Bacon v. Lee

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT BACON, JR.,
Petitioner-Appellee,

v.
No. 99-21
R. C. LEE, Warden, Central Prison,
Raleigh, North Carolina,
Respondent-Appellant.

ROBERT BACON, JR.,
Petitioner-Appellant,

v.
No. 99-23
R. C. LEE, Warden, Central Prison,
Raleigh, North Carolina,
Respondent-Appellee.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CA-97-395-5-HC-BR)

Argued: May 3, 2000

Decided: August 30, 2000

Before NIEMEYER, TRAXLER, and KING, Circuit Judges.

_________________________________________________________________

Affirmed in part and reversed in part by published opinion. Judge
Niemeyer wrote the opinion, in which Judge Traxler joined. Judge
King wrote a separate opinion concurring in the judgment in part and
dissenting in part.
COUNSEL

ARGUED: Edwin William Welch, Special Deputy Attorney General,
Teresa Lynn Harris, Special Deputy Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Caro-
lina, for Appellant. Gretchen Marie Engel, CENTER FOR DEATH
PENALTY LITIGATION, INC., Durham, North Carolina, for Appel-
lee. ON BRIEF: Stephen R. Greenwald, AUDREY COHEN COL-
LEGE, New York, New York, for Appellee.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

A North Carolina jury convicted Robert Bacon of the murder of
Glennie Clark and sentenced him to death. On appeal, the North Car-
olina Supreme Court vacated the death sentence, ruling that there was
sufficient evidence to support a statutory mitigating circumstance that
the trial court had failed to submit to the jury. Following a second
sentencing hearing, a second jury again imposed the death penalty.

After exhausting his direct appeals and state post-conviction reme-
dies, Bacon petitioned the district court for a federal writ of habeas
corpus, raising 28 claims of error that he contended justified issuance
of the writ under 28 U.S.C. § 2254. The district court entered sum-
mary judgment in favor of the State on all of the claims except one.
With respect to the one claim -- that Bacon was denied effective
assistance of counsel by the failure of his attorneys at the resentencing
hearing to introduce evidence that he aided in the apprehension of his
accomplice -- the district court ordered an evidentiary hearing. After
conducting this hearing, the court determined that Bacon had received
ineffective assistance of counsel, rendering the result of his resentenc-
ing hearing "fundamentally unfair, or at the very least, unreliable."
Accordingly, the court granted the writ on this claim.

North Carolina filed this appeal to challenge the district court's
order granting the writ, and Bacon filed a cross-appeal challenging
the court's rulings rejecting six of his other claims for relief. For the

2
reasons that follow, we reverse the district court's grant of the writ
based on the ineffective assistance of counsel and affirm its rulings
rejecting Bacon's other claims for relief.

I

Robert Bacon was convicted and sentenced to death for the Febru-
ary 1, 1987 murder of Glennie Clark, the estranged husband of
Bacon's lover, Bonnie Sue Clark.

Bonnie Sue and Glennie Clark were married in 1982 and had two
children. Because Glennie became an alcoholic and physically abu-
sive, see State v. Clark, 377 S.E.2d 54, 57-58 (N.C. 1989); State v.
Bacon, 390 S.E.2d 327, 330 (N.C. 1990) (hereinafter "Bacon I"),
Bonnie Sue moved out of the house in 1986 and took up residence
with Bacon, who was a coworker, and another friend, see Clark, 377
S.E.2d at 58. Despite their separation, Glennie continued to harass
Bonnie Sue by telephone, and "`the worse things got' between her
and her husband, the closer she drew emotionally and romantically to
Bacon." Id.

Bonnie Sue confided in Bacon about her difficulties with Glennie
and "at some point . . . told [Bacon] that she wished her husband was
dead and did he know of anyone who would kill him." Bacon I, 390
S.E.2d at 330. Bacon "finally agreed to kill[Glennie]," and Bonnie
Sue and Bacon planned the murder for January 31, 1987. Id. Bonnie
Sue was the beneficiary of Glennie's life insurance policies totaling
$130,000, and Bacon reportedly told acquaintances that he expected
to receive a large inheritance. See State v. Bacon, 446 S.E.2d 542, 565
(N.C. 1994) (hereinafter "Bacon II").

Under the plan, Bonnie Sue was to accompany Glennie to a movie
theater, where Bacon would kill him, but Bacon "`chickened out'
when it came time to execute the plan." Id. The following night, Feb-
ruary 1, 1987, again pursuant to plan, see Clark , 377 S.E.2d at 58,
Bonnie Sue and Bacon drove to Glennie's house to pick him up.
Glennie reacted angrily when he saw Bacon in the back seat of Bon-
nie Sue's car, and a heated discussion ensued about Bonnie Sue's
relationship with Bacon. See Bacon I, 390 S.E.2d at 329-30. At some
point, Glennie called Bacon a "nigger," see id., prompting Bacon to

3
grab a knife that he had earlier placed on the floor of the car and
fatally stab Glennie 16 times, see Bacon II, 446 S.E.2d at 565. Bonnie
Sue then drove to a movie theater parking lot, where Bacon's car was
parked. Bacon and Bonnie Sue decided to fake a robbery to cover up
the murder, and pursuant to this ploy, Bacon knocked Bonnie Sue
unconscious and went home in his car. See id.

Shortly after 11:00 p.m. on the same day, the police found Bonnie
Sue slumped over the steering wheel of her car next to Glennie's dead
body. See Bacon II, 446 S.E.2d at 565. Bonnie Sue told Jacksonville
Police Officer J. J. Phillips that she and Glennie had been sitting in
the car when the car doors were suddenly opened and she heard her
husband exclaim, "Oh God, don't," before she was knocked uncon-
scious. Bonnie Sue repeated this story to members of the rescue squad
and to Sergeant Donna Waters who transported her to a hospital. She
also told investigating officers that her two children were at home
with a babysitter and gave them her home address.

Several hours later, at 1:15 a.m. on February 2, 1987, Sergeant
Dennis Dinota picked Bonnie Sue up at the hospital and drove her to
the Jacksonville police station where she again repeated the story she
had told Officer Phillips and Sergeant Waters, and at approximately
2:00 a.m., she began writing out a statement describing how she had
been attacked in the movie theater parking lot by two unknown indi-
viduals.

In the meantime, Jacksonville Deputy Chief Delma Collins went to
the home shared by Bacon and Bonnie Sue to check on Bonnie Sue's
children. Officer Collins arrived at 1:20 a.m. and was met at the door
by Bacon, who invited Collins and other officers in the house and
allowed them to "look around." After the officers discovered bloody
clothing and shoes, Bacon confessed that he had killed Glennie Clark
and directed the officers to other incriminating evidence. Bacon
recounted that he "had been in the automobile with Bonnie Sue Clark
and the victim, Glennie Leroy Clark; the victim called him a `nigger'
and pulled a knife on him; he grabbed the knife from the victim and
stabbed him; and, all of this took place while Bonnie Sue Clark was
in the vehicle." Bacon I, 390 S.E.2d at 335. Bacon denied, however,
that Bonnie Sue was involved in the crime.

4
Back at the police station, Bonnie Sue completed writing out her
statement for Sergeant Dinota at 2:45 a.m. After Deputy Chief Collins
informed Sergeant Dinota of the information he had learned about
Bacon's involvement in the crime, the officers confronted Bonnie Sue
with the information and, at 3:05 a.m., informed her of her Miranda
rights. Later, Bacon admitted that parts of the story he had originally
told to officers were false and admitted that he and Bonnie Sue had
planned the crime.

Bacon was tried and convicted of first-degree murder and conspir-
acy to commit murder and sentenced to death.1 Bacon I, 390 S.E.2d
at 328. On direct appeal, the North Carolina Supreme Court upheld
Bacon's conviction but found that evidence presented to the jury con-
cerning Bacon's role in the police investigation of Bonnie Sue's
involvement in the murder supported a jury instruction on the statu-
tory mitigating circumstance of "aid[ing] in the apprehension of
another capital felon." N.C. Gen. Stat. § 15A-2000(f)(8). Because no
such "(f)(8)" instruction was given, the Supreme Court remanded the
case for resentencing. See Bacon I, 390 S.E.2d at 328-29.

At Bacon's resentencing hearing, Bacon's counsel presented testi-
mony by character witnesses who had testified in the first sentencing
hearing. They also presented testimony by an expert witness, Dr.
Billy Royal, a psychiatrist who testified about Bacon's family back-
ground and psychological profile. Unlike at the first sentencing hear-
ing, the State did not introduce testimony by the officers who
investigated the murder, relying instead primarily on Bacon's own
testimony in the first sentencing hearing. The trial court submitted to
the jury one aggravating circumstance -- that the murder was com-
mitted for pecuniary gain -- and 21 mitigating factors. The court did
not, however, submit the (f)(8) mitigating factor because no evidence
had been presented by the State or by Bacon that"showed the exact
timing of [Bacon's] statements [to police] or their relation to the cus-
todial status of [Bonnie Sue] Clark." Bacon II, 446 S.E.2d at 560.

The jury found the existence of the single aggravating circum-
_________________________________________________________________
1 Bonnie Sue was convicted of the same charges and sentenced to life
imprisonment. See Clark, 377 S.E.2d at 57.

5
stance that the murder had been committed for pecuniary gain and
also found the existence of nine mitigating circumstances: that Bacon

had no significant history of prior criminal activity; acted
under the domination of another person; had no history of
violent behavior; had character, habits, mentality, propensi-
ties and activities indicating that he is unlikely to commit
another violent crime; had committed the murder as the
result of circumstances unlikely to recur; had established
that his co-defendant, Bonnie Sue Clark, had received a life
sentence; had shown remorse since his arrest; and had a
family who loved him, continued to visit him while he [was]
incarcerated, and would continue to do so if he were sen-
tenced to life in prison.

