PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JIMMIE WAYNE LAWRENCE,
Petitioner-Appellee,
v.
GERALD J. BRANKER, Warden, No. 07-2
Central Prison, Raleigh, North
Carolina,
Respondent-Appellant.
JIMMIE WAYNE LAWRENCE,
Petitioner-Appellant,
v.
GERALD J. BRANKER, Warden, No. 07-4
Central Prison, Raleigh, North
Carolina,
Respondent-Appellee.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(5:03-hc-00327-BO)
Argued: December 7, 2007
Decided: February 22, 2008
Before WILLIAMS, Chief Judge, and MOTZ and
KING, Circuit Judges.
2 LAWRENCE v. BRANKER
Affirmed in part; reversed in part by published opinion. Chief Judge
Williams wrote the opinion, in which Judge Motz and Judge King
joined.
COUNSEL
ARGUED: Sandra Wallace-Smith, Assistant Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellant/Cross-Appellee. Bruce Tracy Cunningham,
Jr., Southern Pines, North Carolina, for Appellee/Cross-Appellant.
ON BRIEF: Roy Cooper, Attorney General of North Carolina,
Raleigh, North Carolina, for Appellant/Cross-Appellee. Amanda S.
Zimmer, LAW OFFICE OF BRUCE T. CUNNINGHAM, JR., South-
ern Pines, North Carolina, for Appellee/Cross-Appellant.
OPINION
WILLIAMS, Chief Judge:
A North Carolina jury convicted Petitioner Jimmie Wayne Law-
rence of first-degree murder, burglary, kidnapping, conspiracy to
commit kidnapping, and conspiracy to commit murder. The jury sen-
tenced Lawrence to death for the first-degree murder conviction.
Thereafter, Lawrence unsuccessfully worked his way through the
direct appeal and post-conviction review process in North Carolina.
He then filed a petition under 28 U.S.C.A. § 2254 (West 2006) seek-
ing habeas relief in federal court. The district court granted the peti-
tion in part, issued Lawrence a writ of habeas corpus, and vacated his
death sentence, holding that the state post-conviction court unreason-
ably applied the Supreme Court’s decision in Strickland v. Washing-
ton, 466 U.S. 668 (1984), in denying Lawrence post-conviction relief.
The district court granted Lawrence habeas relief because it con-
cluded that Lawrence’s appellate counsel was ineffective for failing
to appeal the submission of Lawrence’s burglary conviction as an
aggravating factor supporting a death sentence.
The State appeals the district court’s issuance of the writ to Law-
rence, and, for the reasons set forth below, we reverse. We conclude
LAWRENCE v. BRANKER 3
that the state court reasonably applied Strickland in rejecting Law-
rence’s claim that his counsel was ineffective for not appealing the
use of his burglary conviction as an aggravator. We also reject Law-
rence’s cross-appeal of the district court’s partial denial of his habeas
petition, concluding that another of his ineffective-assistance claims
is procedurally defaulted and that his due-process claims relating to
the adjudication of his state post-conviction motion are not cognizable
on federal habeas review.
I.
A.
The facts, as recounted by the Supreme Court of North Carolina in
its opinion in Lawrence’s direct appeal, are as follows:
The State’s evidence tended to show that [Lawrence] and
Gwen Morrison dated for almost two years and that their
relationship ended in early December 1996. Morrison began
living with Dale McLean in late December 1996. On 18 Jan-
uary 1997, Morrison and McLean were at home with
McLean’s two children, ten-year-old Chastity McLean and
five-year-old Dale "Junior" McLean, when someone
knocked on the back door. McLean looked out the window
and said, "It’s Jimmie." Morrison opened the door and stood
on the top step in her nightgown and slippers.
[Lawrence] was standing on the ground in front of the
mobile home; and a man that Morrison had never seen
before, William Rashad Lucas, was standing behind [Law-
rence] holding a sawed-off shotgun. [Lawrence] asked Mor-
rison to leave with him. When Morrison refused,
[Lawrence] pulled a nine millimeter handgun from the front
of his pants. Morrison then told [Lawrence] that she did not
want any trouble and that she would leave with him, but that
she needed to get her shoes and coat first. Morrison turned
toward the door and [Lawrence] ran up the steps, pushing
Morrison through the door into the mobile home. As [Law-
rence] and Morrison came through the door, Chastity and
Junior were sitting in the living room and McLean was
4 LAWRENCE v. BRANKER
walking empty-handed down the hallway toward the door.
[Lawrence] pushed Morrison away and shot McLean, who
grabbed his head and fell to the floor. [Lawrence] stood over
McLean and fired several more rounds. [Lawrence] then
grabbed Morrison by the arm and said that he would also
kill her if she did not leave with him. [Lawrence] led Morri-
son outside and put her into the backseat of his vehicle.
Lucas drove to [Lawrence]’s house. Lucas told [Lawrence]
that he should have shot Morrison, too, because she "was
going to tell everything." Morrison, [Lawrence], and Lucas
then got into Lucas’ car; and Lucas drove to the Comfort
Inn in Sanford, North Carolina, where Lucas stayed in the
car with Morrison while [Lawrence] rented a room. Once
inside the room, Lucas put his shotgun on a bed and left; he
returned thirty minutes later with a pair of jeans that
belonged to his girlfriend. Lucas left again, and [Lawrence]
took a shower after telling Morrison that he would kill her
if she tried to leave.
Morrison sat on the bed while [Lawrence] showered. When
[Lawrence] came out of the bathroom, he lay on the bed
next to Morrison and fell asleep with his arm or leg over her
body so that she could not leave the room. [Lawrence]
awoke later and asked Morrison to have sex with him. Mor-
rison agreed out of fear that [Lawrence] would kill her if she
refused him.
