Elrico Fowler v. Carlton Joyner

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4

ELRICO DARNELL FOWLER,

Petitioner − Appellant,

v.

CARLTON B. JOYNER, Warden, Central Prison, Raleigh, North
Carolina,

Respondent − Appellee.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:09-cv-00051-FDW)

Argued: April 11, 2014 Decided: June 2, 2014

Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS,
Senior Circuit Judge.

Judgment affirmed and motion denied by published opinion. Chief
Judge Traxler wrote the opinion, in which Judge Duncan joined.
Senior Judge Davis wrote an opinion concurring in the judgment
in part and dissenting in part.

ARGUED: Mark Jason Pickett, CENTER FOR DEATH PENALTY LITIGATION,
Durham, North Carolina, for Appellant. Sonya M. Calloway-
Durham, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee. ON BRIEF: Shelagh Rebecca Kenney,
CENTER FOR DEATH PENALTY LITIGATION, Durham, North Carolina, for
Appellant. Roy Cooper, Attorney General, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
TRAXLER, Chief Judge:

Petitioner Elrico Darnell Fowler, a North Carolina death

row inmate, appeals the district court’s denial of his petition

for a writ of habeas corpus under 28 U.S.C. § 2254. We granted

a certificate of appealability to consider Fowler’s claim that

an eyewitness’s in-court identification violated his due process

rights under the Fourteenth Amendment. Because the North

Carolina state court’s rejection of Fowler’s claim was not

contrary to, or an unreasonable application of, clearly

established federal law, as determined by the United States

Supreme Court, we affirm the district court’s denial of Fowler’s

petition for habeas relief.

While this appeal was pending, Fowler filed a motion

requesting that we designate his current, appointed counsel to

be “Martinez counsel,” referencing the Supreme Court decision in

Martinez v. Ryan, 132 S. Ct. 1309 (2012), and our decision

applying it in Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013),

and remand the matter to the district court for further

investigation and amendments, if appropriate, to his § 2254

petition. Because Fowler had the benefit of the qualified,

independent counsel called for in Juniper and he failed to raise

any Martinez-based claims below, we deny the motion as well.

2
 I.

A.

Fowler was convicted in North Carolina state court of the

first-degree murder of Bobby Richmond, assault with a deadly

weapon with intent to kill Bharat Shah, and two counts of

robbery with a dangerous weapon. All of the convictions arise

out of an armed robbery that occurred at a Howard Johnson’s

Motel in Charlotte, North Carolina, on December 31, 1995. The

circumstances surrounding the crime, as summarized by the North

Carolina Supreme Court, are as follows:

On 31 December 1995 at approximately 10:45 p.m., Bobby
Richmond (Richmond), an employee at a Howard Johnson’s
Motel in Charlotte, North Carolina, entered the motel
lobby looking for ice. Bharat Shah (Shah) was working
as the motel night clerk. About five minutes later,
two black males entered the motel and approached the
check-in counter. One of the men pulled out a gun and
ordered Richmond to get on the ground. The other man
ordered Shah to “open the register and give [him] the
money.” While Shah was handing over the money, the
man with the gun shot both Richmond and Shah. He then
ordered Shah to open the office safe. When Shah
stated he did not have the combination, the man shot
Shah again. Both assailants then fled the motel.

The Charlotte–Mecklenburg Police arrived at the
scene at 11:04 p.m. and found Richmond and Shah lying
near the counter. Richmond was unresponsive. Shah
was struggling to speak with police. He told the
police they had been robbed by two black males, one
wearing a green jacket.

When paramedics arrived, they found a large wound
in the middle of Richmond’s back. Richmond had no
carotid pulse. The paramedics determined Shah’s life
was in danger. A hospital surgeon later found two

3
 wounds in Shah’s left thigh, two more wounds in Shah’s
back, and a wound in Shah’s right forearm.

A high-velocity weapon caused Shah’s thigh
injury. Doctors removed two .44–caliber bullet jacket
fragments from his forearm during surgery. A .44–
caliber bullet jacket was also found in Richmond’s
left lung. Police located a .44–caliber bullet core
in the motel carpet beneath Richmond’s chest wound.
Police also found a .44–caliber bullet jacket and a
large fragment from a .44–caliber bullet jacket at the
scene. Both had been fired from the same weapon used
to shoot Richmond. Other pieces of metal found at the
scene were also consistent with .44–caliber
ammunition.

Richmond had an entrance wound in his back and an
exit wound in his chest. His chest was against a hard
surface when he was shot. The evidence showed
Richmond was likely shot from a distance of no more
than three feet.

Officers found Richmond’s wallet at the scene
next to his body. The wallet contained no money. The
cash register drawer and a plastic change drawer next
to the register also contained no money.
Approximately $300.00 was stolen from the motel during
the robbery.

State v. Fowler, 548 S.E.2d 684, 689-90 (N.C. 2001).

At trial, Jimmy Guzman, the owner of the restaurant

adjoining the motel lobby, testified that he heard gunshots

around 11:00 p.m. in the lobby of the motel. He looked through

the glass door of the restaurant and saw one of the robbers

standing behind the check-in counter. Guzman observed the man

for approximately five seconds before running to call the

police. According to Guzman, “the man was black, in his late

twenties, and approximately six feet tall.” Id. at 690. He

“had a pointed nose and hair on his face but not a full beard”

4
and “was wearing a green toboggan and a camouflage army jacket.”

Id. 1 Over Fowler’s objection, Guzman identified Fowler in court

as the man he saw behind the counter that night.

In addition to Guzman’s in—court identification of Fowler,

the prosecution presented the testimony of several witnesses to

whom Fowler had made incriminating statements. Jermale Jones

testified that Fowler told him on Thanksgiving 1995 that he

planned to rob a Howard Johnson’s motel. In March 1996, Fowler

additionally admitted to Jones “that he entered the Howard

Johnson’s with a handgun to attempt a robbery and that when the

people working at the motel made him ask twice for the money,

[he] shot them [with] ‘a big old .44.’” Id. at 691. Leo

McIntyre testified that he went to the Sugar Shack, a local

nightclub, on December 31, 1995, and spoke with Fowler. Fowler,

who was dressed in army fatigues, told McIntyre “that he shot

two people during a robbery at a Howard Johnson’s” motel. Id.