Bacon II, 446 S.E.2d at 565. This jury also recommended the sen-
tence of death, which the trial court imposed. Bacon pursued direct
appeals, culminating in a second appeal before the North Carolina
Supreme Court, which rejected his various claims of error and
affirmed the death sentence. Id. at 570.

On September 25, 1995, Bacon initiated post-conviction proceed-
ings by filing a motion for appropriate relief ("MAR") in the Superior
Court of Onslow County ("the state MAR court"). On the same date,
he filed a "Notice of Intention to Amend," in which he outlined vari-
ous claims that were not addressed in the MAR because they required
additional investigation and research. Pursuant to a motion by the
State, the state MAR court summarily denied Bacon's MAR on
November 20, 1995. Almost three months later, on February 15,
1996, Bacon filed a motion to reconsider the denial of his MAR and
for leave to amend it. The state MAR court granted Bacon's motions
for reconsideration of the court's November 20, 1995 order dismiss-
ing the MAR and for leave to amend his MAR, and on May 6, 1996,
heard oral argument on the claims raised in Bacon's MAR and
amended MAR.

On May 10, 1996, the state MAR court issued an order denying all
of Bacon's claims, stating that it did not "have the authority to amend,
modify, or vacate the [November 20, 1995] order denying the defen-

6
dant's Motion for Appropriate Relief." The court found that Bacon's
amended MAR was

in effect, a second Motion for Appropriate Relief since there
was no pending Motion for Appropriate Relief to amend.
The Court's order of November 20, 1995, was, and is, a
final order. For this reason, [Bacon's] allegations as set out
in [the claims made in the amended MAR] are procedurally
barred.

Bacon sought and was denied certiorari review by the North Carolina
Supreme Court and the United States Supreme Court. See State v.
Bacon, 483 S.E.2d 179 (N.C. 1997); Bacon v. North Carolina, 522
U.S. 843 (1997).

Bacon filed this petition for federal habeas relief on November 26,
1997. Bacon's petition presented 28 claims that he contended justified
this relief pursuant to 28 U.S.C. § 2254. The district court granted the
State's motion for summary judgment as to all but one of the claims;
with respect to the remaining claim -- that Bacon's attorneys at his
resentencing hearing had rendered him ineffective assistance of coun-
sel by failing to present evidence of the (f)(8) mitigating circumstance
-- the district court conducted a hearing and ultimately determined
that Bacon had received ineffective assistance of counsel, which ren-
dered the result of his resentencing hearing "fundamentally unfair, or
at the very least, unreliable." Based upon this finding, the district
court granted the writ on this claim. These appeals followed.

II

North Carolina contends first that Bacon's (f)(8) claim -- that he
was denied effective assistance of counsel because counsel failed to
present evidence that Bacon aided in the apprehension of another cap-
ital felon -- was procedurally defaulted. Bacon, the State argues, did
not raise this claim in his first MAR even though he was in a position
to do so, and when he did first raise it in his amended MAR, it was
procedurally defaulted.

The district court rejected the State's argument that Bacon's claim
was procedurally defaulted. Although the court acknowledged that

7
North Carolina's statute imposing the procedural bar relied upon by
the state MAR court was "generally" an independent and adequate
State-law ground that would give rise to procedural default of the
same claims on federal habeas review, it found that there were few
reported incidences of the bar being applied in circumstances similar
to the present case. Consequently, it concluded that it could not
"apply the doctrine of procedural default" in the circumstances "as
they are before this court."

A federal habeas court may not review a claim when a state court
has declined to consider its merits on the basis of an independent and
adequate state procedural rule. See Coleman v. Thompson, 501 U.S.
722, 731-32 (1991); Harris v. Reed, 489 U.S. 255, 262 (1989). A state
procedural rule is independent if it does not "depend[ ] on a federal
constitutional ruling," Ake v. Oklahoma, 470 U.S. 68, 75 (1985), and
is adequate if it is regularly and consistently applied by the state
court, see Johnson v. Mississippi, 486 U.S. 578, 587 (1988).

While the state MAR court did not cite authority for its treatment
of Bacon's claim as procedurally barred, it appears that the court was
relying on § 15A-1419(a) of the North Carolina Criminal Procedure
Act, which provides, in pertinent part:

The following are grounds for the denial of a motion for
appropriate relief, including motions filed in capital cases:

(1) Upon a previous motion made pursuant to
[Article 89, Motion for Appropriate Relief
and Other Post-Trial Relief], the defendant
was in a position to adequately raise the
ground or issue underlying the present
motion but did not do so. This subdivision
does not apply when the previous motion was
made within 10 days after entry of judgment
or the previous motion was made during the
pendency of the direct appeal.

N.C. Gen. Stat. § 15A-1419(a)(1). We have consistently held that this
provision constitutes an independent and adequate state ground that
may give rise to procedural default of federal habeas claims. See Boyd

8
v. French, 147 F.3d 319, 332 (4th Cir. 1998); Ashe v. Styles, 39 F.3d
80, 87-88 (4th Cir. 1994); see also O'Dell v. Netherland, 95 F.3d
1214, 1241 (4th Cir. 1996) (en banc) (holding that unambiguous pro-
cedural rules derived from state statutes or court rules are necessarily
"firmly established").

Bacon concedes that § 15A-1419(a)(1) "generally" provides a basis
for a valid procedural default. But he contends that in this case, the
application is novel and not firmly established. See McCarver v. Lee,
___ F.3d ___, ___, 2000 WL 719673, at *4 (4th Cir. May 23, 2000)
("The question we must ask . . . is whether the particular procedural
bar is applied consistently to cases that are procedurally analogous").

Bacon contends that the state MAR court's order granting recon-
sideration of his dismissed MAR "resurrected" the MAR and delayed
the date of final judgment. State v. Basden, 515 S.E. 2d 220, 222
(N.C. 1999) (holding that a court's decision to reconsider an earlier
order dismissing a MAR caused the MAR "to be pending before [that]
court until it was again denied"). He thus argues that his February 15,
1996 amended MAR, while arguably a second or successive MAR
under § 15A-1419(a)(1), revived the original MAR with amendments
when the court granted his motion for reconsideration.

The State argues that the state MAR court was deprived of its
authority to reopen the original MAR because the motion for recon-
sideration was untimely. It argues that the common-law rule that a
judgment cannot be altered after the end of the term of court in which
it issued applied in this case. See State v. Godwin, 187 S.E. 560, 561
(N.C. 1936) ("Until the expiration of the term the orders and judg-
ments of the court are in fieri, and the judge has power, in his discre-
tion, to make such changes and modifications in them as he may
deem wise and appropriate for the administration of justice"). But
there is some basis for doubting whether this common-law rule
applies in the MAR context. See N.C. Gen. Stat. § 7A-47.1; In re Bur-
ton, 126 S.E.2d 581, 585 (1962). Moreover, Bacon has pointed to a
number of reported and unreported cases in which a MAR court has
granted reconsideration after the term of court had expired.

Because the state MAR court reopened the original MAR, the
question of whether a governing state rule was regularly and consis-

9
tently applied to treat a motion to amend thereafter as a second MAR
is in some doubt. While it is not our role to resolve the issue or to
review the correctness of the state MAR court's application of its
state-law procedural rules, we must nevertheless assure ourselves that
the rule applied is a "firmly established and regularly followed state
practice." Ford v. Georgia, 498 U.S. 411, 423-24 (1991). In this case,
that assurance is elusive. Because we ultimately conclude that the
assertedly defaulted claims are without merit, we will exercise our
prerogative to decide Bacon's claims on the merits rather than on
grounds of procedural default. See Royal v. Taylor, 188 F.3d 239, 247
(4th Cir. 1999).

III

The State contends, on the merits of Bacon's (f)(8) claim, that the
state MAR court's ruling rejecting this claim was not "contrary to" or
"an unreasonable application of" the federal law governing the effec-
tive assistance of counsel. It argues that the district court erred in con-
cluding otherwise.

The district court found that Bacon's counsel at the 1991 resentenc-
ing hearing had failed to put forth available evidence that would sup-
port the mitigating circumstance that Bacon aided in the apprehension
of another capital felon, as recognized by N.C. Gen. Stat. § 15A-
2000(f)(8).2 The court found this failure "startling considering the vir-
tual roadmap laid out by the North Carolina Supreme Court." The dis-
trict court concluded that this failure was constitutionally deficient
and also that there was a reasonable probability that, but for the fail-
ure to present the evidence, a life sentence might have resulted.
Accordingly, the district court ruled that Bacon had"not receive[d]
_________________________________________________________________
2 Section 15A-2000 provides in pertinent part:

(f) Mitigating Circumstances. -- Mitigating circumstances
which may be considered shall include, but not be limited to, the
following:

* * *

(8) The defendant aided in the apprehension of another
capital felon or testified truthfully on behalf of the prosecu-
tion in another prosecution of a felony.

10
effective assistance of counsel as guaranteed him by the Sixth
Amendment" and that the state MAR court's decision rejecting
Bacon's (f)(8) effectiveness claim was thus "contrary to or involved
an unreasonable application of the clearly established Federal law as
determined by the Supreme Court in Strickland v. Washington, 466
U.S. 668 (1984)."

