                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4


ELRICO DARNELL FOWLER,

                Petitioner − Appellant,

           v.

CARLTON B. JOYNER, Warden, Central Prison, Raleigh, North
Carolina,

                Respondent − Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:09-cv-00051-FDW)


Argued:   April 11, 2014                  Decided:   June 2, 2014


Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS,
Senior Circuit Judge.


Judgment affirmed and motion denied by published opinion. Chief
Judge Traxler wrote the opinion, in which Judge Duncan joined.
Senior Judge Davis wrote an opinion concurring in the judgment
in part and dissenting in part.


ARGUED: Mark Jason Pickett, CENTER FOR DEATH PENALTY LITIGATION,
Durham, North Carolina, for Appellant.       Sonya M. Calloway-
Durham, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.     ON BRIEF: Shelagh Rebecca Kenney,
CENTER FOR DEATH PENALTY LITIGATION, Durham, North Carolina, for
Appellant.     Roy Cooper, Attorney General, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
TRAXLER, Chief Judge:

      Petitioner Elrico Darnell Fowler, a North Carolina death

row inmate, appeals the district court’s denial of his petition

for a writ of habeas corpus under 28 U.S.C. § 2254.                                  We granted

a certificate of appealability to consider Fowler’s claim that

an eyewitness’s in-court identification violated his due process

rights   under      the     Fourteenth         Amendment.               Because      the          North

Carolina    state       court’s     rejection            of    Fowler’s       claim          was    not

contrary      to,    or     an     unreasonable               application          of,       clearly

established      federal     law,       as   determined          by     the    United         States

Supreme Court, we affirm the district court’s denial of Fowler’s

petition for habeas relief.

      While      this     appeal    was      pending,           Fowler       filed       a    motion

requesting that we designate his current, appointed counsel to

be “Martinez counsel,” referencing the Supreme Court decision in

Martinez    v.    Ryan,     132    S.    Ct.       1309       (2012),    and       our       decision

applying it in Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013),

and   remand      the     matter    to       the     district         court        for       further

investigation       and    amendments,         if    appropriate,             to    his       §    2254

petition.        Because     Fowler      had       the    benefit       of    the    qualified,

independent counsel called for in Juniper and he failed to raise

any Martinez-based claims below, we deny the motion as well.




                                               2
                                     I.

                                     A.

     Fowler was convicted in North Carolina state court of the

first-degree murder of Bobby Richmond, assault with a deadly

weapon   with   intent   to   kill   Bharat   Shah,   and   two   counts   of

robbery with a dangerous weapon.          All of the convictions arise

out of an armed robbery that occurred at a Howard Johnson’s

Motel in Charlotte, North Carolina, on December 31, 1995.                  The

circumstances surrounding the crime, as summarized by the North

Carolina Supreme Court, are as follows:

     On 31 December 1995 at approximately 10:45 p.m., Bobby
     Richmond (Richmond), an employee at a Howard Johnson’s
     Motel in Charlotte, North Carolina, entered the motel
     lobby looking for ice. Bharat Shah (Shah) was working
     as the motel night clerk.    About five minutes later,
     two black males entered the motel and approached the
     check-in counter. One of the men pulled out a gun and
     ordered Richmond to get on the ground. The other man
     ordered Shah to “open the register and give [him] the
     money.”   While Shah was handing over the money, the
     man with the gun shot both Richmond and Shah. He then
     ordered Shah to open the office safe.        When Shah
     stated he did not have the combination, the man shot
     Shah again. Both assailants then fled the motel.

          The Charlotte–Mecklenburg Police arrived at the
     scene at 11:04 p.m. and found Richmond and Shah lying
     near the counter.    Richmond was unresponsive.  Shah
     was struggling to speak with police.      He told the
     police they had been robbed by two black males, one
     wearing a green jacket.

          When paramedics arrived, they found a large wound
     in the middle of Richmond’s back.     Richmond had no
     carotid pulse.   The paramedics determined Shah’s life
     was in danger.    A hospital surgeon later found two



                                      3
      wounds in Shah’s left thigh, two more wounds in Shah’s
      back, and a wound in Shah’s right forearm.