Sometime thereafter, [Lawrence] returned a call to his
mother and told her to have his father pick him up. He then
told Morrison to put on the jeans that Lucas had brought
earlier. Someone arrived at the Comfort Inn driving [Law-
rence]’s vehicle; [Lawrence] put the shotgun under the mat-
tress and left. Morrison then called her cousin to come get
her.
Meanwhile, after [Lawrence] and Lucas had driven away
with Morrison, Chastity called her grandmother, who
instructed Chastity to call the police. Shortly thereafter,
members of the Harnett County Sheriff’s Department
LAWRENCE v. BRANKER 5
arrived. The officers found no signs of life in McLean. A
detective carried the children away from the crime scene,
and Chastity calmed down enough to give a statement that
[Lawrence] had shot her father. The Lee County Sheriff’s
Department subsequently took [Lawrence] into custody; and
with [his] consent, several agents from the State Bureau of
Investigation ("SBI") searched [Lawrence]’s room at the
Comfort Inn. The agents found the shotgun in the hotel
room, and Lucas’ girlfriend later turned over the nine-
millimeter handgun to the Harnett County Sheriff’s Depart-
ment.
The pathologist who performed the autopsy on McLean
found a total of nine gunshot wounds on McLean’s body, all
fired at a close range of no more than three feet. The gun-
shot wounds on McLean’s right arm, nose, and forehead
were not the fatal injuries. The cause of death was any one
of the four bullets that entered McLean’s brain through the
right side of his skull. A forensic firearms examiner from
the SBI determined that the shell casings collected at the
scene from around McLean’s body had been fired from
[Lawrence]’s nine-millimeter pistol.
State v. Lawrence, 530 S.E.2d 807, 812-13 (N.C. 2000).
B.
On February 10, 1997, a state grand jury in Harnett County, North
Carolina, indicted Lawrence, charging him with the first-degree mur-
der of Dale McLean. Later, the grand jury added charges of first-
degree burglary, first-degree kidnapping, conspiracy to commit kid-
napping, and conspiracy to commit murder.
On December 1, 1997, Lawrence proceeded to trial in Harnett
County Superior Court. After a week-long trial, a jury convicted him
on all counts. The jury convicted Lawrence of first-degree murder
under alternate theories of premeditation and deliberation and felony
murder, relying on Lawrence’s convictions for burglary and kidnap-
6 LAWRENCE v. BRANKER
ping for the felony-murder theory. The predicate felony underlying
Lawrence’s burglary conviction was the murder itself.1
Pursuant to North Carolina law, a capital sentencing hearing was
held. Two statutory aggravating factors were submitted to the jury,
which found both to exist: (1) that "[t]he capital felony was commit-
ted while the defendant was engaged . . . in the commission of . . .
burglary," N.C. Gen. Stat. § 15A-2000(e)(5) (2007), and (2) that
"[t]he murder for which the defendant stands convicted was part of
a course of conduct in which the defendant engaged and which
included the commission by the defendant of other crimes of violence
against another person or persons," id. § 15A-2000(e)(11).2 On
December 11, 1997, the jury sentenced Lawrence to death for the
first-degree murder conviction.
After Lawrence’s death sentence was imposed, the court appointed
Lawrence new counsel to represent him on direct appeal, and Law-
rence appealed his convictions and death sentence. On June 16, 2000,
the Supreme Court of North Carolina affirmed Lawrence’s convic-
tions and capital sentence, Lawrence, 530 S.E.2d at 807, and on Janu-
ary 8, 2001, the U.S. Supreme Court denied him a writ of certiorari,
Lawrence v. North Carolina, 531 U.S. 1083 (2001).
Once Lawrence had exhausted his direct appeals, he was again
appointed new counsel to represent him in state post-conviction pro-
ceedings. On August 1, 2001, Lawrence began his state post-
conviction appeals, which in North Carolina are brought via a Motion
for Appropriate Relief ("MAR") in the Superior Court ("MAR
1
North Carolina’s definition of first-degree burglary tracks the
common-law understanding of the crime: it requires the breaking and
entering at night of an occupied dwelling house or sleeping apartment of
another with the intent to commit a felony therein. N.C. Gen. Stat. § 14-
51 (2007). It is undisputed that the felony underlying Lawrence’s bur-
glary conviction is his murder of Dale McLean; the trial court instructed
the jury that Lawrence would be guilty of burglary only if he broke into
and entered the home with the intent to commit murder.
2
The "(e)(11)" aggravating circumstance was based on Lawrence’s
kidnapping of Morrison, which he accomplished by brandishing a hand-
gun and demanding that she leave with him.
LAWRENCE v. BRANKER 7
court"). N.C. Gen. Stat. § 15A-1411 (2007). The MAR court denied
Lawrence relief on all his claims, finding that many of Lawrence’s
claims were procedurally defaulted and, alternatively, that all of his
claims failed on the merits. Lawrence appealed the MAR court’s rul-
ing, and the Supreme Court of North Carolina denied discretionary
review of the MAR court’s judgment on November 21, 2002, State
v. Lawrence, 573 S.E.2d 159 (2002), as did the U.S. Supreme Court,
Lawrence v. North Carolina, 538 U.S. 987 (2003).
Lawrence then turned to the federal courts for habeas relief. On
May 2, 2003, Lawrence timely filed a § 2254 petition in the Eastern
District of North Carolina alleging, inter alia, (1) that the MAR court
violated his due-process rights by permitting the judge who presided
over his trial to also adjudicate his MAR; (2) that the MAR court vio-
lated his due-process rights by instructing counsel for the State to
"draft [an] order summarily denying all of Lawrence’s claims," (J.A.
at 645), without specifying any grounds for denial; (3) that Law-
rence’s trial counsel was ineffective for conceding his guilt to rape
and kidnapping without his consent; and (4) that both Lawrence’s trial
and appellate counsel were ineffective because they failed to argue
that submission of Lawrence’s burglary conviction as an aggravating
circumstance supporting a death sentence violated the Due Process,
Double Jeopardy, and Cruel and Unusual Punishment Clauses of the
U.S. Constitution. Through this last claim, Lawrence contended that
his burglary conviction could not be used as an aggravating circum-
stance because "the underlying felony to the burglary was the murder
itself." (J.A. at 462.)
