Ward v. French

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DAVID JUNIOR WARD,
Petitioner-Appellant,

v.
No. 98-7
JAMES B. FRENCH, Warden, Central
Prison, Raleigh, North Carolina,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CA-97-122-5-HC-BO)

Argued: September 23, 1998

Decided: October 23, 1998

Before WILKINS, NIEMEYER, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Wilkins wrote the opinion,
in which Judge Niemeyer and Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Marvin Ray Sparrow, Durham, North Carolina, for
Appellant. Valerie Blanche Spalding, Special Deputy Attorney Gen-
eral, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee. ON BRIEF: Dawn T. Battiste, EVER-
ETT & EVERETT, Durham, North Carolina, for Appellant. Michael
F. Easley, Attorney General of North Carolina, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appel-
lee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

David Junior Ward appeals an order of the district court denying
his petition for a writ of habeas corpus,1 which challenged his North
Carolina conviction and death sentence for the murder of Dorothy
Mae Smith. See 28 U.S.C.A. § 2254 (West 1994 & Supp. 1998).2
Finding no error, we affirm.

I.

The facts are set forth in detail in the opinion of the Supreme Court
of North Carolina on direct appeal. See State v. Ward, 449 S.E.2d
709, 715-16 (N.C. 1994). Accordingly, we need only summarize them
briefly here. At approximately 10:30 p.m. on the evening of April 3,
1991, Smith closed the convenience store she owned with her hus-
_________________________________________________________________
1 Ward named James B. French, Warden of Central Prison where Ward
is incarcerated, as Respondent. For ease of reference, we will refer to
French as "the State" throughout this opinion.
2 Because Ward's petition for a writ of habeas corpus was filed after
the April 24, 1996 enactment of the Antiterrorism and Effective Death
Penalty Act (AEDPA) of 1996, Pub. L. No. 104-132, 110 Stat. 1214, the
amendments to 28 U.S.C.A. § 2254 effected by§ 104 of the AEDPA
govern the resolution of this appeal. See Green v. French, 143 F.3d 865,
868 (4th Cir. 1998); see also Lindh v. Murphy , 117 S. Ct. 2059, 2067-68
(1997) (holding that habeas petitions filed prior to the effective date of
the act are not governed by the Chapter 153 AEDPA amendments). The
State does not maintain that the provisions of § 107 (including the more
stringent procedural default provisions) of the AEDPA apply.

2
band and proceeded to her home in Greenville, North Carolina, carry-
ing approximately $4,000 in cash, some checks, and a few personal
items. Shortly thereafter, a neighbor, Lonnie Daniels, heard five gun-
shots in rapid succession. Daniels and a friend went to the Smiths'
home and found her lying on the ground near the back door, bleeding
and unresponsive. Smith later died from her wounds. A subsequent
autopsy revealed that she had been shot five times by small caliber
weapons fired from a distance greater than three or four feet.

The following day, law enforcement officers apprehended Ward on
unrelated charges. Ward then made a statement regarding the murder
of Smith, which was reduced to writing by a detective:

David stated that yesterday he came to Greenville and got
up with Wesley Harris. David said Wesley said he had a job
to do that night. David said Wesley said they were going to
rob [Smith] when she closed the store. He stated that they
went by the store and she was there so they rode around
until it got dark. David said about 10:00 p.m. that they
parked Wesley's blue Saab car on the road that runs off
between the store and the Smith house. We ran across the
road and got in the bushes next to the driveway. I had a rifle
and Wesley had a pistol. The rifle was a .22 caliber and the
pistol was a .32 caliber. When Mrs. Smith pulled in the
driveway and pulled around back and got out of the truck,
we started shooting. Wesley ran and got the money box after
she fell and we ran across the road and got in the car and
left. We put the money in the ditch near Empire Brushes.
We got a money box and a white plastic bag. I called a cab
and went to my girlfriend's house near Belvoir. Before I
could get up with Wesley the next day, the cops got me.
David said Wesley kept both guns that were used.

Id. (internal quotation marks omitted). Ward also made a written
statement that was consistent with his oral statement. Thereafter,
Ward assisted officers in locating Harris, the weapons employed in
the attack on Smith, and the proceeds of the robbery.

