considering the potential

evidence that Underwood presented on the subject in support of

his federal habeas petition. See Bell, 236 F.3d at 171 n.13

(affidavit not presented to state habeas court cannot be

considered on federal habeas review); N.C. Gen. State. § 15A-

1420(b)(1) (“A motion for appropriate relief made after the

entry of judgment must be supported by affidavit or other

documentary evidence if based upon the existence or occurrence

of facts which are not ascertainable from the records and any

transcript of the case or which are not within the knowledge of

the judge who hears the motion.”). Accordingly, on federal

habeas review, we focus solely upon Defense Counsel Whittle’s

act of telling the jury that someone else had confessed to

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killing Gunnarsson (although he mistakenly referred to the

victim as Underwood) and then resting the case without

presenting any such evidence or mentioning it in their closing

statement.

For purposes of our analysis, we will assume, without

deciding, that deficient performance occurred. Rather, after

independently reviewing the record, we hold that Strickland’s

prejudice prong is not satisfied, because there is no reasonable

probability that, had defense counsel not brought up the

confession to the jury during opening statements, the outcome of

Underwood’s trial would have been different. 466 U.S. at 694.

In other words, there is not a reasonable probability that,

absent the assumed unprofessional error, “the [jury] would have

had a reasonable doubt respecting [Underwood’s] guilt.” Id. at

695. A review of how the trial unfolded makes this conclusion

inescapable.

Over the course of approximately three weeks, the State

methodically built its case against Underwood by placing before

the jury abundant motive and physical evidence supporting its

theory that Underwood murdered both Gunnarson and Miller. With

respect to motive, the State presented an abundance of evidence

establishing that Underwood was a man who would not take “no”

for an answer when Weden made crystal clear to him that she no

longer desired to continue their relationship. In addition to

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evidence establishing that Underwood sent Weden letters

threatening her physical safety during their tumultuous

on-again, off-again relationship, the evidence established that

Underwood harbored raging jealousy against anyone whom he

believed stood in the way of his ability to have a romantic

relationship with Weden, including Gunnarsson and Weden’s

mother, Catherine Miller.

For example, late at night on the same night that

Gunnarsson had last been seen alive, Underwood, while on his own

date with a different woman, stalked Weden and Gunnarsson in

order to learn of Gunnarsson’s identity. Underwood indeed

learned of Gunnarsson’s identity that very night via a license

plate check that he had performed on Gunnarsson’s vehicle by a

law enforcement buddy. And although Underwood had learned of

Gunnarsson’s identity on the night of December 3, 1993, he

falsely told Rowan County Deputy Sheriff Terry Anger twelve days

later that he had never heard of Gunnarsson. The evidence also

showed that Underwood had ready access to Gunnarsson’s address

in Underwood’s own copy of the Salisbury phonebook.

For a second example of Underwood’s raging jealousy,

approximately two weeks prior to Gunnarsson’s murder, Underwood

had confronted Weden and her date for the evening, David Sumner,

at a local restaurant. Underwood put his hands on the table and

started asking Weden why she had been lying to him. Weden

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denied lying about anything and told Underwood that he needed to

leave. At that point, Underwood threatened to kill David Sumner

if he did not sit still. Weden again asked Underwood to leave.

At that point, Underwood picked up a glass of tea off of the

table, dumped it in Weden’s lap, and walked outside. Once

outside, Underwood told the male friend who had accompanied him

to the restaurant that he wanted to wait for Weden and her date

to exit the restaurant so that he could “hurt [the date] some

way or beat him up on the ground or pavement out there.” (J.A.

1743). The manager of the restaurant called the police. Once

the police officers arrived, they escorted Weden and her date to

Weden’s car. Despite knowing that he had caused such a scene

that the police had been called, Underwood (with his friend in

the car) surreptitiously followed Weden and her date back to

Weden’s house. After parking nearby in view of Weden’s house,

Underwood remained very agitated and angry for approximately

thirty minutes, after which time, Underwood’s friend who was in

the car was able to talk Underwood into driving back to

Underwood’s residence.

For a third example of Underwood’s raging jealousy,

Underwood told his buddy Rex Allen Keller on two separate

occasions that Weden’s mother was “a bitch,” because she had

interfered with his relationship with Weden to the extent that

Miller “was the reason they couldn’t get along.” (J.A. 1862).

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During the entire summer of 1993, Underwood also successfully

persuaded Keller to make between eight and ten anonymous

threatening telephone calls to Weden falsely telling her that

her son owed him money for drugs, simply for the purpose of

harassing her.

