McCarver v. Lee

Filed: August 28, 2000

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 99-18
(CA-98-835-1)

Ernest P. McCarver,

Petitioner - Appellant,

versus

R. C. Lee, etc.,

Respondent - Appellee.

O R D E R

The court amends its opinion filed May 23, 2000, as follows:

On page 9, first paragraph, line 7 -- the line is corrected to

begin “claims that are not brought ....”

For the Court - By Direction

/s/ Patricia S. Connor
Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ERNEST P. MCCARVER,
Petitioner-Appellant,

v.
No. 99-18
R. C. LEE, Warden, Central Prison,
Raleigh, North Carolina,
Respondent-Appellee.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CA-98-835-1)

Argued: April 4, 2000

Decided: May 23, 2000

Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Dismissed by published opinion. Judge Luttig wrote the opinion, in
which Judge Williams joined. Judge Motz wrote an opinion concur-
ring in the judgment.

_________________________________________________________________

COUNSEL

ARGUED: Seth R. Cohen, SMITH, JAMES, ROWLETT &
COHEN, L.L.P., Greensboro, North Carolina, for Appellant. Edwin
William Welch, Special Deputy Attorney General, NORTH CARO-
LINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee. ON BRIEF: Stanley F. Hammer, WYATT, EARLY,
HARRIS & WHEELER, L.L.P., High Point, North Carolina, for
Appellant. Michael F. Easley, Attorney General of North Carolina,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

A North Carolina jury convicted Ernest Paul McCarver of first-
degree murder and robbery with a dangerous weapon, and McCarver
was sentenced to death and forty years imprisonment, respectively,
for those convictions. After appealing his convictions in state court on
direct review and in state habeas proceedings, McCarver filed a peti-
tion for writ of habeas corpus in federal district court. See 28 U.S.C.
§ 2254. The district court dismissed McCarver's petition, and he now
appeals that dismissal. Because we conclude that McCarver has failed
to make a substantial showing of the denial of a constitutional right,
we deny his application for a certificate of appealability and dismiss
his petition for writ of habeas corpus.

I.

On January 2, 1987, Ernest Paul McCarver stabbed Woodrow F.
Hartley to death. According to the North Carolina Supreme Court:

[McCarver] and [Jimmy] Rape entered through the rear
entrance of the K & W Cafeteria shortly after Hartley
arrived at 5:00 a.m. [McCarver] walked up to Hartley and
talked to him for a few minutes. Rape grabbed Hartley from
behind in a headlock and attempted to strangle him. Rape
released Hartley, who was then grabbed by [McCarver] in
a headlock. When [McCarver] let him go, Hartley fell to the
ground. [McCarver] took a knife from his pants pocket and
stuck it into Hartley's chest several times. Hartley died
within minutes.

Gene Blovsky, an employee of the cafeteria, observed
[McCarver's] automobile parked near the back door of the

2
 cafeteria. He saw [McCarver] emerge from behind a wall;
[McCarver] was carrying a knife, which he attempted to
hide in his right hand. Next, Blovsky saw Hartley lying on
the floor in the hallway with a spot of blood on his wrist.
Blovsky saw another man near Hartley, realized what had
happened, became frightened, and ran out the door.

. . . . [After leaving the scene and] [b]efore going to their
assigned job site, [McCarver] and Rape pawned a 1902 sil-
ver dollar, which had been taken from the victim, for seven
dollars at a Monroe pawn shop. [McCarver] and Rape were
arrested by Monroe police at their assigned job site.

State v. McCarver, 462 S.E.2d 25, 30-31 (N.C. 1995), cert. denied,
517 U.S. 1110 (1996). McCarver believed that Hartley was responsi-
ble for his probation being revoked. See id. at 30. After his arrest,
McCarver confessed to Hartley's murder.

McCarver was indicted in North Carolina for murder and robbery
with a dangerous weapon. He was convicted of first-degree murder
and robbery with a dangerous weapon in the April 18, 1988 Criminal
Session of Superior Court, Cabarrus County. He was sentenced to
death for the murder conviction and to forty years imprisonment for
the robbery conviction. On appeal, the North Carolina Supreme Court
ordered a new trial on both charges. See State v. McCarver, 404
S.E.2d 821 (N.C. 1991).

A second trial was held during the September 8, 1992 Special
Criminal Session of Superior Court, Cabarrus County, and a jury
again convicted McCarver of first-degree murder and robbery with a
dangerous weapon. It is this second trial that is the subject of McCar-
ver's federal habeas petition.

Before the first trial, McCarver's appointed counsel requested a
competency examination for McCarver at Dorothea Dix Hospital
("Dix"). During Dr. Tanas' January 1987 examination of McCarver,
McCarver completed fill-in-the-blank sentences as follows:

I like to kill.

3
 The happiest time was when I killed that man.

At bedtime I dream about killing.

J.A. 364 (Report of Dr. Tanas). A second doctor at Dix, Dr. Lara, also
evaluated McCarver and incorporated McCarver's fill-in-the-blank
answers into her report. J.A. 367 (Report of Dr. Lara). The reports
were forwarded to the trial court, to defense counsel, and to the dis-
trict attorney. J.A. 365, 371. Both doctors concluded that McCarver
was competent to stand trial, and no competency hearing was held.

In the first trial, defense counsel hired Dr. Parasi to testify as an
expert on McCarver's behalf. Trial counsel gave both Dix reports to
Dr. Parasi for the doctor's evaluation of McCarver, and Dr. Parasi
incorporated them into his evaluation.

In the second trial, defense counsel hired another expert, Dr. Sul-
tan, a clinical forensic psychologist, to evaluate McCarver and to tes-
tify on her evaluation. Defense counsel provided her with copies of
the Dix reports, as well as Dr. Parasi's report, which reports she used
to evaluate McCarver. Dr. Sultan testified that McCarver was suffer-
ing from borderline intellectual functioning, depression, substance
abuse disorder, personality disorder, and various other disorders.
Defense counsel asked Dr. Sultan about the Dix fill-in-the-blank
answers on direct examination, J.A. 65, and the district attorney asked
about those same fill-in-the-blank responses on cross-examination,
J.A. 150.

During McCarver's capital sentencing proceeding, the State sub-
mitted three aggravating circumstances to the jury: (1) that the murder
was committed to avoid lawful arrest; (2) that the murder was com-
mitted while the defendant was engaged in the commission of a rob-
bery with a dangerous weapon; and (3) that the murder was especially
heinous, atrocious, or cruel. The jury found the first two aggravating
circumstances to be present in McCarver's case. J.A. 307-08.