In addressing the merits of Bacon's claim that he was deprived of
the effective assistance of counsel by their failure to present evidence
supporting the (f)(8) mitigating circumstance, we apply the standard
of review established by the Antiterrorism and Effective Death Pen-
alty Act of 1996. Because the state MAR court dismissed Bacon's
claim on the merits (as well as on the basis of the state procedural
bar), we confine our review to whether the court's determination "re-
sulted 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." 28 U.S.C.§ 2254(d)(1). Where,
as here, a state court summarily rejects a claim without articulating
reasons, its order nevertheless constitutes an "adjudicat[ion] on the
merits" for purposes of § 2254(d). See Cardwell v. Greene, 152 F.3d
331, 339 (4th Cir. 1998); Wright v. Angelone, 151 F.3d 151, 156-57
(4th Cir. 1998). But because we have "no indication of how the state
court applied federal law to the facts," we must"necessarily perform
[our] own review of the record." Cardwell, 152 F.3d at 339; see also
Green v. Catoe, No. 99-30, slip op. at 4, 220 F.3d 220, ___ (4th Cir.
Aug. 1, 2000). To prevail on his ineffective-assistance-of-counsel
claim, Bacon must meet two well established requirements. First, he
"must show that counsel's representation fell below an objective stan-
dard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688
(1984). This is a difficult showing to make because in assessing the
reasonableness of counsel's course of action, "[o]ur review . . . is
highly deferential" to counsel. Wilson v. Greene, 155 F.3d 396, 403
(4th Cir. 1998) (citing Strickland, 466 U.S. at 689). Second, he must
demonstrate "a reasonable probability that, but for counsel's unpro-
fessional errors, the result of the proceeding would have been differ-
ent." Strickland, 466 U.S. at 694.

Bacon contends that the North Carolina Supreme Court gave his
attorneys a "virtual roadmap" of the evidence that would support an

11
(f)(8) mitigating-circumstance instruction, when the court in Bacon I
stated:

The record reveals that on the night of the murder Bonnie
Sue Clark told the police that mysterious assailants had
opened her car door and slammed her head against the steer-
ing wheel thus rendering her unconscious. She was unable
to provide further information as to her assailants. After
being examined at the hospital, she reiterated her exculpa-
tory statements and reduced them to writing at the police
station. See State v. Clark, 324 N.C. 146, 377 S.E.2d 54
(1989). At approximately the same time, [Bacon] told police
officers that: he had been in the automobile with Bonnie Sue
Clark and the victim, Glennie Leroy Clark; the victim called
him a "nigger" and pulled a knife on him; he grabbed the
knife from the victim and stabbed him; and, all of this took
place while Bonnie Sue Clark was in the vehicle. It was at
this point that the investigators first began to focus on Bon-
nie Sue Clark as a possible accomplice in the murder. Obvi-
ously if [Bacon's] version of the events was proven true,
then Bonnie Sue Clark was lying. [Bacon's] story did not
turn out to be totally accurate with respect to motive, intent,
etc. However the fact that defendant, not mysterious assail-
ants, did the killing was sufficient to arouse the suspicions
of the investigating police officers as to Bonnie Sue's role
in this killing. This is sufficient to submit the mitigating cir-
cumstance of aiding "in the apprehension of another capital
felon" to the jury. It was error not to do so.

Bacon I, 390 S.E.2d at 335 (emphasis added).

The court's decision in Bacon I, however, clearly did not deal with
attorney error but with the trial court's instructional error. The con-
duct of Bacon's attorneys at the resentencing hearing, accordingly,
must be judged not in light of the circumstances reviewed by the
North Carolina Supreme Court in Bacon I, but on the particular cir-
cumstances of the resentencing hearing. As the Supreme Court has
emphasized, "no particular set of detailed rules for counsel's conduct
can satisfactorily take account of the variety of circumstances faced
by defense counsel. Rather, courts must judge the reasonableness of

12
counsel's conduct on the facts of the particular case, viewed as of the
time of counsel's conduct, and judicial scrutiny of counsel's perfor-
mance must be highly deferential." Roe v. Flores-Ortega, 120 S. Ct.
1029, 1034-35 (2000) (internal citations and quotation marks omit-
ted).

The evidence that the North Carolina Supreme Court viewed as
supporting the (f)(8) instruction had been introduced in the first sen-
tencing hearing by the prosecution through the testimony of the police
officers who investigated the murder. At resentencing, however, the
prosecution took a different tack, choosing not to call the officers as
witnesses. This altered the strategic landscape, and Bacon's attorneys
could have considered that the officers, if called to the stand, would
provide testimony that was more damaging to Bacon's cause than
helpful.

Weighing the danger of damaging testimony by the police officers,
Bacon's attorneys also had to consider that the evidence supporting
the (f)(8) mitigating circumstance might provide only a slight benefit.
While the North Carolina Supreme Court held that the form of "aid"
that Bacon provided would support a jury instruction, it was by no
means an unequivocal demonstration of a purposive effort by Bacon
to assist in the police investigation. Bacon at first insisted that Bonnie
Sue was "not involved." It was only after Bonnie Sue had received
Miranda warnings and Bacon had been confronted with additional
evidence that Bacon admitted that he and Bonnie Sue had "planned
to get rid of" Glennie Clark. The aid Bacon gave before police suspi-
cion was trained on Bonnie Sue came from the fact that he confessed
to his own involvement and gave an account of the murder that was
inconsistent with the cover story upon which he and Bonnie Sue had
agreed. Bacon's attorneys could reasonably have concluded that the
jury would give little weight to this inadvertent form of assistance in
apprehending Bonnie Sue.

In view of the tactical considerations confronted by counsel, we
cannot conclude that their failure to present evidence of the (f)(8) mit-
igating circumstance at Bacon's resentencing hearing fell "outside the
wide range of professionally competent assistance." Strickland, 466
U.S. at 690. Accordingly, the state MAR court's denial of this claim
was not contrary to, or an unreasonable application of Strickland, see

13
28 U.S.C. § 2254(d)(1), and the district court's order denying sum-
mary judgment on this claim and granting Bacon the writ of habeas
corpus must be reversed.

IV

On his cross-appeal, Bacon contends first that the district court
erred in rejecting claims that his counsel were ineffective (1) by fail-
ing to fully investigate mitigating evidence and present it to the 1991
sentencing jury; (2) by presenting videotaped testimony that referred
to his possible parole if sentenced to life imprisonment; (3) by
informing the jury that he had been sentenced to death at the first sen-
tencing hearing; and (4) by reading into the record excerpts of the
transcript of Bacon's testimony from the first sentencing hearing.

The state MAR court rejected some of these claims because they
were procedurally defaulted and rejected all of them on the merits.
The district court denied all of these claims on the merits. Because
these claims were either not procedurally defaulted or the procedural
default was questionable for the reasons given in Part II, supra, we
address each claim on the merits.

A

Bacon's first ineffective-assistance-of-counsel claim is based on
his contention that his counsel should have conducted a more thor-
ough investigation into his background. According to Bacon, "[h]ad
counsel conducted a proper investigation of [his] case, testimony
could have been presented from a large number of family members,
teachers, and friends. These witnesses could have personally and poi-
gnantly described events that shaped [his] character and helped to
explain why Bonnie Clark was able to manipulate Robert into killing
her husband." Similarly, Bacon asserts that diligent investigation by
his attorneys would have produced evidence of his positive adaptation
to incarceration.

The district court determined that Bacon's claim of ineffective
assistance of counsel was meritless and that the state MAR court's
summary rejection of the claim on the merits was therefore not an

14
unreasonable application of "Strickland and its progeny" to the facts
of this case.

After the North Carolina Supreme Court vacated Bacon's first
death sentence and ordered a new sentencing hearing, his attorneys
did not conduct an additional investigation into Bacon's background
or his prison record3 but relied instead on the information they had
gathered in preparation for the first sentencing hearing. In 1987, two
months prior to Bacon's capital trial, his counsel, together with a
member of the prosecution team, traveled to Ayer, Massachusetts,
where Bacon grew up and lived most of his life, and spent a weekend
there interviewing Bacon's friends and former neighbors. Sixteen of
these interviews were videotaped, and portions of the videotaped
interviews were presented at both the 1987 sentencing hearing and the
1991 resentencing hearing. At the resentencing hearing, the jury also
heard from Dr. Billy Royal, a defense psychiatrist, who related infor-
mation about Bacon's background, which he had gleaned from dis-
cussions with Bacon and his sister, from prison records, from
testimony given at Bacon's trial and first sentencing hearing, and
from psychological tests taken by Bacon.

The North Carolina Supreme Court summarized as follows the tes-
timony thus presented by Bacon's counsel at the resentencing hear-
ing:

[Bacon] presented further testimony at the resentencing
proceeding from numerous friends and family members that
he was an affable, pleasant person; a good student who
never gave any trouble; giving and a leader; always there to
help; not one to hurt anybody; popular in school and
involved in sports-related activities; a clean-cut kid and a
fine young man; a very trustworthy young man who had the
ability to excel in anything that he wanted to start as far as
_________________________________________________________________

3 At the first sentencing, the jury considered evidence of Bacon's adapt-
ability to prison life and did not unanimously find that it had been proven
to be a mitigating factor by a preponderance of the evidence. Counsel
should not be second-guessed for deciding not to raise this subject before
the resentencing jury.

15
 life at school or business; and an upright citizen with
unquestionable character.

Dr. Billy Royal, a psychiatrist, described [Bacon] as
"pleasant," of "average intelligence," and relatively unemo-
tional, with "a very limited view of himself and not a very
good self image in terms of being very successful in life."
Dr. Royal opined that the murder resulted from the meshing
of the psychological needs of [Bacon] and co-conspirator
Bonnie Sue Clark. [Bacon] "had a history . . . of becoming
involved [with] people that were in need of assistance" and
tried "to help rescue Ms. Clark from her reported abuse by
her husband." It was the racial slurs, however, directed at
[Bacon] by Sergeant [Glennie] Clark in the car that "resulted
in his [losing] control." The murder was thus an "impulsive
act," and even though [Bacon] stabbed Sergeant Clark some
sixteen times, [Bacon] was "a very angry frustrated person
at the time." Dr. Royal concluded that [Bacon's] capacity
"to appreciate the criminality of his conduct or to conform
his conduct to the requirements of the law" at the time of the
killing was impaired and the murder was committed while
[Bacon] was "under the influence of [a] mental or emotional
disturbance."

