PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RICHARD EUGENE CAGLE,
Petitioner-Appellant,
v.
GERALD J. BRANKER, Warden,
Central Prison, Raleigh, North No. 07-6
Carolina; THEODIS BECK, Secretary,
North Carolina Department of
Corrections,
Respondents-Appellees.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, Senior District Judge.
(5:02-hc-00666-H)
Argued: January 29, 2008
Decided: March 17, 2008
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Michael and Judge King joined.
COUNSEL
ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF, WIDEN-
HOUSE & FIALKO, Chapel Hill, North Carolina; Thomas Franklin
Loflin, III, LOFLIN & LOFLIN, Durham, North Carolina, for Appel-
2 CAGLE v. BRANKER
lant. Steven Mark Arbogast, NORTH CAROLINA DEPARTMENT
OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF:
Roy Cooper, Attorney General of North Carolina, Raleigh, North Car-
olina, for Appellees.
OPINION
WILKINSON, Circuit Judge:
Richard Cagle, a North Carolina prisoner convicted of murder and
sentenced to death, appeals the district court’s dismissal of his peti-
tion for a writ of habeas corpus. He claims that the absence of a key
witness, ineffective assistance of counsel as to a motion to sever, inef-
fective assistance of counsel as to mitigation, and the lack of a jury
instruction as to voluntary intoxication deprived him of a fair trial and
sentence. Having reviewed his claims with care, we find them to be
without merit and affirm the district court.
I.
Richard Cagle was a drifter who went from town to town under
various names and with various women, dancing in bars and trying
to stay a step ahead of the law enforcement agencies looking for him.
On the evening of November 4, 1993, he was living with his girl-
friend, Jamie Kass, at a motel in Fayetteville, North Carolina when
he decided to visit a gay nightclub across the street. He there encoun-
tered the victim, a man named Dennis House. Cagle and House were
playing pool when Kass joined them later in the evening, bringing
with her two magazine salesmen she had befriended, Michael Scott
and Ryan Jones, who worked together and were also staying at the
motel.
The group eventually returned to the motel. House drove. The other
four walked, and on the way, Cagle told them that House had about
$4,000 and a pound of marijuana in his home, and that they should
rob him — which the four of them termed "rolling a fag." Back at the
motel, the group drank and smoked marijuana. Whenever House left
the room, the conversation about "rolling a fag" picked up again.
CAGLE v. BRANKER 3
Eventually, the four men climbed into House’s truck to continue the
party at his home, a trailer some distance away, while Kass stayed
behind. House and Cagle got in the truck first. Scott and Jones lin-
gered to get a knife from Kass.
The drinking, marijuana smoking, and plotting continued in
House’s trailer. At some point when House was in another room,
Scott pulled Jones aside to tell him the plan: that Cagle would seduce
House into giving him oral sex, and that Jones would stab House in
the back while he was distracted. Cagle then picked up House’s cat
and slammed its head against the wall and against a fish tank, splitting
open its skull and tossing its body behind the couch. Jones hid in the
bathroom. When House started performing oral sex on Cagle, Jones
emerged and stabbed House in the back.
Thus far, there is rough agreement on the facts between the parties.
But here the account splits, and we proceed with the facts as accepted
by the jury and affirmed by the Supreme Court of North Carolina,
"based substantially on the testimony of Ryan Christopher Jones."
State v. Cagle, 488 S.E.2d 535, 540 (N.C. 1997).
After stabbing House that first time, Jones dropped the knife, and
Cagle picked it up. House said, "Why are you guys doing this? I’ll
give you anything." Cagle then stabbed him in the chest three or four
times. Scott started punching him in the head and tried to hit him with
a bowling ball. Cagle dropped the knife and hit him with something
that looked like a fireplace poker or pool cue. The three men then ran
to the back room, where Cagle said, "Go finish him, go kill him." But
instead, they left through the front door, with Jones grabbing the knife
on the way out and Cagle taking a camera.
House ran to his neighbor Roger’s house, where he said "Roger,
they are trying to kill me" and died, the fatal wound coming from a
stab in the chest. Cagle, Scott, and Jones planned an alibi and, reach-
ing a house down the street, tried to get the woman there to let them
in to call a cab. She refused and called the police. A sheriff came and,
seeing the blood on Cagle’s pants, arrested the three.