In the same proceeding, McCarver submitted seventeen mitigating
circumstances to the sentencing jury. The jury found fourteen of those
circumstances to be present. The jury did not find that McCarver had

4
a history of alcohol or substance abuse which began at an early age
as a consequence of emotional and sexual abuse, that McCarver
expressed remorse for his actions, or that there were other unspecified
mitigating circumstances. J.A. 309-12.

At the conclusion of the second trial, the jury again returned a ver-
dict of death for the murder conviction and of forty years imprison-
ment for the robbery conviction.

McCarver appealed his convictions from the second trial. On Sep-
tember 8, 1995, the North Carolina Supreme Court affirmed McCar-
ver's death sentence. State v. McCarver, 462 S.E.2d 25 (N.C. 1995),
cert. denied, 517 U.S. 1110 (1996).

On October 22, 1996, McCarver filed a motion for appropriate
relief ("MAR") in North Carolina Superior Court. The court granted
the State's motion for summary denial and denied McCarver's motion
for appropriate relief. J.A. 492 (North Carolina Superior Court opin-
ion). The Supreme Court of North Carolina denied McCarver's peti-
tion for certiorari to review the denial of his motion for appropriate
relief. J.A. 590 (North Carolina Supreme Court order).

On September 22, 1998, McCarver filed a petition for writ of
habeas corpus, pursuant to 28 U.S.C. § 2254, in federal district court.
A federal magistrate judge recommended denying the petition, J.A.
691 (report and recommendation), and the district court adopted the
magistrate judge's report and recommendation, J.A. 746 (district
court opinion). This appeal followed.

II.

McCarver's sole argument on appeal is that his trial counsel ren-
dered ineffective assistance in failing to take appropriate steps to pre-
vent the jury from learning of McCarver's responses in the Dix fill-in-
the-blank sentences.1 Specifically, McCarver argues that trial counsel
_________________________________________________________________

1 Although McCarver raises only his ineffective assistance of counsel
claim in his briefs, and focused only on this one claim in oral argument
as well, he attempts to "preserve" other issues he raised in the section

5
erred (1) by failing to file a motion in limine before trial to prevent
the district attorney from using the information contained in the two
Dix reports, and (2) by providing the Dix reports to Dr. Sultan,
thereby ensuring that the information would be subject to cross-
examination. According to McCarver, had the jury not learned of
McCarver's fill-in-the-blank responses, the jury would have found the
mitigating circumstance that he was remorseful, and had the jury
found that he was remorseful, there is a reasonable probability that it
would have returned a sentence of life imprisonment instead of death.

The district court held that McCarver's ineffective assistance of
counsel claim was procedurally barred under North Carolina law and,
alternatively, that the claim lacked merit. We are satisfied that
McCarver's ineffective assistance of counsel claim was procedurally
barred. But, in any event, we proceed to the merits, and we, too, are
confident that there is no merit to McCarver's ineffective assistance
claim.2
_________________________________________________________________

2254 petition he filed with the district court. See Appellant's Br. at 5 n.1
("Mr. McCarver wishes to preserve all the issues raised in his petition for
habeas corpus found at Joint Appendix pages 591 through 606, so that
he may bring forth these issues at a later date if there are changes in the
law with regard to these issues."). The magistrate judge's report and rec-
ommendation adopted by the district court dismissed a similar attempt by
McCarver to "preserve" nonbriefed issues. J.A. 696-97 (report and rec-
ommendation). We agree with the district court that McCarver cannot
preserve arguments merely by incorporating them by reference in a few
sentences in his brief. If McCarver believed any other claims had merit,
counsel could have filed a motion to file an expanded brief with this
court and briefed additional issues. We therefore conclude that McCarver
did waive those claims not briefed before this court.

2 Because McCarver filed his federal habeas petition after the effective
date of the Anti-terrorism and Effective Death Penalty Act's ("AEDPA")
enactment, the AEDPA amendments apply to McCarver's petition. See
Mueller v. Angelone, 181 F.3d 557, 565-69 (4th Cir.), cert. denied, 120
S. Ct. 37 (1999).

6
A.

Federal habeas review of a state prisoner's claims that are proce-
durally defaulted under independent and adequate state procedural
rules is barred unless the prisoner can show cause for the default and
demonstrate actual prejudice as a result of the alleged violation of
federal law, or prove that failure to consider the claims will result in
a fundamental miscarriage of justice.3 See Coleman v. Thompson, 501
U.S. 722, 750 (1991). A state rule is adequate if it is "firmly estab-
lished," James v. Kentucky, 466 U.S. 341, 348 (1984), and regularly
and consistently applied by the state court, see Johnson v. Mississippi,
486 U.S. 578, 587 (1988).

The North Carolina Superior Court, in dismissing McCarver's
motion for appropriate relief, rejected his ineffective assistance of
counsel claim as procedurally barred under N.C.G.S. § 15A-
1419(a)(3). Section 15A-1419(a)(3) provides for denial of appropriate
relief when "[u]pon a previous appeal the defendant was in a position
to adequately raise the ground or issue underlying the present motion
but did not do so." The Superior Court specifically held that "[t]his
claim could have been raised on direct appeal because the transcript
and record contain information upon which defendant could have
asserted such a claim." J.A. 521, 523 (North Carolina Superior Court
opinion).

McCarver does not deny that he failed to raise his ineffective assis-
tance claim on direct appeal. He also does not deny that section 15A-
1419(a)(3) is generally an independent and adequate state procedural
bar. See Appellant's Br. at 44 ("In Williams v. French, . . . this Court
stated that N.C.G.S. § 15A-1419(a)(3), in general, is an independent
and adequate state ground. Mr. McCarver does not disagree with this
holding."); see also Williams v. French, 146 F.3d 203, 209 (4th Cir.
1998) ("North Carolina General Statutes § 15A-1419(a)[ ] is an inde-
pendent and adequate state ground."), cert . denied, 119 S. Ct. 1061
(1999). McCarver argues instead that in the special case of ineffective
_________________________________________________________________

3 McCarver does not argue that failure to consider his claim will result
in a fundamental miscarriage of justice, and we do not find that there
would be a fundamental miscarriage of justice were we to refuse to con-
sider his claim.

7
assistance of counsel claims, the bar is not consistently and regularly
applied, and is therefore not adequate. In the alternative, McCarver
argues that he can show cause for his default and actual prejudice
arising from the default of his ineffective assistance claim in state
court. We are satisfied that the state procedural bar is adequate, and
that, alternatively, McCarver cannot show cause for his default and
actual prejudice resulting from the default.

