UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8572
ANTHONY L. MARLAR,
Petitioner - Appellant,
v.
WARDEN, TYGER RIVER CORRECTIONAL INSTITUTION,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. R. Bryan Harwell, District
Judge. (2:08-cv-01874-RBH)
Argued: March 23, 2011 Decided: May 25, 2011
Before GREGORY, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished opinion. Judge Keenan wrote the
opinion, in which Judge Gregory and Judge Agee joined.
ARGUED: Thomas Edward Vanderbloemen, GALLIVAN, WHITE & BOYD, PA,
Greenville, South Carolina, for Appellant. Samuel Creighton
Waters, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA,
Columbia, South Carolina, for Appellee. ON BRIEF: Henry D.
McMaster, Attorney General, John W. McIntosh, Chief Deputy
Attorney General, Donald J. Zelenka, Assistant Deputy Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
KEENAN, Circuit Judge:
Anthony L. Marlar appeals from the district court’s award
of summary judgment in favor of the Warden of the Tyger River
Correctional Institution (the State) on Marlar’s petition for a
writ of habeas corpus (the petition). The district court did
not reach the merits of the petition, in which Marlar alleged
that his trial counsel provided ineffective assistance.
Instead, the district court concluded that Marlar’s claim was
not reviewable in a federal habeas corpus petition, because the
South Carolina Supreme Court had held that Marlar failed to
preserve this argument for appellate review. See Marlar v.
Warden, Tyger River Correctional Inst., No. 2:08-cv-1874, 2008
WL 5111878, at *2 (D.S.C. Dec. 4, 2008) (citing Marlar v. South
Carolina, 653 S.E.2d 266, 267 (S.C. 2007)). We issued a
certificate of appealability to address Marlar’s claim of
ineffective assistance of counsel.
Based on our holding in Bostick v. Stevenson, 589 F.3d 160
(4th Cir. 2009), issued after the district court dismissed
Marlar’s petition, we hold that Marlar’s petition alleging
ineffective assistance of counsel is not procedurally barred,
and we therefore consider the merits of Marlar’s petition. We
affirm the district court’s award of summary judgment in favor
of the State on a different ground than cited by the district
2
court, namely, that Marlar did not suffer prejudice as a result
of his trial counsel’s allegedly deficient performance.
I.
In 1997, Marlar was convicted by a jury in Anderson County,
South Carolina, of criminal sexual conduct in the first degree
and burglary in the first degree, based on a burglary and a rape
that occurred in 1993. Marlar received consecutive sentences of
12 and 30 years, respectively, for those convictions.
The evidence at Marlar’s trial established that in February
1993, two male individuals (the assailants) entered the victim’s
residence around 3:30 a.m. Both the assailants wore stockings
over their heads, and the victim was not able to observe the
faces of either of the two men during the events that followed.
After the assailants entered the victim’s residence, they
encountered the victim, who was in her bedroom along with one of
her two young children. The victim testified that the shorter
assailant stated to his taller companion, “Tony, get her out of
here,” in reference to the victim’s daughter. The taller
assailant then exclaimed, “Oh, shit,” apparently upon realizing
that his first name was spoken by his accomplice.
Once the child was removed from the bedroom, the two men
took turns sexually assaulting the victim, with each individual
engaging in nonconsensual sexual intercourse with the victim
3
while holding a large knife against her throat. After the
assailants ceased having intercourse with the victim, the taller
assailant retrieved a rag from the victim’s bathroom, wet the
rag, and then “stuck his hand up inside of [the victim’s vagina]
wiping [her] out and wiping the bed.”
At some point during the course of these events, the
assailants disconnected the telephone that was located in the
victim’s kitchen. The assailants did not attempt to disconnect
the only other telephone in the residence, which was located in
the victim’s bedroom but was inoperable for the purpose of
placing outgoing calls. Upon leaving the residence, the shorter
assailant told the victim that they would kill her children if
she informed anyone about the attack.
After a police investigation, a grand jury in Anderson
County indicted Marlar and Jerry Fields for their participation
in the crimes. Both Marlar and Fields initially denied
committing the crimes, and each stated that the two were
together in the early morning hours of the events at issue.
However, after DNA evidence collected from the victim’s person
“matched” a sample of Fields’ DNA, Fields confessed to his
participation in the crimes and entered a plea of guilty to the
charges. Fields implicated Marlar as his accomplice, and
testified against Marlar at his trial.