Bacon II, 446 S.E.2d at 549.

Bacon asserts that a more diligent investigation of his background
would have produced evidence showing that he did not have a posi-
tive relationship with his father; that his father was an inveterate adul-
terer; that Bacon's mother enlisted him in her efforts to uncover his
father's infidelity; that as a result of tensions in the home, Bacon
developed a serious bedwetting problem that persisted until he was 14
or 15 years old; that he was well-liked by his teachers and classmates;
and that he stopped fights and protected others at school. Bacon con-
tends that "[t]he relevance and mitigating value of this evidence in a
case where [Bacon] was recruited by an abused woman to kill her
alcoholic abuser is patent."

In evaluating a claim that a defendant received ineffective assis-
tance of counsel because counsel conducted an inadequate investiga-

16
tion, the "decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of
deference to counsel's judgments." Strickland , 466 U.S. at 691. Thus,
we review counsel's judgments not for what is "prudent or appropri-
ate, but only what is constitutionally compelled." United States v.
Cronic, 466 U.S. 648, 665 n.38 (1984). And a decision not to investi-
gate further is "reasonable precisely to the extent that reasonable pro-
fessional judgments support the limitations on investigation."
Strickland, 466 U.S. at 691.

In this case, Bacon's counsel could reasonably have concluded,
based on their earlier investigation, that the evidence they had devel-
oped and would be presenting would give the jury an accurate picture
of Bacon's personality and that further investigation into Bacon's
background would not be fruitful. Such a determination could be
based on their view that any further evidence would be cumulative or
that the unhappy circumstances of Bacon's childhood would not have
substantial mitigating value in the eyes of the jury. See Royal v. Tay-
lor, 188 F.3d 239, 249 (4th Cir. 1999) ("[R]eliance on evidence of
psychological impairments or personal history as mitigating factors in
sentencing can be a `double-edged sword'" (quoting Wright v. Ange-
lone, 151 F.3d 151, 162 (4th Cir. 1998))); Plath v. Moore, 130 F.3d
595, 601-02 (4th Cir. 1997) (failure to "make an exhaustive examina-
tion of [the defendant's] background and mental state" was not unrea-
sonable in light of other mitigating evidence presented); Turner v.
Williams, 35 F.3d 872, 902 (4th Cir. 1994) ("[Counsel] thought it
might offend some members of the rural Virginia jury if they empha-
sized [the defendant's] deprived upbringing or suggested that one
might commit murder as a result of it"), overruled on other grounds
by O'Dell v. Netherland, 95 F.3d 1214, 1222 (4th Cir. 1996) (en
banc); see also Card v. Dugger, 911 F.2d 1494, 1511 (11th Cir. 1990)
("[E]mphasizing a client's deprived childhood does not have a very
beneficial impact on a northwest Florida jury, given the fact that
many jurors have had difficult lives, but have not turned to criminal
conduct"); Parks v. Brown, 840 F.2d 1496, 1509-10 (10th Cir. 1987)
(holding counsel's decision not to call a succession of character wit-
nesses at a capital sentencing hearing a reasonable tactical decision,
and noting that the exposure of defendant's life history might well
have prejudiced him further in the eyes of the jury), rev'd on other

17
grounds, 860 F.2d 1545, 1548 (1988) (en banc), rev'd sub nom. Saffle
v. Parks, 494 U.S. 484 (1990).

Notwithstanding these considerations supporting counsel's deci-
sion not to develop further mitigating evidence, Bacon argues that the
Supreme Court's recent decision in Williams (Terry) v. Taylor, 120
S. Ct. 1495 (2000), requires that Bacon be given an evidentiary hear-
ing on this issue. In Williams (Terry), the defendant's counsel began
preparations for the sentencing phase of the proceedings only a week
before trial and "failed to conduct an investigation that would have
uncovered extensive records graphically describing Williams' night-
marish childhood" that was "filled with abuse and privation." Id. at
1514, 1515. His counsel also "failed to introduce available evidence
that Williams was `borderline mentally retarded.'" Id. at 1514. The
jury in Williams' case also did not learn that his"parents had been
imprisoned for the criminal neglect of Williams and his siblings," id.,
or that he had received "prison commendations . .. for his help in
breaking up a prison drug ring and for returning a guard's wallet," id.
at 1502 n.4. The only evidence that Williams' counsel did offer in
mitigation was that Williams had "turned himself in . . . expressing
remorse for his actions, and cooperating with the police after that." Id.
at 1515.

It hardly bears noting that the omitted evidence in Williams
(Terry), unlike the evidence omitted in this case, was not cumulative
of the evidence that had been presented, and would have been more
likely to "influence[ ] the jury's appraisal of [the defendant's] moral
culpability." Williams (Terry), 120 S. Ct. at 1515. While the Court
held that trial strategy could not be a justification for the failure of
Williams' counsel to develop and present the available mitigating evi-
dence, we cannot say the same with respect to the strategy of Bacon's
counsel. We therefore conclude that the state MAR court's denial of
this claim on the merits was not an unreasonable application of Strick-
land.

B

Bacon also contends that the performance of his counsel at the
resentencing hearing was constitutionally deficient because they pre-
sented videotaped depositions of Bacon's friends and former neigh-

18
bors that contained explicit or implicit references to his possible
parole if sentenced to life imprisonment. Because Bacon made this
argument on direct appeal to the North Carolina Supreme Court,
which rejected it, see Bacon II, 446 S.E.2d at 554-55, our review is
limited to determining whether the North Carolina Supreme Court's
rejection of this claim "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," 28
U.S.C. § 2254(d)(1); see also Williams (Terry), 120 S. Ct. at 1523.

The videotaped depositions of Bacon's friends and former neigh-
bors generally provided testimony of Bacon's peaceful nature and
good character. Bacon's counsel asked one witness,"You think if
Robert was given life in prison and served whatever number of years
he served and was released, he would be welcomed back in this com-
munity?" The witness responded, "I would welcome him. I think his
friends would welcome him." A second witness was asked, "If the
jury does sentence Robert to life in prison and he serves a number of
years, and he's released or paroled, would you welcome him back in
the community, knowing that he's been convicted of first-degree mur-
der?" This witness also responded in the affirmative. Two other wit-
nesses were asked, without explicit reference to the possibility that
Bacon could be paroled, whether they would welcome Bacon into
their homes. Both witnesses stated that they would.

Disposing of Bacon's claim, the North Carolina Supreme Court
found that

the thrust of the questions posed to these witnesses dwelt
upon [Bacon's] purported good character and how out of
character the killing was. The references to parole all
occurred in the context of [Bacon's] former friends and their
unchanged favorable view of him following his conviction.
We do not believe defense counsel acted unreasonably in
eliciting this favorable testimony.

Bacon II, 446 S.E.2d at 554. The court thus found that the perfor-
mance of Bacon's counsel in presenting this testimony did not fall
below an objective standard of reasonableness. We cannot conclude
that this determination was contrary to, or involved an unreasonable

19
application of, the first prong of the Strickland test. See 466 U.S. at
688.

C

Bacon contends that his counsel's performance was similarly defi-
cient because they informed the jury that Bacon had previously been
sentenced to death by another jury. Again, because this argument was
presented to and rejected by the North Carolina Supreme Court, see
Bacon II, 446 S.E.2d at 555, we determine only whether that court's
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).

While cross-examining defense psychiatrist Dr. Billy Royal, the
state prosecutor elicited testimony regarding the presence at Bacon's
first trial of several members of Bacon's family, who were absent
from the resentencing proceeding. During closing arguments, Bacon's
counsel sought to explain this absence, saying:

But it doesn't mean they don't care. Robert's mother testi-
fied in the original trial. She was here. And Robert's mother
had to sit here in the courtroom and listen to a judge impose
a death penalty on her son. And so I suggest that it shouldn't
surprise you that she's not here again.

Bacon contends that this mention of his previous sentence was preju-
dicial and tainted the jury's decision. He argues that the jury was
much more likely to impose a sentence of death knowing that a previ-
ous jury had recommended death.

Disposing of this claim on direct appeal, the North Carolina
Supreme Court stated:

We deem [defense counsel's closing] argument a trial tac-
tic to explain the absence of [Bacon's] mother. See State v.
Richards, 294 N.C. 474, 500, 242 S.E.2d 844, 860 (1978).
In addition, mere knowledge by the jurors of the prior death
sentence does not necessarily demonstrate prejudice to the

20
 defendant. See State v. Simpson, 331 N.C. 267, 271, 415
S.E.2d 351, 353-54 (1992). We conclude that defendant has
failed to show that his counsel performed below an objec-
tive standard of reasonableness or that actual prejudice
resulted.

Bacon II, 446 S.E.2d at 555. The district court found that the North
Carolina Supreme Court's application of the Strickland test was not
unreasonable, even though the district court expressed concerns about
"the competence of any attorney who would mention the prior death
penalty of his client in any context." We agree with the district court's
conclusion.