Ward subsequently was convicted of numerous charges related to
the robbery and murder of Smith, including first-degree murder. The

3
jury recommended that Ward be sentenced to death for the murder
conviction based on its conclusions that Ward had committed the
murder for pecuniary gain and that the mitigating circumstances
found by the jury--that Ward had aided in the apprehension of a capi-
tal felon; that Ward had confessed guilt and cooperated with law
enforcement officers; and that it was not proven which firearm Ward
had used--were insufficient to outweigh the aggravating factor. See
id. at 717.

The Supreme Court of North Carolina affirmed Ward's conviction
and sentence, see id. at 746, and the United States Supreme Court
denied certiorari, see Ward v. North Carolina , 514 U.S. 1134 (1995).
Ward then filed a motion for appropriate relief in the Pitt County
Superior Court. That court denied relief without a hearing, reasoning
that Ward's claims were either defaulted, barred, or without merit.
The Supreme Court of North Carolina denied certiorari, as did the
United States Supreme Court. See State v. Ward , 473 S.E.2d 626
(N.C.), cert. denied, Ward v. North Carolina, 117 S. Ct. 534 (1996).

In March 1997, Ward filed this action in the district court, alleging
numerous claims. The district court denied relief. See Ward v. French,
989 F. Supp. 752, 768 (E.D.N.C. 1997), amended , No. 5:97-HC-122-
BO (E.D.N.C. Feb. 17, 1998). Having received a certificate of
appealability from the district court, Ward now appeals.

II.

We first address Ward's claim that the statutory power of the dis-
trict attorney to calendar cases for trial violates the Due Process
Clause of the Fourteenth Amendment. See N.C. Gen. Stat. §§ 7A-
49.3, 7A-61 (1995). According to Ward, the power to schedule cases
amounts to the power to select the presiding judge, thereby giving the
prosecution an unfair advantage. Ward asserts that this power was
used to his disadvantage when his trial was scheduled before the same
judge who tried Harris. The state habeas court rejected this claim, not-
ing that the Supreme Court of North Carolina has held the challenged
statutory provisions facially constitutional, see Simeon v. Hardin, 451
S.E.2d 858, 869-71 (N.C. 1994), and concluding that Ward had failed
to file an affidavit that would support an as-applied challenge, see
N.C. Gen. Stat. § 15A-1420(b)(1) (1997).

4
Ward points to no relevant precedent from the United States
Supreme Court that supports his facial challenge to the district attor-
ney's statutory authority to calendar criminal cases, and we are aware
of none. In the absence of any controlling--or even relevant--
Supreme Court precedent, we cannot say that the rejection of Ward's
facial challenge by the state habeas court "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.A. § 2254(d)(1); see Green v. French , 143 F.3d 865, 870 (4th
Cir. 1998) (explaining that analysis of whether state court ruling is
contrary to, or unreasonable application of, federal law depends upon
an analysis of relevant Supreme Court precedent). We further deter-
mine that the ruling of the state habeas court that the affidavits prof-
fered by Ward in support of his as-applied challenge were inadequate
was not an unreasonable factual determination. See 28 U.S.C.A.
§ 2254(d)(2).

III.

Next, Ward raises two claims related to the selection of the jury
that convicted him. First, Ward maintains that the trial court errone-
ously excused for cause potential jurors on the basis that their opposi-
tion to the death penalty would prevent them from applying the law.
Second, Ward claims that the process of "death qualifying" the venire
resulted in a jury more likely to convict and thus denied him a fair
trial. We address these claims in turn.

A.

It is well settled "that the State infringes a capital defendant's right
under the Sixth and Fourteenth Amendments to trial by an impartial
jury when it excuses for cause all those members of the venire who
express conscientious objections to capital punishment." Wainwright
v. Witt, 469 U.S. 412, 416 (1985); see Witherspoon v. Illinois, 391
U.S. 510, 521-23 (1968). At the same time, however, the Court has
recognized that the State possesses a "legitimate interest in excluding
those jurors whose opposition to capital punishment would not allow
them to view the proceedings impartially, and who therefore might
frustrate administration of a State's death penalty scheme."
Wainwright, 469 U.S. at 416. A prospective juror may be excused for

5
cause based on opposition to the death penalty when it is established
that "the juror's views would `prevent or substantially impair the per-
formance of his duties as a juror in accordance with his instructions
and his oath.'" Id. at 424 (quoting Adams v. Texas, 448 U.S. 38, 45
(1980)).