4
The victim provided testimony at Marlar’s trial, in which
she stated that she was “a hundred percent sure” that Marlar was
one of her assailants. The victim stated that she knew Marlar
before her attack, and had seen him on several previous
occasions because her roommate’s boyfriend was Marlar’s brother.
The victim testified that Marlar knew from his visits to the
residence that the telephone in the victim’s bedroom could not
be used to place outgoing telephone calls.
The victim also testified that one of her assailants wore a
baseball jacket with red sleeves, which looked like a jacket
that she had seen Marlar wearing on a previous occasion.
According to the victim, the assailant wearing the baseball
jacket had a tall and slim “build,” which the victim stated also
was a characteristic of Marlar’s “build.” These attributes, in
addition to the taller assailant being referred to as “Tony” by
his accomplice, led the victim to identify Marlar as one of the
assailants when she reported the crime to the police.
Additionally, Fields testified that he and Marlar were the
victim’s assailants, stating that they had planned the attack on
the same night that the crimes occurred. Fields further
testified that he and Marlar each raped the victim two times,
after which Marlar used a washcloth to “clean” the victim after
the sexual assault. Fields also corroborated the victim’s
5
statement that Fields referred to Marlar as “Tony” in front of
the victim, and that Marlar responded, “Oh, shit.”
The prosecution’s evidence did not include DNA evidence,
such as evidence derived from blood, semen, or hair, linking
Marlar to the crime. And, as noted above, because the
assailants wore stockings over their heads, the victim did not
see the face of either of her assailants. She also was unable
to identify either of them by their voices on the night of the
attack.
As provided by South Carolina law, Marlar’s counsel
received the benefit of making the final closing argument to the
jury, because he did not present any witnesses or introduce any
evidence during the trial. 1 Accordingly, Marlar’s counsel did
not introduce into evidence a report prepared by Agent John
Barron of the South Carolina State Law Enforcement Division
Forensic Sciences Laboratory (SLED). This report (the Barron
Report) analyzed two pubic hairs found in a box of evidence
collected from the crime scene. The box of evidence also
contained a bedsheet, pillowcases, a bedspread and pillow sham,
a pair of pants, a black cap, and paper towels.
1
Under South Carolina law, “[i]n a criminal prosecution,
where a defendant introduces no testimony, he is entitled to the
final closing argument to the jury.” South Carolina v. Mouzon,
485 S.E.2d 918, 921 (S.C. 1997).
6
Agent Barron concluded in the Barron Report that the pubic
hairs originated from an unknown person, and were
“microscopically inconsistent” with those of Marlar, Fields, the
victim, or the victim’s boyfriend. Additionally, Agent Barron’s
report did not state whether those pubic hairs originated from a
male or a female.
The jury convicted Marlar of burglary and criminal sexual
conduct. Following his sentencing, Marlar sought relief from
his convictions in the appellate courts of South Carolina.
The South Carolina Court of Appeals (Court of Appeals)
initially affirmed Marlar’s conviction on direct appeal.
Following this decision, Marlar submitted a pro se petition for
rehearing, citing a statement in the Barron Report that there
were pubic hairs of unknown origin found in the box of evidence
collected by investigators at the crime scene. The Court of
Appeals granted Marlar’s petition for rehearing and recalled its
prior opinion, but ultimately affirmed the convictions. The
court held that Marlar had not preserved for direct appeal any
issues concerning the conclusions in the Barron Report, because
“no argument relating to hair analysis was presented to the
[trial] court.”
Marlar thereafter applied for Post-Conviction Relief (PCR)
in the trial court (the PCR court). Marlar raised several
issues in his application, including his contention that he was
7
denied effective assistance of trial counsel because of his
counsel’s failure to present the hair evidence discussed in the
Barron Report. The PCR court held a hearing during which the
court heard testimony from Agent Barron, Marlar, and Marlar’s
trial counsel.
After the hearing, the PCR court issued an order on October
1, 2003, in which the court denied Marlar’s application. In its
order, the PCR court summarily concluded that Marlar’s counsel
did not render ineffective assistance and, in the alternative,
that Marlar did not demonstrate any prejudice from his counsel’s
allegedly deficient performance. The PCR court failed to state
specific findings of fact or express conclusions of law relating
to each issue presented, as required by S.C. Code § 17-27-80. 2
Marlar did not ask the PCR court afterwards to make such
findings and conclusions, although he was permitted to do so
under Rule 59(e) of the South Carolina Rules of Civil Procedure.