Later in the week, Fowler also told McIntyre “that, although he

thought he had killed both people at the robbery, one of them

1
Bharat Shah survived the shooting and also described the
events to the investigating officers. However, Shah told the
officers “that he did not get a good look at the shooter because
he was primarily focused on the man taking the money” and that
“he probably could not recognize the suspects.” State v.
Fowler, 548 S.E.2d 684, 691 (N.C. 2001). Shah moved to India
after he recovered from his wounds and, despite assurances that
he would be given police protection, refused to return for the
trial. See id.

5
had lived.” Id. Fowler also told McIntyre “that he only got

two or three hundred dollars” from the robbery. Id. Waymon

Fleming was living with Fowler at the time of the robbery. He

testified that Fowler admitted robbing the motel and shooting

the “people who would not open the safe.” Id. When Fowler told

Fleming that he was going to flee the state, Fleming notified

the authorities and Fowler was apprehended.

In addition to the above evidence, Edward Adams testified

that he was with Fowler at an apartment on the night of the

robbery. He testified that Fowler left the apartment “between

9:00 and 10:00 p.m. with two other men and returned between

midnight and 1:00 a.m.” Id. Fowler then left to go to the

Sugar Shack. Adams testified that he purchased a .44-caliber

revolver from Fowler the following evening. Later, in April

1996, Fowler “asked Adams where the gun was located, and Adams

told him the gun had been destroyed. [Fowler] responded, ‘I’m

glad,’ and asked Adams not to tell people about the gun.” Id.

Fowler also told Adams that the prosecutor did not know who

purchased the gun. See id. Shenitra Johnson told officers that

Fowler arrived at her home shortly after 11:30 p.m. on December

31, 1995, and left between 12:30 and 1:00 a.m., and that Fowler

had a .44-caliber gun, which he later sold. At trial, however,

Johnson testified that Fowler was at her home from 10:30 p.m. on

December 31, 1995, until 1:15 or 1:30 a.m. the next morning, and

6
denied seeing Fowler sell or attempt to sell a handgun at her

apartment. See id. at 692.

B.

In November 1997, Fowler was convicted by the jury of all

charges. He was thereafter sentenced to death. On appeal to

the North Carolina Supreme Court, Fowler argued that his

convictions should be overturned because Guzman’s in-court

identification deprived him of his right to due process. The

North Carolina Supreme Court affirmed, see id. at 704, and the

United States Supreme Court denied certiorari, see Fowler v.

North Carolina, 535 U.S. 939 (2002). Fowler’s motion for state

postconviction relief, which added a related claim that Fowler’s

trial counsel was constitutionally ineffective in the handling

of Guzman’s identification, was also denied, see State v.

Fowler, 668 S.E.2d 343 (N.C. 2008), and the United States

Supreme Court again denied certiorari, see Fowler v. North

Carolina, 129 S. Ct. 2392 (2009).

Fowler thereafter filed this petition for federal habeas

relief pursuant to 28 U.S.C. § 2254, raising sixteen separate

claims. The district court denied the petition and declined to

issue a certificate of appealability. At Fowler’s request, we

granted a certificate of appealability to consider Fowler’s

claim that the state court’s adjudication of his in-court

7
identification claim was contrary to, or an unreasonable

application of, Supreme Court precedent. 2 We now affirm.

II.

A.

We begin with the clearly established constitutional

principles applicable to in-court eyewitness identifications.

The United States Supreme Court has set forth a two-part

approach to determine whether an eyewitness identification must

be suppressed because it has been tainted by police procedures

or conduct. See Perry v. New Hampshire, 132 S. Ct. 716, 724

(2012). First, the court considers whether the identification

procedure employed by the police was “both suggestive and

unnecessary.” Id. Second, the court must “assess, on a case-

by-case basis, whether improper police conduct created a

substantial likelihood of misidentification.” Id. (internal

quotation marks omitted). That is, the court must determine

“whether under the totality of the circumstances the

identification was reliable even though the confrontation

procedure was suggestive.” Neil v. Biggers, 409 U.S. 188, 199

(1972) (internal quotation marks omitted).

2
In his federal habeas petition, Fowler also reasserted his
claim that his trial counsel was constitutionally ineffective in
the handling of his in-court identification claim. Fowler did
not seek a certificate of appealability on this issue.

8
 When considering the question of whether the identification

was reliable under the second prong, the Supreme Court has also

identified five factors for consideration. They include: (1)

“the opportunity of the witness to view the criminal at the time

of the crime”; (2) “the witness’ degree of attention”; (3) “the

accuracy of the witness’ prior description of the criminal”; (4)

“the level of certainty demonstrated by the witness at the

confrontation”; and (5) “the length of time between the crime

and the confrontation.” Biggers, 409 U.S. at 199-200. These

factors are weighed against “the corrupting effect of the

suggestive identification itself.” Manson v. Brathwaite, 432

U.S. 98, 114 (1977).

Thus, “[e]ven when the police use such a procedure . . .,

suppression of the resulting identification is not the

inevitable consequence.” Perry, 132 S. Ct. at 724. The

eyewitness identification need be suppressed only if the

procedures used to obtain the identification were “‘so

unnecessarily suggestive and conducive to irreparable mistaken

identification that [the defendant] was denied due process of

law.’” Biggers, 409 U.S. at 196 (quoting Stovall v. Denno, 388

U.S. 293, 302 (1967).

Moreover, the exclusion of such evidence is the exception

to the rule that favors the admissibility of eyewitness

identification for the jury’s consideration. Ordinarily, “[t]he

9
Constitution . . . protects a defendant against a conviction

based on evidence of questionable reliability, not by

prohibiting introduction of the evidence, but by affording the

defendant means to persuade the jury that the evidence should be

discounted as unworthy of credit.” Perry, 132 S. Ct. at 723;

see also Harker v. Maryland, 800 F.2d 437, 443 (4th Cir. 1986)

(noting that the exclusion of identification evidence is “a

drastic sanction . . . that is limited to identification

testimony which is manifestly suspect”). In the absence of “a

very substantial likelihood of irreparable misidentification, .

. . such evidence is for the jury to weigh.” Brathwaite, 432

U.S. at 116 (internal quotation marks omitted). Courts should

be “content to rely upon the good sense and judgment of American

juries, for evidence with some element of untrustworthiness is

customary grist for the jury mill. Juries are not so

susceptible that they cannot measure intelligently the weight of

identification testimony that has some questionable feature.”

Id.

B.