The State moved for summary judgment, and the district court held
a hearing on the State’s motion on August 30, 2006. On March 19,
2007, the district court granted summary judgment in favor of the
State on all of Lawrence’s claims except one: his claim that his coun-
sel was ineffective for failing to challenge on appeal the submission
of his burglary conviction as an aggravating circumstance supporting
a death sentence. With respect to this claim, the district court issued
Lawrence a writ of habeas corpus and vacated his death sentence,
concluding that, under Strickland, Lawrence’s appellate counsel was
ineffective for failing to argue on direct appeal that the burglary
aggravator was constitutionally defective. The district court reasoned
that Lawrence’s burglary conviction "failed to perform its constitu-
8 LAWRENCE v. BRANKER
tionally required function of narrowing the class of death-eligible
defendants," (J.A. at 833), because the predicate felony underlying the
burglary was the murder itself. In the district court’s view, "use of the
burglary aggravator was tantamount to aggravating the murder based
upon Lawrence’s intent to commit the murder." (J.A. at 832.) Thus,
the court concluded that Lawrence’s appellate counsel was ineffective
for failing to raise the issue on appeal.
On April 9, 2007, the State appealed the district court’s issuance
of the habeas writ to Lawrence and vacatur of his death sentence. On
April 23, 2007, Lawrence filed a cross-motion for appeal and
requested a certificate of appealability pursuant to 28 U.S.C.A.
§ 2253(c)(1) (West 2006), which the district court granted on the fol-
lowing issues: (1) whether the MAR court unreasonably applied
Strickland in rejecting Lawrence’s claim that his trial counsel was
ineffective for conceding his guilt to kidnapping and rape without his
consent, and (2) whether Lawrence’s due-process claims relating to
the adjudication of his MAR in state court are cognizable on federal
habeas review.
II.
A.
We review de novo the district court’s decision on Lawrence’s
§ 2254 petition based on the record before the MAR court, applying
the same standards as did the district court. Robinson v. Polk, 438
F.3d 350, 354 (4th Cir. 2006). Pursuant to the Anti-Terrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-
132, 110 Stat. 1214 (1996), the scope of federal review is highly con-
strained. We may grant a petition with respect to any claim adjudi-
cated on the merits in state court only if the state-court decision was
either contrary to, or an unreasonable application of, clearly estab-
lished federal law as determined by the Supreme Court. 28 U.S.C.A.
§ 2254(d)(1).
A decision of a state court is contrary to clearly established federal
law "if the state court arrives at a conclusion opposite to that reached
by [the Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a set of
LAWRENCE v. BRANKER 9
materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362,
413 (2000). A state-court adjudication is an unreasonable application
of federal law when the state court "correctly identifies the governing
legal rule [from the Supreme Court’s cases] but applies it unreason-
ably to the facts of a particular . . . case," id. at 407-08, or "applies
a precedent in a context different from the one in which the precedent
was decided and one to which extension of the legal principle of the
precedent is not reasonable [or] fails to apply the principle of a prece-
dent in a context where such failure is unreasonable," Robinson, 438
F.3d at 355 (internal quotation marks omitted). The state court’s
application of clearly established federal law must be "objectively
unreasonable," for a "federal habeas court may not issue the writ sim-
ply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law
erroneously or incorrectly." Williams v. Taylor, 529 U.S. at 409, 411.
The phrase "clearly established federal law" refers "to the holdings,
as opposed to the dicta, of [the Supreme] Court’s decisions as of the
time of the relevant state-court decision." Id. at 412.
In deciding whether a petitioner has demonstrated the deficiency of
the state-court adjudication under § 2254(d), we must presume state
court findings of fact to be correct unless the petitioner rebuts that
presumption by clear and convincing evidence. 28 U.S.C.A.
§ 2254(e)(1).
B.
The State appeals the district court’s issuance of a habeas writ to
Lawrence and vacatur of his death sentence. The district court issued
the writ based on its conclusion that, under Strickland, Lawrence’s
appellate counsel was ineffective for failing to argue on direct appeal
that submission of Lawrence’s burglary conviction as an aggravating
circumstance violated the U.S. Constitution. Specifically, the district
court reasoned that, because the predicate felony underlying the bur-
glary conviction was the first-degree murder, submission of the bur-
glary conviction as an aggravating circumstance amounted to
aggravation of the first-degree murder based on the murder itself. For
this reason, the district court concluded that the burglary aggravator
did not sufficiently narrow the class of death-eligible defendants,
which is required under the Supreme Court’s decision in Lowenfield
10 LAWRENCE v. BRANKER
v. Phelps, 484 U.S. 231 (1988), for a death sentence to pass muster
under the Eighth and Fourteenth Amendments. The court concluded
that Lawrence’s appellate counsel was ineffective for failing to raise
the issue on direct appeal.
The State argues that the district court erred in issuing the habeas
writ to Lawrence because the MAR court’s denial of Lawrence’s
claim was not an objectively unreasonable application of Strickland.
1.
The law pertaining to claims of ineffective assistance of counsel is
well-established. To show that counsel rendered ineffective assis-
tance, a defendant must satisfy the two-pronged standard set forth in
Strickland. First, the defendant must show that his counsel’s perfor-
mance "fell below an objective standard of reasonableness" in light
of the prevailing professional norms. Strickland, 466 U.S. at 688. Sec-
ond, the defendant must show that "there is a reasonable probability
that but for counsel’s unprofessional errors, the result of the proceed-
ing would have been different." Id. at 694.