During the police interviews that followed, Jones stated from the
first that he had stabbed House in the back once, but that Cagle had
4 CAGLE v. BRANKER
struck the fatal blows to House’s chest. Cagle denied ever picking up
the knife and claimed Jones was the killer. And Scott’s story shifted.
At first, he told the officers that Cagle alone had used the knife. When
one of the officers pointed out the inconsistency between his account
and Jones’s, Scott amended his story, stating that Jones had struck the
first blow with the knife and Cagle the rest.
Ultimately, Jones accepted a plea agreement in return for his testi-
mony against Scott and Cagle, who were tried jointly for murder, rob-
bery, and conspiracy at the Cumberland County Superior Court in
May and June 1995. In defense, they tried to show that it was Jones,
not them, who had inflicted the fatal wounds. Neither testified, but
they called a number of witnesses to testify to Jones’s dishonesty, and
one, a cellmate of Jones’s, who testified that Jones had bragged about
killing House by stabbing him repeatedly. Nonetheless, the jury con-
victed Cagle of first-degree murder on the basis of premeditation and
deliberation, and Cagle and Scott both of first-degree felony murder,
robbery with a dangerous weapon, and conspiracy to commit robbery
with a dangerous weapon.
A capital sentencing proceeding followed in June 1995, see N.C.
Gen. Stat. § 15A-2000 (2007), with the same jury and judge, and the
two defendants again tried together. Neither testified. Cagle’s attor-
neys presented mitigation evidence showing that Cagle had been
physically and sexually abused by his mother’s male friends as a
child; that he came from a family with a history of alcohol abuse and
violence; that he committed the crime under the influence of a mental
or emotional disturbance; and that he was in the borderline range of
mental retardation. The jury accepted all of these mitigating factors
and made findings accordingly. But it nonetheless recommended, and
the judge imposed, a sentence of life imprisonment for Scott, and
death for Cagle.
On direct appeal, the North Carolina Supreme Court affirmed the
convictions and sentences, State v. Cagle, 488 S.E.2d 535 (N.C.
1997), and the United States Supreme Court denied certiorari, Cagle
v. North Carolina, 522 U.S. 1032 (1997). Seeking state post-
conviction relief, Cagle filed a Motion for Appropriate Relief
("MAR") in Cumberland County Superior Court. After holding an
evidentiary hearing, the court denied all of Cagle’s claims, and the
CAGLE v. BRANKER 5
North Carolina Supreme Court affirmed. State v. Cagle, 568 S.E.2d
616 (N.C. 2002). Turning to federal post-conviction relief, Cagle filed
a habeas petition under 28 U.S.C. § 2254 in the United States District
Court for the Eastern District of North Carolina, which the district
court dismissed. Cagle appealed.
II.
Four issues remain in contention in this case. First, Cagle claims
that newly available evidence — a change of heart and change of
story from his co-defendant, Michael Scott — undermines the jury’s
capital sentence and entitles him to a new sentencing proceeding. Sec-
ond, Cagle claims he received ineffective assistance of counsel during
both the guilt and penalty phases of trial because his attorneys failed
to sever his case from Scott’s, thus discouraging Scott from testifying
in Cagle’s favor. Third, Cagle again claims ineffective assistance, this
time because his attorneys’ approach to mitigation at sentencing
focused exclusively on his troubled history, and not at all on his
redeeming traits of character. Fourth, Cagle claims he was entitled to
a jury instruction as to voluntary intoxication during the guilt phase
of trial.
The state MAR court considered and rejected the first three claims
after an evidentiary hearing at which it heard testimony from Cagle’s
attorneys, Scott’s attorneys, and Scott himself, among others. The
state trial court considered and rejected the fourth claim at a charge
conference during trial. The North Carolina Supreme Court affirmed
its MAR and trial courts on all four claims. Under the Antiterrorism
and Effective Death Penalty Act ("AEDPA"), we uphold those courts’
rulings unless they are "based on an unreasonable determination of
the facts" or "contrary to, or involv[ing] an unreasonable application
of, clearly established Federal law, as determined by the Supreme
Court of the United States," 28 U.S.C. § 2254(d) (2000); we also pre-
sume the courts’ factual findings to be correct unless the habeas peti-
tioner proves otherwise "by clear and convincing evidence," id. at
§ 2254(e)(1). We review the district court, which also rejected all four
claims, de novo. See Allen v. Lee, 366 F.3d 319, 323 (4th Cir. 2004)
(en banc).