A PCR court’s failure to make specific findings of fact and
conclusions of law, if not raised by a petitioner in that court,
ordinarily precludes appellate review of a PCR proceeding by the
state courts of South Carolina. See Pruitt v. South Carolina,
2
This provision of the South Carolina Code states, in
relevant part, that a court adjudicating an application for
post-conviction relief “shall make specific findings of fact,
and state expressly its conclusions of law, relating to each
issue presented.” S.C. Code § 17-27-80.
8
423 S.E.2d 127, 128 (S.C. 1992) (per curiam). 3 Nevertheless,
Marlar appealed the denial of his application for PCR relief to
the Court of Appeals, which vacated the denial of Marlar’s
application. The Court of Appeals held that the PCR court’s
order was inadequate because it did not include specific
findings of fact and conclusions of law. See Marlar v. South
Carolina, 644 S.E.2d 769, 771 (S.C. Ct. App.), rev’d 653 S.E.2d
266 (S.C. 2007). The Court of Appeals declined to hold that
Marlar’s appeal was foreclosed by his failure to file a motion
pursuant to Rule 59(e), and concluded that Marlar’s case should
be remanded to the PCR court. Id. at 771-72.
The South Carolina Supreme Court (the Court) granted a
petition for writ of certiorari to review the judgment of the
Court of Appeals. The Court reversed the Court of Appeals’
judgment, thereby reinstating the PCR court’s denial of Marlar’s
application for post-conviction relief. 653 S.E.2d 266 (S.C.
2007.) The Court held that any issues concerning the Barron
Report were not preserved for appeal based on Marlar’s failure
to file a Rule 59(e) motion. Id. at 267. The Court stated that
although it had remanded post-conviction applications in certain
3
The Court’s opinion in Pruitt explained that “[e]ven after
an order [denying post-conviction relief] is filed, counsel has
an obligation to review the order and file a Rule 59(e) []
motion to alter or amend if the order fails to set forth the
findings and the reasons for those findings as required by [S.C.
Code] § 17-27-80.” 423 S.E.2d at 128.
9
cases to a PCR court to make specific findings of fact and
conclusions of law in the absence of a Rule 59(e) motion, those
cases presented “unique” circumstances that were not present in
Marlar’s case. Id.
After his unsuccessful attempts in the South Carolina state
courts to vacate his convictions, Marlar filed a habeas corpus
petition in the district court under 28 U.S.C. § 2254. In his
petition, Marlar alleged that his trial counsel’s failure to
introduce the Barron Report into evidence constituted
ineffective assistance of counsel. 4
Upon consideration of the State’s motion for summary
judgment, a magistrate judge issued a report recommending that
the district court grant the motion. The district court adopted
the magistrate judge’s report and recommendation, and awarded
judgment in favor of the State, holding that Marlar’s claims of
ineffective assistance of counsel were procedurally barred due
to his failure to file a Rule 59(e) motion asking the PCR court
to make specific findings of fact and conclusions of law. 2008
WL 5111878, at *2. The district court explained that because
Marlar had not preserved this issue for appellate review in the
state courts of South Carolina, the claim was not cognizable in
4
Marlar raised several other issues in his petition for
habeas corpus, none of which is at issue in this appeal.
10
a petition for habeas corpus filed in federal court. 5 Id. at *1
(citing Fisher v. Angelone, 163 F.3d 835, 844 (4th Cir. 1998)).
Accordingly, the district court did not reach the merits of
Marlar’s petition.
The district court issued its order dismissing Marlar’s
petition before we issued our opinion in Bostick v. Stevenson,
589 F.3d 160 (4th Cir. 2009). In Bostick, we addressed the
identical procedural issue presented here, namely, whether the
failure to file a Rule 59(e) motion in a South Carolina PCR
proceeding precludes any consideration of habeas corpus relief
in a federal court.