Keenly aware of the difficulties inherent in evaluating counsel’s
performance, the Supreme Court has admonished that courts "must
indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance." Id. at 689; see also
id. (directing that "[j]udicial scrutiny of counsel’s performance must
be highly deferential"). Given this strong presumption of reasonable
performance, it is no wonder that we have stated that the showing
required under Strickland’s first prong is a "difficult" one to make.
James v. Harrison, 389 F.3d 450, 457 (4th Cir. 2004). Moreover,
even if a petitioner is able to show that his counsel’s performance fell
below an objectively reasonable standard, he has won only half the
battle, for he must also show that, absent his counsel’s errors, the out-
come of the proceeding would have been different. Id.
Effective assistance of appellate counsel does not require the pre-
sentation of all issues on appeal that may have merit, Bell v. Jarvis,
236 F.3d 149, 164 (4th Cir. 2000) (en banc), and we "must accord [ ]
counsel the presumption that he decided which issues were most
likely to afford relief on appeal," id. (internal quotation marks omit-
LAWRENCE v. BRANKER 11
ted). "Generally, only when ignored issues are clearly stronger than
those presented, will the presumption of effective assistance of coun-
sel be overcome." Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986),
cited with approval in Smith v. Robbins, 528 U.S. 259, 288 (2000).
Thus, under Strickland, Lawrence’s appellate counsel was only
ineffective if his failure to challenge the submission of the burglary
conviction as an aggravating circumstance fell below an objective
standard of reasonableness and, but for that failure, Lawrence would
have prevailed in his appeal.
2.
To pass constitutional muster under the Eighth and Fourteenth
Amendments, "a capital sentencing scheme must ‘genuinely narrow
the class of persons eligible for the death penalty and must reasonably
justify the imposition of a more severe sentence on the defendant
compared to others found guilty of murder.’" Lowenfield, 484 U.S. at
244 (quoting Zant v. Stephens, 462 U.S. 862, 877 (1983)). Narrowing
of the class of death-eligible persons may happen at either the guilt
phase of the trial or the sentencing phase: Either a state may "itself
narrow the definition of capital offenses" and permit the jury to make
the death-eligibility determination at the guilt phase, or "the legisla-
ture may more broadly define capital offenses and provide for nar-
rowing by jury findings of aggravating circumstances at the penalty
phase." Lowenfield, 484 U.S. at 246; see also Tuilaepa v. California,
512 U.S. 967, 972 (1994) ("[A]ggravating circumstance[s] may be
contained in the definition of the crime or in a separate sentencing
factor (or in both)."). If the constitutional narrowing function is per-
formed at the guilt phase, "[t]he fact that the sentencing jury is also
required to find the existence of an aggravating circumstance in addi-
tion is no part of the constitutionally required narrowing process." Id.
North Carolina criminalizes six grades of homicide: first- and
second-degree murder, voluntary and involuntary manslaughter, and
felony and misdemeanor death-by-vehicle. N.C. Gen. Stat. §§ 14-17,
14-18, 20-141.4 (2007). First-degree murder is separated into five dis-
tinct classes: (1) murder perpetrated by means of a nuclear, biological,
or chemical weapon of mass destruction; (2) murder perpetrated by
means of poison, lying in wait, imprisonment, starving, or torture; (3)
12 LAWRENCE v. BRANKER
murder perpetrated by any other kind of willful, deliberate, and pre-
meditated killing; (4) murder committed in the perpetration or
attempted perpetration of certain enumerated felonies (felony-
murder); and (5) murder committed in the perpetration or attempted
perpetration of any other felony committed or attempted with the use
of a deadly weapon. Id. § 14-17. North Carolina has made all forms
of first-degree murder death-eligible. Id.
Pursuant to N.C. Gen. Stat. § 15A-2000, once a defendant is
adjudged guilty of first-degree murder, a separate sentencing proceed-
ing is held to determine whether the defendant should be sentenced
to death or life imprisonment. N.C. Gen. Stat. § 15A-2000. After
hearing the evidence, the arguments of counsel, and the instructions
of the court, the jury determines if an aggravating circumstance or cir-
cumstances supporting a death sentence exist. Id. § 15A-2000(b)(1).
At least one aggravating circumstance must be found before the jury
may impose the death penalty. Id. § 15A-2000(c)(1). The jury then
determines whether any mitigating circumstances exist. Id. § 15A-
2000(b)(2). Once the jury determines the existence of any mitigating
circumstances, it then weighs the aggravating circumstances against
the mitigating circumstances. Id. § 15A-2000(c)(3). Based on this
consideration, the jury recommends that the defendant either be sen-
tenced to death or life imprisonment. Id. § 15A-2000(b)(3). The jury’s
sentencing verdict must be unanimous for either recommendation. Id.
The jury found Lawrence guilty of first-degree murder under alter-
nate theories of premeditation and deliberation and felony-murder and
recommended a death sentence based on its finding of both statutory
aggravating circumstances submitted to it: (1) that the first-degree
murder was committed while Lawrence was engaged in the commis-
sion of a burglary, id. § 15A-2000(e)(5), and (2) that the murder for
which Lawrence was convicted was part of a course of conduct in
which Lawrence engaged and which included his commission of
other crimes of violence against another person or persons, id. § 15A-
2000(e)(11). As noted above, the predicate felony underlying Law-
rence’s burglary conviction was his murder of Dale McClean.