Here, the trial court asked each prospective juror a series of three
questions designed to determine whether that person could comply
with the law of North Carolina regarding the imposition of the death
penalty. Ward concedes that these questions comport with
Wainwright, but asserts that the trial court violated Ward's constitu-
tional rights by failing to inquire further of venire members who gave
inconsistent answers to these questions and by refusing to allow coun-
sel to attempt to rehabilitate such persons. Essentially, Ward main-
tains that despite asking the correct questions, the trial court
misapplied the Wainwright standard by excluding jurors without first
determining whether their views in opposition to capital punishment
would prevent them from performing their duties as jurors.

The determination of a trial court with respect to whether a pro-
spective juror's views on capital punishment will prevent the juror
from applying the law is essentially a factual one resting on an assess-
ment of demeanor and credibility. See id. at 428-29; Maynard v.
Dixon, 943 F.2d 407, 415 (4th Cir. 1991). Under the AEDPA, there-
fore, Ward is not entitled to relief on this claim unless the decision
of the trial court to excuse potential jurors based on their answers to
voir dire questions "was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceed-
ing." 28 U.S.C.A. § 2254(d)(2). Additionally, when the record reflects
ambiguity in a prospective juror's response to voir dire, "the determi-
nation made by the trial court, based on its eyeing the juror, is pre-
sumed to be consistent with the applicable standard." Maynard, 943
F.2d at 415; see Truesdale v. Moore, 142 F.3d 749, 757 (4th Cir.
1998). Having reviewed the transcript of the voir dire proceedings, we
cannot say that the decision of the trial court to excuse jurors who
gave inconsistent answers to voir dire questions regarding their will-
ingness to recommend the death penalty rested on an unreasonable
determination of the facts based on the evidence before it.

6
B.

Ward next asserts that the process of excluding potential jurors
under Wainwright rendered the resulting jury more likely to convict,
thereby violating his constitutional rights. The Supreme Court of
North Carolina rejected this claim on the basis of its prior holdings.
See, e.g., State v. Brown, 293 S.E.2d 569, 584 (N.C. 1982). We con-
clude that this decision was neither contrary to, nor an unreasonable
application of, clearly established federal law as determined by the
Supreme Court. See Lockhart v. McCree, 476 U.S. 162, 173 (1986)
(holding "that the Constitution does not prohibit the States from
`death qualifying' juries in capital cases" even if the death-
qualification process renders the resulting jury more prone to con-
vict).

IV.

During opening arguments, Smith's husband, who was seated near
the prosecution's table and in view of the jury, began crying audibly
and left the room. Ward claims that the district attorney deliberately
seated Mr. Smith near the jury with the knowledge that he was likely
to engage in an emotional outburst that would prejudice the jury
against Ward, in violation of the Fourteenth Amendment. The state
habeas court concluded that this claim lacked merit. 3 Since Ward has
pointed to no Supreme Court authority for the proposition that the
prosecuting authority violates any constitutional right of the defendant
in seating members of the victim's family where they may view--and
in turn be viewed by--the jury, we conclude that the rejection of this
claim was not unreasonable. See 28 U.S.C.A.§ 2254(d)(1); Green,
143 F.3d at 870.
_________________________________________________________________

3 Although Ward failed to raise this issue on direct appeal, the state
habeas court nevertheless concluded that it had been raised and decided
on the merits on direct appeal. The state habeas court, however, also
independently reviewed the claim and determined that it lacked merit.
We accordingly review this ruling.

7
V.

While making closing arguments during the guilt phase of Ward's
trial, the district attorney made the following comments regarding the
failure of the defense to produce certain evidence forecast during
Ward's opening statement:

I mean, if he knows all this--I mean, I'd like for him to put
a hand on the Bible, take an oath. He had every opportunity
to get up here and tell it, if that is what he knows. He didn't
do it.

Ward, 449 S.E.2d at 728 (internal quotation marks omitted). Ward
complains that the district attorney's statement amounted to an imper-
missible comment on Ward's failure to testify and that the trial court
should have intervened sua sponte to correct the error.