Counsel submitted to the jury the mitigating circumstance "[t]hat
the defendant's family loved him, has continued to visit him while he
[was] incarcerated, and will continue to do so if he is sentenced to life
imprisonment." Counsel might have concluded that the absence of
Bacon's mother from the courtroom would severely undermine this
contention. By alluding to the emotional anguish a mother would feel
upon seeing her son sentenced to death, counsel provided an explana-
tion for the absence of Bacon's mother and appealed to the jury's
sympathies. And indeed, the jury ultimately found this mitigating cir-
cumstance to exist and to have mitigating value. 4

The "highly deferential" form of review prescribed by Strickland
requires us to "indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance." Str-
ickland, 466 U.S. at 689. Accordingly, we conclude that the North
Carolina Supreme Court's determination that Bacon's counsel did not
_________________________________________________________________
4 The statement by Bacon's counsel really did not tell the jury anything
that was not already obvious to them. The jurors had been told during the
course of the proceedings that four years earlier there had been a trial and
that during it Bacon had been found guilty of murder. The jury also knew
that Bacon had given testimony at a previous penalty phase hearing.
Thus, the jurors would have known that the current proceeding was a
second sentencing hearing and one that would have been unnecessary if
the first sentence had been the life sentence Bacon was seeking. Given
these facts, we substantially discount any harm to have been caused by
defense counsel's argument mentioning the previous sentencing.

21
provide constitutionally deficient assistance when he informed the
jury of the prior death sentence was not contrary to or an unreason-
able application of Strickland.

D

Finally, Bacon claims that he was rendered ineffective assistance
of counsel because his attorney read into the record at the resentenc-
ing hearing damaging portions of Bacon's testimony from the first
sentencing hearing, which he contends amounted to"helping the State
present its case for death." The state MAR court summarily denied
the claim, stating only that "[t]he affidavits and the record do not sup-
port the claim that the defendant's counsel were deficient . . . or that
he was prejudiced thereby." The district court also concluded on the
merits that "counsel's decision to read the entirety of his client's trial
testimony into the record was the type of tactical decision to which
Strickland requires deference."

Although Bacon testified at the first sentencing hearing in 1987, he
elected not to do so at the 1991 resentencing hearing. Nonetheless,
much of Bacon's 1987 testimony was read into the record. In present-
ing this testimony, Bacon's counsel read aloud the questions he had
asked Bacon on direct examination in the first sentencing hearing, as
well as Bacon's responses, and the prosecutor read aloud the ques-
tions asked on cross-examination and Bacon's answers. According to
Bacon, this testimony was "extremely damaging," particularly
Bacon's statements that he was not in love with Bonnie Sue Clark and
"would have never been in love with her," which tended to undermine
Bacon's efforts to rebut the State's theory that the murder was com-
mitted for pecuniary gain. Bacon now contends that, by participating
in the presentation of this evidence, his counsel abandoned his role as
an advocate and "acted as an adjunct to the prosecution."

We cannot agree with Bacon's characterization. As the district
court recognized, Bacon's prior testimony would have been admissi-
ble at the resentencing hearing in any event as admissions of a party-
opponent. See N.C. R. Evid. 801(d)(A). Bacon's counsel could rea-
sonably have determined that by reading the testimony himself, he
could "remove the sting" better than if it were read entirely by the
prosecutor. Ohler v. United States, 120 S. Ct. 1851, 1854 (2000) (dis-

22
cussing defense strategy of preemptively introducing impeachment
evidence). We agree with the district court that this decision was
"hardly an unreasonable tactic" and that the state MAR court's dis-
missal of this claim on the merits was therefore a reasonable applica-
tion of Strickland.

V

In addition to his ineffective-assistance-of-counsel claims, Bacon
contends that his sentencing hearing was infected by racial bias,
depriving him of a fair trial and due process of law. In support of this
contention, Bacon relies on an affidavit submitted by his attorney,
who interviewed six jurors from Bacon's 1991 sentencing hearing and
an alternate juror from Bacon's 1987 trial. Two jurors told Bacon's
attorney that during sentencing deliberations reference was made to
Bacon's race and to his involvement in an interracial relationship with
Bonnie Sue Clark. Bacon is an African American, and Bonnie Sue
Clark and Glennie Clark are white. The alternate juror told Bacon's
attorney that she recalled jurors making racial jokes during the course
of the trial.

The state MAR court considered and rejected this claim of error
without an evidentiary hearing, concluding that the evidence forecast
in the affidavit concerning alleged statements and jokes made by
jurors in deliberations would be inadmissible under N.C. Gen. Stat.
§ 15A-1240. The district court also rejected this claim in Bacon's
petition for habeas relief, finding that the "allegations in counsel's
affidavit are not sufficient to warrant an evidentiary hearing or grant-
ing of the writ." The Federal Rules of Evidence, like the North Caro-
lina statute, prohibit impeachment of a jury verdict by reference to
conversations taking place during jury deliberations. See Fed. R.
Evid. 606(b); see also Tanner v. United States , 483 U.S. 107, 121
(1987); Gosier v. Welborn, 175 F.3d 504, 510-11 (7th Cir. 1999)
(applying Fed. R. Evid. 606(b) to capital habeas proceedings).

Even if evidence of juror deliberations were admissible, we believe
that the statements allegedly made would not indicate a "substantial
and injurious effect or influence in determining the jury's verdict."
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos
v. United States, 328 U.S. 750, 776 (1946)). The jury could appropri-

23
ately have discussed Bacon's race and that of his victim and accom-
plice because evidence at trial suggested that Bacon had killed
Glennie Clark after he used a racial epithet during a heated discussion
about Bacon's relationship with Bonnie Sue Clark. Accordingly, the
district court did not err in denying Bacon's claim for habeas relief
on this ground.

VI

Finally, Bacon contends that his rights under the Eighth and Four-
teenth Amendments were violated because the trial court refused to
instruct the jury that if Bacon were sentenced to life imprisonment,
he would not be eligible for parole for 20 years. To rebut the State's
arguments concerning Bacon's future dangerousness, Bacon's coun-
sel presented the testimony of several witnesses who testified that
Bacon would be welcomed back into the community if he received a
life sentence and was later released. Bacon then requested a clarifying
instruction on parole eligibility, which the trial court refused to give.

On direct appeal, Bacon challenged the trial court's ruling on fed-
eral constitutional grounds, relying on Simmons v. South Carolina,
512 U.S. 154 (1994). The North Carolina Supreme Court rejected the
challenge, distinguishing Simmons on the ground that Bacon would
not have been ineligible for parole. See Bacon II, 446 S.E.2d at 558-
59. The district court denied the claim for the same reason, conclud-
ing that the North Carolina Supreme Court had correctly held that
Simmons was not controlling in this case. We agree. "Simmons
applies only to instances where, as a legal matter, there is no possibil-
ity of parole if the jury decides the appropriate sentence is life in
prison." Ramdass v. Angelone, 120 S. Ct. 2113, 2121 (2000); see also
id. at 2127 (O'Connor, J., concurring). Moreover, we have consis-
tently refused to extend Simmons to situations where the defendant
would be eligible for parole. See, e.g. , Roach v. Angelone, 176 F.3d
210, 220 (4th Cir. 1999); Keel v. French, 162 F.3d 263, 270 (4th Cir.
1998); Fitzgerald v. Greene, 150 F.3d 357, 367 (4th Cir. 1998).
Because Bacon would not have been ineligible for parole under North
Carolina law, he was not entitled to a Simmons instruction on parole
eligibility, and the district court properly denied his petition for
habeas relief on this claim.

24
VII

For the foregoing reasons, we reverse the district court's grant of
the writ of habeas corpus based on ineffective assistance of counsel
and affirm its rulings rejecting Bacon's other claims for habeas corpus
relief.

AFFIRMED IN PART, REVERSED IN PART

KING, Circuit Judge, dissenting in part:

It has been said that "The right to be heard does not . . . include
the right to be taken seriously."1 In a very real sense, the opposite is
true in death penalty cases. A defendant must not only be allowed
opportunities to be heard -- on direct appeal, in a motion for appro-
priate relief, and in a federal habeas corpus petition, but claims made
in the course of those proceedings must be given the serious consider-
ation they are due.

In this case, there is no doubt that Robert Bacon has been afforded
proceedings in which to allege errors in his trial and sentencing; on
this record, however, I am not convinced that each of his claims have
been given the serious consideration they are due. Specifically, Bacon
alleged that: (1) his resentencing counsel disclosed to the jury that
Bacon previously had received a death sentence; (2) his resentencing
counsel failed to properly investigate and introduce mitigating evi-
dence relating to his childhood and background; and (3) his resentenc-
ing counsel failed to investigate and introduce mitigating evidence of
his adaptability to prison. Bacon has never received an evidentiary
hearing on any of these properly preserved claims, and he would be
entitled to relief if the factual allegations supporting these claims
prove to be true. Given these circumstances and the fact that North
Carolina has not, in my view, treated these three claims in a manner
that indicates they were taken seriously, I must dissent.2
_________________________________________________________________
1 The Harper Book of Quotations, at 255 (Robert I. Fitzhenry ed., 3d
ed. 1993) (Hubert Humphrey).
2 I concur in the judgment with respect to the majority's disposition of
Bacon's other claims and the State's appeal.

25
I.

Before discussing Bacon's request for a hearing, I must address the
majority's suggestion that these claims were procedurally defaulted
-- a suggestion relied upon in large part by the North Carolina courts
to deny Bacon's claims.

The state courts of North Carolina concluded that Bacon procedur-
ally defaulted on the three aforementioned Sixth Amendment claims.
Although the majority has suggested this to be the correct conclusion,
it also has exercised its discretion to address-- and dispose of --
Bacon's claims on the merits. For the reasons set forth below, I can-
not agree that Bacon procedurally defaulted these claims in state
court.

A.

Bacon timely filed his Motion for Appropriate Relief ("MAR") on
September 25, 1995. Along with his MAR, Bacon filed a pleading
captioned "Notice of Intention to Amend Motion for Appropriate
Relief" ("Notice MAR"), which (1) outlined numerous other claims
and (2) explained that cutbacks in funding for a capital resource cen-
ter, coupled with the denial of his motion for extension of time, pre-
cluded him from filing each exception at that time. On November 20,
1995, the state MAR court denied Bacon's MAR without a hearing
and took no action on the Notice MAR.