The district court granted Lawrence habeas relief on the ground
that his appellate counsel was ineffective for failing to argue on direct
appeal that submission of Lawrence’s burglary conviction as an
LAWRENCE v. BRANKER 13
aggravating circumstance was constitutionally infirm because it did
not perform the narrowing function required under Lowenfield. In the
district court’s view, because "intent to commit murder was an essen-
tial element of the burglary offense," "the burglary aggravator failed
to provide a meaningful basis for distinguishing the murder from
those where death is not appropriate." (J.A. at 833.) Turning to Strick-
land, the court concluded that Lawrence’s appellate counsel’s failure
to raise the issue on direct appeal "fell below an objective standard
of reasonableness," (J.A. at 833), and that "there exists more than a
reasonable probability that Lawrence would have prevailed on
appeal" had appellate counsel raised the claim, (J.A. at 835.)
Of course, the ultimate question that we must answer in this appeal
— the same question the district court faced below — is whether the
MAR court’s denial of Lawrence’s claim on the merits was an unrea-
sonable application of, or contrary to, Strickland. In its order issuing
the writ, the district court never mentioned the MAR court’s decision,
moving directly from a finding of ineffective assistance to issuance
of the writ. We need not dwell on this procedural peculiarity, how-
ever, for we conclude that the MAR court’s denial of Lawrence’s
claim on the merits was not unreasonable or contrary to Strickland.
3.
The district court concluded that Lawrence’s appellate counsel was
ineffective because "the problem with the burglary aggravator was
apparent from the record." (J.A. at 834.) In our view, however, the
"problem" with the burglary aggravator is far from "apparent," and
may be nonexistent.
As an initial matter, we note that Lawrence concedes, and the dis-
trict court acknowledged, that generally a burglary conviction can be
submitted as an aggravating circumstance in North Carolina without
violating the U.S. Constitution. Indeed, as the parties note in their
briefs, numerous death sentences have been handed down in North
Carolina based on the jury’s finding that the murder occurred during
the commission of a burglary. See, e.g., State v. Gibbs, 436 S.E.2d
321, 354 (N.C. 1993). Instead, the district court granted Lawrence
habeas relief based on its conclusion that Lawrence’s particular bur-
14 LAWRENCE v. BRANKER
glary conviction was constitutionally unsuitable as an aggravating cir-
cumstance.
We are not as convinced as the district court that submission of the
burglary aggravator was error. North Carolina defines first-degree
burglary to require the breaking and entering at night of an occupied
dwelling house or sleeping apartment of another with the intent to
commit a felony therein. N.C. Gen. Stat. § 14-51. The defendant’s
intent to commit a felony must exist at the time of entry, but the
defendant need not commit the felony once inside for criminal liabil-
ity to lie. Once the defendant breaks into and enters a house with the
requisite intent to commit a felony in the house, the burglary is com-
plete. State v. Chandler, 467 S.E.2d 636, 641 (N.C. 1996).
In concluding that the burglary aggravator served no narrowing
function at the sentencing phase of Lawrence’s trial, the district court
focused exclusively on the "intent to commit a felony therein" compo-
nent of the crime of burglary, reasoning that, because the felony
underlying the burglary conviction was the murder itself, aggravation
of the murder based on the burglary was "tantamount to aggravating
the murder based upon Lawrence’s intent to commit the murder."
(J.A. at 832.) But burglary requires more than just the intent to com-
mit a felony in a house; it also requires a breaking and entering of the
house. Whatever the felony that underlies a burglary conviction in
North Carolina, it is always true that the convicted burglar broke into
and entered a house. It is therefore at least arguable that submission
of a burglary conviction as an aggravating circumstance, irrespective
of the felony underlying the burglary conviction, "genuinely nar-
row[s] the class of persons eligible for the death penalty," Lowenfield,
484 U.S. at 244 (internal quotation marks omitted), because it differ-
entiates the murderer who breaks into and enters a house to kill some-
one from the murderer on the street. In any event, there is nothing in
Lowenfield that clearly instructs that this distinction between burglar-
murderers and on-the-street murderers is not enough to constitution-
ally narrow the class of defendants eligible for the death penalty, irre-
spective of the felony underlying the burglary. However one dissects
the definition of burglary, burglar-murderers are a subclass of all mur-
derers. See Tuilaepa, 512 U.S. at 972 (stating that an aggravating cir-
cumstance must not be unconstitutionally vague and must "not apply
LAWRENCE v. BRANKER 15
to every defendant convicted of a murder," but must instead apply
"only to a subclass of defendants convicted of murder").
We also find the district court’s reliance on the Supreme Court of
North Carolina’s decision in State v. Cherry, 257 S.E.2d 551 (N.C.
1979), to be misplaced. In Cherry, the court held that in cases where
the defendant is convicted only of felony-murder, the felony support-
ing the felony-murder conviction cannot be submitted as an aggravat-
ing circumstance to the capital sentencing jury. Id. at 568. Lawrence,
however, was convicted of both felony-murder and premeditated
murder, and the Cherry court stressed that "[n]othing we have said
herein should be construed to foreclose consideration of the aggravat-
ing circumstances found in . . . 15A-2000(e)(5) when a murder
occurred during the commission of one of the enumerated felonies but
where the defendant was convicted of first degree murder on the
basis of his premeditation and deliberation." Id. (emphasis added).
Thus, Cherry actually undermines Lawrence’s ineffective-assistance
claim.
Indeed, since Cherry was decided, the Supreme Court of North
Carolina has consistently held that when a defendant’s first-degree
murder conviction was based both on the felony-murder rule and pre-
meditation and deliberation, submission of the underlying felony as
an aggravating circumstance is not prohibited. See, e.g., State v. Con-
away, 453 S.E.2d 824, 852 (N.C. 1995) ("State v. Cherry prohibits the
submission of the underlying felony as an aggravating circumstance
only when a defendant is convicted solely of felony murder.") More
to the point, the court has, on at least one occasion, refused to find
any state or federal constitutional errors (of the Lowenfield type or
otherwise) in the submission of a burglary conviction as an aggravat-
ing circumstance when the felony underlying the burglary conviction
was the murder itself. See State v. Gay, 434 S.E.2d 840, 851, 855-56
(N.C. 1993) (finding no error in the submission of burglary aggrava-
tor when felony underlying the burglary conviction was murder itself).3
3
Lawrence notes that, under North Carolina law, "[e]vidence necessary
to prove an element of the offense shall not be used to prove any factor
in aggravation." N.C. Gen. Stat. § 15A-1340.16(d) (2007). Our inquiry,
however, is limited to determining whether the state-court decision was
either contrary to, or an unreasonable application of, clearly established
federal law as determined by the Supreme Court. 28 U.S.C.A.