            A  high-velocity   weapon   caused   Shah’s   thigh
      injury. Doctors removed two .44–caliber bullet jacket
      fragments from his forearm during surgery.        A .44–
      caliber bullet jacket was also found in Richmond’s
      left lung.    Police located a .44–caliber bullet core
      in the motel carpet beneath Richmond’s chest wound.
      Police also found a .44–caliber bullet jacket and a
      large fragment from a .44–caliber bullet jacket at the
      scene. Both had been fired from the same weapon used
      to shoot Richmond. Other pieces of metal found at the
      scene   were     also   consistent    with    .44–caliber
      ammunition.

           Richmond had an entrance wound in his back and an
      exit wound in his chest. His chest was against a hard
      surface when he was shot.        The evidence showed
      Richmond was likely shot from a distance of no more
      than three feet.

           Officers found Richmond’s wallet at the scene
      next to his body. The wallet contained no money. The
      cash register drawer and a plastic change drawer next
      to    the    register  also    contained   no   money.
      Approximately $300.00 was stolen from the motel during
      the robbery.

State v. Fowler, 548 S.E.2d 684, 689-90 (N.C. 2001).

      At    trial,    Jimmy     Guzman,       the   owner    of    the    restaurant

adjoining    the     motel   lobby,   testified       that   he    heard    gunshots

around 11:00 p.m. in the lobby of the motel.                  He looked through

the glass door of the restaurant and saw one of the robbers

standing behind the check-in counter.                   Guzman observed the man

for   approximately      five    seconds       before    running     to    call   the

police.     According to Guzman, “the man was black, in his late

twenties, and approximately six feet tall.”                       Id. at 690.      He

“had a pointed nose and hair on his face but not a full beard”

                                          4
and “was wearing a green toboggan and a camouflage army jacket.”

Id. 1       Over Fowler’s objection, Guzman identified Fowler in court

as the man he saw behind the counter that night.

        In addition to Guzman’s in—court identification of Fowler,

the prosecution presented the testimony of several witnesses to

whom Fowler had made incriminating statements.                   Jermale Jones

testified       that   Fowler   told   him   on   Thanksgiving   1995      that    he

planned to rob a Howard Johnson’s motel.                  In March 1996, Fowler

additionally       admitted     to   Jones   “that   he    entered   the    Howard

Johnson’s with a handgun to attempt a robbery and that when the

people working at the motel made him ask twice for the money,

[he] shot them [with] ‘a big old .44.’”                      Id. at 691.          Leo

McIntyre testified that he went to the Sugar Shack, a local

nightclub, on December 31, 1995, and spoke with Fowler.                    Fowler,

who was dressed in army fatigues, told McIntyre “that he shot

two people during a robbery at a Howard Johnson’s” motel.                         Id.

Later in the week, Fowler also told McIntyre “that, although he

thought he had killed both people at the robbery, one of them


        1
       Bharat Shah survived the shooting and also described the
events to the investigating officers.    However, Shah told the
officers “that he did not get a good look at the shooter because
he was primarily focused on the man taking the money” and that
“he probably could not recognize the suspects.”        State v.
Fowler, 548 S.E.2d 684, 691 (N.C. 2001).    Shah moved to India
after he recovered from his wounds and, despite assurances that
he would be given police protection, refused to return for the
trial. See id.


                                         5
had lived.”    Id.   Fowler also told McIntyre “that he only got

two or three hundred dollars” from the robbery.          Id.   Waymon

Fleming was living with Fowler at the time of the robbery.         He

testified that Fowler admitted robbing the motel and shooting

the “people who would not open the safe.”      Id.   When Fowler told

Fleming that he was going to flee the state, Fleming notified

the authorities and Fowler was apprehended.

     In addition to the above evidence, Edward Adams testified

that he was with Fowler at an apartment on the night of the

robbery.   He testified that Fowler left the apartment “between

9:00 and 10:00 p.m. with two other men and returned between

midnight and 1:00 a.m.”     Id.       Fowler then left to go to the

Sugar Shack.    Adams testified that he purchased a .44-caliber

revolver from Fowler the following evening.          Later, in April

1996, Fowler “asked Adams where the gun was located, and Adams

told him the gun had been destroyed.        [Fowler] responded, ‘I’m

glad,’ and asked Adams not to tell people about the gun.”         Id.