On February 15, 1996, Bacon filed his "Amended MAR." In
response, the State argued that the state MAR court had no authority
to consider this Amended MAR, inasmuch as the court had already
dismissed the MAR. On February 28, 1996, the state MAR court dis-
agreed, stating:

It is the ruling of this Court that the Court will grant the
defendant's amended Motion for Appropriate Relief. That I
will reconsider the order denying an evidentiary hearing
and dismissing the Motion for Appropriate Relief and I will
set a date for further arguments on the question of whether
or not the Court will grant an evidentiary hearing or whether

26
 the Court will deny the defendant's motion and amended
Motion for Appropriate Relief on the pleadings.

J.A. 473 (emphasis added).

The state MAR court subsequently heard argument on May 6,
1996. During this proceeding, the State argued that the state MAR
court did not have the power to reconsider its ruling because the
"Amended MAR" was actually a "Second MAR," which was prohib-
ited under the state rules. See ante at 12. By an order dated May 10,
1996, the state MAR court agreed with the State and denied the
Amended MAR, holding, "The Court does not have the authority to
amend, modify, or vacate the order entered denying the defendant's
[MAR]."3 J.A. 480. Based on its holding that it had no authority to
reconsider its denial of Bacon's MAR, the state MAR court denied
Bacon an evidentiary hearing on each of the claims in his Amended
MAR.

B.

We generally do not review a state's dismissal of a claim based on
procedural default; however, the basis for declaring a procedural
default must be an independent and adequate state ground. See Wain-
wright v. Sykes, 433 U.S. 72, 81 (1977); see also Thomas v. Davis,
192 F.3d 445, 450 (4th Cir. 1999). In order for the ground to be inde-
pendent, the state court must have based its decision on a state proce-
dural bar. See Harris v. Reed, 489 U.S. 255, 262 (1989). In turn, the
procedural bar is "adequate" only if it is a"firmly established and reg-
ularly followed state practice." James v. Kentucky, 466 U.S. 341, 348-
49 (1984). Thus, in reviewing this state MAR court's finding of pro-
cedural default, we must determine whether the procedural default
rule -- that a North Carolina state MAR court does not possess the
power to reconsider its dismissal of an MAR -- was"firmly estab-
lished and regularly followed" such that it is an independent state
basis "adequate" to bar federal habeas corpus review. While a rule of
procedural default must have been consistently or regularly applied
by state courts, there need not have been "undeviating adherence to
_________________________________________________________________
3 The state MAR court also summarily dismissed most of the claims on
the merits.

27
such rule admitting of no exception." Meadows v. Legursky, 904 F.2d
903, 907 (4th Cir. 1990) (en banc).

Here, the state MAR court concluded that it lacked the authority to
reconsider its denial of Bacon's initial MAR. However, in at least two
recent decisions, the Supreme Court of North Carolina has not only
permitted, but actually endorsed a state MAR court's authority to
reconsider the denial of an MAR. For example, in State v. Basden,
515 S.E.2d 220 (N.C. 1999), the defendant filed an MAR, and the
state MAR court denied him relief and dismissed the MAR. Thereaf-
ter, the defendant filed a motion to vacate the order denying his
MAR; the State moved for summary denial of this motion to vacate;
and the state MAR court granted the defendant time to respond. Id.
at 221. In characterizing the procedural circumstance present in Bas-
den, the Supreme Court of North Carolina utilized language that is
equally apposite here:4

On these facts, we conclude that defendant's motion to
vacate the order denying his motion for appropriate relief
was essentially a motion to reconsider the denial of his
motion for appropriate relief. By allowing defendant time to
respond to the State's motion for summary denial of defen-
dant's motion to vacate, the trial court resurrected defen-
dant's motion for appropriate relief. The trial court's
actions amounted to a reconsideration of its order dismiss-
ing defendant's motion for appropriate relief, thereby caus-
ing that motion for appropriate relief to be pending before
the trial court until it was again denied.

Id. at 222 (emphasis added). Plainly, by endorsing the "resurrect[ion]"
of an MAR, the Supreme Court of North Carolina endorsed a state
MAR court's authority to reconsider its denial of an MAR. At the
_________________________________________________________________
4 Basden, 515 S.E.2d at 222, involved a slightly different question than
that presented here. The question in Basden was whether the defendant's
MAR was "pending" as of June 21, 1996, when a particular post-
conviction discovery statute was enacted. Because the MAR was held to
be "pending," the defendant was entitled to discovery of the Govern-
ment's prosecution file.

28
very least, Basden establishes that the denial of an MAR does not
automatically divest a state MAR court of jurisdiction over an MAR.

The Supreme Court of North Carolina also endorsed, in State v.
McHone, 499 S.E.2d 761 (N.C. 1998), the power of state MAR courts
to reconsider denied MARs. In McHone, the defendant filed an MAR,
which the state MAR court summarily denied. Id. at 762. Subse-
quently, the defendant filed (1) a motion to vacate the denial order
and (2) a supplemental MAR. Id. While the Supreme Court of North
Carolina was not asked to specifically pass on the ability of the state
MAR court to consider a supplemental MAR after the initial MAR
had been denied, the Court not only permitted the post-denial supple-
mentation of the MAR, but it also reversed the state MAR court's
denial of the supplemented MAR. Id. at 764.

Nevertheless, the State essentially maintains, in an argument appar-
ently adopted by the state MAR court in this case, that a North Caro-
lina MAR court has no jurisdiction to reconsider an MAR once it has
been denied. In support of this argument, the State relies upon another
recent case, State v. Green, 514 S.E.2d 724 (N.C. 1999). In Green, the
defendant filed an MAR, which was denied, and he then moved for
reconsideration of the denial. Id. at 726. The MAR court apparently
failed to act on his motion, and he had no petition for writ of certiorari
pending before the Supreme Court of North Carolina. Id. at 728.
Because the state MAR court had not granted the motion to recon-
sider its denial of Green's MAR and because no MAR was otherwise
pending, the defendant was not entitled to invoke discovery provi-
sions that applied to MARs "pending" at the time a state discovery
statute was passed. Id.; see also supra note 4.

However, the holding of Green, in which the state MAR court
never granted defendant's motion to reconsider, cannot be read -- as
the State would have us believe -- as establishing that state MAR
courts are without the power to reconsider denied MARs. In my view,
Green merely held that if a state MAR court does not grant a motion
to reconsider, then the MAR is not "pending." More importantly, even
if Green did stand for the rule that the State posits -- that state MAR
courts have no authority to reconsider denied MARs-- the State has
effectively established, when the holding of Green is compared with

29
that of Basden and McHone, that this procedural default rule is not
being applied regularly.

In short, the rule of procedural default applied in this case -- that
the state MAR court lacked the authority to reconsider its decision to
deny the MAR because it already had been denied-- cannot with-
stand review. The rule is not independent -- inasmuch as it is not a
standing rule in North Carolina, and even if it were independent, it
certainly is not adequate -- as illustrated by its uneven application.
Indeed, the most recent decisions of the Supreme Court of North Car-
olina actually endorse a contrary approach. Thus, whatever may be
said about the merits of Bacon's claims, it is clear that the state MAR
court improperly treated these issues as defaulted. With this back-
ground, I next turn to the merits of three of Bacon's Sixth Amend-
ment claims.

II.

To justify federal habeas corpus relief based on allegations of inef-
fective assistance of counsel, Bacon must establish two elements.
First, he must demonstrate that his counsel's performance was defi-
cient. "To establish ineffectiveness, a `defendant must show that
counsel's representation fell below an objective standard of reason-
ableness.'" Williams (Terry) v. Taylor, 120 S. Ct. 1495, 1511 (2000)
(quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). Sec-
ond, he must demonstrate that the deficient performance prejudiced
the defense. "To establish prejudice, he `must show that there is a rea-
sonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.'" Williams
(Terry), 120 S. Ct. at 1511-12 (quoting Strickland, 466 U.S. at 694).

A defendant is entitled to a hearing in connection with a federal
habeas corpus petition under certain circumstances. At the outset, 28
U.S.C. § 2254(e)(2) prohibits, with certain exceptions, an evidentiary
hearing in district court if the applicant "failed to develop the factual
basis of a claim." However, "`failed to develop' implies some lack of
diligence," Williams (Michael) v. Taylor, 120 S. Ct. 1479, 1487
(2000), and, in this case, Bacon diligently sought-- and was denied
-- an evidentiary hearing at each opportunity in state court. Thus,
Bacon has not, for purposes of section 2254(e)(2),"failed to develop"

30
the facts underlying his claims, and the section 2254(e)(2) bar does
not apply here. Id.; see also Cardwell v. Greene, 152 F.3d 331, 338
(4th Cir. 1998) (holding no bar under section 2254(e)(2) if applicant
sought, but was refused, an evidentiary hearing in state court).

However, surmounting the hurdle set by section 2254(e) "does not
translate to a conclusion that [Bacon] was entitled to a hearing."
Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000). Instead, for an appli-
cant to establish an entitlement to an evidentiary hearing, he must first
prove one of the six factors set out by the Supreme Court in Town-
send v. Sain, 372 U.S. 293, 313 (1963). See Fisher, 215 F.3d at 454.
Those six factors are:

(1) the merits of the factual dispute were not resolved in the
state hearing; (2) the state factual determination is not fairly
supported by the record as a whole; (3) the fact-finding pro-
cedure employed by the state court was not adequate to
afford a full and fair hearing; (4) there is a substantial alle-
gation of newly discovered evidence; (5) the material facts
were not adequately developed at the state-court hearing; or
(6) for any reason it appears that the state trier of fact did
not afford the habeas applicant a full and fair fact hearing.