Prior to trial, Fowler moved to suppress Guzman’s expected

in-court identification of him from the Howard Johnson’s motel,

asserting that any such identification by Guzman would be the

product of impermissibly suggestive, photographic arrays

10
presented to Guzman in the immediate aftermath of the robbery

and murder. 3

The first photographic array occurred on January 8, 1996.

Guzman was presented with a six-person photographic array that

included a photograph of Fowler that had been taken in November

1995. In the photograph, Fowler had a full head of hair, a full

beard, and a mustache. As noted above, however, Guzman’s

initial description of the robber was of a man with a toboggan

cap, some hair on his face, but not a full beard. Guzman

declined to identify any of the photographs as resembling the

man he saw in the motel lobby. 4

On January 14, 1996, police officers presented Guzman with

another six-person photographic array that included Fowler and

five additional photographs that had been selected as similar by

a computer program. This array, however, contained an arrest

photograph of Fowler that had been taken just two days earlier,

on January 12, 1996. In this photograph, Fowler had a shaved

head and light facial-hair stubble. Although Guzman would not

positively identify any of the photographs as being of the man

3
Although Fowler initially moved to suppress both the pre-
trial photographic arrays and the in-court identification, he
later withdrew the motion to suppress the arrays.
4
On January 11, 1996, the police released the November 1995
photograph of Fowler to the media. However, Guzman testified
that he did not see the media coverage.

11
he saw on the night of the robbery, he selected Fowler’s

photograph as the one that “most closely resembled” the man.

J.A. 138.

On April 3, 1996, the police presented Guzman with another

photographic array, which contained the photograph of a man whom

police believed to be an accomplice of Fowler in an earlier

crime but which did not include a photograph of Fowler. At the

time, police had not yet identified the second robber and the

purpose of this array was to see if Guzman recognized the

suspected accomplice. Again, Guzman would not positively

identify any of the men, but he chose two photographs that he

said most closely resembled the man he saw that night. 5

Just prior to the evidentiary hearing on Fowler’s motion to

suppress, the prosecutor met with Guzman, who had been

subpoenaed to testify. During the meeting, Guzman was told that

Fowler would be seated between his attorneys at the defense

table during the hearing. At the hearing, Guzman confidently

identified Fowler -- who was dressed in an orange, jail jumpsuit

and seated between defense counsel -- as the man Guzman observed

5
Although not raised in connection with his motion to
suppress before the trial court, there was evidence presented at
the state MAR proceeding that Guzman was presented with two
additional arrays early on in the investigation that also did
not include Fowler. In one, Guzman declined to identify anyone.
In the other, he selected a photograph of Cullen Marshall, who
would later become Fowler’s co-defendant, as resembling one of
the robbers.

12
in the motel lobby. Guzman testified that his identification

was based on his having seen Fowler on the night of the robbery

and not on his having seen any photograph of Fowler in the

interim. Moreover, when Guzman was presented with the January

12, 1996, array at the suppression hearing, he was unable to

identify the photograph that he had earlier selected as the one

that most closely resembled the man he saw that night.

At the conclusion of the hearing on the motion to suppress,

the trial court made detailed findings of fact regarding

Fowler’s challenge to Guzman’s identification. Of particular

note, the trial court found as follows:

Mr. Guzman was approximately 25 feet from the person
he observed behind the counter at the time of his
observations. The lobby was lighted with fluorescent
lighting, and all the lights in the lobby appeared to
be turned on. He was able to observe the individual
from the level of the counter up, which allowed him to
observe the other part of the body of that person,
including his face and facial features. Mr. Guzman
was able to look at the face of the person for
approximately five seconds and see the face from
different angles. . . . The individual was not
wearing a mask or anything covering his face. He was
wearing a toboggan on his head. Mr. Guzman does not
wear prescription eyeglasses nor is there any
indication that he is in need of corrective lenses.
During the time that he observed the individual behind
the counter, there was no obstruction of his view of
the person’s face, there was no distraction of his
attention from the individual, and he was able to
focus his attention on the person.

J.A. 191-92. The trial court also addressed Fowler’s claim that

the prosecutor’s pre-hearing statement to Guzman about Fowler’s

13
expected location in the courtroom compounded the impermissibly

suggestive procedure:

Prior to his testimony in Court, Mr. Guzman met with
the prosecutors concerning his testimony and was
informed that the Defendant would be present in Court
and would be seated between his attorneys at the
defense counsel table. Mr. Guzman indicated his
identification of the Defendant in open Court [was]
based upon his recollection [of] the appearance on the
Defendant as being the person behind the counter at
Howard Johnson’s Motel on December 31st, 1995 and not
based upon any suggestion or inference in conferences
with the police officers or with prosecuting
attorneys. Mr. Guzman also indicated that he was
confident that the Defendant was the person he had
seen in Howard Johnson’s on December 31st, 1995.

J.A. 192-93. The trial court concluded that the pretrial

identification procedures relating to the photographic arrays

were not impermissibly suggestive and, even if they were, “[t]he

identification of [Fowler] by James Guzman . . . is not

inherently incredible, given all the circumstances of the

witness’s ability to view the accused at the time of the crime.

The credibility of the identification evidence is for the jury

to weigh.” J.A. 197.

On direct appeal, the North Carolina Supreme Court rejected

Fowler’s challenge to the trial court’s denial of his motion to

suppress. In pertinent part, the North Carolina Supreme Court

held as follows:

In the present case, the trial court made
extensive findings concerning the photographic arrays
shown to Guzman and concluded that Guzman’s in-court
identification was based on his independent

14
 recollection of defendant from the night of the
crimes. . . . There is ample evidence in the present
record to support the trial court’s findings. Guzman
testified he was confident that defendant was the man
he saw in the motel lobby on 31 December 1995. Guzman
stated that his identification was based on his memory
of seeing defendant in person in the motel lobby on
the night of the shootings and not on seeing
photographs of defendant. Moreover, the record
reveals prosecutors told Guzman when they met with him
before the pretrial hearing that he should tell the
truth if he did not recognize defendant.

This evidence is sufficient to support the trial
court’s findings, which in turn support its ultimate
legal conclusion that Guzman’s identification was not
the result of an impermissibly suggestive procedure.

