McHone v. Polk

Filed: January 28, 2005

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-14
(CA-00-762-1)

STEVEN VAN MCHONE,

Petitioner - Appellant,

versus

MARVIN POLK, Warden, Central Prison,
Raleigh, North Carolina,

Respondent - Appellee.

O R D E R

The court amends its opinion filed December 28, 2004, as

follows:

On page 22, first full paragraph, line 5 -- the word

“district” is corrected to read “trial.”

For the Court - By Direction

/s/ Patricia S. Connor
Clerk
 Volume 1 of 2

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

STEVEN VAN MCHONE, 
Petitioner-Appellant,
v.
 No. 04-14
MARVIN POLK, Warden, Central
Prison, Raleigh, North Carolina,
Respondent-Appellee.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CA-00-762-1)

Argued: September 28, 2004

Decided: December 28, 2004

Before WILKINS, Chief Judge, and LUTTIG and
GREGORY, Circuit Judges.

Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge Wilkins concurred. Judge Gregory wrote a separate
opinion concurring in part and dissenting in part.

COUNSEL

ARGUED: Cynthia Francine Adcock, Chapel Hill, North Carolina,
for Appellant. Valerie Blanche Spalding, NORTH CAROLINA
2 MCHONE v. POLK
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appel-
lee. ON BRIEF: Kenneth J. Rose, CENTER FOR DEATH PEN-
ALTY LITIGATION, INC., Durham, North Carolina, for Appellant.
Roy Cooper, Attorney General of North Carolina, NORTH CARO-
LINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee.

OPINION

LUTTIG, Circuit Judge:

Petitioner, Steven Van McHone, appeals from the district court’s
denial of his 28 U.S.C. § 2254 habeas petition. In accordance with 28
U.S.C. § 2253(c), we granted McHone a certificate of appealability in
order to address the claims he raises under Brady v. Maryland, 373
U.S. 83 (1963) and Strickland v. Washington, 466 U.S. 668 (1984).
Because we conclude that the North Carolina Supreme Court’s dispo-
sition of these claims was neither contrary to, nor an unreasonable
application of, established federal law, we affirm.

I.

The North Carolina Supreme Court and the district court have thor-
oughly recounted the facts of Steven McHone’s murders of his
mother, Mildred Adams, and his stepfather, Wesley Adams, Sr., see
State of North Carolina v. McHone, 435 S.E.2d 296, 298-301 (N.C.
1993); J.A. 817-22. We set forth only the facts relevant to the issues
on appeal, as established by the witnesses who testified at McHone’s
trial.

Wendy Adams testified that at 12:30 a.m. on June 3, 1990 she, her
husband Wesley Adams, Jr., their son Alex, and Wesley, Jr.’s parents
Mildred Adams and Wesley Adams, Sr., returned to Mildred and
Wesley, Sr.’s home after a day of fishing. Steven McHone, an occu-
pant of the house, was already there. While getting Alex ready for
bed, Wendy overheard Wesley, Sr. and Mildred arguing with
McHone about money. Thereafter, Mildred came to their room inquir-
ing about a missing pistol. Subsequently, Wesley, Jr. and Wendy
 MCHONE v. POLK 3
heard three gunshots. As Wesley, Jr. went out into the hall to investi-
gate, Wendy heard someone coming up the basement stairs and then
overheard Wesley, Sr. tell Wesley, Jr. to call 911.

Wesley, Jr., a Captain in the United States Air Force, testified that
while he was talking with the 911 operator he briefly saw McHone
wrestling with Wesley, Sr. before they disappeared from sight. About
a minute later, Wesley, Sr. reappeared and told Wesley, Jr. that his
mother was "face down out back." As Wesley, Sr. approached Wes-
ley, Jr., McHone appeared in the doorway and shot Wesley, Sr. in the
chest with a shotgun. Wesley, Jr., after a lengthy scuffle, managed to
disarm McHone. Thereafter, McHone cursed at Wesley, Jr. and
threatened that if Wesley, Jr. did not kill him he would hunt Wesley,
Jr. and his family down and "finish them off." McHone, 435 S.E.2d
at 299.

McHone did not dispute that he killed Mildred and Wesley, Sr. and
assaulted Wesley, Jr. Rather, he presented a voluntary intoxication
defense, claiming that his consumption of alcohol and LSD prevented
him from forming the requisite mental state for first degree murder.
During sentencing, McHone presented his impaired mental state in
mitigation. McHone attempted to establish his impairment through
the testimony of Jimmy McMillian and Tammy Bryant.

McMillian testified that over the course of June 2, 1990 he and
McHone split one and one-half pints of Jack Daniels and that, in addi-
tion, McHone drank a pitcher of beer. McMillian testified that
McHone’s physical and mental faculties were appreciably impaired
because he had a "slushy mouth." Id. at 300.

Bryant, McHone’s girlfriend, testified that she saw McHone on the
evening of June 2 at a party at the home of Ronald Speaks. Bryant
testified that, when McHone arrived at the party, his speech was
slurred and that he was staggering. She further testified that McHone
got into a fight while at the party and began "swinging a gun around
in everyone’s face, threatening everybody, moving real swiftly and
quickly." When Bryant asked McHone "what he was on," McHone
responded, "I have taken a couple of hits of acid." Id.
4 MCHONE v. POLK
McHone also presented expert testimony from Dr. James Groce
and Dr. John Frank Warren, III. Both testified that McHone had a
serious substance abuse problem. Id. at 301.

The state presented the testimony of Tammy Sawyers to rebut
McHone’s intoxication defense. Sawyers, who did not drink any alco-
hol on June 2, testified that she and McHone had a conversation while
driving to Speaks’ house and that McHone’s speech was fine and that
McHone was able to walk "fine" to and from her vehicle. She also
testified that she was with McHone from 3:00 p.m. on June 2 until
2:00 a.m. the next morning, that she was never out of his presence for
more than five minutes, and that she did not observe him take any
controlled substances. Id.

The jury convicted McHone of two counts of first degree murder,
one each for killing his mother, Mildred, and his step-father, Wesley,
Sr. The jury also convicted McHone of one count of assault with a
deadly weapon with intent to kill, for his attack on his step-brother,
Wesley, Jr. After finding one aggravating factor and eleven mitigating
factors as to the murder of Mildred, id. at 579-81, and two aggravat-
ing factors and ten mitigating factors as to the murder of Wesley, Sr.,
id. at 582-85, the jury recommended, and the trial court imposed, the
death penalty for each first degree murder. McHone, 435 S.E.2d at
298. McHone unsuccessfully sought direct and post-conviction
review in the North Carolina courts, id.; J.A. 731-775; State of North
Carolina v. McHone, 539 S.E.2d 642 (N.C. 1999), and his federal
habeas petition was denied on the merits by the district court. J.A.
873. Pursuant to the certificate of appealability issued by this court,
the instant appeal followed.

II.

McHone claims that the state’s failure to disclose evidence located
in State Bureau of Investigation (SBI) files entitles him to relief under
Brady v. Maryland. McHone’s Brady claims did not receive extensive
treatment in the Superior Court and in the North Carolina Supreme
Court. J.A. 774; McHone, 539 S.E.2d at 642 ("This court having thor-
oughly considered the matters raised . . . and having determined that
none require further evidentiary hearing and that none merit any fur-
ther grounds for relief, the motion is therefore denied."). Nonetheless,
 MCHONE v. POLK 5
the determination by those courts that McHone was not entitled to
relief under Brady constitutes an adjudication on the merits of that
claim. See Bacon v. Lee, 225 F.3d 470, 478 (4th Cir. 2000). Accord-
ingly, under section 2254(d), we "confine our review to whether the
[state] court’s determination resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established
Federal law." Bell v. Jarvis, 236 F.3d 149, 158 (4th Cir. 2000) (en
banc). The district court concluded that petitioner did "not [meet] the
AEDPA standards for this claim," and we agree.

In order for a petitioner to obtain relief under Brady, "(1) the evi-
dence must be favorable to the accused; (2) it must have been sup-
pressed by the government, either willfully or inadvertently; [and] (3)
the suppression must have been material, i.e., it must have prejudiced
the defense at trial." Monroe v. Angelone, 323 F.3d 286, 299 (4th Cir.
2003); Kyles v. Whitley, 514 U.S. 419 (1995) (exculpatory evidence
is material "if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have
been different.") (emphasis added). Materiality is not considered item
by item, rather it must be assessed collectively. Id. at 436.

The district court assumed that the government did not turn over
the evidence in question, J.A. 835, and we assume the same.

A.

McHone identifies the statements of seven individuals — Wesley
Adams, Jr., Wendy Adams, Randy Adams, Tammy Sawyers, Mark
Tuttle, Deputy Inman, and William Kent Hall — that he contends
were improperly withheld by the government.

As to the first statement, that of Wesley Adams, Jr., Officer L.
Perry summarized Wesley, Jr.’s statement to investigators immedi-
ately after the crime as follows:

Wes . . . overheard Steve and his mother quarreling in the
kitchen. Steve was obviously drunk and was complaining to
his mother that he wanted his money which she was holding
for him. J.A. 617;
6 MCHONE v. POLK
* * *

Steve continued to argue with his mother and step-father.
Wesley, Sr. told Steve to go downstairs in the basement and
sleep it off. Id.;

* * *

Wes advised that he smelled a strong odor of alcohol on
Steve on this occasion. He was not aware of what amount
Steve may have drunk or if he had taken any drugs. Steve
was not stuttering and appeared to know what he was doing
the entire time. He was able to fight both him (Wes) and his
father and was able to "put up a pretty good fight." Steve
was not remorseful at all after the shooting was over. Steve
even told Wes . . . that "You’d better kill me or I’ll come
back and kill you, your wife, and child." Id. at 619[.]

Wesley, Jr. testified at McHone’s trial. He testified as follows:

Q. Did you notice any odor of alcohol about Steve that
night? A. I didn’t notice any. Q. During this argument did
you know that he had been drinking? A. The only indication
I had, the only mention of drinking at all during the argu-
ment was the fact that my father told him to go to bed and
sleep it off. Id. at 290;

* * *

Q. Do you have an opinion . . . based on your experience
[including substance abuse detection training in the Air
Force] as to whether defendant was impaired . . . ? A. I nei-
ther heard, saw, or felt any type of impairment . . . By
impairment I meant that any dysfunction of his physical
movements; any slow movement, jerking, stumbling, trip-
ping; any impairment in his voice characteristics by slurring
his speech or not being able to finish a sentence.

Id. at 281-282; see also id. at 250-252 (testifying that McHone was
"aware" and "responsive" while arguing with his parents and that he
 MCHONE v. POLK 7
did not have trouble walking to his room); id. at 271 (describing
McHone’s "acrobatic moves" during the scuffle); id. at 273-74 (testi-
fying that McHone "put up a good fight"); id. at 279-280 (testifying
that, during the 40 minutes that Wesley, Jr. fought and subdued
McHone, McHone’s speech was understandable, he easily handled
the shotgun, and he was "extremely dexterous"); id. at 298-99 (testify-
ing that Wesley, Jr.’s scuffle with McHone was extended because
McHone was "in full control of his faculties").

In material respects, Wesley, Jr.’s pretrial and trial statements are
consistent, even if at first blush, as the district court said, Wesley,
Jr.’s "pretrial statements that petitioner was ‘obviously drunk’ and
smelled of alcohol versus his trial testimony that petitioner did not
appear impaired in any way and did not smell of alcohol . . . appear
inconsistent." Id. at 827. Wesley, Jr.’s pretrial statement was that
McHone knew what he was doing throughout the commission of the
murders — i.e., he was not impaired — and is thus fully consistent
with his trial testimony to that effect. In his pretrial statement, Wes-
ley, Jr. described McHone’s fight with Wesley, Sr., noting that "Steve
had the revolver in his hand and was trying to shoot Wesley, Sr.," that
"Wesley, Sr. and Steve were swapping punches the entire time," that
after Wesley, Sr. thought he had knocked out McHone that McHone
acquired a shotgun and "pointed it directly at . . . his father" and
"pulled the trigger," and that afterwards Wesley, Jr. and McHone
"struggled over the gun." Id. at 618-19. In summarizing McHone’s
physical and mental presence during these events Wesley, Jr. told
Officer Perry that "Steve was not stuttering and appeared to know
what he was doing the entire time. He was able to fight both him
(Wes) and his father and was able to put up a "pretty good" fight.
Steve was not remorseful at all after the shooting was over." Id. at
619. Thus, Wesley, Jr.’s statements to the SBI and his trial testimony
are consistent on the issue of impairment, which is the only issue that
bears directly on the guilt-phase question of McHone’s ability to form
specific intent and on the sentencing-phase question of the applicabil-
ity of the impairment mitigator.

The district court noted apparent inconsistencies between Wesley,
Jr.’s trial testimony and his pretrial statements regarding his observa-
tions of the indicia of McHone’s consumption of alcohol. Any incon-
sistency, however, is limited in scope and does not bear directly on
8 MCHONE v. POLK
the question of McHone’s ability to form specific intent or the appli-
cability of the impairment mitigator. As noted above, in his pretrial
statement Wesley, Jr. described overhearing McHone’s argument with
his mother and concluded that McHone was "obviously drunk." At
trial, describing an argument between McHone and Wesley, Sr. and
in response to the question "[d]uring this argument did you know that
he [McHone] had been drinking?", Wesley Jr. testified that "[t]he
only indication I had, the only mention of drinking at all during the
argument was the fact that my father told him to go to bed and sleep
it off." Id. at 290. Thus, Wesley, Jr.’s testimony regarding the evi-
dence of drinking during McHone’s argument with his stepfather is
unrelated to, and not inconsistent with, his pretrial observations
regarding McHone’s earlier argument with his mother which appar-
ently was not the subject of his trial testimony. Moreover, consistent
with his trial testimony, Wesley, Jr. told Officer Perry that "Wesley,
Sr. told Steve to go . . . sleep it off." Id. at 617. Similarly, the only
evidence Wesley Jr. described in his pretrial statement in support of
his observation that McHone was obviously drunk during the argu-
ment with his mother was that she "told Steve to go downstairs and
sleep it off." Id. Accordingly, Wesley Jr.’s pretrial statement and trial
testimony are largely consistent, and certainly consistent in material
respects, the only inconsistency limited to Wesley, Jr.’s observation
to Officer Perry that "he smelled a strong odor of alcohol on Steve"
and his trial testimony to the contrary.1 We are unwilling to find,
based on this single, immaterial inconsistency, that the undisclosed
evidence is "favorable" under Brady. Nonetheless, we will assume
1
While Judge Gregory, in dissent, claims that the inconsistencies in
Wesley, Jr.’s pretrial and trial statements extends further, he merely
states such as a conclusion, without any supporting analysis. He main-
tains that the inconsistencies extend to Wesley, Jr.’s pretrial statement
that McHone was "obviously drunk" and to Wesley, Jr.’s trial statement
that the only indication he had that McHone had been drinking was that
Wesley, Sr. told him to go "sleep it off." But Judge Gregory does not
even reference, much less address, the context of these statements, as we
have carefully set forth, which demonstrate that these statements are not,
in fact, inconsistent. Additionally, without reference to any specific pre-
trial or trial testimony, Judge Gregory suggests that Wesley, Jr.’s testi-
mony was inconsistent with respect to impairment. But this conclusion
is belied by Wesley, Jr.’s unequivocal assessment of McHone’s impair-
ment in his pretrial statement.
 MCHONE v. POLK 9
such. Even on this assumption, however, we conclude that Wesley,
Jr.’s pretrial statement is not material.