Fowler also told Adams that the prosecutor did not know who

purchased the gun.   See id.   Shenitra Johnson told officers that

Fowler arrived at her home shortly after 11:30 p.m. on December

31, 1995, and left between 12:30 and 1:00 a.m., and that Fowler

had a .44-caliber gun, which he later sold.       At trial, however,

Johnson testified that Fowler was at her home from 10:30 p.m. on

December 31, 1995, until 1:15 or 1:30 a.m. the next morning, and

                                  6
denied seeing Fowler sell or attempt to sell a handgun at her

apartment.       See id. at 692.

                                         B.

      In November 1997, Fowler was convicted by the jury of all

charges.        He was thereafter sentenced to death.                    On appeal to

the     North    Carolina    Supreme     Court,          Fowler    argued      that    his

convictions       should    be    overturned        because       Guzman’s      in-court

identification deprived him of his right to due process.                                The

North Carolina Supreme Court affirmed, see id. at 704, and the

United States Supreme Court denied certiorari, see Fowler v.

North Carolina, 535 U.S. 939 (2002).                 Fowler’s motion for state

postconviction relief, which added a related claim that Fowler’s

trial counsel was constitutionally ineffective in the handling

of    Guzman’s     identification,      was       also     denied,      see    State     v.

Fowler,    668    S.E.2d    343    (N.C.        2008),    and     the   United      States

Supreme    Court    again    denied     certiorari,         see     Fowler     v.     North

Carolina, 129 S. Ct. 2392 (2009).

      Fowler thereafter filed this petition for federal habeas

relief pursuant to 28 U.S.C. § 2254, raising sixteen separate

claims.     The district court denied the petition and declined to

issue a certificate of appealability.                     At Fowler’s request, we

granted    a    certificate      of   appealability         to    consider      Fowler’s

claim    that     the   state     court’s       adjudication       of    his    in-court



                                            7
identification       claim        was     contrary       to,     or     an    unreasonable

application of, Supreme Court precedent. 2                     We now affirm.

                                            II.

                                            A.

      We    begin     with       the     clearly        established          constitutional

principles     applicable         to    in-court     eyewitness         identifications.

The   United     States      Supreme       Court     has      set     forth    a     two-part

approach to determine whether an eyewitness identification must

be suppressed because it has been tainted by police procedures

or conduct.       See Perry v. New Hampshire, 132 S. Ct. 716, 724

(2012).     First, the court considers whether the identification

procedure      employed      by    the     police       was    “both        suggestive       and

unnecessary.”        Id.     Second, the court must “assess, on a case-

by-case     basis,     whether          improper     police         conduct        created    a

substantial     likelihood         of    misidentification.”                 Id.    (internal

quotation marks omitted).                 That is, the court must determine

“whether     under         the     totality        of      the      circumstances            the

identification       was     reliable        even       though        the     confrontation

procedure was suggestive.”                Neil v. Biggers, 409 U.S. 188, 199

(1972) (internal quotation marks omitted).



      2
       In his federal habeas petition, Fowler also reasserted his
claim that his trial counsel was constitutionally ineffective in
the handling of his in-court identification claim.     Fowler did
not seek a certificate of appealability on this issue.


                                             8
       When considering the question of whether the identification

was reliable under the second prong, the Supreme Court has also

identified five factors for consideration.                        They include:            (1)

“the opportunity of the witness to view the criminal at the time

of the crime”; (2) “the witness’ degree of attention”; (3) “the

accuracy of the witness’ prior description of the criminal”; (4)

“the    level      of     certainty    demonstrated         by   the   witness       at    the

confrontation”; and (5) “the length of time between the crime

and the confrontation.”               Biggers, 409 U.S. at 199-200.                   These

factors      are     weighed       against    “the       corrupting    effect    of        the

suggestive identification itself.”                       Manson v. Brathwaite, 432

U.S. 98, 114 (1977).

       Thus, “[e]ven when the police use such a procedure . . .,

suppression          of     the    resulting        identification       is     not       the

inevitable      consequence.”              Perry,     132   S.   Ct.   at     724.         The

eyewitness         identification          need     be    suppressed    only     if       the

procedures         used      to    obtain      the       identification       were        “‘so

unnecessarily suggestive and conducive to irreparable mistaken

identification that [the defendant] was denied due process of

law.’”       Biggers, 409 U.S. at 196 (quoting Stovall v. Denno, 388

U.S. 293, 302 (1967).