We answered this question in the negative in Bostick,
holding that the failure to file such a motion was not a
procedural bar because “Rule 59(e) was not consistently applied
by the South Carolina courts” at the time of Bostick’s PCR
proceedings in 2004. 589 F.3d at 164. Significantly, our
decision in Bostick referenced the state appellate proceedings
in Marlar’s case as an illustration that the South Carolina
5
As stated by the district court, “[i]f a petitioner in
federal court has failed to raise a claim in state court at the
appropriate juncture, and is precluded by state rules from
returning to state court to raise the issue, he has procedurally
bypassed his opportunity for relief in state courts and the
claim will be considered procedurally defaulted. As a
consequence, the petitioner will be barred from raising the
issue in his federal habeas petition.” 2008 WL 5111878, at *1
(citing Fisher v. Angelone, 163 F.3d 835, 844 (4th Cir. 1998)).
11
courts “did not distinguish, in any principled way, those cases
in which it would apply [Rule 59(e)] from those in which it
would not.” Id. at 165.
Because Marlar filed his appeal from the district court’s
judgment while the appeal in Bostick was pending, we held
Marlar’s appeal in abeyance until after we decided Bostick.
Following our decision in Bostick, we issued a certificate of
appealability in this case under 28 U.S.C. § 2253(c) to resolve
the issue “whether trial counsel was ineffective for failing to
call [a] state investigator to testify about potentially
exculpatory crime scene hair evidence.”
II.
We review de novo a district court’s award of summary
judgment in a habeas corpus proceeding. Bostick, 589 F.3d at
163; Frye v. Lee, 235 F.3d 897, 902 (4th Cir. 2000). In cases
in which a habeas petitioner’s claim has been “adjudicated on
the merits” by a state court, a federal court may not grant
relief unless the state court decision was “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1); see Bostick, 589 F.3d at 163.
However, when, as in the present case, the state court did not
reach the merits of the petitioner’s claim and instead ruled on
12
procedural grounds, we review the petitioner’s claim de novo.
Bostick, 589 F.3d at 163; Hudson v. Hunt, 235 F.3d 892, 895 (4th
Cir. 2000).
A.
We first address the issue whether Marlar may raise in his
federal habeas petition arguments concerning his trial counsel’s
alleged ineffectiveness, despite Marlar’s failure to file a Rule
59(e) motion in the PCR court requesting that the court make
specific findings of fact and express conclusions of law.
Applying our holding in Bostick, we conclude that Marlar may
pursue his ineffective assistance of counsel claim in federal
court, even though the South Carolina appellate courts declined
to reach the merits of his claim.
As noted above, we held in Bostick that “Rule 59(e) was not
consistently applied by the [South Carolina] courts” at the time
of Bostick’s PCR proceedings in 2004. 589 F.3d at 163-64. This
holding is squarely applicable here because Marlar’s PCR
proceedings occurred in 2003, just a year before Bostick’s PCR
proceedings, and thus also took place during the time period in
which South Carolina courts applied Rule 59(e) in an
inconsistent manner. Therefore, under Bostick, Marlar’s
13
ineffective assistance of counsel claim is not procedurally
barred from appellate review in the federal courts. 6
B.
Addressing the merits of his appeal, Marlar argues that his
trial counsel was ineffective in failing to introduce into
evidence the Barron Report, or testimony referencing the Barron
Report’s conclusions, concerning the pubic hairs of unknown
origin found in the box of evidence collected by investigators
at the crime scene. According to Marlar, these pubic hairs may
have come from one of the victim’s “true” assailants. Marlar
contends that if his trial counsel had developed this
evidentiary issue, there is a reasonable probability that the
jury would not have convicted him of the sexual assault and
burglary charges.
In response, the State argues that Marlar’s counsel
provided effective representation to Marlar, and that the
6
In reaching this conclusion, we also reject the State’s
argument that Marlar is barred from raising his claim because he
did not “specifically object on the ground that the Rule 59(e)
bar was not consistently applied.” We again note that Bostick
had not been decided at the time that Marlar could have raised
this objection. We decline to hold Marlar, who was proceeding
pro se at this time, responsible for failing to predict our
Bostick holding years in advance. Moreover, Marlar cited Rule
59(e) in a motion objecting to the magistrate judge’s report and
recommendation. We construe this pleading in the light most
favorable to Marlar because he was proceeding pro se, see Haines
v. Kerner, 404 U.S. 519, 520 (1972), and we hold that Marlar
adequately preserved this argument for our review.