1.

First, as to McCarver's claim that the state procedural bar is not
consistently and regularly applied to ineffective assistance of counsel
claims, we reject McCarver's attempt to treat ineffective assistance
claims as categorically different from other kinds of claims that can
be barred under section 15A-1419(a)(3). McCarver argues that
because ineffective assistance claims are ordinarily more appropri-
ately raised in collateral proceedings, these claims are not consistently
procedurally barred in collateral proceedings in North Carolina.
Although McCarver is undoubtedly correct that many ineffective
assistance claims could not be brought on direct appeal, section 15A-
1419 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.

Here, the North Carolina Superior Court did find that McCarver
could have raised his ineffective assistance claim on direct review.
And it was because of this specific finding that the Superior Court
held that McCarver's particular ineffective assistance of counsel
claims were procedurally barred. The question we must ask, then, is
whether the particular procedural bar is applied consistently to cases
that are procedurally analogous -- here, cases in which the particular
claim raised could have been raised previously but was not. It would
be incorrect to ask, as McCarver would, whether ineffective assis-
tance claims that cannot be brought on direct review are barred under
section 15A-1419, because by the very terms of section 15A-
1419(a)(3) -- requiring that the claim could have previously been
brought -- such claims would not be procedurally barred.

In this case, for McCarver to make a colorable showing that section
15A-1419(a)(3) is not consistently and regularly applied to ineffective

8
assistance claims, he would need to cite a non-negligible number of
cases in which ineffective assistance claims could have been brought
on direct review but were not, and in which the collateral review court
nonetheless failed to bar the claim under section 15A-1419(a)(3)
because the claim was an ineffective assistance claim. To the con-
trary, North Carolina courts have held that ineffective assistance
claims that are not brought on direct review can be procedurally defaulted
under section 15A-1419(a)(3). See, e.g., Williams v. French, 146 F.3d
at 218. Indeed, the very case McCarver cites for his concession that
N.C.G.S. § 15A-1419(a)(3) is "in general" an independent and ade-
quate state ground, see Appellant's Br. at 44 (referencing Williams v.
French), is a case in which we refused to review the defendant's inef-
fective assistance of counsel claim because it was procedurally barred
under section 15A-1419(a)(3). See Williams v. French, 146 F.3d at
217-18. In Williams, we did not even discuss the possibility that there
is a general ineffective assistance of counsel claim exception to our
holding that section 15A-1419(a)(3) is an independent and adequate
state procedural bar.

McCarver's attempt to find support in our decision in Smith v.
Dixon, 14 F.3d 956 (4th Cir. 1994) (en banc ), cert. denied, 513 U.S.
841 (1995), for his position that N.C.G.S. § 15A-1419(a)(3) is not
regularly and consistently applied to ineffective assistance of counsel
claims, is unavailing. In Smith, we did not say that section 15A-
1419(a)(3) is not regularly and consistently applied to ineffective
assistance claims. Rather, we made the unremarkable statement that
"allegations of ineffective assistance of counsel generally are properly
raised on collateral review." Id. at 966; see also id. at 969 (noting that
although there are exceptions, "[t]he accepted practice is to raise
claims of ineffective assistance of counsel in post-conviction proceed-
ings, rather than direct appeal," due to the need for evidentiary devel-
opment of these appeals; and stating that "allegations of ineffective
assistance usually would not be subject to summary denial under
§ 15A-1419(a)" (emphases added)). More importantly for McCarver's
case, but ultimately detrimental to his position, in holding that
Smith's particular Sixth Amendment claim ("failure of the Supreme
Court of North Carolina to provide standards for review deprived him
of his Sixth Amendment right to counsel because it rendered counsel
unable to adequately prepare or present argument") was properly
barred under section 15A-1419(a)(3), we recognized that there are

9
exceptions to the general rule in North Carolina that ineffective assis-
tance of counsel claims cannot be raised on direct appeal. See id. at
969 (citing State v. Dockery, 336 S.E.2d 719, 721 (1985), as "noting
that although there are exceptions, `[t]he accepted practice is to raise
claims of ineffective assistance of counsel in post-conviction proceed-
ings, rather than direct appeal,' due to the need for evidentiary devel-
opment of these claims" (emphasis added)). And McCarver's case,
according to the North Carolina Superior Court, is such an exception
for which the state procedural bar would be applicable and adequate.4
_________________________________________________________________

4 McCarver also cites two of this court's unpublished opinions to sup-
port his position that the state procedural rule is not regularly and consis-
tently applied to ineffective assistance of counsel claims. In Hooper v.
Barnett, 972 F.2d 340 (4th Cir. 1992) (unpublished), this court held that
section 15A-1419(a)(3) was not adequate as applied to an ineffective
assistance of counsel claim because the North Carolina Supreme Court
"[o]n more than one occasion . . . has stated that a Motion for Appropri-
ate Relief, or other post conviction action which permits the defendant
a hearing, is a more appropriate vehicle for asserting an ineffective assis-
tance of counsel claim than direct appeal, and has allowed ineffective
assistance claims to be raised in other motions." Id. at **2.

Likewise, in Harris v. French, 182 F.3d 907 (4th Cir. 1999) (unpub-
lished), this court held that "it is improper to treat an ineffective-
assistance-of-trial-counsel claim as procedurally defaulted under § 15A-
1419(a)(3) because North Carolina does not require ineffective-
assistance-of-counsel claims to be raised on direct appeal." Id. at **17.
In neither unpublished opinion did this court embark upon a significant
discussion analyzing whether ineffective assistance of counsel claims
that could be brought on direct review would be properly barred under
section 15A-1419(a)(3). Instead, both opinions simply state the proposi-
tion, in the same manner that McCarver does before this court, that inef-
fective assistance claims are generally not required to be made on direct
review, and cursorily conclude that section 15A-1419(a)(3) is not ade-
quate as applied to ineffective assistance of counsel claims. To the extent
these holdings conflict with our opinion today, we disavow those hold-
ings and the limited reasoning therein for the same reasons we reject
McCarver's attempt to treat ineffective assistance of counsel claims as a
categorical exception to our prior holding that section 15A-1419(a)(3) is
an independent and adequate state procedural bar.

10
2.