At best, McHone might have used the inconsistency in Wesley,
Jr.’s statements as to the existence of a smell of alcohol to attempt to
impeach Wesley, Jr. See United States v. Bagley, 473 U.S. 667, 676
(1985) ("Impeachment evidence . . . as well as exculpatory evidence,
falls within the Brady rule."). But the impeachment value of this
inconsistency is low because the defense had ample testimony regard-
ing McHone’s consumption of alcohol that it could have used to
attempt to impeach Wesley, Jr. Numerous state witnesses, including
Tammy Sawyers and police officers Inman and Miller, testified that
McHone had consumed a substantial amount of alcohol. J.A. 828-829
(district court reaching the same conclusion). Indeed, Tammy Saw-
yers testified that McHone was "drunk" though understandable and
able to walk, id. at 399, and that over the course of the day he con-
sumed two cans of beer, "two pitchers of beer," and "over two and a
half pints of liquor." Id. at 405. And, at sentencing, the jury found the
mitigating factor that "[t]he defendant has a history of long-term sub-
stance abuse and on the night of the offense was under the influence
of alcohol." Id. at 579; 583 (emphasis added). Thus, the jury’s failure
to consider additional, cumulative evidence relating to the undisputed
fact that McHone had consumed a vast quantity of alcohol does not
"put the whole case in such a different light as to undermine our con-
fidence in the verdict." Kyles, 514 U.S. at 434; United States v. Ellis,
121 F.3d 908, 918 (4th Cir. 1997) ("[P]ost-Kyles we do not ignore
other evidence presented at trial in determining confidence in the out-
come. Instead, we evaluate the whole case, taking into account the
effect that the suppressed evidence, had it been disclosed, would have
had on the evidence considered at trial.").2
2
Contrary to McHone’s contention, Monroe v. Angelone, 323 F.3d 286
(4th Cir. 2003), does not aid his materiality claim. There, we found a
Brady violation where the prosecution failed to disclose that the only wit-
ness that testified that the murder was premeditated had received numer-
ous incentives from the state — including dismissal of certain gun
charges and a reduced sentence for another offense — and had made
inconsistent statements to investigators. Id. at 314. Moreover, the prose-
cutor told the jury that "it’s absolutely true that the Commonwealth has
not promised [the witness] anything." Wesley, Jr. received nothing from
the state, his statements and testimony on the determinative issue of
impairment were consistent, and this testimony was corroborated by the
testimony of Wendy Adams, Tammy Sawyers, and Deputy Inman.
10 MCHONE v. POLK
Turning next to the allegedly inconsistent statements of Wendy
Adams, Adams said the following in an interview with Detective
Terry Miller:

Adams: [McHone said] ‘I can’t go on living like this,’ that
may have been part of the argument that was going on in the
kitchen. . . . But I remember him saying that that night, . . .
but he didn’t even sound, he did not sound incoherent, or
anything else, he just sounded mad. J.A. 607;

Miller: You all mentioned earlier about him being drunk or
drugged or both,3 but Wendy mentioned also that he was
very coherent, that was my observation when I got there .
..

Adams [Wendy]: Well, a lot of people, well, personally, I
don’t know a lot of people that would cuss and scream like
that if they weren’t drunk . . . I know a lot of people get real
belligerent when they get drunk and always, when I had
been around Steve before, he was real smooth when he was
clean. Id. at 608.

Wendy Adams testified at McHone’s trial as follows:

Q. Did he stagger, stumble, have any trouble negotiating
around the tables or whatever was in the house? A. No . . .
Q. Did you notice anything about his speech, that is being
mumbled, mush-mouthed, or slurred in any way? A. No. It
was slightly louder than normal. Id. at 122-23;

* * *

Q. Based on what Randy told Mr. and Mrs. Adams, did
they talk with Steven in your presence about alcohol or
3
Wendy and Wesley, Jr. mentioned McHone "being drunk or drugged"
not based on their personal observations but rather based on Randy
Adams’ description of a phone call he had with McHone earlier in the
evening. J.A. 603.
 MCHONE v. POLK 11
about being drunk, coming home drunk? A. I didn’t pick up
on any of that. Id. at 159.

As even a cursory comparison of the pretrial and trial statements
makes clear, Wendy Adams’ undisclosed statement cannot form the
basis of a Brady violation because it is consistent with her trial testi-
mony and is therefore not "favorable" to McHone. And, even if the
undisclosed statement could somehow be used to impeach Wendy, it
would not be material because at best it would be cumulative to the
undisputed fact that McHone had consumed alcohol.

The SBI files also reveal that Wendy talked to Randy Adams, who
had a telephone conversation with McHone on the evening of June 2,
and that Randy told Wendy that McHone was intoxicated or impaired.
Id. at 603. This evidence is not favorable to McHone. As the trial
court held, Randy’s conversation with Wendy is inadmissible hearsay,
id. at 159, and Randy’s statements about McHone’s earlier impair-
ment — based merely on a telephone call — do not bear in any way
on Wendy’s later observation of McHone. Because this undisclosed
evidence is not inconsistent with Wendy’s trial testimony, it is not
"favorable" under Brady.

In addition, petitioner contends that Wendy’s description at trial of
the fight between Wesley, Sr. and McHone differs from her statement
to police. At trial, Wendy testified that she heard a "scuffle" and a
"struggle" and that "blows were exchanged." Id. at 132-33. In her
statement to police, Wendy said:

It sounded like he was dragging him up the basement steps,
beating on him, I’m not sure, and then he, I thought he . . .
like, drug him, my impression was that he was beating Steve
and had drug him into their bedroom and hit him again
maybe, and thought he had knocked him out, and then left
the room, maybe, I don’t know.

Id. at 605. This latter statement is not "favorable" because it is not
inconsistent with Wendy’s trial testimony, in which she described
Wesley, Sr. beating McHone on several occasions during the course
of the "struggle" and also described hearing "hitting and dragging"
coming from the basement steps. Id. at 132-137. And, the jury heard
12 MCHONE v. POLK
testimony from Wesley, Jr. that Wesley Sr. was very strong and that
at one point it looked as though he had subdued McHone. Id. at 262-
63.

Randy Adams told police that McHone called him at Mildred and
Wesley, Sr.’s house on the night of the murders and asked him if he
(McHone) could bring a girl home with him. Randy told him no and
McHone, according to Adams, "got real upset with him over this and
told [him] that he would kill him." Id. at 622. Additionally, Randy
told police that Mildred informed him that, based on her observations,
McHone was "drunk or doped up," id., and a prosecution witness list
notation indicated that Randy might testify that Mildred told him that
McHone was "the worst [she had] ever seen him." Id. at 660. Randy
did not testify at trial, was not at the house when the murders were
committed, and did not observe McHone on the evening of the mur-
ders. Id. at 622.

McHone would not have benefitted from Randy’s testimony and
thus it does not support his Brady claim. As the district court
observed, Randy’s statement was not favorable because it "contains
the fact that McHone threatened to kill Randy over a minor matter
shortly before he committed two murders." Id. at 840. Moreover,
Randy’s testimony about Mildred’s revelations regarding McHone’s
condition would have added little to the cumulative evidence pre-
sented regarding McHone’s intoxication. Lastly, as the district court
concluded, the notation on the prosecutor’s witness list is scribbled
and ambiguous. It could relate to McHone’s emotional state, his
impairment, or his meanness. Id.

McHone next claims that Tammy Sawyers’ statement to investiga-
tors, in which she described her conversations with McHone on the
night of the murder, is Brady material. But McHone participated in
these conversations and, accordingly, this evidence cannot form the
basis of a Brady claim. See Hoke v. Netherland, 92 F.3d 1350, 1355
(4th Cir. 1996)("[W]here the exculpatory information is . . . available
to the defendant" or "lies in a source where a reasonable defendant
would have looked, a defendant is not entitled to the benefit of the
Brady doctrine.").

Similarly, under Hoke, McHone’s telephone call to his Alcoholics
Anonymous sponsor, Mark Tuttle, approximately thirty minutes
 MCHONE v. POLK 13
before the shootings, cannot form the basis of a Brady claim. Id. This
evidence would not constitute Brady material in any event. In this
conversation, McHone is described by the SBI as "sound[ing] upset
and [as] crying" and as "not seem[ing] to be making much sense,"
J.A. 611. But during the conversation McHone also said that he
thought "someone was going to die that night." Id. We agree with the
district court that the unfavorable portion of the SBI’s report of this
telephone conversation would have outweighed any exculpatory value
because it "shows clearly that, just prior to the murders, petitioner was
contemplating killing someone and sought help because he was aware
it was wrong[, and that] [w]hen he did not receive the help he sought,
he simply acted on the thoughts." Id. at 838. This "would have been
fatal to his claim that he was so impaired that he could not form an
intent to kill." Id.

Nor does Deputy Inman’s statement to the SBI support McHone’s
Brady claim. Inman told the SBI that McHone had a "strong odor of
alcohol" and that he did not appear to be "steady on his feet." Id. at
602. At trial, Inman testified that McHone walked well enough, talked
well enough, and was aware enough for him to form the overall opin-
ion that he was not impaired. Id. at 179-180. Inman’s trial testimony
that McHone "walked well enough" is not inconsistent with the por-
tion of the SBI report referenced by petitioner, in which Inman noted
that McHone smelled of alcohol and appeared unsteady. The portion
of the SBI report not referenced by petitioner, in which Inman
reported that McHone’s speech was not slurred and that he appeared
to "know what was going on around him," id. at 602, confirms that
the two statements are indeed consistent and that they cannot form the
basis of a Brady claim.

Last, McHone identifies as Brady material the statement of Wil-
liam Kent Hall, a medical first responder to the scene of his crime,
which includes Hall’s observation that McHone was "screaming and
kicking the glass in the patrol car." Id. at 675. But this statement is
not favorable; it bears neither on impairment nor (helpfully to
McHone) on petitioner’s state of mind at the time of the crime.
14 MCHONE v. POLK
B.

Petitioner contends that the cumulative effect of the non-disclosed
evidence would have "further undermined an already marginal first
degree murder conviction," Petitioner’s Br. at 28, because the trial
was closely contested both as to premeditation and as to whether
McHone’s intoxication prevented him from forming specific intent to
kill. Id.4 Petitioner also contends that the non-disclosed evidence
would have been cumulatively material at sentencing because it might
have caused the jury to find the mitigating circumstance under N.C.
Gen. Stat. § 15A-2000f(6) ("the capacity of the defendant to appreci-
ate the criminality of his conduct or to conform his conduct to the
requirements of the law was impaired").

Petitioner may benefit from the "cumulativeness" of evidence that
is "favorable" under Brady. Here, however, only Wesley Jr.’s state-
ment is even arguably favorable and, as discussed above, not even it
is material. Moreover, as the district court concluded, even if all of
the undisclosed evidence were favorable, it would not undermine con-
fidence in the result of guilt or sentencing. J.A. 845. The jury heard
testimony from state witnesses that McHone had consumed large
quantities of alcohol and was "drunk," from defense witnesses that
McHone’s drunkenness caused him to be impaired, and from experts
4
Petitioner and Judge Gregory’s characterization of McHone’s first
degree murder conviction as "marginal" or "weak" is fanciful. The jury
was presented ample evidence from which it could conclude that
McHone committed the murders with the requisite malice, premeditation,
and deliberation. The jury heard evidence that on prior occasions
McHone had chased his mother around the house with a knife, threaten-
ing to kill her, McHone, 435 S.E.2d at 301, that Mildred reported to her
friends that she was afraid to be alone with him because "[h]e ha[d] told
[her] that he [was] going to kill [her]," id., and that she was "afraid to
lay down and go to sleep at night" because she believed that "sooner or
later he [was] going to kill [her]." Id. The state also proffered testimony
that McHone loaded both murder weapons just prior to using them to kill
his victims and that he was able to reload the shotgun after he killed
Wesley, Sr. J.A. 461. And, of course, Wesley, Jr. testified that after he
was subdued by Wesley, Sr., McHone acquired the shotgun, walked from
the back room to the kitchen, and shot his step-father in the chest, killing
him.
 MCHONE v. POLK 15
that McHone had a substance abuse problem. The jury’s verdict and
determination at sentencing reflects their belief that while McHone
was "under the influence of alcohol" when he committed the crime,
id. at 579, 583, he was not impaired, and the trial testimony of Wes-
ley, Jr., Wendy, and Inman pertaining to impairment is entirely con-
sistent with their pretrial statements.

Petitioner contends that the undisclosed evidence is cumulatively
material because, after reviewing this evidence, Dr. Groce, a
sentencing-phase defense witness who admitted on cross examination
that McHone "would have been able to form specific intent to commit
the alleged crimes" (notably a guilt phase question), id. at 494-94,
stated in a post-conviction affidavit — on the basis of the undisclosed
evidence — that "I no longer have the opinion that Mr. McHone
could form the specific intent to kill." Id. at 688. Dr. Groce did not
aver in his post-conviction affidavit that he held the opinion that
McHone could not have formed the specific intent to kill; he said only
that he no longer had the opinion (to which he had previously testi-
fied) that McHone could form such an intent. We do not believe that
the district court erred, in refusing to accord Dr. Groce’s conclusory
affidavit any weight on the grounds that "Dr. Groce’s affidavit is far
too conclusory . . . . He does not explain what materials he reviewed
or what in the materials caused him to alter his opinions," see id. at
847.

In sum, the North Carolina Supreme Court’s conclusion that
McHone did not present a tenable Brady claim was not an "objec-
tively unreasonable" application of federal law. Bell, 236 F.3 at 158.

III.

In order to establish a claim for ineffective assistance of counsel,
McHone must show, first, that his trial counsel’s performance was
deficient and, second, that the deficiency prejudiced McHone’s
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Under
Strickland’s "performance" prong, McHone must demonstrate that
trial counsel’s performance fell below an objective standard of rea-
sonableness as determined by comparison to "prevailing professional
norms." Id. at 688. In addition, McHone must also show under Strick-
land’s prejudice prong that "there is a reasonable probability that, but
16 MCHONE v. POLK
for counsel’s unprofessional errors, the result of the proceeding would
have been different." Id. at 694. If McHone fails to demonstrate suffi-
cient prejudice from certain acts or omissions, we need not decide
whether counsel’s performance in those respects was, in fact, defi-
cient under Strickland. See id.

McHone claims that his trial counsel provided ineffective assis-
tance because they (1) failed to investigate and present evidence of
lack of specific intent, (2) failed to object to a portion of the prosecu-
tor’s closing argument that incorrectly stated the law of voluntary
intoxication, and (3) failed to uncover certain mitigating evidence
from McHone’s childhood. The Surry Count Superior court, the
North Carolina Supreme Court, and the district court rejected these
claims on the merits.5 For the reasons that follow, we see no reason
to disturb these judgments.

A.