372 U.S. at 313. The North Carolina courts have never afforded
Bacon a hearing on these three Sixth Amendment claims. Thus, it is
not necessary to dwell on the Townsend factors; several of them
plainly are satisfied here.

Second, to establish that a hearing was mandatory, Bacon had to
allege "facts that, if true, would entitle him to relief." Fisher, 215 F.3d
at 454. This standard is analogous to the measure applied when deter-
mining the sufficiency of a complaint. Compare Eastern Shore Mar-
kets, Inc. v. J.D. Associates Ltd. Partnership, 213 F.3d 175, 180 (4th
Cir. 2000) ("In reviewing a district court's order dismissing a com-
plaint under Federal Rule of Civil Procedure 12(b)(6), . . . we deter-
mine, [inter alia,] . . . whether the complaint, under the facts alleged"
states a claim for relief.) (quotation marks omitted), with Fisher, 215
F.3d at 454 (in determining whether hearing was mandatory, we must
ascertain whether applicant alleges facts "that, if true, would entitle
him to relief."). In other words, in assessing whether an evidentiary

31
hearing in the district court was mandatory, we must assess the legal
sufficiency of that claim, not the truth of the facts underlying that
claim. And, as is the case with motions to dismiss, because only the
legal sufficiency of the applicant's claim, and not the facts in support
of it, are tested in determining whether a hearing was mandatory, we
must assume the truth of all facts alleged. Cf. Eastern Shore, 213 F.3d
at 180.

In this context, three of Bacon's claims allege facts that, if true,
would establish a meritorious claim. I take these allegations of defi-
cient performance in turn, before turning to the prejudice prong.

A.

1.

The first and primary error that I believe may properly be resolved
only after an evidentiary hearing is based on Bacon's lawyer's
improper revelation to the resentencing jury that Bacon had been pre-
viously been sentenced to death. The following passage from the
decision of the Supreme Court of North Carolina in State v. Bacon,
446 S.E.2d 542 (N.C. 1994) ("Bacon II"), describes both the error and
resolution, on direct appeal, of Bacon's argument:

Defendant next contends that his counsel provided ineffec-
tive representation by presenting evidence that defendant
had received a death sentence in the first sentencing pro-
ceeding. During defendant's closing argument, counsel
mentioned that defendant comes from a loving family and
that during his first sentencing, the courtroom contained
several family members, but due to financial considerations
and other conflicts revolving around work, the same family
members were unable to attend this resentencing. Counsel
further argued:

"And [defendant's] mother had to sit here in the
courtroom and listen to a judge impose a death
penalty on her son. And so I suggest that it
shouldn't surprise you that she's not here again."

32
 Defendant contends that this mention of his previous sen-
tence was prejudicial and tainted the jury's decision in this
case. He argues that the jury was much more likely to
impose a sentence of death knowing that a previous jury had
recommended death.

We deem this argument a trial tactic to explain the absence
of defendant's mother. See State v. Richards, 294 N.C. 474,
500, 242 S.E.2d 844, 860 (1978). In addition, mere knowl-
edge by the jurors of the prior death sentence does not nec-
essarily demonstrate prejudice to the defendant. See State v.
Simpson, 331 N.C. 267, 271, 415 S.E.2d 351, 353-54
(1992). We conclude that defendant has failed to show that
his counsel performed below an objective standard of rea-
sonableness or that actual prejudice resulted.

Bacon II, 446 S.E.2d at 555 (brackets in original and emphasis
added). Subsequently, the ineffective assistance of counsel claim aris-
ing out of this error was summarily dismissed by the state MAR court
on procedural grounds and apparently also on the merits. J.A. 487.

In reviewing this claim, the district court was clearly concerned
with its implications but concluded:

While this court has grave questions about the competence
of any attorney who would mention the prior death penalty
of his client in any context, especially after having exercised
challenges to any jurors who knew of the prior death sen-
tence, the court must apply the AEDPA's standards of
review as set out in Green[ v. French, 143 F.3d 865, 870
(4th Cir. 1998) ("habeas relief is authorized only when the
state courts have decided the question by interpreting or
applying the relevant precedent in a manner that reasonable
jurists would all agree is unreasonable.")].

J.A. 53. The court then reviewed the North Carolina courts' resolution
of this claim and concluded that "reasonable jurists could agree with
the Supreme Court of North Carolina in this application of the Strick-
land standard of effectiveness of counsel." Id.

33
I disagree with the majority's disposition of this claim for several
reasons. First, the Supreme Court of North Carolina's conclusion that
this revelation -- that Bacon had previously received a death sentence
-- constituted a reasonable "trial tactic" was not based on any evi-
dence; in fact, Bacon was denied the right to an evidentiary hearing
on this issue in both the state MAR court and the district court. In that
regard, I can conjure no possible legitimate reason why Bacon's own
lawyer would believe it necessary to reveal this fact -- that Bacon
had received a death sentence during his first sentencing hearing --
to the jury. Certainly, there were several more appropriate ways to
explain his mother's absence.

Also, in resolving this claim, the district court may have applied a
"reasonableness" inquiry that has been specifically overturned by the
Supreme Court. That is, it is unclear whether the district court applied
a subjective test to this claim. The court ascertained whether the state
court disposed of this claim "in a manner that reasonable jurists would
all agree is unreasonable." See Green, 143 F.3d at 870; see also Wil-
liams (Terry), 163 F.3d at 865 ("In other words, habeas relief is
authorized only when the state courts have decided the question by
interpreting or applying the relevant precedent in a manner that rea-
sonable jurists would all agree is unreasonable."). Since the district
court issued its ruling, however, the Supreme Court has determined
that the "[no] reasonable jurist" language is inapposite under AEDPA.
See Williams (Terry), 120 S. Ct. at 1521-22 ("The placement of this
additional [`no reasonable jurist'] overlay on the `unreasonable appli-
cation' clause was erroneous."). Because it is unclear whether the dis-
trict court applied a subjective or objective legal test, we should
remand this appeal for application of the proper legal standard.

In short, Bacon's claim of ineffective assistance of counsel in the
improper revelation, to his resentencing jury, of his earlier death sen-
tence has never been tested in an evidentiary hearing; it may have
been dismissed under a superceded legal test; and it avers facts that,
if true, would demonstrate deficient performance by his lawyer at sen-
tencing.5 I believe that this claim should be remanded for an evidenti-
_________________________________________________________________
5 The majority hypothesizes that the jury would have known of Bacon's
prior death sentence, even if his lawyer had not highlighted it. This

34
ary hearing and reconsideration in light of the objective standards
endorsed in Williams (Terry), supra.

2.

Second, Bacon maintains that his resentencing counsel was ineffec-
tive in failing to properly investigate and submit evidence about
Bacon's family history and character. Bacon avers-- in statements
that are supported by (1) an affidavit by Bacon's MAR lawyer, who
summarizes her conversations with a psychologist and (2) an affidavit
of Bacon's investigator -- that his family history is troubling. Among
other things, the affidavits specify numerous facts that allegedly were
not submitted during either sentencing proceeding. Taking those alle-
gations to be true, Bacon's father was rarely around when Bacon was
young,6 and when his father finally began to participate in Bacon's
family, he proved to be an alcoholic. Bacon's father also engaged in
numerous adulterous affairs, and although Bacon was still very
young, his mother sought his advice on the family's problems, includ-
_________________________________________________________________

hypothesis, for several reasons, rests on shaky footing. First, the majority
asserts that the jury would necessarily have realized that "the [ ] proceed-
ing was a second sentencing hearing and one that would have been
unnecessary if the first sentence [had not been death]." See ante at 21,
n.4. This assumes that Bacon's jury would have made numerous compli-
cated inferences about North Carolina criminal procedure -- inferences
that, consistent with the trial court's instructions, would have been
improper for it to make in any instance. Second, even if some members
of this lay jury had indeed engaged in such an improper endeavor, they
may well have drawn alternative conclusions about the procedural his-
tory of Bacon's case. Most importantly, however, the majority's hypoth-
esis fails to realize one crucial fact: the potential prejudice of one or
more jurors arriving -- through surmise and conjecture -- at an uncer-
tain conclusion regarding Bacon's earlier fate pales in comparison to the
actual harm that surely accrued when each juror's attention was point-
edly drawn to the prior death sentence.

6 One affidavit explains that Robert Bacon's father first saw him when
he was eight-years old. J.A. 508. Further, the affidavit claims that
because Bacon's father was in the military and often assigned abroad,
Bacon had very little contact with him until the age of nine.

35
ing his father's adultery and other sensitive subjects.7 As a result,
Bacon showed signs of stress at a young age, including bed-wetting
until the age of 14. Bacon also witnessed various incidents in which
his father physically abused his mother.8 Bacon contends that this
family history background -- a mother who confessed marital prob-
lems to Bacon and sought his help with those problems -- would
have been helpful to the jury members in helping them understand
how, among other things, Bacon could have been manipulated by
Clark -- also a woman who had confessed marital problems to Bacon9
and sought his help.

Bacon maintains that his counsel at his resentencing hearing con-
ducted no research to supplement the work done in preparation for the
first sentencing hearing. Indeed, Bacon alleges that, at his resentenc-
ing hearing, his counsel simply used the same character interviews
that were submitted in his first sentencing hearing; thus, there was no
additional evidence submitted at his second sentencing hearing. In
turn, Bacon argues, the preparation for his first sentencing hearing
was deeply flawed. Among other things, Bacon asserts that when his
lawyer was preparing for his first sentencing hearing, the lawyer only
conducted cursory interviews with witnesses who were going to attest
to Bacon's good character. In addition, during each of these perfunc-
tory interviews, Bacon's lawyer was accompanied by the State's
attorney. That is, during the only trip to Bacon's hometown to inter-
view witnesses, Bacon's lawyer took the prosecutor along, and all of
the interviews -- which constituted all of the evidence submitted at
each of the sentencing hearings -- were conducted in this fashion.
When this unusual manner of interviewing witnesses is coupled with
the failure to conduct additional investigation in preparation for the
_________________________________________________________________
7 Among other things, Bacon's mother encouraged him to eavesdrop on
his father's phone calls and informed Bacon of her plan to investigate his
father's adulterous activities.