       Moreover, the exclusion of such evidence is the exception

to     the    rule        that    favors     the     admissibility      of    eyewitness

identification for the jury’s consideration.                       Ordinarily, “[t]he

                                              9
Constitution . . . protects a defendant against a conviction

based     on        evidence          of    questionable            reliability,       not    by

prohibiting introduction of the evidence, but by affording the

defendant means to persuade the jury that the evidence should be

discounted as unworthy of credit.”                            Perry, 132 S. Ct. at 723;

see also Harker v. Maryland, 800 F.2d 437, 443 (4th Cir. 1986)

(noting    that       the   exclusion         of        identification       evidence    is   “a

drastic    sanction         .     .    .    that        is    limited   to     identification

testimony which is manifestly suspect”).                             In the absence of “a

very substantial likelihood of irreparable misidentification, .

. . such evidence is for the jury to weigh.”                                 Brathwaite, 432

U.S. at 116 (internal quotation marks omitted).                                Courts should

be “content to rely upon the good sense and judgment of American

juries, for evidence with some element of untrustworthiness is

customary       grist       for       the    jury        mill.        Juries    are     not   so

susceptible that they cannot measure intelligently the weight of

identification         testimony           that    has       some   questionable      feature.”

Id.

                                                   B.

        Prior to trial, Fowler moved to suppress Guzman’s expected

in-court identification of him from the Howard Johnson’s motel,

asserting that any such identification by Guzman would be the

product        of     impermissibly               suggestive,        photographic        arrays



                                                   10
presented to Guzman in the immediate aftermath of the robbery

and murder. 3

     The first photographic array occurred on January 8, 1996.

Guzman was presented with a six-person photographic array that

included a photograph of Fowler that had been taken in November

1995.    In the photograph, Fowler had a full head of hair, a full

beard,   and    a     mustache.       As   noted   above,     however,     Guzman’s

initial description of the robber was of a man with a toboggan

cap, some      hair    on   his    face,   but   not   a   full   beard.     Guzman

declined to identify any of the photographs as resembling the

man he saw in the motel lobby. 4

     On January 14, 1996, police officers presented Guzman with

another six-person photographic array that included Fowler and

five additional photographs that had been selected as similar by

a computer program.           This array, however, contained an arrest

photograph of Fowler that had been taken just two days earlier,

on January 12, 1996.              In this photograph, Fowler had a shaved

head and light facial-hair stubble.                Although Guzman would not

positively identify any of the photographs as being of the man


     3
       Although Fowler initially moved to suppress both the pre-
trial photographic arrays and the in-court identification, he
later withdrew the motion to suppress the arrays.
     4
       On January 11, 1996, the police released the November 1995
photograph of Fowler to the media.      However, Guzman testified
that he did not see the media coverage.


                                           11
he   saw    on     the   night     of    the    robbery,          he   selected       Fowler’s

photograph as the one that “most closely resembled” the man.

J.A. 138.

      On April 3, 1996, the police presented Guzman with another

photographic array, which contained the photograph of a man whom

police believed to be an accomplice of Fowler in an earlier

crime but which did not include a photograph of Fowler.                                 At the

time, police had not yet identified the second robber and the

purpose     of    this    array    was    to        see    if    Guzman   recognized       the

suspected        accomplice.         Again,         Guzman       would    not    positively

identify any of the men, but he chose two photographs that he

said most closely resembled the man he saw that night. 5

      Just prior to the evidentiary hearing on Fowler’s motion to

suppress,        the     prosecutor      met        with        Guzman,   who     had     been

subpoenaed to testify.             During the meeting, Guzman was told that

Fowler     would    be    seated    between         his    attorneys      at    the   defense

table during the hearing.                At the hearing, Guzman confidently

identified Fowler -- who was dressed in an orange, jail jumpsuit

and seated between defense counsel -- as the man Guzman observed

      5
       Although not raised in connection with his motion to
suppress before the trial court, there was evidence presented at
the state MAR proceeding that Guzman was presented with two
additional arrays early on in the investigation that also did
not include Fowler. In one, Guzman declined to identify anyone.
In the other, he selected a photograph of Cullen Marshall, who
would later become Fowler’s co-defendant, as resembling one of
the robbers.