McHone’s first claim arises from the fact that counsel did not inter-
5
In an effort to dilute the deference to which the state court is entitled
under AEDPA, 28 U.S.C. § 2254(d), petitioner points to the "State
court’s one-line adjudication" of his Strickland claims. Petitioner’s Br.
at 16, 37. Under our circuit precedent, such an adjudication does not
defeat the deference to which the state court’s judgment is entitled. See
Bell, 236 F.3d at 158 (summary adjudications subject to full AEDPA
deference). Moreover, while petitioner’s characterization of the North
Carolina Supreme Court’s treatment of this matter is accurate, it ignores
the extensive treatment that some of petitioner’s Strickland claims
received in the Superior Court. J.A. 731-774. While the North Carolina
Supreme Court reversed and remanded the Superior Court order contain-
ing these rulings, id. at 780, it did so only so that the Superior Court
could determine "whether defendant or defendant’s counsel was served
with a copy of the original proposed order" and for reconsideration of a
discovery motion. Id. We conclude that the North Carolina Supreme
Court’s subsequent denial of McHone’s petition for post-conviction
relief on all claims otherwise left intact the reasoning of the Superior
Court, id. at 815, and that the state is accordingly entitled to the benefit
of the more thorough treatment of petitioner’s Strickland claims in that
court. See Bell, 236 F.3d at 159 ("a detailed state court order is more
likely to withstand federal judicial scrutiny.").
 MCHONE v. POLK 17
view McHone’s alcoholics anonymous sponsor, Mark Tuttle; two jail-
ors who observed McHone after the murders, Leroy Snow and
Charles Collins; McHone’s former substance abuse counselor, George
Delp; McHone’s probation officer, Larry Cheney; and did not proffer
expert testimony as to McHone’s blood alcohol content as it related
to his ability to form the specific intent to kill.

Defense counsels’ failure to interview and present Mark Tuttle as
a witness cannot form the basis of a Strickland claim because it was
not prejudicial. Indeed, as discussed above, Tuttle would have testi-
fied that McHone contemplated murder just hours before he killed his
parents. J.A. 611, 838. Any benefit McHone might have received
from Tuttle’s general statements that McHone was "upset" and did
not seem to be "making much sense" — statements which are notably
cumulative with the testimony of McMillian and Bryant if not the tes-
timony of the state’s witnesses — would surely have been offset by
McHone’s prediction to Tuttle that "somebody was gonna die that
night." Id. at 611. That Tuttle’s testimony would have added little to
help McHone is confirmed by the jury’s decision to recommend the
death penalty notwithstanding its conclusion that McHone committed
the murders "while he was under the influence of mental or emotional
disturbance," i.e. upset. Id. at 579; 583.

Similarly, counsels’ failure to interview Leroy Snow and Charles
Collins, two of McHone’s jailors, cannot form the basis of a Strick-
land claim. Snow, who observed McHone after he arrived at the Surry
County jail, said that "it appeared . . . that Steven had taken some kind
of drugs or had consumed a lot of alcohol," id. at 681, while Collins,
who was on duty with Snow, said that "Steven . . . appeared . . . high
on dope or a combination of drugs and alcohol," that he "smelled very
strongly of alcohol," and that "his speech was slurred." Id. at 689. As
we concluded with respect to his Brady claim, McHone was not prej-
udiced by the absence of additional testimony pertaining to his con-
sumption of alcohol and his level of impairment. The jury heard
testimony from state witnesses that McHone had consumed large
quantities of alcohol and was "drunk," from defense witnesses that
McHone’s drunkenness caused him to be impaired, and from experts
that McHone had a substance abuse problem. And, the witnesses that
testified at trial observed McHone in the time leading up to and dur-
ing the murders, during which time, the jury concluded, McHone
18 MCHONE v. POLK
formed the requisite intent for first degree murder, while Snow and
Collins did not observe McHone until several hours later.

McHone alleges further ineffectiveness in his counsels’ failure to
interview George Delp, a Surry County substance abuse and mental
health counselor who counseled McHone from November 1989 until
March 1990. In his post-conviction affidavit, Delp stated that
McHone had reported a history of severe substance abuse, that he
stayed sober while in counseling (which he evidently discontinued
several months before the murders), that he never expressed animos-
ity toward his parents, that he expressed remorse for his crimes, and
that he would not "have committed this crime had he not been
severely impaired by intoxication." J.A. 679-680. The district court
concluded that McHone was not prejudiced by the absence of such
testimony, reasoning as follows:

Delp’s testimony regarding petitioner’s participation in the
counseling program is barely relevant. Delp shows that
while petitioner could stay sober and do well for extended
period of time, he did not do so prior to the murders. This
is hardly a redeeming character trait. Delp’s opinion that
petitioner would not have committed the murders unless
intoxicated is simply his unsubstantiated personal opinion
and would not be admissible. . . . Delp’s testimony concern-
ing petitioner’s self-serving statements in prison following
the murder are of little help to petitioner. Similar testimony
was presented, along with evidence that the statements were
fabricated by petitioner to escape the death penalty. The jury
did not believe petitioner’s other self-serving statements and
one more would not have altered the situation.

Id. at 863-64. We agree with this reasoning and the district court’s
conclusion that McHone was not prejudiced by Delp’s absence, par-
ticularly where, as here, the jury concluded that McHone had "previ-
ously sought help for his substance abuse problems," id. at 580, 584,
but nonetheless recommended the death penalty.

McHone was not prejudiced by counsel’s failure to present the tes-
timony of his probation officer Larry Cheney. Cheney could have tes-
tified that McHone called on the day of the murders and successfully
 MCHONE v. POLK 19
sought permission to stay out late, that McHone was a timid, humble
individual, that he struggled with substance abuse, and that he did not
complain about the terms of his probation. Id. at 571, 673. At trial,
the defense succeeded in excluding evidence of McHone’s probation-
ary status, id. at 245-49, and therefore Cheney’s testimony, and thus
any prejudice, would relate only to sentencing. But the jury found that
McHone had a history of substance abuse and was drinking the night
of the murders, id. at 579, 583, and McHone’ purported humility and
his unsuccessful attempt to obey the conditions of his probation did
not relate to any of the mitigating factors considered and rejected by
the jury.

Nor can McHone find relief in counsels’ failure to garner expert
testimony regarding his blood alcohol content. Dr. Warren, who testi-
fied for the defense, said, post-conviction, that if counsel had pro-
vided him with the testimony of Sawyers, Bryant, and McMillian, he
could have calculated McHone’s blood alcohol content and testified
that McHone was "incapable of forming specific intent to kill." Id. at
677. But Dr. Warren did not need counsel’s help to calculate
McHone’s blood alcohol content; rather, as explained by the district
court, Dr. Warren could have used his interviews with McHone or Dr.
Groce’s report, "where McHone set out the amounts of alcohol he
consumed," to perform this calculation. Id. at 848-49. Accordingly,
any ineffectiveness is attributable to McHone’s expert rather than to
his counsel and therefore cannot support a Strickland claim. See
Thomas v. Taylor, 170 F.3d 466 (4th Cir. 1999) (rejecting petitioner’s
efforts to recast a claim concerning the effectiveness of an expert as
a Strickland claim). And, even if counsel were to blame, petitioner
was not prejudiced, because the jury unanimously rejected Warren’s
sentencing testimony that McHone was entitled to the statutory miti-
gator, N.C. Gen. Stat. § 15A-2000f(6) ("the capacity of the defendant
to appreciate the criminality of his conduct or to conform his conduct
to the requirements of the law was impaired"), even though Tammy
Sawyers, the state’s witness, had testified that McHone had consumed
vast quantities of alcohol and even though the jury concluded that
McHone committed both murders "under the influence of alcohol."
J.A. 579, 583. As the state court concluded, counsels’ failure to put
forth additional evidence quantifying McHone’s drinking does not
satisfy either Strickland prong. Id. at 743.
20 MCHONE v. POLK
B.

McHone alleges further ineffectiveness in his counsels’ failure to
object to a portion of the state’s closing argument pertaining to the
burden of proof for McHone’s voluntary intoxication defense. In his
closing argument, purporting to quote the law as interpreted by the
North Carolina Supreme Court, the prosecutor stated:

One of the things I want to talk with you about is the
defense of intoxication . . . [i]f we’re going to apply that
defense to the facts in this case then we really need to, ought
to know what it’s about . . . [i]n State v. Bunn, [the] North
Carolina Supreme Court, in the spring term of 1973, said
‘the defense to charge of murder is that he was so drunk that
he was utterly incapable of forming a deliberate and pre-
meditated purpose to kill’ . . . This is what the court said
about that.

J.A. 442.

* * *

Voluntary drunkenness is not a legal excuse[.] . . . Evidence
must show at the time of the killing the defendant’s mind
and reason were so completely intoxicated and overthrown
as to render him . . . utterly incapable of forming a deliber-
ate and premeditated purpose to kill . . . This is what the
North Carolina Supreme Court has said about that defense.

Id. at 447-48. This statement is not correct. Rather than reciting the
proper considerations for the jury vis-a-vis McHone’s voluntary
intoxication defense, the prosecutor recited the standard the court
must apply in order to determine whether the defendant is entitled to
an instruction on voluntary intoxication. State v. Mash, 372 S.E.2d
532 (N.C. 1988). And, indeed, in Mash, where the trial court included
very similar language in its jury instructions, the North Carolina
Supreme Court awarded the defendant a new trial because it con-
cluded that "to find for the defendant on the intoxication issue, the
jury does not have to conclude that his intoxication rendered him
 MCHONE v. POLK 21
utterly incapable of forming the necessary intent; it need only con-
clude that because of his intoxication either defendant did not form
the requisite intent or there is at least a reasonable doubt about it." Id.
at 537. Mash also noted that language similar to that used by the pros-
ecutor in this case "could have led a rational jury to believe that
defendant bore the burden of persuading the jury that he was so intox-
icated as to be unable to form a deliberate and premeditated intent to
kill." Id.

We do not reach the question of whether counsel’s failure to object
to the prosecutor’s statements was objectively unreasonable because
we are satisfied that McHone cannot establish prejudice from the
prosecutor’s closing statement. Unlike in Mash, here, the trial court
properly instructed the jury on the defense of voluntary intoxication.
Notwithstanding the prosecutor’s incorrect statement of the law in his
closing statement, the trial court correctly instructed the jury as fol-
lows:

Now, members of the jury, as to the defense of voluntary
intoxication, I instruct you that if you find there is evidence
which tends to show that the defendant was intoxicated from
alcohol or other impairing substance at the time of the acts
alleged in this case then you should consider the following
instructions: Generally voluntary intoxication from such a
substance is not a legal excuse for crime. However, if you
find that the defendant was intoxicated from alcohol or other
impairing substance you should consider whether this condi-
tion affected his ability to formulate the specific intent
which is required for a conviction of first degree murder; or
for that matter, assault with a deadly weapon with intent to
kill. In order for you to find the defendant guilty of first
degree murder by premeditation and deliberation you must
find beyond a reasonable doubt that he killed with malice,
and in the execution of actual specific intent to kill formed
after premeditation and deliberation. If as a result of intoxi-
cation from alcohol or other impairing substance the defen-
dant did not have a specific intent to kill the deceased in
either of the three cases, or if you find he did not have the
specific intent to kill in either of the two murder cases
22 MCHONE v. POLK
formed after premeditation and deliberation he would not be
guilty of such offense.

Supp. J.A. 66-67 (emphasis added). Further, the court instructed that
it was the jury’s "duty to apply to the facts the law which I am about
to give you," id. at 43, and that "I would expect only that you apply
the law which I have given you to the facts as you find them." Id. at
68.

It is fundamental in the law that "[a] jury is presumed . . . to follow
its instruction," Weeks v. Angelone, 528 U.S. 225, 234 (2000). Here,
not only did the trial court instruct the jury correctly as to the govern-
ing law; it instructed the jury both clearly and in detail. Indeed, not
only did the trial court correctly, clearly and in detail instruct the
jury as to the governing law; additionally, the court instructed the jury
that it was only to apply the law as to which the court had instructed,
eliminating any doubt (if there were any) that statements by the prose-
cutor or defense as to the law were not to be considered. Moreover,
the trial court’s clear, particularized, correct instruction followed
almost immediately upon the prosecutor’s closing statement, only a
brief recess separating the argument from the instruction.

In light of the controlling presumption that the Supreme Court has
directed us to indulge, and the context of the prosecutor’s statement
and the curative instruction described, we cannot possibly conclude
that the North Carolina Supreme Court unreasonably applied federal
law in concluding that McHone was not prejudiced by counsel’s fail-
ure to object to the prosecution’s misstatement. See J.A. 753-56
("Defendant has failed to show the existence of either the prejudice
or performance component of . . . Strickland."). In light of this pre-
sumption and context, we could not conclude that the state court
erred, even were the state court’s judgment not subject to the deferen-
tial standards of AEDPA to which it undeniably is subject. See, e.g.,
United States v. Catlett, 97 F.3d 565, 573 (D.C. Cir. 1996) (holding
that accurate jury instructions on the state’s burden of proof "would
have cured any confusion caused by the prosecutor’s remarks" sug-
gesting incorrectly that the burden rested with the defendant); see also
Boyd v. French, 147 F.3d 319, 329 (4th Cir. 1998) (holding that a
prosecutor’s repeated improper references to his personal opinions on
the defendant’s credibility and the weight to be given various mitigat-
 MCHONE v. POLK 23
ing factors did not deny the defendant due process where "the state
trial judge instructed the jurors that they were to decide the facts
based on the evidence presented").

C.

Relying on the affidavit of a social worker and Wiggins v. Smith,
123 S. Ct. 2527 (2003), McHone claims that his counsel was ineffec-
tive for failing to investigate and present mitigating evidence of his
chaotic and violent childhood. But unlike in Wiggins, where counsel
made "a tactical judgment not to present mitigating evidence at sen-
tencing," id. at 2535, and the Court determined that "the investigation
supporting counsel’s decision not to introduce mitigating evidence"
was insufficient, id. at 2536, McHone’s counsel presented substantial
evidence of the hardships McHone endured as a child and the jury
found seven mitigators for each murder charge on the basis of this tes-
timony. J.A. 579-80, 584-85.

Accordingly, we analyze whether the scope of counsel’s investiga-
tion in support of the mitigation case presented at sentencing was
objectively reasonable. Counsel presented its mitigation case through
the testimony of McHone’s father and Dr. Warren. Counsel retained
Dr. Warren, a forensic psychologist, to, inter alia, consider "sentenc-
ing factors" and "recommendations for sentencing or things of that
nature." Id. at 509-10. In support of his evaluation, Dr. Warren relied
on McHone’s medical records, school records, psychiatric records,
reports from Dr. Rollins and Dr. Groce, and several interviews with
McHone. Id. at 510-512. Based upon the information included in
these sources, Dr. Warren testified that McHone had "a very serious
substance abuse problem since a very early age," id. 513, "was
exposed to . . . alcohol abuse and alcoholism" by his "father at [an]
early age," id. at 514, and that after his mother’s marriage to Wesley,
Sr., he was the "odd man out." Id. at 515.

McHone’s father, Bobby, testified that early in McHone’s life,
while Bobby was married to Mildred, Bobby was continually
"drunk," "did everything wrong," and "gave Mildred no peace what-
soever," and that McHone witnessed his parents arguing. Id. at 532-
33. Bobby further testified that this state of affairs continued until,
after an extremely violent fight with Mildred, he hospitalized himself
24 MCHONE v. POLK
and subsequently managed to quit drinking for five years, until the
time of his separation from Mildred. McHone was ten years old at the
time. Id. at 532-34. After Mildred and Bobby separated, they agreed
that she would keep McHone one year and Bobby the next (and so
forth), and Bobby testified that, during the time he kept McHone, he
provided no supervision, he was drinking and gambling, he took
McHone to bars with him where they sometimes spent the night, that
McHone started drinking when he was 13, started doing drugs when
he was 15, and that McHone’s alcohol and substance abuse worsened
over time. Id. at 538-541.