6 CAGLE v. BRANKER
A.
We first address the claim that Michael Scott’s changed story enti-
tles Cagle to resentencing. Just after the sentencing jury returned with
its recommendations, Cagle’s co-defendant, Michael Scott, said in
allocution that neither he nor Cagle had ever stabbed Dennis House.
At the MAR hearing, Scott repeated that claim and said that Ryan
Jones, the co-conspirator turned state’s witness, was the real killer.
True, Scott testified, he had initially told investigators that Cagle was
the killer. But that was because he and Jones, friends from their work
together as magazine salesmen, had agreed when they fled the scene
to lay the blame on Cagle if they were caught. He had decided to
come clean after reading the Gospel of John while in jail awaiting
trial. He had told his lawyers then that he wanted to testify on Cagle’s
behalf, but they had discouraged him from doing so. Now, he testi-
fied, he was finally telling the truth.
Characterizing this testimony as evidence "unavailable to the
defendant at the time of trial" with a "direct and material bearing upon
the defendant’s eligibility for the death penalty or the defendant’s
guilt or innocence," N.C. Gen. Stat. § 15A-1415(c) (2007), Cagle
moved in the state MAR court for resentencing and a new trial
(although he limits his claim on habeas to resentencing). The MAR
court refused. A petitioner must meet seven requirements to re-open
proceedings based on new evidence, the court reasoned, and Scott’s
testimony failed four of them: It was not "newly discovered" or newly
available, more than a means by which to "contradict a former wit-
ness or to impeach or discredit him," "probably true," or "of such a
nature as to show that on another trial a different result will probably
be reached." State v. Bishop, 488 S.E.2d 769, 790 (N.C. 1997). As to
the first, the court did not regard a co-defendant’s favorable testi-
mony, after staying silent throughout trial and sentencing, to be newly
discovered or available. As to the second, the court pointed out that
the testimony served to do no more than contradict, impeach, and dis-
credit Jones. And as to the third and fourth, the court found that Scott
was "an opportunistic liar," with "nothing to lose" by exonerating
Cagle and not much prospect of moving a jury on retrial or resentenc-
ing. JA2310-11.
Cagle makes three arguments against this ruling now. First, he
claims that the MAR court abandoned the applicable state statute,
CAGLE v. BRANKER 7
which required only "direct and material" evidence "unavailable to
the defendant at the time of trial," in favor of a stricter seven-factor
test drawn from North Carolina case law. Compare N.C. Gen. Stat.
§ 15A-1415(c) with Bishop, 488 S.E.2d at 790. But this argument
obviously transgresses the principle "that it is not the province of a
federal habeas court to reexamine state-court determinations on state-
law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Cagle
tries to rescue the argument by claiming a federal due process right
to have state courts fairly apply the criminal law laid down by their
own legislatures. But this principle has no limit and the MAR court’s
interpretation of state statutes and case law presents no federal ques-
tion.
Second, Cagle argues that the MAR court’s conclusions about
Scott’s testimony were "based on an unreasonable determination of
the facts." 28 U.S.C. § 2254(d)(2) (2000). In particular, Cagle assails
the MAR court’s core finding that Scott was an "opportunistic liar"
whose testimony would not sway a reasonable jury. But for a federal
habeas court to overturn a state court’s credibility judgments, the state
court’s error must be stark and clear. See id. § 2254(e)(1) (protecting
state courts’ factual judgments unless disproved in federal court by
"clear and convincing evidence"). Indeed, "federal habeas courts
[have] no license to redetermine credibility of witnesses whose
demeanor has been observed by the state trial court, but not by them."
Marshall v. Lonberger, 459 U.S. 422, 434 (1983). Here, Scott by all
accounts told three different stories of Cagle’s role in Dennis House’s
murder: one in which Cagle alone used the knife, a second in which
Cagle and Jones both used it, and a third in which Jones alone used
it. Obviously no fewer than two of his stories were unworthy of
belief. Under such circumstances, the state court was entitled to its
skepticism about Scott’s testimony, and we have no warrant to
intrude.