McCarver argues in the alternative that even if we find North Caro-
lina's procedural default rule to be applicable to his ineffective assis-
tance of counsel claim, he can demonstrate cause to excuse his default
in not raising the claim on direct review and actual prejudice resulting
from the default. To demonstrate cause, McCarver needs to make "a
showing that the factual or legal basis for a claim was not reasonably
available to counsel."5 McClesky v. Zant, 499 U.S. 467, 494 (1991)
(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)) (internal quo-
tation marks omitted).

McCarver argues not merely that the factual basis for his ineffec-
tive assistance of counsel claim was not reasonably available to appel-
late counsel, but that "it would have been literally impossible" for his
appellate counsel to have raised the claim on direct appeal because
the record was not sufficient to support a reasonable claim of ineffec-
tive assistance. Appellant's Br. at 46. Specifically, McCarver posits
that he could only have made his ineffective assistance claim if he had
had the opportunity to supplement the record through an evidentiary
hearing. McCarver alleges that, at such an evidentiary hearing, he
could have presented the testimony of trial counsel who could have
explained why counsel failed to prevent the information from entering
the record, the testimony of a criminal law expert who could have
explained why counsel was ineffective, and the testimony of a mental
health professional who could have explained that the Dix examina-
tion fill-in-the-blank questions were beyond the scope of a normal
competency evaluation. Although there is no question that with an
evidentiary hearing McCarver may have gathered or created more
evidence, we are satisfied that the North Carolina Superior Court did
not err in concluding that McCarver's appellate counsel could have
brought McCarver's ineffective assistance of counsel claim on direct
appeal in North Carolina state court.

McCarver's ineffective assistance claim, in essence, is that counsel
should have prevented the damaging Dix report from being entered
_________________________________________________________________

5 McCarver does not argue before this court that appellate counsel on
direct review was ineffective for failing to raise the ineffective assistance
of counsel claim on direct review.

11
into the trial record through all available means. As noted, the North
Carolina Superior Court found that McCarver could have raised this
claim on direct review. In reviewing the North Carolina court's find-
ings that support its application of the state procedural bar, we accord
the state's findings a presumption of correctness, see Williams, 146
F.3d at 209 ("Findings of the state court supporting its decision to
apply the state procedural default rule are entitled to a presumption
of correctness in determining whether cause exists to excuse a proce-
dural default." (citing 28 U.S.C. § 2254(d))). But even absent this pre-
sumption, we believe the trial record was more than sufficient to
enable McCarver's counsel to advance on direct appeal the ineffective
assistance claim that McCarver is advancing now. At the time of
McCarver's direct appeal, the trial record included not merely the
damaging fill-in-the-blank statements themselves, but also the fact
that it was defense counsel who asked specifically about those state-
ments first on direct examination of Dr. Sultan. The record also indi-
cated that trial counsel had turned over Dr. Parasi's report and
testimony, which included the fill-in-the-blank responses, to Dr. Sul-
tan. J.A. 20-23. The record also showed that trial counsel filed no
motion in limine and that no competency hearing was ever held. With
this information in the record, McCarver's appellate counsel could
easily have made the claim on direct review that trial counsel erred
by providing the reports to Dr. Sultan. To be sure, in a hearing on col-
lateral review, McCarver likely could have found a criminal law
expert or other expert to comment on trial counsel's performance. By
focusing on the evidence that was available instead of the evidence
that could have been generated, however, cf. Smith v. Murray, 477
U.S. 527, 537 (1986) ("[T]he question is not whether subsequent legal
developments have made counsel's task easier, but whether at the
time of the default the claim was `available' at all."), it is plain that
McCarver could have made the very ineffective assistance of counsel
claim on direct review that he does today -- and just as effectively.
Therefore, we do not find that the lack of non-record evidence avail-
able to appellate counsel constitutes cause to excuse McCarver's pro-
cedural default.

Finally, even if McCarver could demonstrate cause, we reject his
argument that he was actually prejudiced by the failure of trial coun-
sel to prevent the Dix fill-in-the-blank responses from being entered
into the record. To establish prejudice, McCarver must show "not

12
merely that the errors at his trial created a possibility of prejudice, but
that they worked to his actual and substantial disadvantage, infecting
his entire trial with error of constitutional dimensions." United States
v. Frady, 456 U.S. 152, 170 (1982). McCarver's theory of prejudice
does not demonstrate that any error worked to his actual and substan-
tial disadvantage. McCarver argues that had trial counsel attempted to
keep the Dix reports out of the record, counsel would have been suc-
cessful; had the Dix report fill-in-the-blank responses been kept out
of the record, the jury would have found the mitigating circumstance
that McCarver was remorseful; and had the jury found that McCarver
showed remorse, then there is a reasonable probability that it would
not have sentenced him to death.

Even assuming that counsel would have been successful if he had
tried to keep the Dix reports out of the record, McCarver's actual
prejudice theory is simply too tenuous to withstand scrutiny. First, we
are confident that trial counsel's provision of the Dix reports to Dr.
Sultan served to add to the expert's credibility with the jury. Dr. Sul-
tan's use of the prior reports added to the substantive and temporal
depth of her evaluation of McCarver. And, in particular, she was actu-
ally able to use positively McCarver's answers on the Dix fill-in-the-
blank to convey more fully to the jury her psychological profile of
McCarver. Dr. Sultan testified that McCarver was misled by his cell
mates who told him to provide crazy answers so that he would seem
incompetent. J.A. 67-68. She also emphasized that after being
reminded that he needed to be truthful, he finished the sentences dif-
ferently on a subsequent fill-in-the-blank test. J.A. 70 (e.g., "The best
time I ever had was when I was with Tina."). Therefore, because Dr.
Sultan had access to the Dix reports, including the specific fill-in-the-
blank responses, the jury was provided with sufficient testimony by
the defense expert not merely to discount McCarver's responses as
not being sincere reflections of his thoughts about the murder, but
also to believe that Dr. Sultan had a deep, credible understanding of
McCarver as a troubled individual who could easily be misled by oth-
ers.