Fowler, 548 S.E.2d at 698. The court also rejected Fowler’s

argument “that the cumulative effect of viewing photographic

arrays and meeting with prosecutors caused Guzman’s in-court

identification to be a violation of defendant’s due process

rights,” id., observing that:

[n]othing in the trial court’s findings or in the
evidence suggests that the prosecutors encouraged
Guzman to make a false identification. The meeting
between prosecutors and Guzman appears to have been
nothing more than an opportunity to go over what would
happen in court. The prosecutors did not provide
Guzman with any information that would not have been
readily apparent to him during the proceedings. Thus,
although prosecutors should avoid instructing the
witness as to defendant’s location in the courtroom,
there is nonetheless insufficient evidence to support
defendant’s contention that prosecutors rigged
Guzman’s identification. Accordingly, although Guzman
never explicitly testified that his meeting with
prosecutors did not affect his in-court
identification, the evidence in the record supports
the trial court’s conclusion that Guzman’s
identification was not a result of prosecutorial
suggestion.

15
Id. In sum, the court held that the procedures leading up to

Guzman’s in-court identification were not unnecessarily

suggestive and that, even if they were, they did not create a

substantial likelihood of irreparable misidentification. See

id. at 698-99. In addition, the court held that any violation

of Fowler’s due process rights “was harmless beyond a reasonable

doubt” in light of the other evidence of Fowler’s guilt. Id. at

699.

III.
A.

Because the North Carolina state courts adjudicated

Fowler’s constitutional claim on the merits, we may grant habeas

relief under 28 U.S.C. § 2254 only if that adjudication (1) “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), or (2) “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).

As the United States Supreme Court has increasingly

cautioned, this review of state court decisions on federal

constitutional claims is a highly constrained one. We are not

at liberty to substitute our judgment for that of the state

court on matters of federal constitutional law, even if we

16
believe the state court decision was incorrect. “The question .

. . is not whether a federal court believes the state court’s

determination was incorrect but whether that determination was

unreasonable – a substantially higher threshold.” Schriro v.

Landrigan, 550 U.S. 465, 473 (2007) (emphasis added). A state

court decision is unreasonable “only if it is so erroneous that

‘there is no possibility fairminded jurists could disagree that

the state court’s decision conflicts with th[e] [Supreme]

Court’s precedents.’” Nevada v. Jackson, 133 S. Ct. 1990, 1992

(2013) (per curiam) (quoting Harrington v. Richter, 131 S. Ct.

770, 786 (2011)). Furthermore, our deference is not limited to

the state court’s interpretation and application of Supreme

Court precedents. When we review a state court’s decision, we

must also presume the correctness of the state court’s factual

findings, unless rebutted by clear and convincing evidence. See

28 U.S.C. § 2254(e)(1).

B.

1.

The district court held that the North Carolina Supreme

Court reasonably applied the clearly established Supreme Court

precedents in determining that the pre-trial identification

process in this case was not impermissibly suggestive. We

agree.

17
 Law enforcement presented two photographic arrays to Guzman

that included Fowler’s photograph. Fowler does not argue that

the photographic arrays, as individually composed, were unduly

suggestive. Rather, Fowler complains only that the pre-trial

procedures were unduly suggestive because he appeared in both

arrays and because Guzman was told that Fowler would be seated

between his counsel prior to the suppression hearing. However,

while a photograph of Fowler appeared in both arrays, the same

photograph did not appear in both, and it is undisputed that

Fowler’s appearance in the January 8 array was quite different

from his appearance in the January 14 array and from the

description provided by Guzman to the authorities in the

immediate aftermath of the crime. Moreover, although Guzman

selected the photograph of Fowler from the April 14 array as the

one most closely resembling the man he saw, he would not

positively identify anyone as being the man he saw on the night

of the robbery and he was unable to select the same photograph

at the suppression hearing.

Nor are we persuaded by Guzman’s claim that the state court

unreasonably concluded that the prosecutor’s pre-hearing meeting

with Guzman was not so suggestive - singularly or in combination

with the photographic arrays – as to violate Fowler’s due

process rights, or by his argument that the state court

erroneously imposed upon him a burden of proving that the

18
prosecutors were driven by improper motives. There is nothing

in the record that calls into question the state court’s

reasonable determination that the meeting between the

prosecutors and Guzman was simply “an opportunity to go over

what would happen in court,” and that the challenged statement

only provided Guzman with information that would “have been

readily apparent to him during the proceedings.” Fowler, 548

S.E.2d at 698; cf. United States v. Murray, 65 F.3d 1161, 1169

(4th Cir. 1995) (noting that a witness’s prior knowledge of a

defendant’s location at counsel table in a courtroom proceeding

was not per se impermissibly suggestive). In the course of

concluding that “the evidence in the record supports the trial

court’s conclusion that Guzman’s identification was not a result

of prosecutorial suggestion,” even in combination with the

photographic arrays, the state court also appropriately observed

that there was nothing in the record to “suggest[] that the

prosecutors encouraged Guzman to make a false identification” or

otherwise “rigged Guzman’s identification.” Fowler, 548 S.E.2d

at 698. And, as the state court pointed out, although the

prosecutors told Guzman where Fowler would be seated in the

courtroom, they also told Guzman “that he should tell the truth

if he did not recognize defendant.” Id.

19
 2.

As both the state court and district court correctly noted,

the absence of an unduly suggestive procedure renders it

unnecessary for us to go further. Nevertheless, even assuming

arguendo that the actions of the police and prosecutor were

unduly suggestive, we cannot say that the state court

unreasonably concluded that Guzman’s identification of Fowler

was reliable under the totality of the circumstances.

Guzman observed the accused through a glass door from a

distance of 25 feet in fluorescent lighting for approximately

five seconds. The accused wore no mask and nothing obstructed

Guzman’s view of him. Guzman was able to and did observe his

facial features from different angles, including when the

accused looked in Guzman’s direction, and nothing distracted his

view away from the man during the time that he observed him. In

addition, Guzman was aware of a previous robbery that had

occurred at the motel and, therefore, was immediately alert to

the possibility that a robbery might be in progress.

Furthermore, Guzman provided a detailed description of the

accused immediately after the event, including a description of

his facial features and of the clothing he was wearing, which

turned out to match descriptions given by other witnesses who

saw Fowler on the night of the crime.