Finally, Cagle points to a series of cases in which the Supreme
Court, acting on the principle that "the Constitution guarantees crimi-
nal defendants a meaningful opportunity to present a complete
defense," Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quo-
tation omitted), overturned the verdicts or sentences of state trial
courts for excluding the testimony of defendants’ key witnesses. See
Holmes, 547 U.S. 319; Green v. Georgia, 442 U.S. 95 (1979) (per
8 CAGLE v. BRANKER
curiam); Chambers v. Mississippi, 410 U.S. 284 (1973); Washington
v. Texas, 388 U.S. 14 (1967). In this vein, Cagle emphasizes how
overwhelmingly the state’s case depended upon Ryan Jones, and how
in particular the jury’s decision to sentence Cagle to death hinged on
believing Jones’s claim that Cagle inflicted the fatal wounds. Scott’s
testimony would have given the jury a firm basis — its only firm
basis, from the only other eyewitness besides Cagle himself — on
which to question that belief, Cagle argues. In short, the testimony
was so important that denying him a new sentencing proceeding in
which to present it amounted to denying him his "clearly established"
constitutional right to mount a defense. 28 U.S.C. § 2254(d)(1)
(2000).
In the cases Cagle cites, the defendant’s right to present a complete
defense was abridged by evidence rules that "infringe[d] upon a
weighty interest of the accused and [were] arbitrary or disproportion-
ate to the purposes they [were] designed to serve." Holmes, 547 U.S.
at 324 (quotation omitted). Neither factor is present here.
First, the state MAR court’s decision not to re-open sentencing for
the sake of Scott’s testimony did not infringe upon a weighty interest
that is clearly established under federal law. It is one thing to exclude
a defense witness’s testimony during conviction or sentencing pro-
ceedings (the issue in Holmes, Green, Chambers, and Washington),
and quite another to decline to re-open conviction or sentencing pro-
ceedings so that a former co-defendant might testify in them. Once
conviction and sentencing is complete, the presumption of innocence
has passed. See Herrera v. Collins, 506 U.S. 390, 399 (1993). The
presumption of finality on the other hand is strong. See Wainwright
v. Sykes, 433 U.S. 72, 90 (1977). And courts — not just North Caroli-
na’s courts, but federal courts as well — are generally loathe to re-
open proceedings for post-sentencing testimony from a co-defendant,
regarding such testimony with great suspicion. See, e.g., United States
v. Freeman, 77 F.3d 812, 817-18 (5th Cir. 1996); United States v.
Dale, 991 F.2d 819, 838-39 (D.C. Cir. 1993) (per curiam); United
States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir. 1992);United
States v. Jacobs, 475 F.2d 270, 286 n.33 (2d Cir. 1973); see also
United States v. Bales, 813 F.2d 1289, 1295 (4th Cir. 1987).
Second, the state MAR court’s decision was not arbitrary or dispro-
portionate. The MAR court found Scott to be an "opportunistic liar"
CAGLE v. BRANKER 9
whom no reasonable jury would believe — a view, as we have
already explained, to which the court was very much entitled. In addi-
tion, the MAR court held that Scott’s potential testimony was not
newly discovered because Cagle’s counsel were aware of it at trial
(Scott had simply invoked his Fifth Amendment privilege not to tes-
tify at that time). And the court regarded Scott’s testimony as merely
duplicating other testimony that was offered at trial and that also
tended to contradict Jones. By contrast, Holmes, Green, Chambers,
and Washington all featured penetrating evidence of actual innocence
excluded "under rules that serve no legitimate purpose or that are dis-
proportionate to the ends that they are asserted to promote." Holmes,
547 U.S. at 326; see also Green, 442 U.S. at 97 ("The excluded testi-
mony was highly relevant . . . and substantial reasons existed to
assume its reliability."); Chambers, 410 U.S. at 302 (same); Washing-
ton, 388 U.S. at 23 (same). The MAR court’s decision not to re-open
Cagle’s sentencing was reasonable, and nothing about it involved
deficient fact-finding or a violation of clearly established federal law.
See 28 U.S.C. §§ 2254(d), (e)(1).
B.
Scott’s change of story also sets in motion the first of Cagle’s two
ineffective assistance of counsel claims: the claim that Cagle’s attor-
neys should have found a way to sever his trial from Scott’s so as to
smooth the way for Scott to testify in Cagle’s favor. Cagle must show
both deficient performance and a "reasonable probability" of preju-
dice to prevail. Strickland v. Washington, 466 U.S. 668, 688, 694
(1984).