The Constitution "forbids either comment by the prosecution on the
accused's silence or instructions by the court that such silence is evi-
dence of guilt." Griffin v. California, 380 U.S. 609, 615 (1965). This
constitutional prohibition, however, does not preclude a prosecutor
from making "a fair response to a claim made by defendant or his
counsel." United States v. Robinson, 485 U.S. 25, 32 (1988). "[T]he
protective shield of the Fifth Amendment should[not] be converted
into a sword that cuts back on the area of legitimate comment by the
prosecutor on the weaknesses in the defense case." Id. (internal quota-
tion marks omitted).

When the district attorney's comments are viewed in isolation,
Ward's argument that they were directed toward his failure to testify
has some appeal. Consideration of the context in which comments are
made, however, is essential to a determination of whether constitu-
tional rights have been violated. See id. at 33. Here, the Supreme
Court of North Carolina concluded that the comments of the district
attorney, viewed in context, were simply a fair response to the failure
of the defense to produce certain forecasted evidence.4 See Ward, 449
(Text continued on page 10)
_________________________________________________________________
4 The comments challenged by Ward occurred in the context of the fol-
lowing argument:

8
I feel like we need to turn on a fan and blow smoke out of this
courtroom....

....

Now you folks think about it. Mr. Evans got in front of you
on Monday, ... and in his opening statement, after the judge had
told you that this is an outline of what the attorney believes is
competent, admissible evidence, and he said, ladies and gentle-
men, ... there will be evidence that will show that Wesley
Thomas Harris thought that there was cocaine in Dorothy Mae
Smith's house and that he went and told David Ward about it and
said, you know, Im going to ... go down there to Dorothy Mae
Smith's house ... and we are going to hide there. And when she
comes, we are going to force her to go in the house and show us
where the cocaine is. This is what he is telling you that the evi-
dence is going to be. And then he says they rode around. He,
Wesley Harris, and David Ward rode around and that David
smoked some cocaine.

Now, I'm going to tell you, folks, I didn't hear any of that evi-
dence come from the witness stand. Why would he tell you this?
Why? Smoke. I mean, if he knows all this--I mean I'd like for
him to put a hand on the Bible, take an oath. He had every
opportunity to get up here and tell it, if that is what he knows.
He didn't do it.

What else did he say in his opening statement? He said, well,
after they talked about this, he said the evidence would show that
Wesley dropped the defendant Ward off and came back later that
afternoon and picked him up again. And then ... the defendant,
David Ward, smoked some more cocaine. And that then they
rode out there to the store, saw the deceased, Dorothy Mae
Smith, still in the store and went and parked the car and got in
the bushes. And that David Ward was high as [a] kite.... There
[is not] one scintilla of evidence about that.

And then he goes on to say ... that Wesley ... pulled out a .32
and he gave the defendant Ward the bolt action and that at that
time the deceased, Dorothy Mae Smith, drives up in the drive-
way and she gets out of her car. And he, that is one or both of
them, saw this gun, this .38 that she had, and they got scared.
Well, did you hear any evidence of that?

9
S.E.2d at 729; see Lockett v. Ohio, 438 U.S. 586, 595 (1978) (holding
that prosecutor's comments regarding "uncontradicted" evidence did
not violate the Constitution when they were merely responsive to
defendant's failure to produce the defense asserted during opening
argument (internal quotation marks omitted)). This ruling neither was
contrary to, nor involved an unreasonable application of, federal law
as determined by the Supreme Court.5 Cf. United States v. Mares, 940
_________________________________________________________________

And that at that point Wesley pulled out the Ruger too....
[H]es telling you the evidence is going to show that Wesley has
got the Ruger in one hand and the .32 in another hand.

I mean, folks, this is a fairy tale. Then he says that the evi-
dence is further going to show that Dorothy Mae Smith turns and
sees them, and is scared and she starts going towards the door;
and that Wesley then shoots one time with the .32 and it jams
and then he shoots a number of times with the Ruger. He says
he drops the .32 and shoots with the Ruger; that David shoots
one time with the bolt action .22. And then they pick the stuff
up and leave. I mean, folks, Im going to tell you there [is] not
one scintilla of evidence to support that.

Why did he tell you all that? Why did he tell you that is what
the evidence was going to be? You havent heard it....

Where is all this stuff, Mr. Evans?

Tr. 1410-13 (emphasis added).