Based on this testimony, the jury found the following mitigating
factors for both murders: "the defendant had a history of long-term
substance abuse," "the defendant enjoyed a normal childhood until the
time his parents separated, and after that, he began using alcohol and
drugs," "[d]efendant’s father abused alcohol and gambled excessively
and defendant, when he was a child, often spent time with his father
in bars while his father drank and gambled," "[d]efendant often wit-
nessed arguments between his father and mother," "[d]efendant, while
he resided with his father, was often left alone at night, without super-
vision, while his father worked third shift," and "[d]efendant, while
he resided with his father, often had to reside in undesirable places."
Id. at 579-80, 583-84.

Despite this comprehensive presentation of mitigating evidence
supported by direct witness testimony and the thorough investigative
efforts of Dr. Warren, McHone claims his counsel was ineffective
because their investigation failed to uncover information contained in
the post-conviction affidavit of Dr. Glenn E. Rohrer. J.A. 576.
McHone claims that counsel would have uncovered the information
in this affidavit if they had retained a mitigation expert or conducted
a more thorough investigation.

This claim is meritless. Dr. Rohrer’s affidavit is almost entirely
cumulative with the testimony that McHone’s counsel presented at
trial. See, e.g., J.A. 576 (Rohrer averring that "Bobby McHone was
drunk and abusive," that "family problems and dysfunction permeated
Steven’s social history," that "he began medicating with drugs and
alcohol when he was approximately 12 years old," that "Bobby
McHone exposed Steve to . . . heavy drinking, marijuana use and
 MCHONE v. POLK 25
gambling," that "Steven was the odd person out amongst his half-
siblings," and that "the custody arrangement . . . was emotionally
unstable").

And, the portions of Dr. Rohrer’s affidavit that purportedly differ
from the trial testimony, namely that McHone witnessed Bobby "reg-
ularly inflict brutal beatings on Mr. McHone’s mother and his sister,"
id. at 575, and that Bobby "made repeated sexual advances towards
Steven’s half-sister," id. at 576, are not sufficient to establish either
that counsels’ decision not to investigate further was objectively
unreasonable or that McHone was prejudiced by that decision.
Indeed, Bobby testified that he had violent fights with Mildred and
that McHone, though young, witnessed these arguments. Moreover,
Dr. Rohrer’s affidavit does not conflict with the time-line established
during Bobby’s testimony, namely that the bulk of the drinking and
violence during their marriage occurred before McHone was five
years old and that, after McHone was five, Bobby stopped drinking
and gambling. Finally, Dr. Rohrer has provided no indication that
McHone was aware of his father’s sexual advances toward his half
sister. Accordingly, we hold that where, as here, counsel has investi-
gated and presented mitigating evidence pertaining to petitioner’s
childhood and that the jury has credited such evidence and nonethe-
less imposed the death penalty, that counsel’s decision not to investi-
gate further, particularly where such investigation would bear little —
if any — fruit, cannot support a Strickland claim. The state court’s
identical conclusion, J.A. 752-52, was therefore not objectively unrea-
sonable.

IV.

Judge Gregory, in dissent, concludes the McHone is entitled to
relief under Strickland because of counsel’s failure to investigate and
present evidence of specific intent, because of counsel’s failure to
object to the prosecutor’s improper closing argument, and because of
counsel’s failure to adequately investigate mitigating evidence. But he
provides little, if any, analysis as to why the North Carolina Supreme
Court’s adjudication of these claims constituted an "objectively
unreasonable" application of federal law. Indeed, Judge Gregory’s
analysis on these scores comprises only conclusory statements that
"[i]n light of the gravity of these errors and their prejudicial effect,
26 MCHONE v. POLK
AEDPA’s ‘unreasonable application’ standard does not alter" his con-
clusion that counsel acted unreasonably, post at 54, and that the state
court’s determination that McHone was not prejudiced by counsels’
purported errors was objectively unreasonable "given the gravity of
these errors and their prejudicial effect." Post at 63. Such conclusory
statements and cursory treatment are an insufficient basis to reverse
a judgment entitled by statute to substantial deference by the federal
courts.

Judge Gregory maintains that counsel erred by not procuring testi-
mony regarding McHone’s blood alcohol content on the night of the
murder. But he concedes, as he must, that circuit precedent dictates
that McHone is not entitled to relief for ineffectiveness attributable to
his expert, even if it could be said that McHone’s expert was ineffec-
tive, which he clearly was not. Post at 49-50. While Judge Gregory
claims that this authority is inapplicable because "counsel failed to
give [Dr. Warren] all the necessary information" to calculate petition-
er’s blood alcohol content, post at 49, such a conclusion ignores the
district court’s finding that "Dr. Warren testified" that he reviewed
Dr. Groce’s report where Dr. Groce "set out the amounts of alcohol
[McHone] consumed." J.A. 848. Indeed, the dissent makes no attempt
whatsoever to reconcile Dr. Warren’s trial testimony with his claim
in his post-conviction affidavit that he "received no specific informa-
tion regarding the amount and types of alcohol ingested by McHone,"
a claim that is belied by the contents of Dr. Groce’s report. Such
merely serves to highlight that the state court’s conclusion that Dr.
Warren’s failure to testify to McHone’s blood alcohol content was
indeed an entirely reasonable application of Strickland.

In the same vein, Judge Gregory concludes that counsel performed
unconstitutionally by failing to interview and present as witnesses
Mark Tuttle and McHone’s jailors, Leroy Snow and Charles Collins.
Judge Gregory suggests that Tuttle could have offered "key testimony
on McHone’s state of mind," post at 51, that "McHone was not threat-
ening his parents that night," post at 56, and could have testified as
to McHone’s "impairment." Post at 70. But Tuttle could not have tes-
tified to McHone’s impairment because he did not observe McHone
on the night of the murders. Moreover, testimony that McHone was
"upset and crying" is plainly cumulative with the testimony of virtu-
ally every witness that did observe McHone on the night of the mur-
 MCHONE v. POLK 27
ders and does not bear on whether McHone formed specific intent in
any event. And any benefit McHone might have received from Tut-
tle’s testimony that McHone was "upset" and "asked him to come
over there and see him," J.A. 611, would obviously have been offset
by McHone’s revelation to Tuttle that "somebody was gonna die that
night" and Tuttle’s observation that McHone had been "backsliding"
from his efforts to reduce his drug and alcohol dependency — testi-
mony that no counsel would want placed before the jury. Id. at 610-
11.

Judge Gregory also suggests that if Collins and Snow had testified
that their testimony would have been "in direct contradiction to the
testimony of the State’s law enforcement witnesses." Post at 51. But
such a conclusion mischaracterizes the possible content of the jailor’s
testimony; they could not directly contradict the testimony of the
other witnesses because they did not observe McHone until two hours
after the commission of the murders. Moreover, Judge Gregory’s con-
clusion is inconsistent with his determination that McHone’s Brady
claim is meritless. While Judge Gregory writes separately to explain
that Randy Adams’ statement, where he purportedly revealed that
McHone was drunk and "the worse I’ve ever seen him," post at 45,
and Deputy Inman’s statement, that McHone had a strong odor of
alcohol and was not steady on his feet, were favorable under Brady,
he nonetheless concluded that the suppression of these statements was
not material. Inman’s and Adams’ statements being, in material
respects, indistinguishable from Snow’s and Collins’ statements,
Judge Gregory’s conclusion that the absence of the former was not
material under Brady while at the same time concluding that the
absence of the latter was prejudicial under Strickland is analytically
indefensible.

Similarly, Judge Gregory concludes that counsels’ failure to object
to the prosecutors’ statements regarding McHone’s voluntary intoxi-
cation defense warrants relief under Strickland because the jury might
have been "confused on the correct standard." Post at 59. But Judge
Gregory concedes that "the judge did give a proper jury instruction,"
id. at 58. Thus, in order to reach the conclusion that he does, Judge
Gregory must disregard the Supreme Court’s teaching that juries are
presumed to follow such instructions, particularly where, as here, the
trial court instructed the jury that "I would expect only that you apply
28 MCHONE v. POLK
the law which I have given you to the facts as you find them." J.A.
68. In addition to his necessary disregard of Supreme Court precedent
and the particular instructions given to McHone’s jury, Judge Grego-
ry’s conclusion ignores the standard of review, set forth by Congress,
that petitioners such as McHone are entitled to relief only where a
state court’s application of federal law is objectively unreasonable.
Here, the state court presumed, as the Supreme Court has instructed,
that the jury followed the trial court’s instructions. This is precisely
the presumption required of the state court by the Supreme Court of
the United States. It is simply insupportable in the face of this indis-
putable adherence to the Court’s precedent by the state court and
without any analysis or supporting authority whatever, to conclude
that the state court unreasonably applied established federal law.

Judge Gregory’s conclusion that McHone’s counsel was ineffective
for failing to present additional mitigating evidence relating to
McHone’s childhood is similarly untenable. As noted above, unlike
in Wiggins where counsel did not present any evidence of mitigation,
here counsel submitted ample evidence of the hardships McHone
endured during his childhood and the jury credited this evidence when
it found the related mitigating factors. Judge Gregory’s description of
counsels’ actions and the purported prejudice therefrom simply fails
to confront this fundamental point. Judge Gregory suggests that a mit-
igation investigation "would have revealed" that "McHone has a his-
tory of chronic violence from birth through the divorce of his
parents," that "McHone’s childhood was marked by deprivation," that
"McHone’s parents agreed to an unconventional custody arrange-
ment," and that "McHone self-medicated with drugs and alcohol from
age 12." Post at 54. But McHone’s counsel presented this evidence
to the jury. Bobby McHone testified that early in McHone’s life that
Bobby was continually drunk, "gave Mildred no peace whatsoever,"
that McHone witnessed his parents arguing, and that Mildred and
Bobby agreed to an unconventional custody arrangement. J.A. 532-
34. Moreover, as described in detail above, both Dr. Warren and
Bobby McHone testified that McHone used drugs and alcohol from
an early age and suffered various forms of deprivation.

Despite counsels’ introduction of this substantial mitigating evi-
dence, Judge Gregory maintains that counsels’ mitigation investiga-
tion was inadequate because the jury might have been confused by the
 MCHONE v. POLK 29
mitigating factor that McHone "enjoyed a normal childhood until the
time his parents separated, and after that, he began using alcohol and
drugs." But the phrasing of one mitigating factor does not bear on the
propriety of the scope of counsels’ mitigation investigation. And,
while Judge Gregory suggests that this mitigating factor could have
caused the jury to conclude that McHone’s childhood difficulties did
not begin until his parents’ divorce, he does not identify any evidence
that rebuts Bobby McHone’s testimony that from the time he quit
drinking — when McHone was five years old — until the time he
separated from Mildred — when McHone was ten years old — that
there were "a few arguments" but that it "wasn’t like it was when I
was drinking." J.A. 534.

V.

For the reasons stated, the judgment of the district court is
affirmed.

AFFIRMED
 MCHONE v. POLK 31
Volume 2 of 2

GREGORY, Circuit Judge, concurring in part and dissenting in part:
The majority denies McHone habeas relief finding that the North
Carolina Supreme Court’s disposition of his Brady and Strickland
32 MCHONE v. POLK
claims was not contrary to, nor an unreasonable application of, clearly
established federal law. I concur with the majority that McHone’s
Brady claim must fail. However, I write separately because I believe
that while the withheld evidence was not "material" under Brady, it
was "favorable."

Respectfully, I must dissent from the majority’s analysis and con-
clusion on McHone’s Strickland claim. McHone’s counsel rendered
objectively unreasonable performance by failing to seek expert testi-
mony on McHone’s blood alcohol level, interview or present testi-
mony from several witnesses that had either spoken with or observed
McHone on the night of the murders, object to the State’s improper
closing argument, and investigate McHone’s childhood for mitigation
evidence adequately. These errors prejudiced both the guilt and sen-
tencing phases, and the state court was objectively unreasonable in
ruling otherwise.

I.

Because the majority fails to state the facts related to the night of
the killings in detail, facts which are essential to analyzing McHone’s
claims, I fully recount them here. On June 3, 1990, Wesley, Sr. and
Mildred returned to their home in Siloam, North Carolina around
12:30 a.m. with Wesley, Jr., McHone’s half-brother; Wendy, Wesley,
Jr.’s wife; and Alex, Wesley, Jr. and Wendy’s two-year old son. Wes-
ley, Jr. and Wendy, both Captains in the United States Air Force,
were on leave and visiting Wesley, Sr. and Mildred and the family
had gone on a fishing trip. McHone, who lived with Wesley, Sr. and
Mildred, and Randy Adams, McHone’s half-brother, were there when
the family arrived.1

Upon arriving, Wesley, Sr. drove Randy home, who lived just
down the street. When he returned, McHone, Mildred, and Wesley,
Sr. began arguing in the kitchen apparently about money.2 As the
1
Wesley, Sr. and Mildred were married and had Wesley, Jr., Randy,
and another child. They then divorced and Mildred married Bobby
McHone, Petitioner’s father. Mildred and Bobby, who only had one child
—McHone, later divorced and she remarried Wesley, Sr.
2
Wendy testified at trial that Mildred acted as a bookkeeper for
McHone’s money and that McHone was paying "reparations" from a pre-
 MCHONE v. POLK 33
argument got louder, Wendy and Alex went to bed and Wesley, Jr.
took a shower. The argument continued until after Wesley, Jr. got out
of the shower but shortly thereafter he heard his father, Wesley, Sr.
state, "We’ll talk about it tomorrow," at which time McHone went
down to his bedroom, which was in the basement. J.A. 252. A few
minutes later, Mildred came to the bedroom that Wesley, Jr. and
Wendy were in and asked if they had moved a gun that was in the
camper the family took on the earlier fishing trip. They told her that
they had not and she said that the gun was missing.

A few minutes later, three shots were heard from the back yard.
Upon hearing the shots, Wesley, Jr. ran into the hallway where he saw
Wesley, Sr. coming up from the basement stairs, shouting for him to
call 911. Wesley, Jr. went to the phone in the kitchen and called 911
while his father ran out to the backyard.

Shortly thereafter, Wesley, Sr. and McHone came through the back
door into the kitchen wrestling with each other over a gun in
McHone’s hand. Wesley, Jr. intervened and got the gun away from
McHone. Wesley, Sr. and McHone continued to wrestle and Wesley,
Sr. told Wesley, Jr. that, "Your mother’s down. Call 911. Get help out
here for her." J.A. 262. Wesley, Jr. went back to the phone and
McHone and Wesley, Sr. disappeared down the hallway fighting.
Wesley, Sr., apparently believing he had knocked McHone out, then
reappeared in the kitchen, breathing heavily, saying again, "Your
mother is facedown out back. You have got to get help for her. Your
mother’s facedown. I don’t know how badly she’s hurt." Id. at 263-
64. Then McHone appeared out of the hallway carrying a shotgun and

vious conviction. J.A. 152-53. McHone’s counsel objected to this latter
statement, which the trial judge sustained. Wendy also testified that
"[t]he part of the argument that I heard was [McHone] saying that he
wanted his money and that he couldn’t go on living like that." Id. at 159.
Wesley, Jr. testified similarly stating that McHone was arguing with
Mildred and Wesley, Sr. about his money and the rules surrounding his
probation. Id. at 245. The trial judge also excluded this reference to "pro-
bation" over the prosecution’s argument, made outside the presence of
the jury, that they should be allowed to present such testimony as evi-
dence of motive. Id. at 246-49.
34 MCHONE v. POLK
Wesley, Sr. lunged towards McHone to get it. Before he reached the
shotgun, McHone shot Wesley, Sr. who fell into Wesley, Jr., the force
of the blow knocking them both down.