This claim has evolved somewhat over the course of post-
conviction proceedings. Initially, Cagle’s chief argument was that his
attorneys did not move to sever prior to the guilt phase of trial. But
there was a fatal problem with this argument: Cagle’s attorneys did
argue — "adamantly and vigorously," in the state MAR court’s
words, JA2343 — that Cagle and Scott should be tried separately;
counsel simply did so in the course of opposing the state’s joinder
motion rather than through their own motion to sever. Cagle now
complains that they failed to adequately specify the basis for their
opposition by telling the judge what Scott would say on the stand. But
a look at the transcript reveals that Cagle’s attorney told the judge
10 CAGLE v. BRANKER
exactly what the issue was: "Initially, Mr. Scott . . . made a statement
to law enforcement officers the morning after he was arrested, and
that statement did not benefit Mr. Cagle. However, within the past
several months . . . [Scott] corrected the false statement he made to
the police before with respect to, with regard to who actually commit-
ted the crime against Mr. House. Mr. Scott is a crucial witness so far
as we’re concerned." With leisure we might find (and Cagle’s attor-
neys themselves might find) better ways to express the point, but, as
the state MAR court and federal district court both held, nothing in
this conduct was tenably deficient.
Cagle has, on appeal, changed the emphasis of his argument. His
chief point now is that his attorneys did not effectively move to sever
when a fresh opportunity presented itself after the guilt phase of trial
had ended but before the penalty phase had begun. True, he acknowl-
edges, counsel did technically file a motion to sever at that time. But
their motion never mentioned Scott’s potential testimony (instead
concerning itself wholly with a rather technical Bruton claim). And
since the judge who presided over trial and sentencing was not the
one who had presided over the pretrial joinder motion, the person
deciding the motion to sever at sentencing was never informed that
the real issue at stake was Scott’s testimony.
Not all motions that request the same action — in this case, sever-
ance — are equal; the reasons given matter. But without deciding
whether counsel was deficient with respect to this motion, it is clear
to us — as it was to the state MAR and federal district courts — that
Cagle cannot demonstrate prejudice. First, Scott lacked credibility, as
the state MAR court repeatedly emphasized. Second, calling him to
the stand to testify to Cagle’s innocence would also give the prosecu-
tion a chance to introduce the initial statements Scott had given to
officers at the time of the crime — thus corroborating Jones’s story
and Cagle’s guilt, and quite possibly doing much more harm than
good. Third, it is not clear to us that Scott would have testified on
Cagle’s behalf even if the sentencing court had granted the motion to
sever. His attorney had stated during the earlier joinder discussion
that "[i]t’s up to him when he’s called to the stand whether he wants
to testify or not, and I’m not about to say whether he will or won’t.
And it doesn’t matter whether it’s at a joint trial or a separate trial
. . . ." One of Cagle’s attorneys had said (in his testimony before the
CAGLE v. BRANKER 11
MAR court) that he had "talked with . . . counsel for Mr. Scott on sev-
eral occasions, and he had told me he would not permit Scott to testify
on behalf of Ricky Cagle." (Scott’s attorney also testified before the
MAR court and said the opposite, but the court credited the view of
Cagle’s attorney.) With so many problems and contingencies, there is
not a "reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been different."
Strickland, 466 U.S. at 694.
C.
Cagle’s second ineffective assistance claim turns on his attorneys’
approach to mitigation during the penalty phase of trial. Counsel had
available to them three family members, Cagle’s mother, stepfather,
and daughter, who would have testified to Cagle’s volunteer work,
accepting attitude to people of different races and sexual orientations,
kindness toward animals, and close and loving relationship to his
daughter — good character traits essential, Cagle argues, to balancing
out the jury’s otherwise totally negative picture of him. But rather
than calling his family members to the stand, counsel focused exclu-
sively on demonstrating Cagle’s cognitive and emotional problems
and the hardships in his life. In the capital context, Cagle argues, this
one-sidedness was constitutionally deficient and prejudicial.
There can be no question that Cagle’s counsel made an informed,
strategic decision not to call Cagle’s family members and not to try
to demonstrate Cagle’s good character. As the MAR hearing showed,
Cagle’s attorneys hired a mitigation expert to help research Cagle’s
background and advise them on strategy. The expert and attorneys
decided after careful investigation that calling Cagle’s mother, stepfa-
ther, and daughter would only open the door to devastating rebuttal
evidence. As the MAR court found, "the State had overwhelming evi-
dence to contradict the testimony of defendant’s mother who
described the defendant as a kind loving family man who ‘just wanted
to help people.’" JA2330. And as to Cagle’s daughter, the evidence
would demonstrate that Cagle showed her only "the most minimal
attention until he [was] in the jail house awaiting trial for murder." Id.