5 Even if the decision of the Supreme Court of North Carolina was
unreasonable, "[r]espect for the finality of a presumptively valid state-
court conviction and sentence dictates that [we] may not grant habeas
corpus relief ... unless [we are] convinced that `the error had substantial
and injurious effect or influence in determining the... verdict.'" Gilbert
v. Moore, 134 F.3d 642, 647 (4th Cir. 1998) (en banc) (quoting Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993)) (fifth alteration in original),
cert. denied, ___ U.S.L.W. ___ (U.S. Oct. 5, 1998) (Nos. 97-9198, 97-
9264); see Chapman v. California, 386 U.S. 18, 24-26 (1967) (conduct-
ing harmless-error review of Griffin error). The evidence of Ward's guilt
--which included his detailed confession the day after the murder was
committed--simply was overwhelming. See United States v. Hasting,
461 U.S. 499, 510-12 (1983) (concluding on direct appeal that a Griffin
error was harmless when evidence of defendant's guilt was "compel-

10
F.2d 455, 460-61 (9th Cir. 1991) (holding that prosecutor's statements
regarding expected inadequacy of defense counsels' argument did not
amount to comments on defendant's failure to testify).

VI.

Next, Ward raises several claims related to the sentencing phase of
his trial. We address these contentions seriatim.

A.

At sentencing, Ward sought to establish the statutory mitigating
factor that he had "aided in the apprehension of another capital felon
or testified truthfully on behalf of the prosecution in another prosecu-
tion of a felony." N.C. Gen. Stat. § 15A-2000(f)(8) (1988). In order
to show that he had aided in the apprehension of a capital felon, Ward
called as a witness the court clerk from Harris' trial and elicited testi-
mony that Harris had been convicted of a capital crime. On cross-
examination, the clerk testified that Ward had been called as a witness
during Harris' trial and had refused to testify. The prosecution subse-
quently argued that Ward's refusal to testify during Harris' trial
diminished the mitigating value of his aid in apprehending Harris.
Ward claims that the cross-examination and argument concerning his
refusal to testify at Harris' trial violated his rights to a fair trial and
to remain silent. The Supreme Court of North Carolina concluded that
any error was harmless beyond a reasonable doubt, see Chapman v.
California, 386 U.S. 18, 24 (1967), in light of the fact that the jury
"rejected [the district attorney's] argument and found both the statu-
tory mitigating circumstance ... and the other, more specific nonstatu-
tory mitigating circumstance submitted in this regard--that [Ward]
_________________________________________________________________
ling"). Moreover, the comments challenged by Ward constituted only a
brief moment during an extended closing argument and did not urge the
jury to draw an inference of guilt from Ward's silence. Cf. Anderson v.
Nelson, 390 U.S. 523, 523-24 (1968) (per curiam) (concluding that
Griffin error cannot be harmless when the "comment is extensive, where
an inference of guilt from silence is stressed to the jury as a basis of con-
viction, and where there is evidence that could have supported acquit-
tal").

11
confessed guilt to, and cooperated with, law enforcement officials the
day following the crimes," Ward, 449 S.E.2d at 738. We cannot say
that this ruling constituted an unreasonable application of the
Chapman standard. See 28 U.S.C.A. § 2254(d)(1).

B.

Ward next contends that the trial court erred in precluding Dr.
Patricio Lara, a forensic psychiatrist who testified regarding Ward's
mental status at the time of the offense and his history of drug usage,
from relating conversations with Ward upon which Dr. Lara's conclu-
sions were partially based. In particular, Ward sought to elicit testi-
mony that he had told Dr. Lara that he abused drugs and that he could
not remember what occurred on the night of the murder. The Supreme
Court of North Carolina agreed that the exclusion of this testimony
was error, but ruled that the error was harmless beyond a reasonable
doubt. See Ward, 449 S.E.2d at 732-33.

This holding was not an unreasonable one. See 28 U.S.C.A.
§ 2254(d)(1). In the first place, the jury had before it expert testimony
from Dr. Lara that Ward had a history of drug abuse. Additionally,
Ward's sister testified that she had observed Ward smoking cocaine
base two days before the murder and had previously noticed Ward
behaving strangely, leading her to believe that he was using drugs.
Another witness testified that he saw Ward using narcotics with Har-
ris on the day of the murder. Moreover, as the Supreme Court of
North Carolina pointed out, testimony that Ward could not remember
what occurred on the night of the murder would be patently inconsis-
tent with his detailed confession to police the following day; thus, the
exclusion of testimony regarding a claimed drug-induced memory
loss "probably redounded to [Ward's] benefit" by avoiding the pre-
sentation of inconsistent factual positions. Ward, 449 S.E.2d at 733.