14
decision not to introduce the evidence from the Barron Report
was a strategic trial decision, which allowed Marlar to preserve
the right to present the “last argument” during closing
arguments at his trial. The State also contends that even if
Marlar’s counsel rendered ineffective assistance in not bringing
the issue of the unidentified pubic hairs to the jury’s
attention, Marlar suffered no prejudice because the value of
that evidence was minimal and overwhelming evidence supported
the jury’s verdict.
In deciding this issue, we apply well-established
principles of law. A defendant’s right to counsel under the
Sixth Amendment includes the right to effective assistance of
counsel. Yarborough v. Gentry, 540 U.S. 1, 5 (2003); Roe v.
Flores-Ortega, 528 U.S. 470, 476-77 (2000); Strickland v.
Washington, 466 U.S. 668, 685-86 (1984); Rubin v. Gee, 292 F.3d
396, 401 (4th Cir. 2002). Under this guarantee, a defendant is
entitled to counsel who is reasonably competent and who gives
advice that is within the range of competence required of
attorneys in criminal cases. Wiggins v. Smith, 539 U.S. 510,
521-23, (2003); Kimmelman v. Morrison, 477 U.S. 365, 384,
(1986); Strickland, 466 U.S. at 687; Bell v. Evatt, 72 F.3d 421,
427 (4th Cir. 1995).
To prevail on a claim of ineffective assistance of counsel,
a petitioner must ordinarily satisfy both parts of the two-part
15
test set forth in Strickland. Wiggins, 539 U.S. at 521;
Williams v. Taylor, 529 U.S. 362, 390 (2000); Strickland, 466
U.S. at 687; Bell, 72 F.3d at 427. The petitioner first must
show that “counsel’s representation fell below an objective
standard of reasonableness.” Strickland, 466 U.S. at 687-88;
accord Wiggins, 539 U.S. at 521; Williams, 529 U.S. at 390-91;
Bell, 72 F.3d at 427. In making this determination, the court
considering the habeas corpus petition “must indulge a strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Strickland, 466 U.S. at
689; accord Kimmelman, 477 U.S. at 381; Darden v. Wainwright,
477 U.S. 168, 185-86 (1986); Bell, 72 F.3d at 427.
If counsel’s performance is found to have been deficient
under the first part of the Strickland test, to obtain relief
the petitioner must also show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694; accord
Wiggins, 539 U.S. at 534; Williams, 529 U.S. at 390-91; Gray v.
Branker, 529 F.3d 220, 234 (4th Cir. 2008).
A reviewing court, however, is not required to determine
whether “counsel’s performance was deficient before examining
the prejudice suffered by the defendant as a result of the
16
alleged deficiencies.” Strickland, 466 U.S. at 697. Therefore,
the Supreme Court’s decision in Strickland instructs that “[i]f
it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed.” Id.; see also
Meyer v. Branker, 506 F.3d 358, 369 (4th Cir. 2007) (following
Supreme Court’s instruction in Strickland to proceed directly to
“prejudice” prong if petitioner cannot demonstrate reasonable
probability that outcome of trial would be different but for
counsel’s performance); Buckner v. Polk, 453 F.3d 195, 202 (4th
Cir. 2006) (same).
In addressing Marlar’s claim, as recommended by the Supreme
Court in Strickland, we move directly to consider the
“prejudice” prong of the Strickland test. Under this prong, we
examine the issue whether there is a “reasonable probability”
that trial counsel’s decision not to place the Barron Report in
evidence, or otherwise address the conclusions drawn in the
Barron Report during the trial, “undermine[s] confidence in the
outcome” of the jury’s verdict of guilty. Strickland, 466 U.S.
at 694. As directed by the Supreme Court, we make this
determination by considering the totality of the evidence before
the trier of fact. See Strickland, 466 U.S. at 695; see also
Kimmelman, 477 U.S. at 381.
17
After reviewing the evidence presented at trial, and the
evidence concerning the Barron Report offered by Marlar in the
PCR court and in the proceedings that followed, we conclude that
Marlar has failed to demonstrate that his defense was prejudiced
by trial counsel’s failure to present evidence concerning the
pubic hairs noted in the Barron Report. We reach this
conclusion because there was extensive evidence at trial
supporting the jury’s verdict, and the probative value of the
Barron Report’s conclusions regarding the hair evidence is
limited.