Second, we recognize that Dr. Sultan's credibility was invaluable
not only in ameliorating any prejudicial impact of the Dix responses,
but, more importantly, in helping McCarver prove the existence of
many of the fourteen mitigating factors that the jury did find. That is,

13
because Dr. Sultan was able to provide the jury with a detailed psy-
chological picture of McCarver, by incorporating evaluations and
reports made years before, the jury had reason to believe that Dr. Sul-
tan's testimony related to all of McCarver's psychological problems
was credible. And, Dr. Sultan's testimony addressed at least six of the
seventeen mitigating factors the jury did find, including McCarver's
capacity to appreciate his behavior, his level of intellectual function-
ing, and his suffering from depression. Therefore, it is reasonable to
assume that even if the mere reference to the Dix reports caused the
jury not to find remorse, the use of the Dix reports by Dr. Sultan may
have aided the jury in finding the presence of many of the other miti-
gating circumstances. In other words, if Dr. Sultan had not consulted
the prior studies and thereby increased the scope of her evaluation, the
jury may have discredited her testimony regarding some if not six of
the mitigating circumstances, thus counteracting any value gained
from the possibility of the jury finding remorse. And, importantly, if
the jury discredited Dr. Sultan's testimony, it may have also discred-
ited Dr. Sultan's recitation of McCarver's statement that he was
"sorry" for what he did. J.A. 207.

Third, in addition to not finding remorse, the jury also failed to find
two other mitigating circumstances to be present in McCarver's case.
The jury, even having found only two aggravating circumstances and
fourteen mitigating circumstances, still recommended that McCarver
be sentenced to death. Given that the jury found only two aggravating
circumstances to outweigh the fourteen mitigating circumstances, we
are unpersuaded that had the jury found the presence of a fifteenth
mitigating circumstance, remorse, it would be reasonable to believe
that the jury would not have imposed the death penalty.

Even though we appreciate that it is not necessarily the case, it is
at least relevant that the jury may very well have found through the
testimony of various witnesses that McCarver did express remorse,
but accorded it no mitigating value anyway. This is because the miti-
gating circumstance question posed to the jury -- "Consider whether
Ernest Paul McCarver has expressed remorse for his actions and
whether you deem this to have mitigating value." J.A. 311 (emphasis
added) -- is actually a two-part question. It asks first, whether the
jury believed that McCarver expressed remorse for his actions, and
second, whether the jury would then accord that remorse any mitigat-

14
ing value. The jury answered the two-part question with a single "no."
Therefore, it could well be the case that the jury did find that McCar-
ver had expressed remorse, answering the first question, but that it
accorded that remorse no mitigating value in answering the second
question. McCarver has provided us with no reason to believe that a
reasonable jury would accord the statements McCarver allegedly
made to various witnesses with any mitigating value at all, despite the
statements' apparent expression of remorse.

For the reasons stated above, we conclude that there is no categori-
cal, ineffective assistance of counsel claim exception to our previous
holding that section 15A-1419(a)(3) is an independent and adequate
state procedural bar, and, therefore, that McCarver's claim was proce-
durally defaulted in state court, pursuant to an independent and ade-
quate state procedural bar. Additionally, we are satisfied that
McCarver has demonstrated neither cause to excuse his procedural
default nor actual prejudice resulting from the default.

B.

Although we conclude that McCarver's ineffective assistance of
counsel claim is procedurally barred, we nevertheless consider the
merits of that claim. As discussed, McCarver argues that trial counsel
was ineffective in two respects: his failure to file a motion in limine
to ensure that the Dix reports could not be introduced, and his deci-
sion to give the Dix reports to McCarver's own expert, Dr. Sultan,
thereby ensuring that the district attorney would be permitted to ask
about the reports on cross-examination. For the reasons that follow,
we unhesitatingly conclude that McCarver's trial counsel's perfor-
mance was not constitutionally ineffective.

Under Strickland v. Washington, 466 U.S. 668 (1984), McCarver
must demonstrate that his counsel's performance not only fell below
an objective standard of reasonableness, see id . at 687-88, but also
that he was actually prejudiced by that ineffectiveness, see id. at 693-
94. The North Carolina Superior Court found that, in addition to
being procedurally barred, McCarver's ineffective assistance claim
was without merit.6 J.A. 520-23. The district court, adopting the mag-
_________________________________________________________________

6 We review the North Carolina Superior Court's conclusions on the
merits of McCarver's ineffective assistance of counsel claim under the

15
istrate judge's report and recommendation, agreed with the North
Carolina court, holding that, even if McCarver's claim had not been
procedurally defaulted in state court, he did not demonstrate that
counsel's performance fell below an objective standard of reasonable-
ness.

We address separately each of McCarver's arguments on the mer-
its, first, his claim that trial counsel erred by giving the Dix reports
to Dr. Sultan; second, his argument that trial counsel should have
filed a motion in limine to prevent the Dix reports from becoming part
of the record; and, finally, his contention that trial counsel's alleged
ineffectiveness actually prejudiced him.

1.

In evaluating trial counsel's performance, we must be highly defer-
ential to counsel's strategic decisions and not allow hindsight to influ-
ence our assessment of counsel's performance. See Strickland, 466
U.S. at 689. Even were we not bound by this highly deferential stan-
dard, however, we would be satisfied that trial counsel's decision to
fully inform McCarver's own expert, Dr. Sultan, of McCarver's pre-
vious psychological evaluations did not fall below an objective stan-
dard of reasonableness. In fact, we believe that trial counsel's
_________________________________________________________________

AEDPA amendments, as recently interpreted in Williams v. Taylor, 120
S. Ct. 1495, 1523 (2000). In Williams, the Court held that under 28
U.S.C. § 2254(d)(1), "a federal habeas court may grant the writ if the
state court arrives at a conclusion opposite to that reached by this Court
on a question of law or if the state court decides a case differently than
this Court has on a set of materially indistinguishable facts," or "if the
state court identifies the correct governing legal principle from this
Court's decisions but unreasonably applies that principle to the facts of
the prisoner's case." Id. As explained below, we do not believe even
under de novo review that McCarver's ineffective assistance of counsel
claim has merit, and therefore we are certain that the Superior Court's
decision was not "contrary to . . . clearly established Federal law, as
determined by the Supreme Court," and did not "involve[ ] an unreason-
able application of . . . clearly established Federal law, as determined by
the Supreme Court." 28 U.S.C. § 2254(d)(1).

16
performance would have bordered on the ineffective if he had not
given the Dix reports to Dr. Sultan before she testified.7

Trial counsel's decision to provide an expert with all available
truthful information is not only imminently reasonable, but we would
expect that an expert psychologist witness would always be provided
with all available information on a patient. Particularly in a case in
which the expert witness is not a long standing treating psychologist
of the patient, we assume that it would be in the defendant's best
interest to have that expert obtain as much data and as many prior
evaluations of that defendant, from as many sources as possible, as
are available, so that the expert can form a full and credible picture
of the defendant's psychological make-up. Because of our under-
standing that generally it is in the best interests of the client for coun-
sel to provide available background psychological information to an
expert psychologist witness, we are not at all surprised that McCarver
is unable to cite any cases in which trial counsel was considered inef-
fective for providing accurate information to an expert witness.