As McHone began to bring the shotgun back up, Wesley, Jr. went
for it and began to struggle with McHone. They fought for several
minutes, but Wesley, Jr. got the shotgun away from McHone, placed
it on the floor beside them, and was then able to subdue McHone.
Wesley, Jr. testified that McHone then began crying and said, "Oh,
my God. What have I done?" but moments later reached for the shot-
gun on the floor. J.A. 269. They fought again and Wesley, Jr. took the
shotgun and held it over McHone, who was laying on the floor. It
took Wesley, Jr. approximately ten minutes to subdue McHone.

Wesley, Jr. testified at trial that McHone then began to goad Wes-
ley, Jr. into killing him stating, "I killed him. Now I want you to kill
me, because I don’t want to spend the rest of my life in jail. Just shoot
me. Just get it over with." J.A. 272-73. McHone also began using pro-
fanity and stated that this was Wesley, Jr.’s fault because he was Mil-
dred’s "golden boy" and that he did not have the guts to kill McHone.
Id. at 138, 270. Wesley, Jr. testified that McHone said, "if I didn’t kill
him and he got out of jail he’d hunt me down and hunt my family
down and finish us off." Id. at 270. Then Wendy, who had been in
the bedroom with Alex since the initial shots, called out to see if Wes-
ley, Jr. was alright and before Wesley, Jr. answered, McHone stated,
"I killed your mama and your daddy. And I would have killed you
and your damn baby too." Id. at 272.

Medical personnel and officers from the Surry County Sheriff’s
Department arrived a little after 2:00 a.m. Wesley, Sr. was dead upon
their arrival, and Mildred died later by a wound from a gunshot to the
back of her head. McHone was arrested and made statements
acknowledging his guilt. During this time, the phone, which Wesley,
Jr. had dropped, was still on the line with 911. A 911 tape recorded
the sequence of events from after Mildred was shot until the Sheriff’s
deputies arrived on the scene. The tape, however, is missing.3
3
The magistrate judge’s Report and Recommendation ("R&R") noted:
"It is not entirely clear what became of the 911 tape. The original was,
 MCHONE v. POLK 35
At trial, McHone claimed that he was too intoxicated to form the
necessary specific intent of premeditation and deliberation for first-
degree murder. The testimony disclosed that McHone had spent the
afternoon and evening of June 2 with Jimmy McMillian and Tammy
Sawyers, McMillian’s girlfriend. McMillian and Sawyers picked
McHone up at his house, the home of Wesley, Sr. and Mildred,
around 2:00 p.m.4 J.A. 376-77. They then went to Mount Airy, North
Carolina to an ABC store where they purchased a pint of Jack Dan-
iels. The group proceeded to the home of McMillian’s brother where
they stayed for a short time. Between 4:00 p.m. and 5:00 p.m., they
drove to Winston-Salem to go to a mall, after which they went to a
Pizza Hut. McMillian and McHone had consumed approximately a
pint and half of Jack Daniels by that time.5 At the Pizza Hut, McMil-
lian and McHone each had a pitcher of beer. They left the Pizza Hut
around 9:15 p.m. and went to a service station to use the restroom.

At that time, McMillian started driving back to Mount Airy.
Around 10:00 p.m., a state trooper pulled over their car and arrested
McMillian for driving while under the influence of alcohol. J.A. 322,
381. The state trooper testified that he observed that McHone had
been drinking and asked Sawyers to drive. Id. at 328. McMillian was
taken to the Dobson, North Carolina police station, and, after follow-
ing the state trooper back to the station, McHone and Sawyers left and

for a time, stored in the evidence locker of the Surry County Sheriff. At
some unknown point, it was removed, and has not been seen since. A
hearing on the matter was conducted in the state courts and no one had
a specific memory of destroying the tape. Its whereabouts are simply a
mystery." J.A. 854.
A partial transcript of the tape does exist, and apparently the only dis-
cernable comment by McHone is "I killed your Goddamn momma, now
kill me." Id. Neither the tape nor the transcript was introduced into evi-
dence at trial.
4
McMillian testified that they did not pick up McHone until 7:15 p.m.
that evening, J.A. 319, but given the sequence of events that afternoon
and night, the record reflects that Sawyers’s testimony on the time they
picked up McHone is likely the most accurate.
5
McMillian already had some alcohol with him in the car and Sawyers
was not drinking. J.A. 318, 321.
36 MCHONE v. POLK
drove to McHone’s house. McHone went into the house and then
came back out to the car with a gun and a couple of cassette tapes.6
He told Sawyers that the gun was to protect her in case McMillian got
out of jail that night and tried to hurt her.

They then went to a party at Ronald Speaks’s house in Mount Airy
arriving around 12:00 a.m.7 J.A. 385. There, McHone encountered
Tammy Long Bryant, who he had met at a Narcotics Anonymous
meeting and had been dating for a couple of weeks. They split
approximately a fifth of liquor with another person. Bryant testified
that McHone consumed more than 1/3 of the fifth but less than 1/2
of it. Id. at 333. During the party, McHone pointed his gun at a
Johnny Swaim as a result of an argument over Bryant. Then, Sawyers,
Bryant, and McHone went back to Sawyers’s car and drove to a con-
venience store to purchase beer for people at the party.8 While in the
car, Bryant took the gun from McHone, which had been unloaded,
and placed it in the car’s console. They then returned to Speaks’s
house. Shortly thereafter, Sawyers took McHone home and on the
way, they stopped at a convenience store where McHone purchased
6
The State introduced into evidence a .38 caliber pistol found in the
kitchen and Sawyers testified that this was the gun that McHone took
from the house. However, it is unclear if this is the same or a different
gun than the one that Mildred said was missing. Supp. J.A. 22-23.
McHone’s counsel speculated in closing that this was a different gun
because the gun that Mildred said was missing was in the camper with
the family during their fishing trip, but McHone, while with Sawyers,
retrieved the gun from the house during the time the family was away
fishing. Id. The State did not introduce any ballistics testimony during
the guilt or sentencing phases. Id. at 21.
7
Sawyers testified to their time of arrival at the party, but given that
the family returned back from their fishing trip around 12:30 a.m. and
McHone was already there, he probably went to the party earlier than
12:00 a.m.
8
Bryant testified to a different sequence of events, stating that after the
fight with Speaks, McHone walked to the convenience store and was
gone for several hours. J.A. 336. Bryant testified that after McHone
returned, she did go to a convenience store with him and Sawyers to buy
beer and that while in the car McHone started beating his head with his
fist, hitting the dashboard, and swinging around the gun. Id. at 343. She
testified that she took the gun away from him and unloaded it. Id. at 344.
 MCHONE v. POLK 37
9
more beer. He drank two beers in the car, left one in the car, and took
the rest into his house. Before getting out of the car, Sawyers testified
that McHone "started saying how, how nobody loved him, and how
he might as well kill himself, and that because nobody would miss
him." Id. at 394. He then loaded the gun and asked Sawyers to stay
with him so that he could protect her from McMillian but she
declined.

The testimony at trial regarding McHone’s level of impairment,
from alcohol and possible drug use, varied. In general, the witnesses
for the State (with the exception of Wesley, Jr., who never acknowl-
edged that McHone had been drinking) testified that while McHone
had been drinking, he was not "drunk" or intoxicated to the point that
his actions were impaired.10 Specifically, these witnesses testified as
follows:

• Wendy Adams: Testified that when she first observed McHone at
the house after they returned from the fishing trip, he walked nor-
mally (did not stagger or stumble) and made it up the steep base-
ment steps. He did not slur his speech but was talking louder than
normal. J.A. 122-23. Testified that she had undergone several
hours of training in the Air Force to recognize whether an individ-
ual is impaired/under the influence. Id. at 151. Testified that Wes-
ley, Sr. and Mildred did not talk to McHone in her presence about
alcohol or him being drunk when they got home from the fishing
trip. Id. at 159.

• William Kent Hall, First medical responder: Testified that when
he was in the kitchen with Wesley, Sr.’s body, McHone called out
to "Give me a cigarette." Id. at 164.

• Jimmy Inman, Deputy Sheriff, Surry County Sheriff’s Depart-
ment: Testified that he arrived shortly after 2:00 a.m., arrested
McHone, and that McHone started "cussing" the Sheriff’s depart-
9
Sawyers testified that at the convenience store, Sawyers called Bry-
ant, at McHone’s request, to see if Bryant would come home with him.
Id. at 392. Apparently Bryant declined to do so, but the record is unclear.
10
Because McHone’s Brady claims involve much of this testimony, it
is recounted in this context, infra pg. 44-47.
38 MCHONE v. POLK
ment and stating "What have I done? Why did I do it?". Id. at 169-
171. Testified that McHone recognized the "Air Care" helicopter
as it flew in to pick up Mildred and that he stated "Oh, God, it’s
bad. There’s Air Care." Id. at 172. Testified that he was able to
hear and understand McHone’s speech and that McHone was able
to respond to his questions. Id. at 172-73. Testified that given his
experience in law enforcement in observing drunk people, that
McHone "was not drunk. He had been drinking." Id. at 179. He
"define[d] drunk as a person’s mental and physical capabilities are
impaired to the point that he cannot walk, talk, or act in a proper
fashion." Id. at 178. He stated that he based his opinion "on
[McHone’s] smell of alcohol about him, the way he talked to me,
and the way he did walk." Id. at 180.

• Terry Miller, Detective, Surry County Sheriff’s Department: Testi-
fied that when he entered the house McHone said, "Terry Miller,
you pussy, I’ll kill you too, you son-of-a-bitch . . . I know what
I’ve done, and I’ll have to pay for it. Why don’t you just shoot me
and get it over with." Id. at 212. Testified that, "Based on the fact
that he was able to identify me spontaneously when I entered the
room, and I was not that personally acquainted with the man; the
fact that I could clearly understand everything that he said; he was
very much aware of everyone in his presence and called them by
name; he was able to negotiate the steps in front of the house,
walk to the patrol car; he was aware of the Air Care helicopter that
came over near the same time that we arrived at the patrol car;
. . . . Based on everything I observed there the man obviously had
been drinking. In my opinion he was not so drunk he did not know
what he was doing." Id. at 215.

• Larry Norman, Officer, Dobson Police Department: Testified that
he observed McHone when he was brought into jail and that he
did not slur or mumble his speech and could walk. Id. at 220. He
testified that, "It was obvious in my opinion that he was drinking,
intoxicated. But, he was not drunk as I would term drunk." Id. at
221.

• Wesley, Jr.: Testified that McHone was not slurring his speech
during his fight with Mildred and Wesley, Sr. and was able to
walk and negotiate the basement steps. Id. at 241-42. Testified that
 MCHONE v. POLK 39
McHone seemed to be very aware of what was happening and that
his answers to his parents questions were responsive. Id. at 251.
Testified that he had training on several occasions in the Air Force
on detecting alcohol impairment and that, "I neither heard, saw, or
felt any type of impairment on his part, on the part of the defen-
dant during that entire time." Id. at 282. He explained that, "By
impairment I meant that any dysfunction of his physical move-
ments; any slow movement, jerking, stumbling, tripping; any
impairment in his voice characteristics by slurring his speech or
not being able to finish a sentence; or not being able to recognize
me. All the attributes that I looked at and dealt with in extremely
close quarters, I did not see any impairment other than what any
other normal person would do." Id. Testified that he did not notice
any odor of alcohol on McHone that night and that "[t]he only
indication that I had, the only mention of drinking at all during the
argument was the fact that my father told him to go to bed and
sleep it off." Id. at 290.

Finally, the State presented witnesses who stated that Mildred told
them that McHone threatened to kill Mildred when he was twelve to
thirteen years old.11 Id. at 307-309.

McHone presented two witnesses, McMillian and Bryant. McMil-
lian testified to the amount of alcohol that he and McHone drank and
that McHone was "mush-mouthed," and that his eyes were red and
glassy. Id. at 314-27. Bryant testified in more detail. She stated that
McHone was drunk and staggering when he arrived at the party at
Speaks’s house; that he was crying and fighting with people, swing-
ing his gun around; and that McHone was real pale, sweating, and
moving rapidly with wide eyes. Id. at 333-339. Bryant testified that
later at the party she asked McHone what he was on and, "he told me
that he was eating acid." Id. at 340.

The State presented Sawyers as its rebuttal witness. Sawyers testi-
fied to the sequence of events, described above, from the time she
picked up McHone until she brought him back later that night. She
11
McHone was twenty years old at the time of the trial and, while the
record is not specific, presumably was nineteen at the time of the kill-
ings. Supp. J.A. 232.
40 MCHONE v. POLK
testified that McHone was not slurring his words "much" when she
brought him home that night and that he was coherent. Id. at 393.
When asked whether McHone was drunk in her opinion, she said, "I
believe he was. I believe he was. I believe he was sober just a little
bit. I mean, he wasn’t real drunk, in my opinion, I’ve seen people
drunker." Id. at 399. Yet, on cross-examination, Sawyers testified that
McHone was steadily getting drunker throughout the night and was
acting the most drunk while at Speaks’s house. Id. at 400-01.

During the jury’s deliberations, they twice asked the judge "to go
over the law of murder of Wesley Adams, Sr., and six qualifying
things that we need to prove for first degree murder." Id. at 474, 479.
In response, the judge re-read the instructions. The jury returned a
verdict finding McHone guilty of first-degree murder in the deaths of
both Mildred and Wesley, Sr.

The State did not present any new evidence during the sentencing
phase. The defense presented expert testimony concerning McHone’s
history of substance abuse and diagnosis of adjustment disorder with
depressed mood. Dr. James Groce, the State’s psychiatrist, testified to
this diagnosis, but on cross-examination by the State testified that he
had concluded in evaluating McHone that his "intoxication does not
appear to be severe enough to make Mr. McHone unable to perform
specific intent or to meet the standard for not being responsible for
his behavior." Id. at 493. Dr. John Warren, McHone’s expert, testified
that "at the time of the crime [McHone] was intoxicated or impaired,
at least to the extent that people around him noticed that he smelled
of alcohol and he was acting intoxicated." Id. at 503. However, he
stated on cross-examination that he could not state how impaired
McHone was and that "[o]ne drink will impair a person." Id. at 525.