20
 We additionally note that Guzman was consistently hesitant

to conclusively identify a suspect from any of the photographic

arrays shown to him, whether or not they included a photograph

of Fowler. Instead, he did exactly what was asked of him. He

picked photographs only when he felt that they resembled the

person he saw that night and refused to conclusively identify

the culprit until he was sure. When given the first opportunity

to observe Fowler in person in October 2007, Guzman, having been

told that he should only identify Fowler if he was sure, was

confident that Fowler was the person he saw in the lobby of the

Howard Johnson’s that night. Guzman further testified that his

identification was based on seeing Fowler in the lobby that

night and not on his having seen any photograph of Fowler. In

sum, it was not unreasonable for the state court to find that

Guzman based his identification on his observations on the night

of the robbery and not on his prior viewing of photographs of

Fowler or his knowledge of where Fowler would be located in the

courtroom. To the extent that Guzman’s identifications were

subject to question, the state court reasonably held it was a

matter for the jury to consider and weigh and not a basis for

excluding the evidence altogether.

3.

Finally, the North Carolina Supreme Court additionally held

that, even assuming that error occurred, any due process

21
violation “was harmless beyond a reasonable doubt,” in light of

the other evidence at trial. Fowler, 548 S.E.2d at 699.

Specifically, the court observed that:

Guzman’s in-court identification was by no means the
only evidence pointing to defendant’s guilt. At
trial, three witnesses testified that defendant
admitted entering the Howard Johnson’s to attempt a
robbery and that he shot two people. One witness
testified that defendant told him he had only gotten
two or three hundred dollars from the robbery and that
he was broke because he had paid for his friends to
get into the Sugar Shack. Another person testified
that defendant sold him a .44–caliber revolver on the
evening of 1 January 1996, the day after the murders.

Id. On federal habeas, Fowler argues that he was prejudiced by

the admission of Guzman’s identification because the only other

“evidence linking Fowler to the crime was the testimony of four

informants, all of whom approached the State with supposed

information about Fowler’s case in the hopes of receiving

favorable deals and sentencing reductions for their own criminal

activity.” Brief of Appellant at 33.

On direct review, “[a] constitutional error is harmless

when it appears beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.”

Mitchell v. Esparza, 540 U.S. 12, 17-18 (2003) (per curiam)

(internal quotation marks omitted); see also Chapman v.

California, 386 U.S. 18, 24 (1967). On federal habeas review,

however, we apply the more onerous, harmless error analysis set

forth in Brecht v. Abrahamson, 507 U.S. 619, 631 (1993). “Under

22
that standard, an error is harmless unless it had a substantial

and injurious effect or influence in determining the jury’s

verdict.” Fry v. Pliler, 551 U.S. 112, 116 (2007) (internal

quotation marks omitted). We “assess the prejudicial impact of

constitutional error in a state-court criminal trial under the

‘substantial and injurious effect’ standard set forth in Brecht

. . . whether or not the state appellate court recognized the

error and reviewed it for harmlessness under the [Chapman]

standard.” Fry, 551 U.S. at 121-22 (noting that “it certainly

makes no sense to require formal application of both tests

(AEDPA/Chapman and Brecht) when the latter obviously subsumes

the former”). And “where an error is harmful under Brecht, any

state court decision declaring it harmless must have

unreasonably applied Chapman. As a result, any error satisfying

Brecht will also satisfy AEDPA’s deference requirements.”

Bauberger v. Haynes, 632 F.3d 100, 104 (4th Cir. 2011).

“Federal habeas courts must always review constitutional errors

in state trials under Brecht, but they need not debate whether a

state court’s harmless error determination also unreasonably

applied Chapman.” Id.

Applying the Brecht standard, we conclude that the

admission of Guzman’s in-court identification, even if error,

was harmless. As the state court observed, there was abundant

other evidence presented on the issue of Fowler’s guilt,

23
including the testimony of several acquaintances that Fowler

admitted that he committed the crime and provided details about

the shootings and the murder weapon that were corroborated by

the witnesses and forensic evidence from the motel that night.

4.

For the foregoing reasons, we hold that the state court’s

rejection of Fowler’s due process claim was not contrary to or

an unreasonable application of the governing Supreme Court

precedents. In the alternative, we hold that any such error was

harmless under Brecht.

IV.

We turn now to Fowler’s motion, filed for the first time on

appeal, which he styles as a Motion for Appointment of Qualified

and Independent Counsel. Relying upon our decision in Juniper

v. Davis, 737 F.3d 288 (4th Cir. 2013), and the Supreme Court’s

decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012), Fowler

asks that that we defer resolution of his habeas appeal,

designate his current counsel to be “Martinez counsel,” and

remand this case to the district court to allow counsel to

investigate whether there are any substantial ineffective-

assistance-of-trial-counsel claims that were not timely

presented to the North Carolina state court. For the following

reasons, we deny the motion.

24
 A.

1.

Ordinarily, a habeas petitioner is procedurally barred from

obtaining federal habeas review of a claim if he failed to raise

and exhaust the claim in state court. See Coleman v. Thompson,

501 U.S. 722, 750 (1991); Wainwright v. Sykes, 433 U.S. 72, 84-

85 (1977). Under this procedural default doctrine, habeas

review of the claim will only be permitted if the petitioner can

demonstrate (1) cause for the default and prejudice resulting

therefrom or (2) that the failure to consider the claim will

result in a fundamental miscarriage of justice. See Coleman,

501 U.S. at 750.

In some circumstances, a defendant may establish cause if

he was represented by counsel whose performance was

constitutionally ineffective under the standards established in

Strickland v. Washington, 466 U.S. 668 (1984). See Coleman, 501

U.S. at 752; Murray v. Carrier, 477 U.S. 478, 488 (1986). In

Coleman, however, the Supreme Court held that because “[t]here

is no constitutional right to an attorney in state post-

conviction proceedings,” a federal habeas “petitioner cannot

claim constitutionally ineffective assistance of counsel in such

proceedings” to establish cause. Coleman, 501 U.S. at 752.

25
 In Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012), the

Supreme Court first announced a “narrow exception” to the

Coleman rule. Specifically, the Court held that:

Where, under state law, claims of ineffective
assistance of trial counsel must be raised in an
initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance
at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that
proceeding was [constitutionally] ineffective.

Id. at 1320 (emphasis added). This limited qualification of the

Coleman rule was based on the fact that when an “initial-review

collateral proceeding is the first designated proceeding for a

prisoner to raise a claim of ineffective assistance at trial,

the collateral proceeding is in many ways the equivalent of a

prisoner’s direct appeal as to the ineffective-assistance

claim.” Id. at 1317. Thus,

[W]hen a State requires a prisoner to raise an
ineffective-assistance-of-trial-counsel claim in a
collateral proceeding, a prisoner may establish cause
for a default of an ineffective-assistance claim . . .
where appointed counsel in the initial-review
collateral proceeding, where the claim should have
been raised, was ineffective under the standards of
Strickland v. Washington, 466 U.S. 668 (1984).