That it is a sound and reasonable trial strategy to provide all avail-
able information to an expert psychologist witness is confirmed by the
facts of this case. By making the reports available to Dr. Sultan, trial
counsel ensured not only that Dr. Sultan's evaluation would be as
complete and as comprehensive as possible, J.A. 30-31 (Dr. Sultan
testified: "It's important when I'm trying to formulate an opinion
about somebody for me to know what else has been said about that
person. My opinion is really only as reliable as it is contrasted or
compared with the overall impressions, the cumulative impressions
that have been gathered by other professionals in the field over time.
And so in part what I'm doing is double checking my notion of a per-
son."), but also that Dr. Sultan was able to incorporate the otherwise
_________________________________________________________________

7 In concluding that trial counsel was not ineffective in providing dam-
aging but truthful information to an expert witness, we are in accord with
Robison v. Johnson, 151 F.3d 256, 259-60 (5th Cir. 1998), cert. denied,
119 S. Ct. 1578 (1999). In Robison, the Fifth Circuit held that trial coun-
sel's provision of a prior damaging psychological report to a testifying
expert was not ineffective assistance, because trial counsel was merely
attempting to give the doctor all available information and to aid in
deflecting criticism from the state on cross-examination.

17
potentially damaging statements into her assessment of McCarver,
ameliorating their impact while at the same time bolstering her own
credibility as a defense witness, see supra Part II.A.2. Therefore, we
conclude that McCarver's trial counsel's decision to give the reports
to Dr. Sultan was, at the very least, not an objectively unreasonable
trial strategy and that such did not constitute constitutionally ineffec-
tive assistance of counsel.8

2.

Because we are satisfied that trial counsel's decision to turn over
the Dix reports to the defense expert was a reasonable trial strategy,
McCarver's first allegation of error -- that counsel should have filed
a motion in limine to keep the reports out of the trial record -- is
without merit. That is, after counsel reasonably decided to give the
reports to Dr. Sultan and thereby expose the reports to cross-
examination,9 counsel could not also have filed a motion in limine to
keep the same reports out of the record, and there would be no logical
reason to have done so.

However, even if we were to conclude, as McCarver argues, that
trial counsel should have attempted to exclude the Dix reports, the
_________________________________________________________________

8 It is important to note that McCarver does not suggest that trial coun-
sel erred by having Dr. Sultan testify in the first instance. This is most
likely because McCarver realizes, as do we, that counsel had Dr. Sultan
testify in order to emphasize McCarver's hardship and mental deficien-
cies, and that her testimony addressed at least six of the seventeen miti-
gating factors, as discussed above.

9 N.C.G.S. § 8C-1, Rule 705 addresses the disclosure of facts or data
underlying an expert opinion:

The expert may testify in terms of opinion or inference and give
reasons therefor without prior disclosure of the underlying facts
or data, unless an adverse party requests otherwise, in which
event the expert will be required to disclose such underlying
facts or data on direct examination or voir dire before stating the
opinion. The expert may in any event be required to disclose the
underlying facts or data on cross-examination. . . .

Under this rule, the district attorney could permissibly have asked about
the Dix reports and the fill-in-the-blank responses specifically.

18
North Carolina Superior Court held that McCarver did "not demon-
strate[ ] the existence of a solid foundation upon which trial counsel
could have demanded the exclusion of the evidence concerning the
two reports." J.A. 520.

McCarver argues primarily that there are two grounds on which
trial counsel could have successfully moved the trial court to exclude
the Dix reports from the record. First, he argues that under North Car-
olina law, the Dix reports were confidential and could not be made
part of the record. Second, McCarver argues, in reliance upon Powell
v. Texas, that the Dix reports could have been excluded from the
record because the examinations performed at Dix went beyond the
scope of a normal competency evaluation. We reject both claims.

(a)

McCarver cites N.C.G.S. § 15A-1002(d) for the proposition that
the Dix reports were not part of the public record and therefore that
trial counsel could have invoked the provision to keep the reports
confidential. Section 15A-1002(d) reads:

Any report made to the court pursuant to this section shall
be forwarded to the clerk of the superior court in a sealed
envelope addressed to the attention of a presiding judge . . . .
A copy of the full report shall be forwarded to defense coun-
sel, . . . if the question of defendant's capacity to proceed
is raised at any time, a copy of the full report must be for-
warded to the district attorney. Until such report becomes
a public record, the full report to the court shall be kept
under such conditions as are directed by the court, and its
contents shall not be revealed except as directed by the
court.

(emphasis added). McCarver argues that, because no hearing was ever
held on McCarver's competency, his capacity to proceed was not
raised, and therefore copies of the full report should not have been
sent to the district attorney. McCarver suggests therefore that trial
counsel could have made a motion to exclude the reports from the
record on the ground that the reports had been sent to the district
attorney unlawfully.

19
However, section 15A-1002(d) is not an absolute confidentiality
rule. To the contrary, the court is given the discretion to reveal the
contents of the reports ("the full report to the court shall be kept under
such conditions as are directed by the court, and its contents shall not
be revealed except as directed by the court"), and the North Carolina
Superior Court found that "the [Dr. Lara] report demonstrates that dis-
closure of the information in the reports to the district attorney was
authorized by court order." J.A. 513. Although there is no such court
order in the record before us, the Dix report produced by Dr. Lara,
which includes the relevant fill-in-the-blank responses, does indicate
that such an order was made, J.A. 367 ("Court order instructed foren-
sic report to be delivered to the patient's attorneys, District Attorney's
Office, and to the judge."), and we therefore do not find that the supe-
rior court's factual conclusion was unreasonable. Accordingly, we do
not find that the North Carolina court's conclusion that the prosecu-
tion lawfully possessed the Dix reports prior to trial was in error, and
McCarver's counsel thus was not constitutionally ineffective for fail-
ing to make a motion to exclude the reports on the ground that the
prosecution improperly possessed the reports or that they remained
confidential.