§ 2254(d)(1) (West 2006).
16 LAWRENCE v. BRANKER
Taken together, Lowenfield and Gay would have led a reasonable
appellate attorney in North Carolina to believe that Lawrence’s
ineffective-assistance claim bore little — perhaps no — chance of
success on appeal. The district court acknowledged that Lawrence’s
appellate counsel "submitted a well written brief addressing twenty-
four . . . issues." (J.A. at 834.) This well-written brief did not raise the
ineffective-assistance claim Lawrence now presses on collateral
review, but, again, a reasonable attorney would likely have thought
that the claim had little chance of success. And even if there was
some error in the submission of the burglary aggravator at the sen-
tencing phase of Lawrence’s trial, it was not an obvious error (at least
it is not obvious to us), and we do not think that Lawrence’s counsel
performed deficiently in failing to appeal this hypothetical error. We
thus conclude that, under Strickland, Lawrence’s appellate counsel
was not ineffective for failing to raise the burglary-aggravator issue
on appeal.
4.
We are persuaded that Lawrence’s appellate counsel rendered him
effective assistance, but even if we indulge the contrary thought, we
nevertheless are convinced that the MAR court’s denial of Law-
rence’s Strickland claim on the merits was neither unreasonable nor
contrary to established federal law. The MAR court rejected Law-
rence’s claim at Strickland’s first prong, concluding that "submission
of the underlying felony of burglary as an aggravating circumstance
was proper" and that "[a]ppellate counsel cannot be ineffective for
failing to assign error to an issue that is without merit." (J.A. at 708.)
In light of our discussion above, the district court’s conclusion that
submission of the burglary aggravator was clearly unconstitutional is
incorrect. Indeed, it is not clear to us that any constitutional error
occurred in the submission of the burglary aggravator, much less an
error so glaring as to warrant relief under Strickland. At the time the
MAR court denied Lawrence’s claim, the U.S. Supreme Court’s deci-
sion in Lowenfield and the Supreme Court of North Carolina’s deci-
sion in Gay strongly suggested, if not confirmed, that Lawrence’s
ineffective-assistance claim would have failed if raised on appeal.
Given the tremendous leeway afforded to appellate counsel by Strick-
land and to the MAR court by § 2254(d), we cannot conclude that the
LAWRENCE v. BRANKER 17
MAR court’s application of Strickland was objectively unreasonable
or contrary to clearly established federal law. Lawrence’s ineffective-
assistance claim is simply not of the stock that underlies successful
Strickland challenges in the AEDPA context.
Accordingly, we reverse the district court’s grant of a writ of
habeas corpus to Lawrence on his ineffective-assistance claim.
III.
Having concluded that the district court erred in issuing Lawrence
a habeas writ on his claim of ineffective assistance of appellate coun-
sel, we turn to Lawrence’s cross-appeal. In his cross-appeal, Law-
rence claims (1) that his trial counsel was ineffective for conceding
his guilt to kidnapping and rape without his consent, and (2) that his
due-process rights were violated by the MAR court in denying his
motion for post-conviction relief. We address each argument in turn.
A.
Lawrence first contends that, under Strickland, his trial counsel
was ineffective for conceding his guilt to kidnapping and rape without
his consent. By conceding guilt for these offenses, Lawrence con-
tends, his trial counsel effectively admitted to the factual elements of
felony murder, as well as to the factual elements underlying both
aggravating circumstances found by the jury to support his death sen-
tence.
Prior to closing arguments at the guilt phase of Lawrence’s trial,
Lawrence’s counsel informed the trial court that Lawrence had signed
a document authorizing them to pursue diminished capacity and vol-
untary intoxication defenses with respect to all of the crimes charged
in the indictment. (J.A. at 10-11, 19-20.) Specifically, the authoriza-
tion stated that counsel would contest Lawrence’s ability to form the
specific intent necessary to commit "capital murder, conspiracy to
commit murder, kidnapping, conspiracy to kidnap, burglary and
rape." (J.A. at 10-11.) Upon being made aware of the authorization,
the trial judge questioned Lawrence and his counsel to ensure that
Lawrence understood exactly what he was consenting to in the autho-
18 LAWRENCE v. BRANKER
rization. Lawrence informed the trial court that he had authorized his
counsel to pursue the diminished capacity and voluntary intoxication
defenses and to admit that he was "guilty of some things." (J.A. at
20.) Based on this authorization, Lawrence’s counsel argued to the
jury that it could convict him of second-degree murder, which, under
North Carolina law, is a general intent crime, N.C. Gen. Stat. § 14-17,
but argued that Lawrence could not be convicted for any other crimes
charged in the indictment — including first-degree murder — because
he lacked the requisite specific intent to commit the crimes due to his
voluntary intoxication. Lawrence’s counsel offered expert testimony
purporting to show that he was intoxicated at the time he broke and
entered McLean’s trailer and killed him and that his intoxication pre-
vented him from forming the specific intent to commit the charged
crimes. The trial court instructed the jury that voluntary intoxication
was a defense to all of the crimes charged in the indictment if it found
that Lawrence’s intoxication prevented him from forming the requi-
site specific intent.4 (J.A. at 42-60.) The jury rejected Lawrence’s
defense and convicted him on all counts.