                                               12
in the motel lobby.       Guzman testified that his identification

was based on his having seen Fowler on the night of the robbery

and not on his having seen any photograph of Fowler in the

interim.      Moreover, when Guzman was presented with the January

12, 1996, array at the suppression hearing, he was unable to

identify the photograph that he had earlier selected as the one

that most closely resembled the man he saw that night.

      At the conclusion of the hearing on the motion to suppress,

the   trial    court   made   detailed   findings   of   fact   regarding

Fowler’s challenge to Guzman’s identification.            Of particular

note, the trial court found as follows:

      Mr. Guzman was approximately 25 feet from the person
      he observed behind the counter at the time of his
      observations.   The lobby was lighted with fluorescent
      lighting, and all the lights in the lobby appeared to
      be turned on.    He was able to observe the individual
      from the level of the counter up, which allowed him to
      observe the other part of the body of that person,
      including his face and facial features.      Mr. Guzman
      was able to look at the face of the person for
      approximately five seconds and see the face from
      different angles. . . .        The individual was not
      wearing a mask or anything covering his face. He was
      wearing a toboggan on his head.     Mr. Guzman does not
      wear   prescription   eyeglasses   nor  is   there  any
      indication that he is in need of corrective lenses.
      During the time that he observed the individual behind
      the counter, there was no obstruction of his view of
      the person’s face, there was no distraction of his
      attention from the individual, and he was able to
      focus his attention on the person.

J.A. 191-92.     The trial court also addressed Fowler’s claim that

the prosecutor’s pre-hearing statement to Guzman about Fowler’s


                                    13
expected location in the courtroom compounded the impermissibly

suggestive procedure:

       Prior to his testimony in Court, Mr. Guzman met with
       the prosecutors concerning his testimony and was
       informed that the Defendant would be present in Court
       and would be seated between his attorneys at the
       defense counsel table.      Mr. Guzman indicated his
       identification of the Defendant in open Court [was]
       based upon his recollection [of] the appearance on the
       Defendant as being the person behind the counter at
       Howard Johnson’s Motel on December 31st, 1995 and not
       based upon any suggestion or inference in conferences
       with   the   police   officers  or   with   prosecuting
       attorneys.    Mr. Guzman also indicated that he was
       confident that the Defendant was the person he had
       seen in Howard Johnson’s on December 31st, 1995.

J.A.   192-93.     The    trial     court    concluded      that   the     pretrial

identification   procedures       relating      to    the   photographic    arrays

were not impermissibly suggestive and, even if they were, “[t]he

identification     of    [Fowler]    by     James     Guzman   .   .   .   is   not

inherently    incredible,     given       all   the     circumstances      of   the

witness’s ability to view the accused at the time of the crime.

The credibility of the identification evidence is for the jury

to weigh.”   J.A. 197.

       On direct appeal, the North Carolina Supreme Court rejected

Fowler’s challenge to the trial court’s denial of his motion to

suppress.    In pertinent part, the North Carolina Supreme Court

held as follows:

            In the present case, the trial court made
       extensive findings concerning the photographic arrays
       shown to Guzman and concluded that Guzman’s in-court
       identification   was   based   on   his   independent

                                       14
     recollection of defendant from the night of the
     crimes. . . . There is ample evidence in the present
     record to support the trial court’s findings.   Guzman
     testified he was confident that defendant was the man
     he saw in the motel lobby on 31 December 1995. Guzman
     stated that his identification was based on his memory
     of seeing defendant in person in the motel lobby on
     the night of the shootings and not on seeing
     photographs of defendant.       Moreover, the record
     reveals prosecutors told Guzman when they met with him
     before the pretrial hearing that he should tell the
     truth if he did not recognize defendant.

          This evidence is sufficient to support the trial
     court’s findings, which in turn support its ultimate
     legal conclusion that Guzman’s identification was not
     the result of an impermissibly suggestive procedure.