C.

Ward also claims that the trial court deprived him of his rights
under the Eighth and Fourteenth Amendments by refusing to allow
him to introduce, as mitigating evidence, the life sentence received by
Harris. "`[T]he Eighth and Fourteenth Amendments require that the
sentencer ... not be precluded from considering, as a mitigating

12
factor, any aspect of a defendant's character or record and any of the
circumstances of the offense that the defendant proffers as a basis for
a sentence less than death.'" Eddings v. Oklahoma, 455 U.S. 104, 110
(1982) (second alteration in original) (quoting Lockett v. Ohio, 438
U.S. 586, 604 (1978) (plurality opinion)). Evidence of the sentence
received by a codefendant, however, is neither an aspect of the defen-
dant's character or record nor a circumstance of the offense. See
Brogdon v. Blackburn, 790 F.2d 1164, 1169 (5th Cir. 1986). More-
over, such evidence does not "tend[ ] logically to prove or disprove
some fact or circumstance which a fact-finder could reasonably deem
to have mitigating value." McCoy v. North Carolina, 494 U.S. 433,
440 (1990) (internal quotation marks omitted). Accordingly, the rejec-
tion of this claim by the Supreme Court of North Carolina did not
constitute an unreasonable application of the principle set forth in
Eddings. See 28 U.S.C.A. § 2254(d)(1).6

D.

During the sentencing phase of his trial, Ward presented evidence
supporting numerous nonstatutory mitigating factors for the consider-
ation of the jury. The jury found only one of these proposed nonstatu-
tory mitigating factors--that Ward had confessed guilt and
cooperated with law enforcement officers on the day after the crime.
_________________________________________________________________
6 Ward asserts that the opinion of the Supreme Court in Parker v.
Dugger, 498 U.S. 308 (1991), "strongly suggests that a co-defendant's
sentence is a relevant mitigating circumstance." Brief of Appellant at 32.
The Supreme Court of North Carolina rejected Ward's reading of
Parker, reasoning that while the Parker Court recognized that Florida
law attached mitigating value to the sentence received by an accomplice,
the Court intimated no holding that the admission of such evidence was
required as a matter of constitutional law. See Ward, 449 S.E.2d at 737.
We agree. In Parker, the Court reviewed the constitutionality of a deci-
sion of the Florida Supreme Court affirming Parker's death sentence
after striking two aggravating factors found by the trial court. In the
course of its analysis, the Court noted that the trial judge must have con-
sidered mitigating evidence regarding a codefendant's sentence because
such evidence was deemed to have mitigating value under Florida law.
See Parker, 498 U.S. at 315-16. At no point, however, did the Court sug-
gest that such evidence must have been considered by the trial court as
a matter of federal constitutional law.

13
Ward now contends that the refusal of the jury to find any of the
remaining mitigating factors--the evidence of which, he notes, was
uncontradicted--renders his sentence unconstitutional.

The Constitution requires that "the sentencer ... not refuse to con-
sider or be precluded from considering any relevant mitigating evi-
dence." Hitchcock v. Dugger, 481 U.S. 393, 394 (1987) (internal
quotation marks omitted). The mere fact that a defendant offers cer-
tain evidence in mitigation, however, does not mean that the jury is
required to assign any mitigating value to it. See Raulerson v.
Wainwright, 732 F.2d 803, 807 (11th Cir. 1984) (concluding that
under Eddings, "the Constitution prescribes only that the sentencer
hear and consider all the evidence a defendant chooses to offer in mit-
igation" and that "[t]here is no requirement that the [sentencer] agree
with the defendant's view that it is mitigating"); see also Graham v.
Collins, 506 U.S. 461, 490 (1993) (Thomas, J., concurring) (arguing
that the constitutional right to present mitigating evidence to the sen-
tencer does not "mean that the decision whether to impose the death
penalty must be based upon all of the defendant's evidence, or that
such evidence must be considered the way the defendant wishes");
Walton v. Arizona, 497 U.S. 639, 650 (1990) (opinion of White, J.)
(refusing "to adopt as a constitutional imperative a rule that would
require the court to consider the mitigating circumstances claimed by
a defendant unless the State negated them by a preponderance of the
evidence"). Accordingly, the Supreme Court of North Carolina did
not rule unreasonably or contrary to law in rejecting this claim. See
28 U.S.C.A. § 2254(d)(1).