(b)

McCarver's reliance on Powell v. Texas, 492 U.S. 680 (1989), as
a ground on which trial counsel could have moved the trial court to
exclude the Dix reports from the record, is likewise misplaced. In
Powell, the Supreme Court held that the Sixth Amendment was vio-
lated where the prosecution examined the defendant for future dan-
gerousness during his competency evaluation, and defendant's
counsel neither knew of the future dangerousness testing nor was
present. Presumably, McCarver is arguing that the competency
reports could not be used in the sentencing stage of the trial because
at the time the competency evaluations were performed, trial counsel
was not present and did not know that the evaluations would include
questions related to possible aggravating factors.10
_________________________________________________________________

10 Notably, McCarver does not cite Powell to support an independent
constitutional violation -- that the prosecution should not have been per-
mitted to use at the sentencing proceedings the statements made at the
competency hearing. Rather, he cites Powell as support for his position
that counsel should have known that under the reasoning of Powell, the
prosecution would not be permitted to use the Dix reports at the sentenc-
ing stage.

20
However, McCarver's case is distinguishable from Powell in at
least three ways. First, defense counsel, not the State, as in Powell,
ordered the tests and there is no evidence that counsel was unaware
of the kind of testing that would take place. Second, there was no
aggravating factor of future dangerousness in McCarver's sentencing
proceeding, as there was in Powell's.

Third, in Powell, the defendant was examined, at the State's
request and by order of the court, particularly for future dangerous-
ness, in addition to competency. We are unconvinced that in McCar-
ver's case mere fill-in-the-blank sentences lie outside the scope of
what a competency evaluation would entail. What McCarver fails to
recognize in treating McCarver's responses to the fill-in-the-blank
sentences as obviously pertaining to the mitigating factor of remorse
and not to competence is that the fill-in-the-blank sentences, before
McCarver responded, were merely innocuous half sentences that
could have as easily been left blank by McCarver or answered in the
way he eventually did -- "My favorite time was when I was with
Tina." McCarver does not allege that the doctors asked him whether
he ever dreams about killing, or any similar question that would nec-
essarily yield responses that might be relevant to mitigating or aggra-
vating factors, and we find no such questions in the record.11

For the reasons above, then, we conclude that the North Carolina
Superior Court's finding, that McCarver did "not demonstrate[ ] the
existence of a solid foundation upon which trial counsel could have
demanded the exclusion of the evidence concerning the two reports,"
_________________________________________________________________

11 McCarver also cites an unpublished case from this court, Thomas-
Bey v. Nuth, 67 F.3d 296 (4th Cir. 1995) (unpublished), to support his
position that trial counsel was constitutionally ineffective in failing to
prevent the admission into the record of the statements from the Dix
reports. However, the cited case is inapposite. In Thomas-Bey, the court
held that counsel was ineffective for consenting to a psychiatric inter-
view by the State's expert psychiatrist because counsel failed to investi-
gate the relevant circumstances surrounding the interview, such as the
fact that the psychiatrist was hired by the State to act as an expert for the
State and the fact that the psychiatrist intended to and did ask questions
pertaining to future dangerousness. In McCarver's case, defense counsel
ordered the competency evaluations, the doctors were not experts of the
State, and there was no future dangerousness at issue.

21
was not unreasonable. And, therefore, given that the district attorney
already possessed the reports and could ask Dr. Sultan about them
anyway, trial counsel's decision to give the Dix reports to Dr. Sultan
was entirely reasonable.

3.

We are satisfied, for the reasons stated in Part A.2., supra, that
even if McCarver could demonstrate that counsel's performance was
constitutionally ineffective, he has not demonstrated actual prejudice
resulting from counsel's decision to give the Dix reports to the expert
defense witness.

Accordingly, for the reasons stated, even if McCarver were able to
bring his ineffective assistance of counsel claim in this court, despite
its procedural default in state proceedings, we conclude that McCar-
ver has demonstrated neither that trial counsel's performance fell
below an objective standard of reasonableness nor that actual preju-
dice resulted from trial counsel's alleged constitutional ineffective-
ness.

III.

McCarver also argues that he should have been afforded an eviden-
tiary hearing by the district court on his ineffective assistance of
counsel claim. The state court held no evidentiary hearing on his inef-
fective assistance claim, and the federal district court likewise
rejected McCarver's request for such a hearing. We conclude that the
district court did not err in declining to conduct an evidentiary hearing
on McCarver's claim. Although McCarver may be correct that an evi-
dentiary hearing would not be prohibited under 28 U.S.C.
§ 2254(e)(2), we do not believe an evidentiary hearing was required
in his case, see Cardwell v. Greene, 152 F.3d 331, 337-38 (4th Cir.),
cert. denied, 525 U.S. 1037 (1998); McDonald v. Johnson, 139 F.3d
1056, 1059-60 (5th Cir. 1998) ("[E]ven if[the petitioner's] claim is
not precluded by § 2254(e)(2), that does not mean he is entitled to an
evidentiary hearing -- only that he may be.").

The district court is permitted to hold an evidentiary hearing only
when the petitioner "alleges additional facts that, if true, would entitle

22
him to relief." Cardwell, 152 F.3d at 331 (citation omitted) (internal
quotation marks omitted). McCarver alleges that, at an evidentiary
hearing, he could establish that trial counsel acted out of lack of
knowledge of the issues, not due to a trial strategy; that Dr. Sultan
could have conducted her evaluation without the Dix reports; that a
legal expert believed trial counsel's performance to be ineffective;
and that the competency examinations went beyond the scope of a
routine competency evaluation. See Appellant's Br. at 48. However,
we do not believe that any of the above "evidence" would aid McCar-
ver.

First, regardless whether trial counsel was fully informed when he
chose to provide the Dix reports to Dr. Sultan, his choice was a strat-
egy -- to inform fully his expert witness by providing truthful, rele-
vant information to her. Second, whether Dr. Sultan could have
evaluated McCarver without the reports is irrelevant to the inquiry
whether the reports did aid her in making the evaluation, as she has
already testified they did, and the reports did make her more credible
than if she had merely testified based on her own temporally limited
encounters with McCarver. Third, McCarver has not explicated how
the testimony of a "legal expert" assessing trial counsel's performance
would aid a federal court in this particular case in making the legal
determination whether trial counsel was constitutionally ineffective.
If a habeas petitioner were required only to produce a "legal expert"
to discuss ineffectiveness in order to obtain an evidentiary hearing,
presumably all habeas petitioners would be entitled to such a hearing.
Without a compelling reason why a criminal law expert on ineffec-
tiveness would aid the court's inquiry in McCarver's case, we do not
believe such an alleged "fact" warrants the holding of an evidentiary
hearing. Finally, with respect to the scope of the competency evalua-
tions, because McCarver's counsel ordered the evaluations, even if
they did go beyond the scope of normal competency examinations,
there would be no ground for McCarver's counsel to have moved to
exclude the reports. That is, McCarver's is not a case in which the
prosecution ordered future dangerousness tests to use against him at
sentencing.