Id. at 1318 (citation omitted). Not long thereafter, the

Supreme Court held that the Martinez exception also applies to

ineffective-assistance-of-trial-counsel claims that state law

might, on its face, permit to be brought on direct appeal, if

the “structure and design” of the state “system in actual

26
operation . . . make it ‘virtually impossible’” to do so.

Trevino v. Thaler, 133 S. Ct. 1911, 1915 (2013). Where the

“state procedural framework, by reason of its design and

operation, makes it highly unlikely in a typical case that a

defendant will have a meaningful opportunity to raise a claim of

ineffective assistance of trial counsel on direct appeal, [the]

holding in Martinez applies.” Id. at 1921.

To summarize, then, Martinez held that a federal habeas

petitioner who seeks to raise an otherwise procedurally

defaulted claim of ineffective-assistance-of-trial-counsel

before the federal court may do so only if: (1) the

ineffective-assistance-of-trial-counsel claim is a substantial

one; (2) the “cause” for default “consist[s] of there being no

counsel or only ineffective counsel during the state collateral

review proceeding”; (3) “the state collateral review proceeding

was the initial review proceeding in respect to the ineffective-

assistance-of-trial-counsel claim”; and (4) state law “requires

that an ineffective-assistance-of-trial-counsel claim be raised

in an initial-review collateral proceeding.” Trevino, 133 S.

Ct. at 1918 (internal quotation marks, alterations, and emphasis

omitted); see also Martinez, 132 S. Ct. at 1318. Trevino held

that the Martinez exception would also apply in states that have

procedures which “make[] it highly unlikely in a typical case

that a defendant will have a meaningful opportunity to raise

27
[the] claim on direct appeal.” Id. at 1921. Absent these

“limited circumstances,” “[t]he rule of Coleman [continues] to

govern[].” Martinez, 132 S. Ct. at 1320. The Martinez

exception “does not concern attorney errors in other kinds of

proceedings, including appeals from initial-review collateral

proceedings, second or successive collateral proceedings, and

petitions for discretionary review in a State’s appellate

courts. It does not extend to attorney errors in any proceeding

beyond the first occasion the State allows a prisoner to raise a

claim of ineffective assistance at trial, even though that

initial-review collateral proceeding may be deficient for other

reasons.” Id. (emphasis added) (citations omitted).

2.

In Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013), we held

that a habeas petitioner, who has been sentenced to death and

appointed counsel pursuant to 18 U.S.C. § 3599(a)(2) to pursue

federal postconviction relief, is entitled to the appointment of

qualified, independent legal counsel for the purpose of

investigating whether he has any Martinez-based claims if his §

3599 counsel also represented him in the state postconviction

proceedings. 6

6
Pursuant to 18 U.S.C. § 3599, “[i]n any post conviction
proceeding under section 2254 or 2255 of title 28, United States
Code, seeking to vacate or set aside a death sentence, any
(Continued)
28
 In Virginia, where Juniper was convicted, state prisoners

cannot raise ineffective-assistance-of-trial-counsel claims on

direct appeal and, therefore, the state fell plainly within the

Martinez exception. See Johnson v. Commonwealth, 529 S.E.2d

769, 781 (Va. 2000). Upon the filing of the petition for

federal habeas relief, the district court appointed Juniper’s

state postconviction counsel to continue representation of him

in the federal habeas proceedings. However, when the Supreme

Court issued its decision in Martinez, Juniper moved to have new

counsel appointed under § 3599, in addition to his existing

counsel, for the purpose of investigating and presenting any

substantial, ineffective-assistance-of-trial-counsel claims that

had been procedurally defaulted in state court. In particular,

Juniper argued that he was entitled to such new counsel because

his existing counsel would otherwise be required to investigate

his own ineffectiveness in the state court proceedings. The

district court denied the motion, but granted a certificate of

appealability.

On appeal, we held that “if a federal habeas petitioner is

represented by the same counsel as in state habeas proceedings,

defendant who is or becomes financially unable to obtain
adequate [legal] representation . . . shall be entitled to the
appointment of one or more attorneys” meeting the practice
qualifications set forth in subsections (b) through (d).

29
and the petitioner requests independent counsel in order to

investigate and pursue claims under Martinez in a state where

the petitioner may only raise ineffective assistance claims in

an ‘initial-review collateral proceeding,’ qualified and

independent counsel is ethically required.” Juniper, 737 F.3d

at 290 (emphasis in original). This is because “‘a clear

conflict of interest exists in requiring [petitioner’s] counsel

to identify and investigate potential errors that they

themselves may have made in failing to uncover ineffectiveness

of trial counsel while they represented [petitioner] in his

state post-conviction proceedings.” Id. at 289-90 (quoting Gray

v. Pearson, 526 Fed. Appx. 331, 334 (4th Cir. 2013)); see also

id. at 290 (noting that it would be “ethically untenable to

require counsel to assert claims of his or her own

ineffectiveness in the state habeas proceedings in order to

adequately present defaulted ineffective-assistance-of-trial-

counsel claims under Martinez in the federal habeas

proceedings”).

We further held that, while Martinez requires that any such

claim be ultimately deemed substantial, the “district court must

grant the motion for appointment of counsel” for purposes of

investigation “without regard to whether the underlying motion

identifies a ‘substantial’ ineffective assistance claim under

Martinez.” Id.

30
 B.

The state of North Carolina argues that the Martinez

exception does not apply in North Carolina because its laws and

procedures neither prohibit nor make it “virtually impossible”

for a defendant to raise an ineffective–assistance-of-trial-

counsel claim on direct appeal. Fowler, on the other hand,

argues that Martinez does apply in North Carolina because, as in

Trevino, defendants are ordinarily required to raise claims of

ineffective assistance of trial counsel in a motion for

appropriate relief. We disagree with both assertions.

Under North Carolina law, “a motion for appropriate relief,

including motions filed in capital cases,” must be denied if

“[u]pon a previous appeal the defendant was in a position to

adequately raise the ground or issue underlying the . . . motion

but did not do so.” N.C.G.S. § 15A-1419(a)(3), (b). However,

the statute “is not a general rule that any claim not brought on

direct appeal is forfeited on state collateral review. Instead,

the rule requires North Carolina courts to determine whether the

particular claim at issue could have been brought on direct

review.” McCarver v. Lee, 221 F.3d 583, 589 (4th Cir. 2000).