E.

During cross-examination of Ward's mother regarding her knowl-
edge of Ward's previous convictions, Ward stood and engaged in a
protracted outburst toward the district attorney and the trial court.
During the ensuing moments, the jury was removed from the court-
room and Ward was placed in handcuffs. The record does not clearly
reveal, however, which of these events occurred first. Ward asserts
that the jury was still present in the courtroom when he was seized
and handcuffed and maintains that this action violated his constitu-
tional rights. See Illinois v. Allen, 397 U.S. 337, 344 (1970) (stating

14
that "no person should be tried while shackled and gagged except as
a last resort").

We conclude that the state habeas court did not rule unreasonably
in rejecting this claim.7 By Ward's own account of the incident, he
"lost [his] temper and stood up at the counsel table and started shout-
ing at [the district attorney], including using some profanity." J.A. 75.
Ward also acknowledges that he "was emotionally upset, and may
have been pacing back and forth restlessly." Id. Although Ward main-
tains that this conduct did not justify his being restrained in view of
the substantial prejudice that may result from such tactics, we cannot
say that "reasonable jurists would all agree" that the state habeas court
ruled unreasonably in reaching a different conclusion. Green, 143
F.3d at 870.

F.

Ward next raises two challenges to the proportionality review con-
ducted by the Supreme Court of North Carolina. First, Ward main-
tains that the imposition of the death penalty in his case violates the
Eighth Amendment because there is no meaningful way of distin-
guishing his case from other, similar cases in which the death penalty
was not imposed. Second, Ward claims that the structure of propor-
tionality review in North Carolina is inherently flawed, again in viola-
tion of the Eighth Amendment. Because the Eighth Amendment does
not require proportionality review of a death sentence, see Pulley v.
Harris, 465 U.S. 37, 50-51 (1984),8 these claims are not cognizable
in a federal habeas corpus proceeding. See Buchanan v. Angelone,
103 F.3d 344, 351 (4th Cir. 1996), aff'd, 118 S. Ct. 757 (1998).
_________________________________________________________________
7 As with the issue discussed in Part IV regarding the seating of the vic-
tim's husband, the state habeas court incorrectly stated that this claim
had been raised and decided on direct appeal, but also independently
found the claim to be without merit. We therefore review the conclusion
of the habeas court concerning the merits of the claim.
8 The Pulley court acknowledged the possibility of "a capital sentenc-
ing system so lacking in other checks on arbitrariness that it would not
pass constitutional muster without comparative proportionality review."
Id. at 51. Ward does not contend, however, that the North Carolina death
penalty scheme falls into this category.

15
VII.

Ward further argues that his attorneys were constitutionally inef-
fective for failing to develop expert testimony regarding his impaired
capacity due to drug usage. Although counsel presented the testimony
of Dr. Lara, Ward maintains that counsel should have retained another
expert whose testimony would have been more compelling. In order
to succeed on this claim, Ward must establish that his attorneys' "rep-
resentation fell below an objective standard of reasonableness" and
"that there is a reasonable probability that, but for counsel's unprofes-
sional errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Review of
counsels' actions is "highly deferential." Id. at 689.

Although Ward asserts that another expert might have been more
effective than Dr. Lara in presenting a claim of diminished capacity,
Ward points to no evidence that was not considered by Dr. Lara and
presented to the jury. Under these circumstances, we cannot say that
the state habeas court unreasonably applied the Strickland standard in
rejecting Ward's ineffectiveness claim. See Poyner v. Murray, 964
F.2d 1404, 1419 (4th Cir. 1992) (explaining that the Constitution does
not require attorneys to "shop around" for more favorable expert testi-
mony).

VIII.