The MAR court held that Lawrence’s ineffective-assistance claim
was procedurally defaulted under North Carolina law and, alterna-
tively, that the claim lacked merit. Although the district court held
that Lawrence’s claim was not procedurally defaulted, it nevertheless
denied the claim on the merits. We are satisfied that Lawrence’s inef-
fective assistance claim was procedurally defaulted, but even if we
proceed to the merits, we agree with the MAR court and the district
court that Lawrence’s ineffective assistance claim is meritless.
1.
"Federal habeas review of a state prisoner’s claims that are proce-
durally defaulted under independent and adequate state procedural
rules is barred unless the prisoner can show cause for the default and
demonstrate actual prejudice as a result of the alleged violation of
4
In North Carolina, for a defendant to be entitled to an instruction on
voluntary intoxication, there must be evidence "that defendant’s intoxica-
tion rendered him utterly incapable of forming a deliberate and premedi-
tated intent to kill." State v. Mash, 372 S.E.2d 532, 537 (N.C. 1988)
(internal quotation marks omitted).
LAWRENCE v. BRANKER 19
federal law, or prove that failure to consider the claims will result in
a fundamental miscarriage of justice."5 McCarver v. Lee, 221 F.3d
583, 588 (4th Cir. 2000) (citing Coleman v. Thompson, 501 U.S. 722,
750 (1991)). A state rule is adequate if it is "firmly established,"
James v. Kentucky, 466 U.S. 341, 348 (1984), and regularly and con-
sistently applied by the state court, Johnson v. Mississippi, 486 U.S.
578, 587 (1988).
In dismissing Lawrence’s motion, the MAR court rejected his
ineffective-assistance claim as procedurally defaulted under N.C.
Gen. Stat. § 15A-1419(a)(3) (2007). Section 15A-1419(a)(3) provides
for denial of appropriate relief when "[u]pon a previous appeal the
defendant was in a position to adequately raise the ground or issue
underlying the present motion but did not do so." We have consis-
tently held that § 15A-1419(a)(3) is an independent and adequate state
ground for purposes of procedural default. McCarver, 221 F.3d at
589; Williams v. French, 146 F.3d 203, 209 (4th Cir. 1998) ("The
state procedural rule applied in this case, North Carolina General Stat-
utes § 15A-1419(a)(3), is an independent and adequate state
ground."). Although the Supreme Court of North Carolina has stated
that allegations of ineffective assistance of counsel like Lawrence’s
are generally properly raised on collateral review, State v. Fair, 557
S.E.2d 500, 524 (N.C. 2001), North Carolina courts have held that
ineffective assistance claims that are not brought on direct review can
be procedurally defaulted under § 15A-1419(a)(3). Indeed, in both
McCarver and Williams v. French, we concluded that petitioners’
ineffective assistance claims were procedurally defaulted under
§ 15A-1419(a)(3). McCarver, 221 F.3d at 589; Williams v. French,
146 F.3d at 218.
Section 15A-1419(a)(3), however, "is not a general rule that any
[ineffective assistance] claim not brought on direct appeal is forfeited
on state collateral review. Instead, the rule requires North Carolina
courts to determine whether the particular claim at issue could have
been brought on direct review." Fair, 557 S.E.2d at 525 (quoting
5
Lawrence does not argue that failure to consider his claim will result
in a fundamental miscarriage of justice, and, in any event, we do not
find, based on the record before us, that there would be a fundamental
miscarriage of justice were we to refuse to consider his claim.
20 LAWRENCE v. BRANKER
McCarver, 221 F.3d at 589). In this vein, the Supreme Court of North
Carolina has held that ineffective assistance claims brought on collat-
eral review are procedurally defaulted under § 15A-1419(a)(3) when
the "cold record" reveals that no further investigation would have
been required to raise the claim on direct review. Fair, 557 S.E.2d at
524.
Lawrence bases his ineffective-assistance claim in part on the
Supreme Court of North Carolina’s decision in State v. Harbison, 337
S.E.2d 504 (N.C. 1985). In Harbison, the Court held that a defendant
receives ineffective assistance per se when trial counsel concedes
guilt to the offense or to a lesser offense without the defendant’s con-
sent. Id. at 507. North Carolina courts have decided Harbison claims
of ineffective assistance on direct review. See, e.g., State v. Thomp-
son, 604 S.E.2d 850, 876-80 (N.C. 2004) (denying defendant’s Harbi-
son claim on direct review).
Despite Lawrence’s arguments to the contrary, we conclude, based
on the "cold record," that Lawrence was in a position to bring his
ineffective-assistance claim on direct appeal. The trial record contains
Lawrence’s signed authorization of defense theory; the colloquy
between the trial court and Lawrence regarding the authorization; his
counsel’s statements regarding the authorization; and his trial coun-
sel’s arguments to the jury. No further investigation would have been
required for Lawrence to have raised his ineffective-assistance claim
on direct review, for everything he needed to bring the claim was con-
tained in the trial record. We thus agree with the MAR court that
Lawrence’s ineffective-assistance claim is procedurally barred under
N.C. Gen. Stat. § 15A-1419(a)(3), and we conclude that Lawrence
has demonstrated neither cause to excuse his procedural default nor
prejudice resulting from the default.
2.
Although we conclude that Lawrence’s ineffective-assistance claim
is procedurally defaulted, we nevertheless consider the merits of his
claim. The MAR court concluded that, in addition to being procedur-
ally defaulted, Lawrence’s claim was without merit. The district court
agreed with the MAR court that Lawrence’s claim lacked merit. We
agree with both.