Additionally, because, as discussed previously, we conclude that
McCarver has not demonstrated actual prejudice resulting from any
alleged constitutional errors, we also conclude that any facts McCar-

23
ver could prove to bolster his ineffective assistance of counsel claim
if he were afforded an evidentiary hearing, would not entitle him to
relief. Therefore, the district court did not err in refusing to grant
McCarver such a hearing.

CONCLUSION

For the foregoing reasons, we conclude that McCarver has failed
to make a substantial showing of the violation of a constitutional
right. His application for a certificate of appealability is denied and
his petition for writ of habeas corpus is dismissed.

DISMISSED

DIANA GRIBBON MOTZ, Circuit Judge, concurring in the judg-
ment:

I concur in the judgment because I agree that, for many of the rea-
sons set forth in the majority opinion, the performance of McCarver's
counsel was not prejudicially ineffective. See Strickland v. Washing-
ton, 466 U.S. 668 (1984).

I do not agree, however, that McCarver's ineffective assistance
claim should be procedurally barred as a result of his failure to raise
it on direct appeal. Only when a state procedural rule has been regu-
larly and consistently applied can it constitute a state ground "inde-
pendent of the federal question and adequate to support" the state
court judgment. Coleman v. Thompson, 501 U.S. 722, 729 (1991); see
also Johnson v. Mississippi, 486 U.S. 578, 587 (1988). North Carolina
cases neither regularly nor consistently apply N.C. Gen. Stat. § 15A-
1419(a)(3) to bar ineffective assistance of counsel claims.

Although the North Carolina cases do speak of certain "exceptions"
to the general and well-established practice of raising ineffective
assistance claims during post-conviction proceedings, they do not
define the category of ineffective assistance claims that can appropri-
ately be heard on direct appeal. See, e.g., State v. Dockery, 336 S.E.2d
719, 721 (N.C. Ct. App. 1985). For this reason, they provide no guid-
ance that would allow an exception to the general treatment of inef-

24
fective assistance claims to be consistently applied as a procedural
rule.

The language of § 15A-1419(a)(3), barring post-conviction relief
on claims that "the defendant was in a position to adequately raise"
on direct appeal, is not sufficient to identify clearly the cases that are
excepted from the general practice in North Carolina of hearing inef-
fective assistance claims at the post-conviction stage. Furthermore,
North Carolina courts have not undertaken to construe this statutory
language so as to provide the needed clarity. Is a defendant "in a posi-
tion to adequately raise" a claim whenever there are facts in the
record to support it, or only when the facts as to the claim are undis-
puted? Must the representation that was assertedly ineffective have
taken place prior to trial or prior to sentencing? Is a defendant "in a
position to adequately raise" an ineffective assistance claim on direct
appeal when the defendant is being represented on the appeal by his
assertedly ineffective trial counsel? We simply do not know, because
the scope of the exception, as well as the scope of the procedural rule
that purportedly derives from it, have never been addressed by the
North Carolina courts.

The state suggests that the default rule applies to all ineffective
claims that "could have been resolved on direct appeal based on mat-
ters of record." See Brief of Appellee at 39. Even assuming this lan-
guage provides sufficient clarity to transform the exception into a
procedural rule, which I doubt, it is not language that appears in any
North Carolina case cited by the state.

Moreover, even if the North Carolina courts had clearly delineated
these "exceptions" so as to articulate a procedural rule, they have not
regularly applied § 15A-1419(a)(3) as a bar to ineffective assistance
claims. Rather, North Carolina courts have repeatedly stated that inef-
fective assistance claims are "normally," State v. Milano, 256 S.E.2d
154, 160 (N.C. 1979) overruled on other grounds , State v. Grier, 300
S.E.2d 351, 361 (N.C. 1983), "more properly," State v. Jordan, 365
S.E.2d 617, 620 (N.C. 1988), and "more appropriately" raised not on
direct appeal but in post-conviction proceedings. State v. Vickers, 291
S.E.2d 599, 603 (N.C. 1982), overruled on other grounds, State v.
Barnes, 430 S.E.2d 223 (1993). See also State v. Harris, 449 S.E.2d
371, 377 (N.C. 1994); State v. Sneed, 201 S.E.2d 867, 871 (N.C.

25
1974); Dockery, 336 S.E.2d at 721; State v. Wise, 306 S.E.2d 569,
571 (N.C. Ct. App. 1983).

Our court en banc has similarly observed that, in North Carolina,
"allegations of ineffective assistance of counsel generally are properly
raised on collateral review." Smith v. Dixon, 14 F.3d 956, 966 (4th
Cir. 1994) (en banc) (emphasis added). In Williams v. French, 146
F.3d 203, 217-18 (4th Cir. 1998), we nonetheless held that a North
Carolina court's reliance on § 15A-1419(a)(3) constituted an adequate
and independent procedural bar to an effective assistance claim. Wil-
liams, however, may be the only reported case in which a North Caro-
lina court has procedurally barred an ineffective assistance claim
under § 15A-1419(a)(3), and it is certainly the only such case cited by
the state. Moreover, after issuance of Williams, albeit in an unpub-
lished opinion, we held that it is "improper to treat ineffective-
assistance-of-trial-counsel claims as procedurally defaulted under
§ 15A-1419(a)(3) because North Carolina does not require
ineffective-assistance-of trial-counsel claims to be raised on direct
appeal." See Harris v. French, 182 F.3d 907, 1999 WL 496941, *17
(4th Cir. 1999) (unpublished disposition). Notably, the panel that,
after full briefing and oral argument, concluded in Harris that § 15A-
1419(a)(3) does not constitute an adequate and independent state pro-
cedural bar consisted of a former chief judge of this court who was
at the time the only active judge on the court from North Carolina,
the judge who had authored Williams v. French, and a third judge
who is a member of today's majority. Id. Given these circumstances,
the statement of the en banc court in Smith regarding the general prac-
tice in North Carolina, and the fact that neither Williams nor Harris
contains an extensive analysis of the issue, I think the holding in Wil-
liams would be suitable for en banc revisitation.

We are bound to defer to state procedural rules when they are
clearly drawn and consistently applied. But the vindication of consti-
tutional rights in federal court should not be foreclosed by a state pro-
cedural rule that, as a hypothetical matter, might be further clarified
such that, in the future, it might be consistently applied. There is, at
present, no discernible regularly and consistently applied North Caro-
lina rule barring McCarver's ineffective assistance claim.

26