First, there was very strong evidence of Marlar’s guilt
presented at his trial. As described above, the victim
testified that she was “a hundred percent sure” that Marlar was
one of her assailants, even though her assailants used stockings
to mask their faces. On several occasions prior to the attack,
the victim had met Marlar, becoming familiar with Marlar’s tall
and slim “build,” which the victim testified resembled the
“build” of the assailant who was called “Tony” by his
accomplice. In addition to confirming Fields’ testimony that he
referred to his accomplice as “Tony,” the victim testified that
“Tony” responded, “Oh, shit,” upon hearing his name uttered out
loud by the other assailant. Further, the victim testified that
she was familiar with a baseball jacket with red sleeves that
18
she previously had observed Marlar wearing, which she identified
as being similar to the jacket worn by “Tony” during the attack.
The manner in which the assailants carried out their attack
also provided corroborative evidence of Marlar’s guilt. Marlar
had been at the victim’s residence prior to the attack and, as
stated by the victim in her testimony, was aware that the
telephone in the victim’s bedroom could not be used to place
outgoing calls. It is thus significant that the assailants
disconnected the telephone in the kitchen, but did not attempt
to disconnect the telephone in the victim’s bedroom where the
rape took place.
We also observe that Fields admitted his role in the
crimes, identified Marlar as his accomplice, and testified that
he and Marlar agreed to use each other to provide an alibi
regarding their whereabouts on the morning in question. Fields
also acknowledged that he inadvertently called Marlar by his
first name, “Tony,” in front of the victim during the attack.
Additionally, we observe that Detective Jean Sutton of the
Anderson County Sheriff’s Office, who interviewed Marlar in
connection with the investigation, testified that Marlar told
her that he and Fields were together during the time period in
which the sexual assault took place. This testimony had the
dual impact of supplying Marlar’s admission that he was with
Fields during the time period that the crimes occurred, and of
19
corroborating Fields’ testimony that he and Marlar had agreed to
use each other to provide an alibi.
In contrast to this very strong evidence of Marlar’s guilt,
the probative value of the evidence concerning the pubic hairs
was limited. As stated above, the pubic hairs at issue were
found in a box that also contained pillowcases, a bedspread and
pillow sham, a bed sheet, a pair of pants, a cap, and paper
towels. Although the Barron Report excluded Marlar, as well as
Fields, the victim, and the victim’s boyfriend, as the source of
the pubic hairs, the Barron Report did not offer any other
conclusions regarding the identity of the person or persons who
deposited the pubic hairs. Notably, the Barron Report was not
probative of the issue whether the hairs originated from a male
or a female.
There also was no evidence indicating where or when the
pubic hairs at issue were deposited on any item or items that
ultimately were placed in the crime scene evidence box.
Significantly, those hairs could have been deposited on any of
the items found in the evidence box. Further, there was no
evidence concerning who may have owned or worn some of the items
found in the evidence box, such as the pants and black cap. In
short, there is no evidence in the record supporting a physical
or temporal connection between the sexual assault on the victim
and the pubic hair evidence noted in the Barron Report.
20
Our conclusion is not altered by Marlar’s additional
argument that the prosecutor misleadingly informed the jury
during closing arguments that “[t]he defense has been provided
obviously with everything. You saw this. Every report, every
SLED report has been provided and obviously you saw it. Every
report, every SLED report, everything.” Marlar has not
contended in his federal habeas proceedings that his counsel’s
failure to object to these comments constituted ineffective
assistance of counsel. Moreover, the prosecutor’s misleading
remarks do not change the fact that the record fails to connect
the hair evidence at issue to a male, to any particular item
collected at the crime scene, or to the time period in which the
sexual assault occurred.
For these reasons, we conclude that the record does not
demonstrate that, but for trial counsel’s alleged failures,
there is a reasonable probability that the result of Marlar’s
trial would have been different. In sum, the record before us
does not undermine confidence in the outcome of the proceedings.
See Strickland, 466 U.S. at 694. Because we reach this
conclusion, we need not address whether the performance of
Marlar’s trial counsel was deficient. See id. at 697.
Accordingly, we affirm the district court’s judgment dismissing
Marlar’s petition for a writ of habeas corpus.
AFFIRMED
21