LAWRENCE v. BRANKER 21
Under Strickland, Lawrence must demonstrate that his trial coun-
sel’s performance not only fell below an objective standard of reason-
ableness, Strickland, 466 U.S. at 687-88, but also that he was actually
prejudiced by that ineffectiveness, id. at 693-94. A showing of inef-
fective assistance under Strickland is hard enough (see our discussion
above), but we also must conclude that the MAR court’s denial of
Lawrence’s claim on the merits was contrary to, or an unreasonable
application of, Strickland for habeas relief to be proper. 28 U.S.C.A.
§ 2254(d)(1).
As recounted above, prior to closing arguments, Lawrence autho-
rized his counsel to pursue diminished capacity and voluntary intoxi-
cation defenses for all of the crimes charged in the indictment. Based
on this authorization, Lawrence’s trial counsel conceded his guilt for
second-degree murder, but denied his guilt for first-degree murder,
burglary, kidnapping, conspiracy to commit kidnapping, and conspir-
acy to commit murder on the bases of his voluntary intoxication.
The MAR court concluded that, under Strickland, Lawrence
received effective assistance of counsel because he "knowingly and
understandingly authorized trial counsel to concede commission of
the acts underlying all of the charged offenses in order to deny spe-
cific intent and raise the defenses of diminished capacity and volun-
tary intoxication." (J.A. at 693.) The MAR court also stated that, even
assuming that Lawrence’s trial counsel made some errors, there was
"no reasonable probability that, but for the error or errors, there would
have been a different result in the proceedings." (J.A. at 713.)
The trial record reveals that Lawrence knew that his counsel would
be admitting his guilt to "some things," and that the trial court in fact
instructed the jury on voluntary intoxication for each of the charged
offenses. Lawrence acknowledges that his counsel had to concede that
he committed the acts underlying the charged crimes in order to raise
the diminished capacity and voluntary intoxication defenses. Taking
these facts into consideration, what is left of Lawrence’s argument is
his disagreement with the results of his trial, but effective trial counsel
cannot always produce a victory for the defendant. "[I]f counsel’s
strategy, given the evidence bearing on the defendant’s guilt, satisfies
the Strickland standard, that is the end of the matter; no tenable claim
of ineffective assistance would remain." Florida v. Nixon, 543 U.S.
22 LAWRENCE v. BRANKER
175, 192 (2004). Lawrence was fully apprised of his trial counsel’s
defense strategy before closing arguments, and he consented to the
plan of attack. He cannot now claim error in the very strategy that he
authorized, particularly given that his counsel’s pursuit of a voluntary
intoxication defense fit the circumstances of the case.
In sum, Lawrence has come forth with no evidence to rebut the
MAR court’s factual findings, which are binding on us, see 28
U.S.C.A. § 2254(e)(1), and he does not argue that the MAR court’s
denial of his ineffective claim was an unreasonable application of, or
contrary to, Strickland. Indeed, the MAR court did not apply Strick-
land incorrectly, let alone unreasonably. Accordingly, under the
AEDPA, we must affirm the district court’s denial of a habeas writ
to Lawrence on this ineffective-assistance claim.
B.
Finally, Lawrence cross-appeals the district court’s grant of sum-
mary judgment to the State on his due-process claims arising from the
MAR court’s adjudication of his post-conviction motion. Lawrence
alleges two errors in the MAR court proceedings. First, he contends
that the MAR court violated his due-process rights by permitting the
same judge that presided over his trial to rule on his MAR. Lawrence
claims that this arrangement deprived him of an unbiased review of
his MAR. Second, Lawrence contends that the MAR court violated
his due-process rights when it instructed counsel for the State to "draft
[an] order summarily denying all of [Lawrence’s] claims," (J.A. at
645), without specifying the grounds for denial.
We agree with the district court that Lawrence’s due-process
claims are not cognizable on federal habeas review. Pursuant to
§ 2254, a petitioner may obtain relief from a state court judgment
"only on the ground that he is in custody in violation of the Constitu-
tion or laws or treaties of the United States." 28 U.S.C.A. § 2254(a).
A state prisoner has no federal constitutional right to post-conviction
proceedings in state court. Lackawanna County Dist. Att’y v. Coss,
532 U.S. 394, 402 (2001) (noting that "each State has created mecha-
nisms for both direct appeal and state postconviction review, even
though there is no constitutional mandate that they do so" (internal
citations omitted)); Pennsylvania v. Finley, 481 U.S. 551, 557 (1987).
LAWRENCE v. BRANKER 23
Thus, even where there is some error in state post-conviction proceed-
ings, a petitioner is not entitled to federal habeas relief because the
assignment of error relating to those post-conviction proceedings rep-
resents an attack on a proceeding collateral to detention and not to the
detention itself. Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir.
1988) ("[C]laims of error occurring in a state post-conviction pro-
ceeding cannot serve as a basis for federal habeas corpus relief."); see
also Bell-Bey v. Roper, 499 F.3d 752, 756 (8th Cir. 2007) ("Because
the Constitution does not guarantee the existence of state post-
conviction proceedings, an infirmity in a state post-conviction pro-
ceeding does not raise a constitutional issue cognizable in a federal
habeas application." (internal citations, quotation marks, and alter-
ation omitted); United States v. Dago, 441 F.3d 1238, 1248 (10th Cir.
2006) ("[D]ue process challenges to post-conviction procedures fail
to state constitutional claims cognizable in a federal habeas proceed-
ing."). Accordingly, because Lawrence’s due-process claims relate
only to the MAR court’s adjudication of his state post-conviction
motion, we are without power to consider them. We therefore affirm
the district court’s denial of a habeas writ to Lawrence on his due-
process claims relating to the MAR court proceedings.
IV.
For the reasons stated in Part II of the opinion, we reverse the dis-
trict court’s order issuing a writ of habeas corpus to Lawrence and
vacating his death sentence. For the reasons stated in Part III of the
opinion, we reject Lawrence’s cross-appeal and affirm the district
court’s denial of his claims.
AFFIRMED IN PART;
REVERSED IN PART