Cagle’s attorneys thus decided to present evidence of Cagle’s turbu-
lent childhood and low functioning through two impartial experts.
This is exactly the kind of "strategic choice[ ] made after thorough
12 CAGLE v. BRANKER
investigation" that, according to Strickland, is "virtually unchallenge-
able." 466 U.S. at 690.
Cagle argues that, however insulated attorneys’ strategic decisions
ordinarily may be, the failure to present available evidence of good
character in a capital case is beyond the pale. He points us to a trio
of recent capital cases in which the Supreme Court held counsel to be
ineffective for failing to present available mitigating evidence: Rom-
pilla v. Beard, 545 U.S. 374 (2005), Wiggins v. Smith, 539 U.S. 510
(2003), and Williams v. Taylor, 529 U.S. 362 (2000). He stresses that
under Wiggins, prejudice requires only "a reasonable probability that
at least one juror would have struck a different balance." 539 U.S. at
537. And he argues that counsel’s justification for not presenting evi-
dence of Cagle’s good character traits — the risk of opening the door
to further damaging evidence — was unreasonable where the jury had
already heard such ample evidence of Cagle’s bad character and con-
victed him of a terrible murder.
The problem is, the three cases on which Cagle relies to displace
our ordinary Strickland deference to counsel’s strategic choices, Rom-
pilla, Wiggins, and Williams, are not on point. All three concern what
Rompilla calls "norms of adequate investigation in preparing for the
sentencing phase of a capital trial," 545 U.S. at 380, and in all three,
counsel’s failure was a breach of the duty to investigate potential mit-
igating evidence before settling on a mitigation strategy, see Rom-
pilla, 545 U.S. at 383; Wiggins, 539 U.S. at 524-27; Williams, 529
U.S. at 395. Here, Cagle’s attorneys did thoroughly investigate poten-
tial mitigating evidence, and Cagle never says otherwise. His com-
plaint is with how they decided to use the evidence they found. That,
of course, is a paradigmatically strategic decision. And it was not an
unreasonable decision in either the MAR court’s judgment or in ours.
D.
Finally, on the strength of trial evidence showing that he had been
drinking and smoking marijuana before the crime, Cagle claims that
he was entitled to a jury instruction as to voluntary intoxication dur-
ing the guilt phase of trial. The trial court refused (and the state
supreme court affirmed) because "the evidence failed to show that at
the time of the killing, defendant Cagle’s mind and reason were so
CAGLE v. BRANKER 13
completely intoxicated and overthrown as to render him utterly inca-
pable of forming a deliberate and premeditated purpose to kill" — the
standard under North Carolina case law. State v. Cagle, 488 S.E.2d
535, 543 (N.C. 1997); see also State v. Medley, 243 S.E.2d 374, 377
(1978). Cagle does not claim the facts showed him to have been that
intoxicated. Rather, he argues that the North Carolina standard is so
exacting as to violate his due process rights — for getting the instruc-
tion requires proving a higher level of drunkenness than a reasonable
juror would need to reject premeditation and deliberation, thus effec-
tively shifting the burden of proof as to mens rea from the state to the
defendant.
What makes this argument a non-starter is a case Cagle never
addresses, although it speaks directly to the constitutional dimensions
of a claim of voluntary intoxication: Montana v. Egelhoff, 518 U.S.
37 (1996). The plurality in Egelhoff held that there is no right under
the Due Process Clause to present evidence of voluntary intoxication
in order to rebut mens rea. Id. at 43, 56. Justice Ginsburg, concurring,
agreed, so long as a state’s voluntary intoxication rule is in substance
a judgment about culpability — a judgment, that is, about "the cir-
cumstances under which individuals may be held criminally responsi-
ble for their actions" of the kind states are traditionally entitled to
make. Id. at 57.
Here, North Carolina has obviously determined that before intoxi-
cation can reduce a defendant’s responsibility for his actions, the
defendant must be very intoxicated. That judgment is well within
North Carolina’s traditional constitutional authority, and is the state’s
to make.
III.
For the foregoing reasons, the judgment of the district court dis-
missing Cagle’s habeas petition is
AFFIRMED.