Fowler, 548 S.E.2d at 698.             The court also rejected Fowler’s

argument   “that   the    cumulative    effect      of   viewing   photographic

arrays   and   meeting    with    prosecutors      caused   Guzman’s     in-court

identification     to    be   a   violation   of   defendant’s     due   process

rights,” id., observing that:

     [n]othing in the trial court’s findings or in the
     evidence suggests that the prosecutors encouraged
     Guzman to make a false identification.        The meeting
     between prosecutors and Guzman appears to have been
     nothing more than an opportunity to go over what would
     happen in court.     The prosecutors did not provide
     Guzman with any information that would not have been
     readily apparent to him during the proceedings. Thus,
     although prosecutors should avoid instructing the
     witness as to defendant’s location in the courtroom,
     there is nonetheless insufficient evidence to support
     defendant’s   contention     that   prosecutors    rigged
     Guzman’s identification. Accordingly, although Guzman
     never explicitly testified that his meeting with
     prosecutors    did     not     affect    his     in-court
     identification, the evidence in the record supports
     the    trial   court’s     conclusion    that    Guzman’s
     identification was not a result of prosecutorial
     suggestion.

                                       15
Id.     In sum, the court held that the procedures leading up to

Guzman’s       in-court          identification         were      not      unnecessarily

suggestive and that, even if they were, they did not create a

substantial         likelihood      of    irreparable     misidentification.             See

id. at 698-99.          In addition, the court held that any violation

of Fowler’s due process rights “was harmless beyond a reasonable

doubt” in light of the other evidence of Fowler’s guilt.                           Id. at

699.

                                            III.
                                             A.

       Because       the     North       Carolina    state        courts    adjudicated

Fowler’s constitutional claim on the merits, we may grant habeas

relief under 28 U.S.C. § 2254 only if that adjudication (1) “was

contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of

the United States,” 28 U.S.C. § 2254(d)(1), or (2) “was based on

an    unreasonable         determination      of    the   facts     in    light    of    the

evidence presented in the State court proceeding,” 28 U.S.C. §

2254(d)(2).

       As     the    United      States      Supreme      Court     has    increasingly

cautioned,      this       review    of    state    court      decisions     on    federal

constitutional claims is a highly constrained one.                           We are not

at liberty to substitute our judgment for that of the state

court    on    matters      of    federal    constitutional         law,    even    if    we

                                             16
believe the state court decision was incorrect.               “The question .

. . is not whether a federal court believes the state court’s

determination was incorrect but whether that determination was

unreasonable – a substantially higher threshold.”                  Schriro v.

Landrigan, 550 U.S. 465, 473 (2007) (emphasis added).                   A state

court decision is unreasonable “only if it is so erroneous that

‘there is no possibility fairminded jurists could disagree that

the   state    court’s    decision   conflicts      with   th[e]    [Supreme]

Court’s precedents.’”        Nevada v. Jackson, 133 S. Ct. 1990, 1992

(2013) (per curiam) (quoting Harrington v. Richter, 131 S. Ct.

770, 786 (2011)).        Furthermore, our deference is not limited to

the   state    court’s   interpretation     and    application     of   Supreme

Court precedents.        When we review a state court’s decision, we

must also presume the correctness of the state court’s factual

findings, unless rebutted by clear and convincing evidence.                 See

28 U.S.C. § 2254(e)(1).

                                     B.

                                     1.

      The district court held that the North Carolina Supreme

Court reasonably applied the clearly established Supreme Court

precedents     in   determining    that    the    pre-trial    identification

process   in   this   case   was   not    impermissibly    suggestive.       We

agree.



                                     17
       Law enforcement presented two photographic arrays to Guzman

that included Fowler’s photograph.                     Fowler does not argue that

the photographic arrays, as individually composed, were unduly

suggestive.       Rather, Fowler complains only that the pre-trial

procedures were unduly suggestive because he appeared in both

arrays and because Guzman was told that Fowler would be seated

between his counsel prior to the suppression hearing.                             However,

while a photograph of Fowler appeared in both arrays, the same

photograph did not appear in both, and it is undisputed that

Fowler’s appearance in the January 8 array was quite different

from    his    appearance     in     the    January      14       array    and    from   the

description       provided     by    Guzman       to     the      authorities      in    the

immediate aftermath of the crime.                       Moreover, although Guzman

selected the photograph of Fowler from the April 14 array as the

one    most    closely    resembling        the    man       he    saw,    he    would   not

positively identify anyone as being the man he saw on the night

of the robbery and he was unable to select the same photograph

at the suppression hearing.