Bobby McHone also testified as to McHone’s childhood. He
related how under a joint custody agreement between him and Mil-
dred, McHone was exposed to his alcohol use and the related prob-
lems it caused in raising McHone. Id. at 530-546. A former neighbor
of McHone testified that McHone helped her run errands and mow
the lawn. Id. at 526-28. Finally, a parent of one of McHone’s former
co-workers testified that McHone once helped her with her car. Id. at
528.
 MCHONE v. POLK 41
The jury found fourteen mitigating factors to exist regarding the
killing of Wesley, Sr., and eleven to exist regarding the killing of Mil-
dred.12 However, for both murders, they also found that the aggravat-
ing circumstance that the murders were part of a course of conduct
in which McHone engaged and that the course of conduct included
the commission of other crimes of violence against others. Id. Addi-
tionally, they found another aggravating circumstance as to the mur-
der of Wesley, Sr.—that the murder was committed while McHone
was engaging in an attempt to commit a homicide on a person other
than the deceased.13 Id. They then found the aggravating circum-
stances to outweigh the mitigating circumstances and recommended
that McHone be sentenced to death for both murders. Id.

II.

The court will review "de novo a district court’s decision on a peti-
tion for writ of habeas corpus based on a state court record." Spicer
v. Roxbury Corr. Inst., 194 F.3d 547, 555 (4th Cir. 1999). However,
because McHone filed his habeas petition after the effective date of
the Anti-Terrorism and Effective Death Penalty Act of 1996
("AEDPA"), our de novo review is limited by the standards set forth
by AEDPA. Under AEDPA, if a state court has resolved the merits
of a claim for post-conviction relief,14 a federal court may not issue
12
The jury rejected N.C. Gen. Stat. § 15A-2000f(6) mitigating circum-
stance: "The capacity of the defendant to appreciate the criminality of his
conduct or conform his conduct to the requirements of the law was
impaired." J.A. 579, 583.
13
The attempted homicide that this aggravating factor is referring to is
that of Wesley, Jr. Supp. J.A. 132. While McHone was not charged with
the attempted murder of Wesley, Jr., during the charge conference in the
sentencing phase the judge found that he could have been so charged so
this was a proper aggravating factor. Id.
14
The North Carolina Supreme Court did so in a one-line order without
explaining its reasoning, but such an order is still an adjudication "on the
merits" for AEDPA purposes. See Bacon v. Lee, 225 F.3d 470, 478 (4th
Cir. 2000) ("Where, as here, a state court summarily rejects a claim with-
out articulating reasons, its order nevertheless constitutes an ‘adjudicat-
[ion] on the merits’ for purposes of § 2254(d)."). "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." Id. (citations
omitted).
42 MCHONE v. POLK
a writ of habeas corpus unless the state court’s holding 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).

In this case, McHone contends that the state court unreasonably
applied clearly established federal law. A state court’s adjudication of
a claim constitutes an unreasonable application of clearly established
federal law "if the state court correctly identifies the governing legal
principle from [the Supreme Court’s] decisions, but unreasonably
applies it to the facts of the particular case." Id. Because the Supreme
Court has stated that an "unreasonable application of federal law is
different from an incorrect application of federal law," Williams v.
Taylor, 529 U.S. 262, 410 (2000), we may not issue a writ of habeas
corpus solely because we determine in our "independent judgment
that the state-court decision applied [a Supreme Court] case incor-
rectly." Prince v. Vincent, 538 U.S. 634, 641 (2003)(quoting Wood-
ford v. Visciotti, 537 U.S. 19, 24-25 (2002)(per curiam)). Thus, to
grant McHone’s habeas petition we must conclude that the state
court’s adjudication of his claims was not only incorrect, but that it
was objectively unreasonable.

III.

McHone contends that the state court unreasonably applied Brady
and United States v. Bagley, 473 U.S. 667 (1985), to the facts of his
case. In Brady, the Supreme Court held that due process requires state
agents to disclose evidence favorable to the defendant which is mate-
rial to guilt or punishment. 373 U.S. at 86. A Brady violation contains
three elements:

(1) the evidence must be favorable to the accused; (2) it
must have been suppressed by the government, either will-
fully or inadvertently; and (3) the suppression must have
been material, i.e., it must have prejudiced the defense at
trial.

Monroe v. Angelone, 323 F.3d 286, 299 (4th Cir. 2003) (citing Strick-
ler v. Greene, 527 U.S. 263, 281-82 (1999)). Both impeachment evi-
dence and exculpatory evidence fall within the scope of Brady.
 MCHONE v. POLK 43
Bagley, 474 U.S. at 682; Monroe, 323 F.3d at 299. Moreover, the
prosecution’s failure to disclose "evidence favorable to an accused
upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution." Kyles v. Whitley, 514 U.S. 419, 432 (1995).

A.

Because I believe the majority confuses the favorability and mate-
riality prongs in their Brady analysis, I write separately.15 McHone
argues that the State failed to reveal favorable evidence from seven
witnesses related to whether he killed with the necessary specific
intent for first-degree murder. The majority finds that the withheld
evidence was not favorable to McHone.

First, McHone points to the pretrial statements of Wesley, Jr. who
made statements to the police within hours of the crime indicating
that McHone was "obviously drunk" and had a strong odor of alcohol
on him but testified at trial that McHone was not impaired and did not
smell of alcohol. The majority reasons that these two statements are
consistent because in their view Wesley, Jr. maintained in both his
pretrial and trial statements that McHone was aware of what he was
doing throughout the commission of the murders and was not
impaired by alcohol. I cannot agree. Wesley, Jr.’s statements are
inconsistent because in Wesley, Jr.’s pretrial statements he told the
police that McHone was drunk and smelled strongly of alcohol but he
stated at trial that McHone did not smell of alcohol, was not impaired
in anyway by alcohol, and that the only indication that he had that
McHone had been drinking was that Wesley, Sr. told McHone to go
to bed and "sleep it off."16 J.A. 282, 290.
15
As the majority notes, we assume that the State did not turn over the
evidence in question.
16
The majority places much weight on the distinction between the
terms "drunk" and "impairment." Certainly, these terms can have differ-
ent meanings in a variety of contexts as one may be "drunk" but not suf-
fering from extreme "impairment." Yet it defies reason to believe, as the
majority apparently does, that Wesley, Jr.’s trial statements that McHone
was not impaired in any way by alcohol and did not smell of alcohol are
44 MCHONE v. POLK
The extent to which this inconsistent statement would be of
impeaching value in undermining Wesley, Jr.’s testimony is a ques-
tion which goes to materiality under Brady but does not detract from
the statement’s impeaching nature in and of itself. Wesley, Jr.’s
undisclosed pretrial statement is not merely "neutral evidence."
Rather, it had the potential to alter the jury’s assessment of the credi-
bility of Wesley, Jr., a significant prosecution witness. See United
States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998) (discussing the
nature of impeachment evidence under Brady).

Second, Wendy made statements to the police that Randy Adams
told her when they arrived home that night that McHone was drunk;
she noted that McHone was always "real smooth" while sober but was
cussing and screaming that night, indicating he was drunk; and she
also described McHone and Wesley, Sr.’s fight and said that it
sounded like Wesley, Sr. was beating McHone and dragging him up
the stairs. J.A. 603-609. These pretrial statements, when considered
with Wendy’s trial statements, would have also been of some
impeaching value. Specifically, her trial testimony that McHone did
not stagger or stumble his speech, while not directly contradictory to
her pretrial statements that McHone was screaming and cussing,
could have been characterized in a different light by showing that
McHone was upset and speaking angrily. Further, her pretrial state-
ments describing the fight between McHone and Wesley, Sr. as one
in which it sounded like Wesley, Sr. was dragging McHone up the
stairs and beating on him also would have been of impeachment value
given her trial testimony that it sounded like McHone and Wesley, Sr.

consistent with his pretrial statements that McHone was "obviously
drunk" and smelled strongly of alcohol. While Wesley, Jr. told the police
pretrial that McHone "appeared" to be aware of what he was doing, J.A.
619, this statement does equate to a statement that McHone was not
impaired in any way by alcohol, as Wesley, Jr. testified at trial. Wesley,
Jr.’s characterization of McHone in his pretrial statements as "obviously
drunk" and smelling strongly of alcohol underscores this inconsistency.
Reading these pretrial statements together, one could infer that Wesley,
Jr. thought McHone was drunk but not so impaired that he did not realize
what he was doing. However, this was not what Wesley, Jr. testified to
at trial, he said that McHone was not impaired in any way by alcohol,
which is inconsistent with his pretrial statements.
 MCHONE v. POLK 45
were having a "scuffle." Finally, her pretrial statement that Randy told
her that McHone was drunk would have been of some impeaching
value at least to the extent that she would have to explain her state-
ment that she did not "pick up" on Wesley, Sr., Mildred, or Randy
thinking that McHone was drunk.17

Third, Randy, who was not called as a witness, made statements to
the police that Mildred described McHone’s condition that night as
drugged or drunken and as the "worse I’ve ever seen him." Id. at 622,
660. This latter statement was noted on the state’s witness list beside
Randy’s name. Id. Randy also told the police that McHone called on
the night of the killings and asked if he could bring a girl to the house
and that when Randy said no, McHone threatened to kill him. Id. at
622. Randy’s statements concerning what Mildred said are favorable
to McHone. That other testimony was presented concerning
McHone’s intoxication does not detract from the exculpatory value of
McHone’s mother, who was one of the murder victims, believing that
McHone was intoxicated. Whether the evidence was simply cumula-
tive, as the majority relies on, when considered with the other trial
testimony, may mean it was not "material" under Brady, but it does
not mean that it is not "favorable." Randy’s statement that McHone
threatened to kill him does not undermine the favorability of his over-
all statement to the police, especially in light of the fact that other tes-
timony was presented that McHone threatened to kill himself and
others that night. Such testimony could have even been favorable to
McHone as it contradicted the State’s argument that McHone was tar-
geting Mildred and Wesley, Sr. that night.

Finally, statements by Deputy Sheriff Inman and Hall, the first
medical responder, were suppressed.18 Deputy Sheriff Inman told the
17
The majority notes that Randy’s statement to Wendy was inadmissi-
ble hearsay and does not bear in any way on Wendy’s later observation
of McHone. I disagree. The majority fails to consider whether a hearsay
exception could have provided for the admission of this evidence. Simi-
larly, the assertion that Randy believing McHone was drunk does not
relate to Wendy’s personal observations of him, while true, does not
detract from the fact that Randy’s statements could have been of
impeaching value to Wendy’s trial testimony concerning what Randy
told her.
18
Statements by Sawyers and Tuttle, McHone’s Narcotics Anonymous/
Alcoholic Anonymous ("NA/AA") sponsor, were also suppressed. Saw-
46 MCHONE v. POLK
SBI on the morning of the murders that McHone had a strong odor
of alcohol on him and that he was not steady on his feet. Id. at 602.
He testified at trial that he observed McHone walking, talking, and
acting in a normal fashion, id. at 179-80, and thus his statement that
McHone was not steady on his feet would have been of some
impeaching value. Hall’s undisclosed statement to prosecutors that
McHone was screaming and kicking the glass in the patrol car after
his arrest, id. at 675, was also favorable because it describes
McHone’s state of mind shortly after the crime as agitated and upset.

B.

The standard for determining whether the favorable evidence with-
held is material is whether "there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceed-
ing would have been different." Bagley, 473 U.S. at 682. "The ques-
tion is not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether in its
absence he received a fair trial, understood as a trial resulting in a ver-
dict worthy of confidence." Kyles, 514 U.S. at 434. A defendant can
rely on the cumulative effect of all suppressed evidence in determin-
ing whether a Brady violation has occurred.19 Kyles, 514 U.S. at 436-

yers made statements to police that McHone did not talk negatively
about his parents the night of the killings. However, because no testi-
mony was presented that McHone had done so that night, only that he
had in the past, I would not find this to be favorable.
Tuttle, who McHone called thirty minutes prior to the shootings, told
the police that McHone sounded upset, that he was crying and not mak-
ing much sense. J.A. 610-12. He told the police that McHone said "he
thought somebody was gonna die that night." Id. Tuttle said that McHone
asked if Tuttle could come to see him but that it was NA/AA policy that
at least two people went when someone called in such a situation. Id.
Tuttle was on the state’s witness list, but was never called and McHone’s
trial counsel never interviewed him. I agree with the majority that
McHone cannot benefit from Tuttle’s statement because he knew he had
spoken to Tuttle that night. See Allen v. Lee, 366 F.3d 319 (4th Cir.
2004) (noting that defendant cannot benefit from Brady if exculpatory
material lies where reasonable defendant would have looked).
19
The State contends that although materiality is assessed collectively
in the first instance in a Brady analysis, because the inconsistencies about
 MCHONE v. POLK 47
37; Monroe, 323 F.3d at 302. Because McHone alleges that undis-
closed Brady material affected both the guilt and the sentencing
phases, I look at the cumulative effect of the evidence on each phase
separately to determine if there is a reasonable probability that the
result of the proceeding would be different as constrained by the def-
erence standards of AEDPA.

In considering the effect of the Brady material on the guilt phase,
the most important question is the effect it would have had on the
jury’s finding of first-degree murder, which implicitly carried with it
a rejection of McHone’s defense of voluntary intoxication. Of the
seven witnesses whose statements were not produced, Wesley, Jr.’s
statement is arguably the most valuable to McHone because it con-
tains a direct contradiction of his trial testimony and because the State
relied heavily on Wesley, Jr.’s testimony. Wendy, the only other adult
present at the house during the murder, was also a key witness at trial.
Her statements to the police indicate that she had some personal
knowledge that McHone was impaired. While not a direct contradic-
tion of her trial testimony, the statement would have had some
impeaching value, at least to the extent that she would have to explain
her statement that she did not "pick up" on Mildred or Randy thinking
that McHone was drunk. Wendy also downplayed the fight between
Wesley, Sr. and McHone, failing to mention that it sounded like Wes-
ley, Sr. was beating on McHone. If McHone’s counsel had Randy’s
statement and he had testified at trial, the jury could have heard,
through a hearsay exception, that Mildred thought McHone’s condi-
tion was the worst she had ever seen him.

It is more difficult to determine the value of the statements of Dep-
uty Sheriff Inman and Hall. Deputy Sheriff Inman’s testimony of
McHone as being able to walk, talk and act in a normal fashion would

which McHone complains were all presented to the North Carolina
Supreme Court, this court should accord AEDPA deference on an item-
by-item basis and thus consider each piece of evidence separately.
Appellee’s Br. at 11. This contention is clearly incorrect. In Monroe, this
court reiterated that under step three of the Brady analysis, determining
whether the evidence is material, the evidence is viewed cumulatively.
Id. at 298.
48 MCHONE v. POLK
be somewhat impeached by his earlier statement that McHone was
not steady on his feet. Hall’s statement describing McHone’s erratic
behavior in the police car would have added more support to
McHone’s voluntary intoxication defense but it would probably not
have outweighed the impact of Hall’s trial testimony—that McHone
asked for a cigarette while Hall was with Wesley, Sr.’s body.

Despite the exculpatory and impeaching value of these statements,
I do not think that the state court was unreasonable in concluding that
in their absence, McHone still received a fair trial. While the cumula-
tive effect of the statements would have been helpful in his voluntary
intoxication defense, they were not such that the jury’s verdict of
first-degree murder is unworthy of confidence. Rather, the statements
would have only demonstrated that the witnesses were somewhat
downplaying the extent of McHone’s impairment—a fact hardily sur-
prising given that all of the witnesses presented testimony favorable
to the State (with the possible exception of Sawyers).