The physical evidence obtained by law enforcement

overwhelmingly tied Underwood to Gunnarsson’s murder. This

evidence showed that Gunnarsson had been shot twice in the head

with .22 caliber bullets and that Miller had been shot twice in

the head with .38 caliber bullets. Underwood possessed a .22

caliber rifle, which a ballistics expert testified could have

fired the bullets recovered from Gunnarsson. Moreover, he was

issued a .38 caliber Colt Detective Special while formerly

serving as a deputy sheriff for Lincoln County. While the

inventory records for the Lincoln County Sheriff’s Office showed

that Underwood had turned in the .38 caliber weapon, the actual

weapon could not be located. Also, several witnesses testified

that they had seen Underwood in possession of a .38 caliber

weapon just prior to the December 1993 murders of Gunnarsson and

Miller. The .38 caliber bullets taken from Miller’s body were

consistent with having been fired by a .38 caliber Colt

Detective Special.

An expert in the field of fiber and textile identification

testified that his comparison of electrical tape found near

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Gunnarsson’s body with electrical tape removed from a water line

behind Underwood’s washing machine at his home revealed the two

pieces were consistent in width, thickness, surface texture, and

composition of the adhesive. The expert opined that both pieces

of tape could have originated from the same roll.

In December 1993 or January 1994, around the same time as

the murders, Underwood took his Monte Carlo to a car wash and

had it thoroughly cleaned, including having the carpet in the

trunk shampooed. The timing and extent of the requested

cleaning, especially shampooing the trunk, strongly suggested

that Underwood was attempting to eliminate evidence of

Gunnarsson’s murder. Even with such thorough cleaning, when

investigators searched the Monte Carlo on February 1, 1994,

“scratches were observed inside the trunk compartment and a mark

that resembled a footprint was seen on the underside of the

trunk lid.” Underwood, 518 S.E.2d at 235. This evidence

strongly suggested that a person had been closed in the trunk

against his will. And, by far, the most damaging evidence

against Underwood consisted of the following: (1) expert

witness testimony establishing that the hairs found in the trunk

of Underwood’s Monte Carlo had the identical microscopic

characteristics as a known sample of Gunnarsson’s hair and had

the same mitochondrial DNA sequencing as a known blood sample of

Gunnarsson; and (2) expert witness testimony establishing that

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although it is possible for two people to “have the same

microscopic characteristics in their hair and the same

mitochondrial DNA sequence,” such combination “would be highly

unlikely,” (J.A. 2540).

Notwithstanding this overwhelming evidence, gleaned from

numerous and varied sources, that Underwood stalked, kidnapped,

and murdered Gunnarsson because he was dating Weden, Underwood

now asserts that defense counsel’s single reference during

opening arguments to a confession by someone else was so

prejudicial that there is a reasonable probability that the

omission of the remark would have resulted in a different

verdict in this case. We are unpersuaded.

Because the State’s case against Underwood was so

overwhelming, Defense Counsel had little choice but to attempt

to chip away at it, which they attempted to do, in particular,

by developing and emphasizing the line-up and composite evidence

through the State’s witnesses. The reference to the third-party

confession was made in conjunction with similar references to

the line-up and composite sketch evidence during opening

statements, and it appears that defense counsel’s likely

intention at the time was to elicit from the investigating

officers, during cross-examination, the fact that Shelton had

confessed to various family members and friends that he had

killed Gunnarsson. Full realization of this strategy was

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thwarted by the State’s subsequent motion in limine, granted by

the trial judge. Nevertheless, Underwood cannot overcome the

fact that, when all was said and done, the State’s case against

him was iron-clad and overwhelming, and it is clear to us that

there is no reasonable probability that, but for Defense

Counsel’s assumed unprofessional error, the outcome of

Underwood’s trial would have been different. Strickland, 466

U.S. at 694.

Accordingly, we hold the MAR court’s rejection of

Underwood’s ineffective-assistance-of-counsel claim as it

pertained to the unfulfilled promise in opening statement for

the defense of a third-party confession was not contrary to or

an unreasonable application of the law clearly established in

Strickland. See Smith v. Spisak, 130 S. Ct. 676, 685-86 (2010)

(assuming without deciding that habeas petitioner was correct

that Strickland’s deficient performance prong was satisfied, but

holding Ohio Supreme Court’s rejection of his ineffective-

assistance-of-counsel claim was not contrary to or an

unreasonable application of the law clearly established in

Strickland, because Strickland’s prejudice prong not satisfied).

Nor was it “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)(2).

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 III

Because the MAR court’s denial of Underwood’s current

ineffective assistance of counsel claim as outlined in this

opinion survives the deferential review that we owe such denial

under 28 U.S.C. § 2254(d), we reverse the district court’s grant

of habeas relief in this case.

REVERSED

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