       Nor are we persuaded by Guzman’s claim that the state court

unreasonably concluded that the prosecutor’s pre-hearing meeting

with Guzman was not so suggestive - singularly or in combination

with   the     photographic        arrays    –    as    to     violate     Fowler’s      due

process       rights,    or   by     his    argument         that    the    state       court

erroneously      imposed      upon    him    a    burden       of   proving       that   the

                                            18
prosecutors were driven by improper motives.                    There is nothing

in   the   record    that    calls    into   question         the   state    court’s

reasonable     determination         that    the       meeting       between       the

prosecutors and Guzman was simply “an opportunity to go over

what would happen in court,” and that the challenged statement

only   provided     Guzman   with    information       that    would   “have      been

readily apparent to him during the proceedings.”                       Fowler, 548

S.E.2d at 698; cf. United States v. Murray, 65 F.3d 1161, 1169

(4th Cir. 1995) (noting that a witness’s prior knowledge of a

defendant’s location at counsel table in a courtroom proceeding

was not per se impermissibly suggestive).                      In the course of

concluding that “the evidence in the record supports the trial

court’s conclusion that Guzman’s identification was not a result

of   prosecutorial     suggestion,”      even     in    combination      with     the

photographic arrays, the state court also appropriately observed

that there was nothing in the record to “suggest[] that the

prosecutors encouraged Guzman to make a false identification” or

otherwise “rigged Guzman’s identification.”                   Fowler, 548 S.E.2d

at 698.      And, as the state court pointed out, although the

prosecutors   told    Guzman    where    Fowler    would       be   seated   in   the

courtroom, they also told Guzman “that he should tell the truth

if he did not recognize defendant.”          Id.




                                        19
                                              2.

      As both the state court and district court correctly noted,

the   absence   of     an    unduly       suggestive             procedure       renders      it

unnecessary for us to go further.                       Nevertheless, even assuming

arguendo that    the    actions          of   the       police    and     prosecutor        were

unduly   suggestive,         we     cannot         say     that      the     state          court

unreasonably    concluded         that    Guzman’s         identification         of    Fowler

was reliable under the totality of the circumstances.

      Guzman observed the accused through a glass door from a

distance of 25 feet in fluorescent lighting for approximately

five seconds.     The accused wore no mask and nothing obstructed

Guzman’s view of him.             Guzman was able to and did observe his

facial   features    from         different            angles,    including       when        the

accused looked in Guzman’s direction, and nothing distracted his

view away from the man during the time that he observed him.                                   In

addition,   Guzman     was    aware       of       a    previous     robbery       that      had

occurred at the motel and, therefore, was immediately alert to

the   possibility      that        a     robbery          might      be     in     progress.

Furthermore,    Guzman       provided         a    detailed        description         of    the

accused immediately after the event, including a description of

his facial features and of the clothing he was wearing, which

turned out to match descriptions given by other witnesses who

saw Fowler on the night of the crime.



                                              20
     We additionally note that Guzman was consistently hesitant

to conclusively identify a suspect from any of the photographic

arrays shown to him, whether or not they included a photograph

of Fowler.     Instead, he did exactly what was asked of him.                 He

picked photographs only when he felt that they resembled the

person he saw that night and refused to conclusively identify

the culprit until he was sure.         When given the first opportunity

to observe Fowler in person in October 2007, Guzman, having been

told that he should only identify Fowler if he was sure, was

confident that Fowler was the person he saw in the lobby of the

Howard Johnson’s that night.         Guzman further testified that his

identification   was   based   on    seeing   Fowler    in   the    lobby   that

night and not on his having seen any photograph of Fowler.                    In

sum, it was not unreasonable for the state court to find that

Guzman based his identification on his observations on the night

of the robbery and not on his prior viewing of photographs of

Fowler or his knowledge of where Fowler would be located in the

courtroom.     To the extent that Guzman’s identifications were

subject to question, the state court reasonably held it was a

matter for the jury to consider and weigh and not a basis for

excluding the evidence altogether.