Ineffective-assistance-of-trial-counsel “claims brought on

direct review will be decided on the merits when the cold record

reveals that no further investigation is required, i.e., claims

that may be developed and argued without such ancillary

31
procedures as the appointment of investigators or an evidentiary

hearing.” State v. Fair, 557 S.E.2d 500, 524 (N.C. 2001).

Otherwise, the claims “should be considered through motions for

appropriate relief and not on direct appeal.” State v. Stroud,

557 S.E.2d 544, 547 (N.C. Ct. App. 2001). “Thus, while in some

situations a defendant may be required to raise an [ineffective-

assistance-of-trial-counsel] claim on direct appeal, a defendant

will not be required to do so in all situations.” State v.

Long, 557 S.E.2d 89, 93 (N.C. 2001). Accordingly, “to avoid

procedural default under N.C.G.S. § 15A-1419(a)(3), defendants

should necessarily raise those [ineffective-assistance-of-trial-

counsel] claims on direct appeal that are apparent from the

record.” Fair, 557 S.E.2d at 525 (“commend[ing]” counsel “for

properly raising [five] claims [of ineffective assistance of

counsel] on direct appeal”). “[S]hould the reviewing court

determine that [ineffective-assistance-of-trial-counsel] claims

have been prematurely asserted on direct appeal, it shall

dismiss those claims without prejudice to the defendant’s right

to reassert them during a subsequent MAR proceeding.” Id.

In sum, North Carolina does not fall neatly within Martinez

or Trevino. Ineffective-assistance-of-trial-counsel claims that

are apparent from the record must be brought by the prisoner on

direct appeal and, as to those claims, “the state collateral

review proceeding [is not] the initial review proceeding in

32
respect to the . . . claim.” Trevino, 133 S. Ct at 1918

(internal quotation marks omitted). Accordingly, they are

subject to procedural default under N.C.G.S. § 15A-1419, and the

Martinez exception to Coleman will provide the prisoner no

relief on federal habeas. Ineffective-assistance-of-trial-

counsel claims that are not so apparent, however, will fall

within the Martinez exception.

In Juniper and Gray, we held that qualified, independent

counsel must be appointed in a Martinez state for the purpose of

determining whether any additional, ineffective-assistance-of-

trial-counsel claims exist which were not brought on state

habeas. Because some claims may fall within the Martinez

exception to Coleman, North Carolina petitioners are therefore

entitled upon request to the appointment of qualified,

independent counsel for the purposes of investigating whether

any such claims exist. However, the federal habeas court will

still be called upon to determine, on a case-by-case basis,

whether the particular ineffective-assistance-of-trial-counsel

claim identified, regardless of its merit, is nonetheless

procedurally defaulted because it could have been and should

have been raised on direct appeal.

C.

That said, Fowler is not entitled to the relief he seeks

before this court. Unlike the petitioners in Juniper and Gray,

33
Fowler had the benefit of qualified, independent counsel during

the pendency of his federal habeas petition below who had ample

opportunity to pursue any Martinez-based arguments on his

behalf.

During the various stages of Fowler’s trial and collateral

proceedings, he has had the benefit of at least nine death-

penalty qualified attorneys. At trial, Fowler was represented

by Kevin Barnett and Harold Bender. On direct appeal, he was

appointed new counsel, James Glover, to review the trial court

record and pursue appropriate claims, including ineffective-

assistance-of-counsel claims.

After his conviction and sentence were affirmed and

certiorari review denied, Fowler was appointed qualified

postconviction counsel, Zephyr Teachout and Stephen Greenwald,

to pursue postconviction relief. Fowler’s original Motion for

Appropriate Relief was filed on November 12, 2002, and amended

on August 12, 2004. During the pendency of his MAR proceeding,

however, Fowler’s postconviction counsel were relieved and he

was appointed a second set of qualified postconviction counsel,

Faith Bushnaq and Reita Pendry, who also reviewed the matter and

filed an amendment to the MAR, which included an additional

ineffective-assistance-of-trial counsel claim.

After relief was denied in state postconviction

proceedings, Bushnaq and Pendry sought and received an

34
appointment to represent Fowler in his federal habeas

proceedings. Pendry filed an affidavit attesting to both her

and Bushnaq’s qualifications to represent Fowler under § 3599(c)

and (d). On February 12, 2009, Pendry and Bushnaq filed a

Petition for Writ of Habeas Corpus. The state filed its

response in May 2009, and Fowler filed a reply to the response

in August 2009.

On October 11, 2011, however, Fowler’s current counsel,

Shelagh Kenney with the Center for Death Penalty Litigation,

successfully moved on Fowler’s behalf for an order appointing

her to replace Pendry. In conjunction with this motion, Kenney

also represented to the district court that she met the

qualifications to undertake representation under § 3599(c) and

(d), and additionally asserted that her entire practice is

devoted to the representation of indigent defendants who have

been sentenced to death. The district court also granted, at

Kenney’s request, “a sixty (60) day abeyance of any rulings” on

the federal habeas petition, “without prejudice to [Fowler’s]

requesting additional time, if necessary,” Docket Entry No. 21,

Fowler v. Branker, No. 3:09-cv-00051 (W.D.N.C. Oct. 19, 2013),

in order to give newly appointed federal habeas counsel

“sufficient time to inform herself about Mr. Fowler’s case,”

Docket Entry No. 20, Fowler v. Branker, No. 3:09-cv-00051

(W.D.N.C. Oct. 11, 2011).

35
 Martinez, which had been fully briefed and was pending

argument in the Supreme Court at the time of Kenney’s

appointment, was decided on March 20, 2012. Moreover, the

district court did not issue its decision denying Fowler’s

federal habeas petition until March 27, 2013, a year after the

decision in Martinez was issued. However, at no time during the

pendency of her representation did Kenney seek to amend the

federal habeas petition to assert additional ineffective-

assistance-of-trial-counsel claims, or request a further

abeyance of the case to allow for any additional investigation

of any potential new claims.