Ward next challenges the adequacy of proceedings concerning his
motion for appropriate relief, contending that the state habeas court
denied him due process by failing to hold an evidentiary hearing.
Ward does not dispute that the Constitution does not require states to
provide habeas review of convictions, but maintains that the election
of a state to provide such review creates a due process right to consis-
tent administration of the review scheme. Even if this is true, Ward
has suffered no deprivation of due process because nothing in the stat-
ute setting forth procedures for consideration of motions for appropri-
ate relief mandates the holding of an evidentiary hearing in all cases.
See N.C. Gen. Stat. § 15A-1420(c)(1) (1997) ("Any party is entitled
to a hearing on questions of law or fact arising from the motion ...
unless the court determines that the motion is without merit." (empha-
sis added)). Here, the state habeas court determined that each of

16
Ward's claims would be without merit even if the facts alleged by
Ward were taken as true. Under North Carolina law, no evidentiary
hearing was required. See State v. McHone, 499 S.E.2d 761, 763
(N.C. 1998) (holding that habeas court is not required to hold eviden-
tiary hearing on a claim when it involves only a question of law or
when, taking disputed facts in the light most favorable to the peti-
tioner, the claim is without merit).

IX.

Finally, Ward presents three additional claims, all of which we
conclude are procedurally defaulted: that the imposition of the death
penalty by the jury was improperly based on emotion and thus vio-
lated the Eighth Amendment; that the jury viewed Ward in handcuffs
and shackles during a large portion of the sentencing phase, in viola-
tion of the Sixth and Fourteenth Amendments; and that the evidence
was constitutionally insufficient to support a finding that the murder
was committed for pecuniary gain.

Absent cause and prejudice or a miscarriage of justice, a federal
habeas court may not review constitutional claims when a state court
has declined to consider their merits on the basis of an adequate and
independent state procedural rule. See Harris v. Reed, 489 U.S. 255,
262 (1989). Such a rule is adequate if it is regularly or consistently
applied by the state court, see Johnson v. Mississippi, 486 U.S. 578,
587 (1988), and is independent if it does not "depend[ ] on a federal
constitutional ruling," Ake v. Oklahoma, 470 U.S. 68, 75 (1985).9

Ward's claim that the jury was influenced by emotion in returning
a sentence of death is premised on numerous asserted errors--"a cry-
ing outburst by [the] victim's husband, an outburst by [the] defendant
leading to him being handcuffed and shackled before the jury, the dis-
trict attorney's excessive emphasis on the victim in argument, and
[the] district attorney's improper arguments appealing to the jury's
_________________________________________________________________
9 Ward makes no attempt to establish cause and prejudice or a funda-
mental miscarriage of justice to excuse his defaults, and therefore we do
not consider whether either exists. See Gilbert v. Moore, 134 F.3d 642,
656 n.10 (4th Cir. 1998) (en banc), cert. denied , ___ U.S.L.W. ___ (U.S.
Oct. 5, 1998) (Nos. 97-9198, 97-9264).

17
emotions." Brief of Appellant at 54. The state habeas court concluded
that while Ward had presented the component parts of his claim on
direct appeal, the present claim--resting on the cumulative effect of
these allegedly prejudicial occurrences--had not been raised. The
state habeas court also determined that Ward failed to present on
direct appeal his claims regarding his continued presence in front of
the jury in handcuffs and shackles10 and the sufficiency of the evi-
dence supporting the aggravating factor. The state habeas court there-
fore defaulted all of these claims. See N.C. Gen. Stat. § 15A-
1419(a)(3) (1997). Accordingly, we decline to consider them.11

X.

For the reasons set forth above, we conclude that all of Ward's
claims either lack merit or are procedurally defaulted. We therefore
affirm the denial of habeas relief by the district court.

AFFIRMED
_________________________________________________________________

10 Ward concedes that he did not raise on direct appeal a claim related
to his continued presence before the jury in handcuffs and shackles, but
maintains that this issue was subsumed within the ruling of the Supreme
Court of North Carolina on his challenge to the denial of a motion for
mistrial based on potential tainting of the jury resulting from his outburst.
This assertion is patently without merit. Although the Supreme Court of
North Carolina noted in the course of its narrative describing the events
leading to the motion for mistrial that the trial court ordered that Ward
remain in handcuffs and shackles, nothing in its review of the denial of
the motion for mistrial can be understood as passing upon the propriety
of the continued use of restraints.

11 Ward points out that the district court considered his second claim on
its merits, evidently believing that we are somehow bound to do the
same. We conclude, however, that the district court erred in failing to
rule that Ward defaulted the claim.

18