In examining the sentencing phase, the withheld statements would
have provided more evidence of McHone’s intoxication such that the
jury may have found N.C. Gen. Stat. § 15A-2000f(6), concerning
McHone’s ability to appreciate his actions, in McHone’s favor. But
whether the jury, based on these undisclosed statements alone, would
have found this in McHone’s favor is unclear. In contrast to the exten-
sive failures of McHone’s counsel, discussed below, which go not
only to McHone’s defense of voluntary intoxication but also to his
motive and mitigating evidence from his childhood, these undisclosed
statements were not of a powerful enough nature to be considered
"material" under Brady. In this regard, AEDPA’s standard that the
state court’s conclusion must be "objectively unreasonable" must con-
trol. While the result of the sentencing proceeding could have been
different when considering the cumulative effect of these Brady mate-
rials, the state court was not objectively unreasonable in finding that
the jury’s decision was worthy of confidence.

IV.

McHone contends that the state court unreasonably applied Strick-
land v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme
Court set forth the test for an ineffective assistance of counsel claim.
 MCHONE v. POLK 49
First, a defendant must show that defense counsel’s performance fell
below an objective standard of reasonableness, the proper measure of
which is prevailing professional norms. Id. at 687-88. Second, a
defendant must show that he or she was prejudiced by defense coun-
sel’s objectively unreasonable performance. Id. at 687.

A.

In considering McHone’s Strickland claims, it is clear that
McHone’s counsel did fall below prevailing professional norms in
several areas and that the state court was unreasonable in concluding
otherwise.20 First, despite proffering a defense of voluntary intoxica-
tion and possessing undisputed evidence of the amount and types of
alcohol that McHone consumed, counsel failed to seek expert testi-
mony on McHone’s blood alcohol level. Though the State contends
that such a failure is the fault of the expert witness and not counsel,
this is not a case in which Petitioner seeks to retry his case based on
new expert testimony or challenge the diagnosis of the expert witness,
this is a case in which counsel failed to give the expert all the neces-
sary information.21 As the majority points out, this court has held that
20
While McHone is arguing that counsels’ performance was objec-
tively unreasonable in both the guilt and sentencing phases, because the
errors affected both phases to varying degrees, I analyze them together
here.
21
Dr. Warren’s post-conviction affidavit states:
I received no specific information regarding the amount and
types of alcohol ingested by Mr. McHone during the night of the
crime, other than information obtained from my interview of Mr.
McHone. I was aware only of conflicting reports regarding
whether or not Mr. McHone appeared "drunk" on the night of the
crimes.
....
Had I been provided this information regarding Mr. McHone’s
alcohol intake on the night of the crime prior to my testifying at
trial, my testimony would have been substantially different. I
would have testified at the guilt phase, among other things, that
Mr. McHone’s capacity to calmly function and plan was severely
impaired because he was intoxicated. I would have also testified
50 MCHONE v. POLK
no right to effective assistance of expert witnesses exists distinct from
the right to effective assistance of counsel, Poyner v. Murray, 964
F.2d 1404, 1418 (4th Cir. 1992), however, in this case, McHone’s
counsel themselves erred by not utilizing their existing experts prop-
erly. But see Thomas v. Taylor, 170 F.3d 466, 472 (4th Cir.
1999)(finding nothing in record to indicate that trial counsel failed
adequately to prepare expert, rather expert himself was unprepared);
Poyner, 964 F.2d at 1419 (noting that "mere fact that counsel did not
shop around for a psychiatrist willing to testify" to more elaborate
psychological disorders than did retained expert not ineffective assis-
tance). Moreover, when counsels’ actions are examined "from coun-
sel’s perspective at the time," Strickland, 466 U.S. at 689, their failure
becomes more apparent. McHone’s only viable defense was that he
was so intoxicated that he could not form the necessary specific

that Mr. McHone’s mind and reason were so overborn as to ren-
der him utterly incapable of forming the specific intent to kill at
the time of the commission of the crime. I would have testified
that Mr. McHone was unable to reflect about his actions or think
about the consequences of his actions at the time of the commis-
sion of the crime. I would have testified at the sentencing phase,
among other things, that Mr. McHone’s capacity to appreciate
the criminality of his conduct and to conform his conduct to the
requirements of the law was substantially impaired.
J.A. 677.
The majority relies on the R&R’s finding that Dr. Warren could have
learned of the amounts of alcohol that McHone consumed from Dr.
Groce’s report. Dr. Groce’s report states that McHone "report[ed] volun-
tary intoxication [on the day of killings] with one or two joints of mari-
juana, a fifth of Jack Daniels liquor, five hits of LSD and approximately
a case of beer." J.A. 592. This information, given to Dr. Groce by
McHone, does not belie Dr. Warren’s assertions in his post-conviction
affidavit because it is entirely consistent with his affidavit statement that
he received no specific information on the amount of alcohol ingested by
McHone other than the information he obtained from McHone himself.
The only information that either Dr. Groce or Dr. Warren had on the
amount of alcohol that McHone consumed was from McHone himself
and conflicted with statements from other witnesses. Yet, McHone’s
counsel never sought out this information from the witnesses in advance
of trial or presented any of it to Dr. Warren for a blood alcohol analysis.
 MCHONE v. POLK 51
intent; thus expert testimony forming a scientific basis for this defense
would have greatly supported his defense.

Second, McHone’s counsel failed to interview or present the testi-
mony of Tuttle, the jailors who observed McHone that night,
McHone’s substance abuse counselors, or McHone’s probation offi-
cer. The failure to interview Tuttle, the individual with whom he
spoke thirty minutes prior to the shootings, is clearly objectively
unreasonable. Tuttle was one of the last people to speak with McHone
before the shootings and could have offered key testimony on
McHone’s state of mind.

Likewise, the failure to interview the jailors is unreasonable given
that they were in one of the best positions to observe McHone shortly
after his arrest. The jailors’ affidavits reveal, in direct contradiction
to the testimony of the State’s law enforcement witnesses, that
McHone appeared to have ingested a significant amount of alcohol
and/or drugs and was "messed up."22 J.A. 681, 689. The failure to
interview his substance abuse counselors or probation officer is also
objectively unreasonable in light of the fact that counsel presented
22
The majority contends that my reliance on the jailors’ statements in
the context of Strickland is "analytically indefensible," ante at 27, from
my conclusion that statements of other witnesses are not material under
Brady. The majority fails, as it does repeatedly throughout its analysis,
to recognize the differing standards for relief under these two claims.
Under Brady, we take the cumulative effect of the undisclosed state-
ments in determining relief. My determination was that the undisclosed
statements were not material because while the cumulative effect of the
statements could have been helpful in establishing McHone’s defense of
voluntary intoxication and in demonstrating an additional mitigating fac-
tor in McHone’s favor, they were not such that McHone was denied a
fair trial in their absence. My reliance on the jailors’ statements in the
context of Strickland, as well as the statements of other witnesses that
McHone’s counsel failed to interview, is but one piece of the Strickland
analysis. As I discuss, infra at 60, under Strickland, we must consider the
totality of the mitigating evidence. In this case, that consists of not only
counsel’s failure to interview key witnesses, but also their failure to seek
expert testimony on McHone’s blood alcohol content, their failure to
object to the prosecutor’s closing argument, and their failure to investi-
gate McHone’s childhood adequately.
52 MCHONE v. POLK
arguments to the jury about McHone’s substance abuse problems and
family relationship and these witnesses should have at least been
interviewed. His substance abuse counselor’s affidavit stated that in
the counselor’s opinion, McHone’s actions that night were very out
of character and would not have been committed unless McHone was
severely intoxicated. Id. at 679-80. His probation officer’s affidavit
noted that McHone had been complying with the terms of his proba-
tion and that Mildred and Wesley, Sr. had voiced very few com-
plaints. Id. at 571.

Third, McHone’s counsel failed to object to the State’s improper
closing argument that McHone bore the burden of proof on voluntary
intoxication and that his burden was higher than that required by law.
Specifically, the prosecutor argued:

. . . One of the first things I want to talk to you about is
the defense of intoxication . . . [i]f we are going to apply that
defense to the facts of this case then we really need to, ought
to know what it’s about. . . .

. . . Surely, a man can’t go out, whether he be that side
of the one-eyed Jack or this side of the one-eyed Jack, and
drink some alcohol or take some drugs and then kill some-
body and walk away with it. Surely, that can’t be, can it?
Well, you’re right. That can’t be. It’s not just me saying
that. That’s what it says right here in State vs. Bunn, North
Carolina Supreme Court, in the spring term of 1973. Said,
"The defense to the charge of murder is that he was so drunk
that he was utterly incapable of forming a deliberate and
premeditated purpose to kill." That’s what he said. This is
what the Court said about that. . . . "For it to constitute a
defense—" And that’s just a defense to the first degree mur-
der charge this is what you must show. And the burden is
on the defendant to show this, . . . It’s his burden to show
this, not the State of North Carolina. But his. This is what
he has to show. "For it to constitute a defense it must appear
that the defendant was not able by reason of the drunkenness
to think out beforehand what he intended to do."

J.A. 442-443.
 MCHONE v. POLK 53
He continued:

. . . [I]t says in State vs. Medlin in Supreme Court of
North Carolina. "Evidence must show at the time of the kill-
ing the defendant’s mind and reason were so completely
intoxicated and overthrown as to render him—" Now this
important word, ladies and gentleman of the jury. "— as to
render him utterly incapable of forming a deliberate and pre-
meditated purpose to kill." Utterly, it says. Not just drunk.
Not just impaired. We’re not talking about drunk driving
and not being safe to drive an automobile. We’re talking
about utterly incapable of forming a deliberate and premedi-
tated purpose to kill. "For it to constitute—" Says it right
here, ladies and gentleman of the jury. It’s not just me. This
is what the North Carolina Supreme Courts have said about
that defense.

You see, ladies and gentleman, they recognize the abuse
you can have with this defense.

Id. at 447.

Under North Carolina law, voluntary intoxication can be a defense
to first-degree murder by negating the elements of premeditation and
deliberation. State v. Mash, 372 S.E.2d 532, 536-37 (1988). In Mash,
the North Carolina Supreme Court held that the trial court’s jury
instruction was erroneous because to find for the defendant on intoxi-
cation, "the jury does not have to conclude that his intoxication ren-
dered Defendant ‘utterly incapable’ of forming the necessary intent;
it need only conclude that because of his intoxication either Defen-
dant did not form the requisite intent or there is at least a reasonable
doubt about it."23 Id. at 537. The Mash court also found that the jury
instruction at issue could lead a rational jury to find that the defendant
bore a heightened burden of persuasion, which "would impermissibly
and unconstitutionally shift the burden of persuasion on essential ele-
23
The "utterly incapable" language refers to the defendant’s burden of
production sufficient to convince the judge that he is entitled to a volun-
tary intoxication jury instruction and is thus inapplicable to the jury’s
consideration of the intoxication evidence. Mash, 372 S.E.2d at 537.
54 MCHONE v. POLK
ments of the crime of first degree murder from the state to the defen-
dant."24 Id. Here, the prosecutor made the same argument rejected in
Mash, which both heightened and shifted the burden of proof on vol-
untary intoxication to McHone. By failing to object, McHone’s coun-
sel were objectively unreasonable.

Finally, McHone’s counsel, while presenting some mitigating evi-
dence that revealed a troubled childhood, failed to go further and dis-
cover the extent of abuse. Counsel unreasonably limited its
investigation to conversations with Bobby McHone and retaining a
psychologist to evaluate McHone. Indeed, counsel only put forth
three character witnesses at sentencing, his father, a former neighbor,
and another woman who hardly knew McHone. As McHone argues,
a thorough investigation of McHone’s background would have
revealed the following:

• McHone has a history of chronic violence from birth through the
divorce of his parents.

• McHone’s childhood was marked by deprivation.

• McHone’s parents agreed to an unconventional custody arrange-
ment where he spent one year with Bobby and one year with Mil-
dred and that while with Bobby he resided in a series of rooming
houses and motels, sometimes sleeping in bars while his father
drank.

• Due to the effects of his childhood, McHone self-medicated with
drugs and alcohol from the age of 12.

24
The Mash court noted that "[a] defendant who wishes to raise an
issue for the jury as to whether he was so intoxicated by the voluntary
consumption of alcohol that he did not form a deliberate and premedi-
tated intent to kill has the burden of producing evidence, or relying on
evidence produced by the state, of his intoxication." 372 S.E.2d at 536.
(emphasis added). Thus, the burden of persuasion as to the premeditation
and deliberation elements of first-degree murder remains with the prose-
cution.
 MCHONE v. POLK 55
McHone’s counsel were clearly unaware of the extent of his abuse
during his childhood because they submitted as a mitigating factor to
the jury the statement that McHone "enjoyed a normal childhood until
the time his parents separated, and after that, he began abusing alco-
hol and drugs." This statement could have misled the jury into believ-
ing that his parents’ divorce triggered his history of substance abuse,
when in reality he experienced abuse and deprivation from an early
age. This failure to investigate further, given what counsel already
knew, was unreasonable. See Wiggins, 539 U.S. at 527 ("In assessing
the reasonableness of an attorney’s investigation, however, a court
must consider not only the quantum of evidence already known to
counsel, but also whether the known evidence would lead a reason-
able attorney to investigate further.").

B.

Undoubtedly, the prejudice prong is more difficult for McHone to
meet. Because McHone claims that counsels’ errors prejudiced both
his guilt and sentencing phases, I analyze them separately.25

1.

To demonstrate prejudice at the guilt phase, a defendant must show
that there is a reasonable probability, absent the errors, that the fact-
finder would have a reasonable doubt respecting guilt. Strickland, 466
U.S. at 695. Thus, McHone must show that the factfinder would have
a reasonable doubt respecting his culpability for the first-degree mur-
der charge, which he could do most readily through his defense of
voluntary intoxication.

The failures of counsel to investigate and present evidence of
McHone’s specific intent, including the failure to obtain expert testi-
mony on McHone’s blood alcohol level and to interview Tuttle and
the jailors, were substantial. Because of these errors, his counsel were
unable to rebut the State’s picture that McHone was unimpaired and
25
The majority neither analyzes the prejudicial effect on the guilt and
sentencing phases separately nor recognizes the differing standards for
showing prejudice in the guilt and sentencing phases of a capital case.
56 MCHONE v. POLK
only slightly intoxicated. Specifically, Tuttle and the jailors26 could
have given the jury a first-hand account of McHone’s behavior
shortly before and after the shootings testifying as to McHone’s
impairment and emotional state.27 Instead, the jury was left with the
testimony of Wesley, Jr. and Wendy, arguably strong and sympathetic
witnesses for the State, and law enforcement officers (Deputy Sheriff
Inman and Deputy Miller), who described McHone generally as only
slightly impaired, in direct contravention of the jailors affidavits, J.A.
681, 689. More importantly, if counsel had presented testimony of his
blood alcohol level, estimated in the post-conviction affidavit of Dr.
Brian McMillen, Associate Professor of Pharmacology in the School
of Medicine at East Carolina University, at the severely intoxicating
blood alcohol concentration of at least 0.286 g/dl at 1:00 a.m. on the
night of the shootings, id. at 566, such testimony could have created
a reasonable doubt about McHone’s ability to premeditate and delib-
erate the murders. Such evidence, unlike the varied descriptions of
McHone’s state of intoxication that night, would have given the jury
analytical, objective evidence of McHone’s impairment.