8 For example, on one occasion, when Bacon's mother confronted his
father, Bacon's father drove his car down the driveway, dragging
Bacon's mother behind.
9 Bacon was, for example, aware of numerous incidents between Glen-
nie and Bonnie Clark, "including a time when he smashed her head
against a cabinet and held a knife to her throat." J.A. 510.

36
resentencing hearing, Bacon claims that his lawyer's performance fell
below the standards provided in Strickland.

The State counters that Bacon's lawyer presented-- at both of
Bacon's sentencing hearings -- the testimony of sixteen friends and
family members, each of whom testified to his otherwise good char-
acter and dependability. See Bacon II, 446 S.E.2d at 549-50 (summa-
rizing evidence submitted); see also ante at 15. Thus, the State
contends, the new family history evidence would have been cumula-
tive of the character evidence submitted during the sentencing hear-
ings. Based on this "culmulative" argument, the district court
dismissed Bacon's claim, concluding: "A review of the record shows
ample evidence admitted at the resentencing hearing concerning peti-
tioner's childhood and background and how his relationship with his
allegedly abusive father affected his relationship." J.A. 41.

I cannot agree with the majority or the district court on this issue.
There is a substantive difference between the character evidence sub-
mitted at both sentencing hearings and the new family history evi-
dence upon which Bacon now relies. The new family history evidence
would support the proposition that Bacon's family history uniquely
mirrors the circumstances surrounding the crime for which Bacon
now faces the death penalty: In both instances (in his family and in
his relationship with Clark), a woman was apparently subjected to
abuse by her husband; Bacon served as a confidant to the woman, and
Bacon was manipulated to take steps he otherwise might not have
taken. This evidence is plainly distinguishable from the general char-
acter evidence about Bacon's childhood submitted at both sentencing
hearings, and in any event, the new family history evidence certainly
cannot be characterized as "cumulative" of the general character evi-
dence presented at the resentencing hearing. See ante at 18.

In sum, I believe that the record on this issue is simply too sparse
to draw any conclusions on whether Bacon's lawyers were ineffec-
tive. Indeed, the district court does not cite to the record in support
of its conclusions, and the short, incomplete excerpts from the record,
see J.A. 658-90, do not substantiate the district court's conclusions.
The new family history evidence upon which Bacon now relies
closely parallels Bacon's relationship with Clark, and if we take the
allegations in the light most favorable to Bacon-- as we must at this

37
stage -- he has established that his lawyers' performance in the pen-
alty stage of this capital case was deficient on a crucial character
issue.

3.

Third, Bacon claims that his counsel erred in failing to submit evi-
dence of Bacon's adaptability to prison. There is no evidence in the
record relating to this claim, inasmuch as it has been summarily dis-
missed without a hearing at both the state MAR level and in the dis-
trict court. The majority has obviously concluded that the failure to
submit evidence relating to this mitigating factor will never, in itself,
constitute ineffective assistance of counsel; I, however, cannot. This
mitigating circumstance has been endorsed by several courts, see
Skipper v. South Carolina, 476 U.S. 1 (1986); Hall v. Washington,
106 F.3d 742, 752 (7th Cir. 1997), and it must be accorded respect
as an independent mitigating factor. In that vein, Bacon's petition
asserts that considerable evidence of his adaptability to prison existed,
including evidence that Bacon had no significant disciplinary infrac-
tions while incarcerated from 1987 to February 1991. If these asser-
tions prove to be true, then, depending on the other circumstances, the
failure to submit that evidence would constitute ineffective perfor-
mance in the Strickland sense. While failure to submit this mitigating
circumstance might not, standing alone, constitute a basis for a new
trial, we should be in a position to review this claim, particularly in
the context of the other two Sixth Amendment claims. 10 Again, the
record must be developed in order to do so.
_________________________________________________________________

10 The majority undertakes to exonerate Bacon's lawyers by pointing
out that (1) the first sentencing jury rejected this mitigating factor, thus
(2) counsel's decision not to raise the subject before the resentencing
jury was reasonable. See ante at 15, n.3. It is important, however, that the
first jury had before it evidence of Bacon's adaptability after only four
months in prison. In stark contrast, the resentencing jury had almost five
years of Bacon's prison experience to consider. Particularly in light of
the existence of additional mitigating factors, Bacon should be permitted
to present evidence that this failure on the part of his lawyers constituted
or contributed to ineffective assistance on their part.

38
B.

That brings us to the prejudice prong under Strickland. I will not
linger on this element because I believe that the Strickland standard
is satisfied here. In other words, Bacon has demonstrated a reasonable
probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different. Williams (Terry), 120
S. Ct. at 1511-12 (quoting Strickland, 466 U.S. at 694).

In terms of aggravating circumstances supporting the imposition of
the death penalty, the resentencing jury found only one such circum-
stance to be present: that "this murder was committed for pecuniary
gain." See ante at 6. Moreover, this single aggravating circumstance
could be characterized as a "weak" one under North Carolina law: of
the fourteen reported decisions issued prior to Bacon's appeal involv-
ing only the aggravating circumstance of "pecuniary gain," the jury
declined to impose death in twelve of them, and the Supreme Court
of North Carolina held the death penalty to be disproportionate in the
other two. Bacon II, 446 S.E.2d at 565-66. In other words, at the time
of Bacon's resentencing hearing, his was the only reported case in
which the death penalty had been imposed based on the single factor
of pecuniary gain.

On the other side of the equation, the resentencing jury found myr-
iad mitigating factors to be present in Bacon's case. Among other
things, the jury unanimously determined that: (1) Bacon had no sig-
nificant history of prior criminal activity; (2) Bacon acted under the
domination of Clark; (3) Bacon had no history of violent behavior; (4)
Bacon's "character, habits, mentality, propensities and activities . . .
indicate that he is unlikely to commit another violent crime"; (5)
Bacon's criminal conduct was the result of circumstances unlikely to
recur; (6) the initial idea for the plan was Clark's; (7) Clark was con-
victed of the same crime and had received a life sentence; (8) Bacon
had shown remorse; and (9) Bacon's "family loved him, has contin-
ued to visit him while he has been incarcerated, and will continue to
do so if he is sentenced to life imprisonment." J.A. 534-35.

Significantly, moreover, the resentencing jury rejected the mitigat-
ing factor that "his educational background, home life, and sobriety
had mitigating value." Bacon II, 446 S.E.2d at 549. This fact is impor-

39
tant because if the facts underlying Bacon's claim were true and had
been submitted to the jury, it is highly probable that the jury also
would have found this mitigating factor in Bacon's favor.

When these nine mitigating factors are compared to the single
aggravating circumstance, it becomes clear that the three alleged
Sixth Amendment violations -- either collectively or, in the instance
of the prior death sentence revelation, individually-- could have
affected the outcome of Bacon's resentencing. Indeed, the Supreme
Court of North Carolina determined that, in this context, failure to
submit the mitigating factor that Bacon aided in the apprehension of
his co-conspirator required a new sentencing hearing. Although that
decision took place with respect to Bacon's first sentencing hearing,
the court's reasoning there is compelling:

Failing to submit the proper mitigating circumstance created
too great a "risk that the death penalty will be imposed in
spite of factors which may call for a less severe penalty.
When the choice is between life and death, that risk is unac-
ceptable and incompatible with the commands of the Eighth
and Fourteenth Amendments." Lockett v. Ohio , 438 U.S.
586, 605 (1978).

It is impossible for the reviewing court to conclusively
determine the extent of the prejudice suffered by defendant;
however, defendant has shown that there is a reasonable
possibility that had this mitigating circumstance been sub-
mitted to the jury, a different result would have been
reached at the sentencing hearing. N.C.G.S. § 15A-1443(a)
(1988).

***

For error in the sentencing phase of defendant's trial, the
death sentence is vacated and the cause is remanded to
Superior Court, Onslow County, for a new sentencing hear-
ing.

State v. Bacon, 390 S.E.2d 327, 336 (N.C. 1990).

40
Thus, in the context of this case -- with one aggravating factor and
myriad mitigating factors -- the Supreme Court of North Carolina
found the Strickland prejudice factor to be satisfied by the failure to
submit to the first sentencing jury one additional mitigating factor:
aiding in the apprehension of a co-conspirator. With this background,
I am convinced that these three Sixth Amendment claims, collectively
or -- in the case of death penalty revelation-- individually, allege
facts sufficient to demonstrate prejudice in the Strickland sense. For
this reason, I would remand this case for a proper, fair hearing on
these issues.

III.

We are delving into the realm of legal fiction when we assert that
Bacon received the full measure of fair procedure with respect to
these claims of ineffective assistance of counsel. The state MAR court
dismissed them on two bases: first invoking a rule of procedural
default that is neither firmly established nor regularly followed, then,
for good measure, dismissing the claims on the merits with no hearing
or explanation. In fact, the state MAR court's opinion addressing
Bacon's claims is so terse and perfunctory that it is difficult to deter-
mine whether it even addressed the merits of some claims.

We have now compounded the lack of fair procedure by affirming
the dismissal of these three claims, again with no evidentiary hearing.
Before we permit North Carolina to take Bacon's life, we should be
in a position to ascertain the merits of these arguments. In a case such
as this -- where a life hangs in the balance -- it is more important
than ever that justice not only be done, but that justice also be seen
to be done.

I therefore dissent.

41