Thus, although styled as a “Motion for Appointment of

Qualified and Independent Counsel in Light of Juniper,” it turns

out that Fowler’s motion, filed before this court for the first

time, does not seek appointment of new, independent counsel

pursuant to Juniper at all. Although Fowler was initially

represented in his federal habeas proceedings by his second set

of state postconviction counsel, he was appointed and had the

benefit of qualified, independent counsel pursuant to § 3599 for

a substantial period of time during the pendency of his federal

habeas petition in the district court. Our holding in Juniper

was limited and explicit:

To be clear, if a federal habeas petitioner is
represented by the same counsel as in state habeas
proceedings, and the petitioner requests independent

36
 counsel in order to investigate and pursue claims
under Martinez in a state where the petitioner may
only raise ineffective assistance claims in an
‘initial review collateral proceeding,” qualified and
independent counsel is ethically required.

Juniper, 737 F.3d at 290 (third emphasis in original). However,

where, as here, counsel who represents the petitioner in federal

habeas proceedings “undertook representation after the initial-

review collateral proceeding concluded, that counsel cannot be

found ineffective before or after Martinez. Ethically, this

means there is no potential conflict of interest in light of

Martinez because there is no chance that the attorney would have

to argue his or her own ineffectiveness or forego a potentially

valid ineffective assistance of counsel claim.” David M.

Barron, Martinez Casts Doubt on State PostConviction and Federal

Habeas Representation, 27-Fall Crim. Just. 42 (2012) (emphasis

added).

Kenney is without doubt well qualified and informed in

death penalty matters. She represented Fowler for a year and a

half during the pendency of the district court proceedings, and

she did not represent Fowler at any stage of the state MAR

proceedings. Thus, she did not labor under any conflict of

interest that would have hindered her ability to investigate

whether there were any Martinez-based ineffective-assistance-of-

trial-counsel claims that had not already been ferreted out by

Fowler’s prior trial and postconviction counsel, or entitled

37
Fowler to the appointment of new, “conflict-free” counsel under

§ 3599. 7

We are also unpersuaded by Fowler’s half-hearted argument

that a special designation of “Martinez counsel” and remand for

further investigation is warranted because the Juniper decision

was not issued until after Fowler filed his appeal. The

decisions in both Juniper and Gray addressed a conflict-of-

interest argument that was timely made before the district court

immediately after the Martinez decision was handed down by the

Supreme Court, and were based upon its reasoning and holding.

See e.g. Juniper, 737 F.3d at 289 (“In accordance with Martinez,

the Gray panel held that the petitioner was entitled to

independent counsel in his federal habeas proceedings to

investigate and pursue the ineffectiveness of state habeas

counsel.”); Gray, 526 Fed. Appx at 332 (“[U]nder the reasoning

and holding of Martinez, [petitioner] is entitled to counsel who

could vigorously examine and present if available potential

claims of ineffective assistance by [his] counsel in his state

habeas proceedings.”). Juniper’s counsel was qualified, but not

7
In Juniper, the petitioner had a second appointed counsel
who had not represented him in the state postconviction
proceedings, but this counsel was not qualified under 18 U.S.C.
§ 3599(c) to represent him independently. Here, in contrast,
Kenney was qualified and, therefore, “serve[d] as the
independent counsel called for in” Juniper. Juniper v. Davis,
737 F.3d 288, 290 n.2 (4th Cir. 2013).

38
independent, and therefore Juniper was in a position to argue

that his appointed counsel operated under a conflict of interest

entitling him to new counsel under § 3599. Kenney, in contrast,

has at all times been independent and conflict-free. Moreover,

there is no magic to the term “Martinez counsel,” which does not

appear in Juniper or Gray. The term is but a shorthand

reference to the qualified, independent counsel that Juniper

held was ethically required under § 3599 in the narrow set of

circumstances presented. Juniper did not grant a federal habeas

petitioner and his independent counsel any right, on appeal, to

return to the district court and conduct additional Martinez

investigations or to otherwise vary our normal rule that

arguments such as these, including a petitioner’s motion for new

counsel in light of Martinez, should have been made in the first

instance to the district court.

In sum, Martinez provided Fowler’s counsel with all the

authority necessary to request an additional abeyance of the

district court’s ruling and, if appropriate, to file an amended

habeas petition. No explanation for this delay has been

offered. Unlike the petitioners in Juniper and Gray, Fowler did

not seek appointment of independent, qualified counsel under

Martinez in the district court. Kenney already met that

criteria. Nor did Fowler or Kenney, upon her appointment, seek

additional time to investigate whether there were any additional

39
ineffective-assistance-of-trial-counsel claims which Martinez

might allow the district court to consider, leaving us with the

unmistakable impression that there was nothing of substance left

to investigate. Counsel may or may not have investigated

whether Fowler’s two sets of qualified, state postconviction

counsel were constitutionally ineffective in failing to identify

and present an ineffective-assistance-of-trial-counsel claim.

But even if such Martinez-based claims existed, they have been

waived by Fowler’s failure to raise the issue below, and any

ineffectiveness on Kenney’s part provides Fowler with no relief

here.

V.

For the foregoing reasons, we affirm the judgment of the

district court denying Fowler’s petition for habeas relief. We

also deny Fowler’s motion for appointment of qualified and

independent counsel under Martinez and Juniper.

JUDGMENT AFFIRMED;
MOTION DENIED

40
DAVIS, Senior Circuit Judge, concurring in the judgment in part
and dissenting in part:

I strongly disagree with the weathered notion that when it

comes to eyewitness identification evidence, “[c]ourts should be

‘content to rely upon the good sense and judgment of American

juries, for evidence with some element of untrustworthiness is

customary grist for the jury mill,’” and that “‘[j]uries are not

so susceptible that they cannot measure intelligently the weight

of identification testimony that has some questionable

feature.’” See maj. op. at 10 (quoting Manson v. Brathwaite, 432

U.S. 98, 116 (1977)). The hundreds of exonerations splashed

across the headlines of popular and legal media over the last

decade put the lie to the Supreme Court’s outworn hope that

juries can be counted on routinely to reject unreliable

eyewitness identification evidence without special guidance from

courts. See generally Laura Sullivan, Exonerations On The Rise,

And Not Just Because Of DNA, National Public Radio (Feb. 4,

2014, 3:47 AM) (saved as ECF Opinion Attachment). Nevertheless,

largely for reasons set forth in the Chief Judge’s thorough

opinion, I concur in the judgment that Fowler is not entitled to

relief under 28 U.S.C. § 2254.

As for the motion to appoint counsel pursuant to the

teachings of Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013), I

would remand determination of the issue to the district court

41
for its examination in the first instance. If the district court

denied the motion, then Fowler would be free to seek from the

district court or this Court a certificate of appealability.

Accordingly, I dissent from the panel’s denial of the motion.

42