Counsel also failed by not investigating evidence that could help
rebut the State’s argument concerning McHone’s motive. The State
argued that McHone had a "plan" to be free of his parents. The most
effective rebuttal of that argument would have been evidence of
McHone’s relationship with Wesley, Sr. and Mildred in the months
preceding the shootings. McHone’s probation officer offered a post-
26
The majority suggests that the jailors testimony would have been
merely cumulative. I disagree. Given that their testimony would have
directly contradicted the testimony of the State’s other law enforcement
officers, that they observed McHone shortly after the crime when he was
brought into the jail, and that their observations indicated that McHone
was extremely intoxicated and/or high on drugs, I fail to see how such
testimony is "cumulative" to the testimony of the other witnesses who
said that McHone had been "drinking," but he was not "drunk."
27
The magistrate judge placed much emphasis on the fact that Tuttle’s
testimony could have hurt McHone’s defense because it would have
revealed that McHone was threatening that "someone would die" that
night. However, other testimony was presented to that effect, and Tut-
tle’s description of McHone as upset, crying and asking for help would
clearly have been more valuable than prejudicial to his defense.
 MCHONE v. POLK 57
conviction affidavit stating that McHone was following the rules of
his probation and that Mildred and Wesley, Sr. did not complain
about his behavior. J.A. 571. McHone’s substance abuse counselor
also offered a post-conviction affidavit which, while conclusory,
would have helped rebut the State’s theory that McHone had a "plan"
with evidence that these actions were very out of character for
McHone and that he never expressed animosity towards his family.28
Id. at 679. Tuttle’s testimony would have shown that McHone was
not threatening his parents that night and was seeking help. Such testi-
mony of McHone’s more recent actions would have acted in marked
contrast to the State’s evidence that Mildred had expressed concerns
about McHone threatening her when he was twelve and thirteen years
old.

Finally, counsel substantially failed by not objecting to the prose-
cutor’s improper closing argument, which may have confused the jury
as to McHone’s proper burden on his voluntary intoxication defense.
In determining the prejudicial effect of this argument, Fourth Circuit
case law on when an improper closing argument violates due process
is instructive. The court has noted that such a "determination requires
the court to look to ‘the nature of the comments, the nature and quan-
tum of the evidence before the jury, the arguments of opposing coun-
sel, the judge’s charge, and whether the errors were isolated or
repeated.’" Boyd v. French, 147 F.3d 319, 329 (4th Cir. 1998) (quot-
ing Bennett v. Angelone, 92 F.3d 1336, 1345 (4th Cir. 1996)).

Looking first to the nature of the comments, the prosecutor incor-
rectly argued to the jury that North Carolina law mandated that
McHone had to be "utterly incapable" of forming a deliberate and pre-
meditated purpose to kill to succeed on the defense of voluntary
intoxication. North Carolina law holds that this is the proper standard
that the judge must consider in deciding whether to submit a volun-
tary intoxication instruction to the jury. In contrast, the jury must only
28
Again, I must dispute the majority’s conclusion that testimony from
McHone’s substance abuse counselor would have been unhelpful
because the jury already knew of McHone’s substance abuse problems.
The value of this testimony would have been to help rebut the State’s
theory that McHone’s actions were part of a "plan" to be free of his par-
ents by showing that such actions were out of character.
58 MCHONE v. POLK
have a reasonable doubt that defendant could form the necessary spe-
cific intent because of his intoxication. The prosecutor also improp-
erly shifted and heightened the burden of proof onto McHone by
stating that McHone bore the burden to show this defense.

The prosecutor’s reference to the incorrect standard was not iso-
lated. The trial transcript of the prosecutor’s references to North Caro-
lina case law on voluntary intoxication spans several pages and
consistently misstates the law. As noted, McHone’s counsel offered
no "opposing argument" to these incorrect references because they did
not object and the judge did not intervene. While the judge did give
a proper jury instruction on this defense, he did not instruct the jury
as to McHone’s burden of proof on voluntary intoxication. The
instruction stated:

Now, members of the jury, as to the defense of voluntary
intoxication, I instruct you that if you find there is evidence
which tends to show that the defendant was intoxicated from
alcohol or other impairing substances at the time of the acts
alleged in this case then you should consider the following
instructions: Generally voluntary intoxication from such a
substance is not legal excuse for crime. However, if you find
that the defendant was intoxicated from alcohol or other
impairing substance you should consider whether this condi-
tion affected his ability to formulate the specific intent
which is required for a conviction of first degree murder;
. . . . In order for you to find the defendant guilty of first
degree murder by premeditation and deliberation you must
find beyond a reasonable doubt that he killed with malice,
and in the execution of actual specific intent to kill formed
after premeditation and deliberation. If as a result of intoxi-
cation from alcohol or other impairing substance the defen-
dant did not have a specific intent to kill the deceased in
either of the three cases, . . . he would not be guilty of such
offense.

Supp. J.A. 66-67. Given the prosecutor’s improper closing argument,
the jury could have believed that they could not consider evidence of
intoxication until McHone showed he was "utterly incapable" of
forming premeditation and deliberation. At the least, the jury could
 MCHONE v. POLK 59
have been confused on the correct standard given the prosecutor’s
repeated references to case law and the jury instruction that did not
specifically address McHone’s burden.

Viewed as a whole, counsels’ errors undermine confidence in the
outcome of the guilt phase because a reasonable probability exists that
but for these errors the jury could have concluded that there was a
reasonable doubt about McHone’s mens rea for first-degree murder
and thus have found him guilty of the lesser-included charge of
second-degree murder. Particularly significant in this regard is the
weak case that the State had on first-degree murder. The State had no
eyewitnesses to the murders and little evidence of motive. Indeed,
McHone’s actions in threatening to kill others that night undermines
the State’s argument that McHone had a plan to kill Mildred and
Wesley, Sr. Moreover, McHone shot Wesley Sr. while they were
engaged in a struggle and when Wesley Sr. lunged for the gun. Con-
trary to the majority’s assertion that McHone is "fanciful" in believing
the case to be weak, these facts when considered in combination with
counsels’ errors, particularly in presenting a defense of voluntary
intoxication, demonstrate that the evidence that McHone "premedi-
tated and deliberated" these murders was indeed marginal.29 In light
of the gravity of these errors and their prejudicial effect, I would find
that the state court’s application of Strickland was unreasonable.

2.

In the sentencing phase of a capital trial, a defendant establishes
prejudice by showing "there is a reasonable probability that, absent
29
The majority’s assertion that the State proffered evidence that
McHone reloaded the shotgun during the course of killings does not have
support in the record before us. The prosecutor, in his closing argument,
stated, "Take into consideration this gun was unloaded at one time that
night and this defendant reloaded the gun, carried this into the house and
reloaded it, and fired it three times." J.A. 461. The gun the prosecutor
was referring to was the handgun that McHone shot Mildred with, not
the shotgun that he used in his struggle with Wesley Jr. Testimony at trial
did show that McHone had reloaded the handgun when he threatened to
kill himself while in the car with Sawyers, id. at 394, but not that he
reloaded any gun during the course of the killings.
60 MCHONE v. POLK
[his trial counsel’s objectively unreasonable performance], the sen-
tencer . . . would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death." Id. at 695. To make
such a showing, a defendant need not establish a reasonable probabil-
ity that the entire jury would have voted against the imposition of a
death sentence, but rather, that "there is a reasonable probability that
at least one juror would have struck a different balance." Wiggins v.
Smith, 539 U.S. 510, 537 (2003)(emphasis added); Glover v. Miro,
262 F.3d 268, 275 (4th Cir. 2001)("‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’"
(quoting Strickland, 466 U.S. at 694)). In determining whether a
defendant has carried his burden of showing there is a reasonable
probability that at least one juror would have declined to impose a
death sentence if presented with certain mitigating evidence, "we
reweigh the evidence in aggravation against the totality of available
mitigating evidence." Wiggins, 539 U.S. at 534. In conducting this
prejudice analysis under Strickland, the Supreme Court has empha-
sized that courts must consider the totality of the available mitigating
evidence, both evidence presented at trial and the evidence presented
in post-conviction proceedings, to determine its effect. See Williams
(noting that state court’s prejudice determination was "unreasonable
insofar as it failed to evaluate the totality of the available mitigation
evidence"); Wiggins, 539 U.S. at 536 (quoting Williams). Neither the
majority opinion nor the magistrate judge or the State, in its briefs
before this court, conducted the proper totality analysis.

In the context of the sentencing phase, counsels’ errors are equally,
if not more, prejudicial. If the jury rejected McHone’s voluntary
intoxication defense in the guilt phase, there is a reasonable possibil-
ity that at least one juror could have still believed that McHone did
not deserve a death sentence because his intoxication prevented him
from understanding the criminality of his actions. Here, the fact that
the jury rejected N.C. Gen. Stat. § 15A-2000f(6), the capacity of
McHone to appreciate the criminality of his conduct and conform it
to the law was impaired, is most telling. Evidence of McHone’s blood
alcohol level and the testimony of Tuttle and McHone’s jailors would
have been instrumental in arguing that the jury should have found this
mitigating factor in McHone’s favor.30 Specifically, Dr. Warren
30
The majority finds that McHone was not prejudiced by counsels’
error, if any, in failing to garner expert testimony on McHone’s blood
 MCHONE v. POLK 61
admitted during his sentencing phase testimony on cross-examination
that he could not make a conclusion on how much McHone was
impaired. The State specifically attacked this statement during its
closing arguments in the sentencing phase. As Dr. Warren’s affidavit
reveals, his testimony would have been much different had he had the
information necessary to calculate McHone’s blood alcohol level.
More importantly, the State’s expert, Dr. Groce, admits in a post-
conviction affidavit that he no longer has the opinion that McHone
could form specific intent.31

Counsels’ failures to investigate adequately mitigating evidence
were also damaging. The charge conference during the sentencing
phase is especially significant. In the course of debating whether the

alcohol level because the jury unanimously rejected Dr. Warren’s sen-
tencing testimony that McHone was entitled to mitigating factor, N.C.
Gen. Stat. § 15A-2000f(6), concerning the capacity of McHone to appre-
ciate the criminality of his conduct or conform it to law. However, this
conclusion begs the question. The question is whether the jury would
have found this factor in McHone’s favor with the assistance of expert
testimony on his blood alcohol amount. The fact that they did not (and
did not have such testimony) is thus instructive in determining the preju-
dicial effect of counsels’ errors.
31
Dr. Groce’s post-conviction affidavit states:
At Mr. McHone’s sentencing trial, I was called to testify as a
witness for the defendant as to mitigating circumstances regard-
ing Mr. McHone’s drug and alcohol use, as well as other mitigat-
ing factors regarding his psychiatric profile. I testified on cross-
examination that Mr. McHone’s polysubstance abuse disorder
affected him at the time of the crime, but that his intoxication
was not severe enough to make Mr. McHone unable to form spe-
cific intent or to meet the standard for not being responsible for
his behavior. . . . Since the trial, I have been shown materials by
counsel for the defendant which were attached as exhibits to the
defendant’s post-conviction motions which I had not seen at the
time of the trial. After considering these materials, I no longer
have the opinion that Mr. McHone could form the specific intent
to kill at the time of the crime. Consequently, I retract that part
of my testimony at Mr. McHone’s trial.
J.A. 687-88.
62 MCHONE v. POLK
mitigating factor that McHone "enjoyed a normal childhood until the
time his parents separated, and after that, he began abusing alcohol
and drugs," J.A. 580, 584, McHone’s counsel argued that Bobby
McHone’s testimony was the basis for submitting this mitigating fac-
tor, Supp. J.A. 116-17. The colloquy is instructive because the prose-
cutor stated in response that there was only evidence of "some hard
times" in McHone’s childhood, and then the judge stated that "there’s
some evidence that he saw [Bobby] drinking." Id. at 117 (emphasis
added). McHone’s counsel never interrupted this colloquy or cor-
rected the prosecutor and the judge. Clearly, counsel failed to investi-
gate McHone’s childhood adequately because if they had they would
have uncovered that Mildred and Bobby’s marriage was characterized
by physical and mental abuse; that Bobby chronically abused drugs,
alcohol, and gambled frequently; and that McHone was exposed to all
of this both during the marriage and after his parents’ divorce. Rather
than the divorce being the event that triggered McHone’s troubles,32
an adequate investigation would have revealed that McHone’s child-
hood was marked by deprivation. While hiring a mitigation investiga-
tor would have helped in this endeavor, it was not necessary. Counsel
could have instead simply interviewed McHone’s family members,
neighbors, or friends. However, they failed to do even this, instead
only presenting four total witnesses during sentencing, two of whom
barely knew McHone. As the Wiggins Court described, "the mitigat-
ing evidence counsel failed to discover and present in this case is
powerful." 529 U.S. at 534.

Such mitigating evidence of McHone’s childhood in conjunction
with evidence from McHone’s probation officer and substance abuse
counselors, would have done much to explain how McHone came to
shoot his parents. In this respect, McHone’s counsel failed utterly. In
the prosecutors’ closing statements during the sentencing phase, they
portrayed McHone as a "bad seed," as a kid that despite a somewhat
troubling childhood had always rebelled and mistreated his mother
and step-father. See Supp. J.A. 155-208. They characterized him as
a person that had never accepted the consequences for anything that
32
The prosecutor highlighted this fact in his closing argument, noting
that a lot of parents get divorced but this does not mean that one goes
"out and kill[s] one of their real parents and their stepfather." Supp. J.A.
165.
 MCHONE v. POLK 63
he had done and was now trying to use drinking as his excuse. Id.
They argued that McHone now should face the consequences of kill-
ing Mildred and Wesley, Sr.—for killing them just because he wanted
to get out from under their "rules." Id.

All of these arguments were proper but McHone’s counsel had lit-
tle to rebut them. They could not rebut the assertion that McHone
only had a somewhat troubling childhood because they only had the
testimony of Bobby, who gave some insight into McHone’s childhood
but could hardly paint the full picture as he was a main perpetrator
of the abuse McHone experienced. They could not rebut the assertion
that McHone was using alcohol as a excuse, because without effective
expert testimony they only had the testimony of McMillian, Bryant,
and Sawyers, none especially believable witnesses, to support his
defense of impairment. Lastly, they could not rebut the assertion that
McHone had a "plan" to get out from under his parents, the State’s
explanation for motive, because they had absolutely no evidence
about McHone’s relationship with Mildred and Wesley, Sr. or his
willingness to follow the conditions of his parole. These failures were
not strategic and they were not a result of failing to investigate "every
conceivable" line of mitigating evidence. See Wiggins, 539 U.S. at
533; Strickland, 466 U.S. at 690-91. Rather, they were plain and per-
vasive.

Viewed as a totality, these errors were prejudicial. If McHone’s
counsel had been able to make these arguments, arguments essential
to rebut the State’s evidence, there is a reasonable probability that at
least one juror after weighing the evidence in mitigation and evidence
in aggravation, would have decided that McHone did not deserve
death. The state court’s conclusion otherwise, given the gravity of
these errors and their prejudicial effect, was objectively unreasonable.

V.

For the foregoing reasons, I concur with the majority’s decision to
deny relief as to McHone’s Brady claim but dissent from their deci-
sion on his Strickland claims. Counsels’ plain and pervasive errors in
this case prejudiced both McHone’s guilt and sentencing phases and
the state court was objectively unreasonable in denying relief on
McHone’s Strickland claim.