                                      3.

     Finally, the North Carolina Supreme Court additionally held

that,   even   assuming   that      error   occurred,    any       due   process

                                      21
violation “was harmless beyond a reasonable doubt,” in light of

the    other      evidence      at    trial.        Fowler,       548   S.E.2d       at    699.

Specifically, the court observed that:

       Guzman’s in-court identification was by no means the
       only evidence pointing to defendant’s guilt.          At
       trial,   three  witnesses   testified  that   defendant
       admitted entering the Howard Johnson’s to attempt a
       robbery and that he shot two people.       One witness
       testified that defendant told him he had only gotten
       two or three hundred dollars from the robbery and that
       he was broke because he had paid for his friends to
       get into the Sugar Shack. Another person testified
       that defendant sold him a .44–caliber revolver on the
       evening of 1 January 1996, the day after the murders.

Id.    On federal habeas, Fowler argues that he was prejudiced by

the admission of Guzman’s identification because the only other

“evidence linking Fowler to the crime was the testimony of four

informants,        all    of    whom    approached         the    State    with      supposed

information        about       Fowler’s      case   in     the     hopes    of      receiving

favorable deals and sentencing reductions for their own criminal

activity.”        Brief of Appellant at 33.

       On    direct      review,      “[a]   constitutional         error      is    harmless

when    it     appears       beyond     a    reasonable      doubt      that     the      error

complained        of   did     not    contribute      to    the     verdict      obtained.”

Mitchell     v.    Esparza,       540   U.S.    12,      17-18    (2003)    (per       curiam)

(internal       quotation        marks       omitted);       see     also      Chapman       v.

California, 386 U.S. 18, 24 (1967).                       On federal habeas review,

however, we apply the more onerous, harmless error analysis set

forth in Brecht v. Abrahamson, 507 U.S. 619, 631 (1993).                               “Under

                                              22
that standard, an error is harmless unless it had a substantial

and   injurious     effect       or    influence       in    determining              the    jury’s

verdict.”       Fry v. Pliler, 551 U.S. 112, 116 (2007) (internal

quotation marks omitted).               We “assess the prejudicial impact of

constitutional error in a state-court criminal trial under the

‘substantial and injurious effect’ standard set forth in Brecht

. . . whether or not the state appellate court recognized the

error    and    reviewed     it       for    harmlessness         under         the    [Chapman]

standard.”       Fry, 551 U.S. at 121-22 (noting that “it certainly

makes    no    sense    to   require        formal     application          of        both    tests

(AEDPA/Chapman and Brecht) when the latter obviously subsumes

the former”).       And “where an error is harmful under Brecht, any

state     court        decision        declaring        it        harmless            must     have

unreasonably applied Chapman.                 As a result, any error satisfying

Brecht    will      also     satisfy         AEDPA’s        deference           requirements.”

Bauberger      v.   Haynes,       632       F.3d     100,     104        (4th    Cir.        2011).

“Federal habeas courts must always review constitutional errors

in state trials under Brecht, but they need not debate whether a

state    court’s       harmless       error    determination             also    unreasonably

applied Chapman.”          Id.

      Applying      the      Brecht         standard,        we     conclude           that     the

admission of Guzman’s in-court identification, even if error,

was harmless.          As the state court observed, there was abundant

other    evidence       presented       on     the     issue        of     Fowler’s          guilt,

                                              23
including     the   testimony       of   several       acquaintances          that     Fowler

admitted that he committed the crime and provided details about

the shootings and the murder weapon that were corroborated by

the witnesses and forensic evidence from the motel that night.

                                           4.

       For the foregoing reasons, we hold that the state court’s

rejection of Fowler’s due process claim was not contrary to or

an   unreasonable       application       of     the     governing          Supreme    Court

precedents.      In the alternative, we hold that any such error was

harmless under Brecht.

                                           IV.

       We turn now to Fowler’s motion, filed for the first time on

appeal, which he styles as a Motion for Appointment of Qualified

and Independent Counsel.              Relying upon our decision in Juniper

v. Davis, 737 F.3d 288 (4th Cir. 2013), and the Supreme Court’s

decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012), Fowler

asks   that     that    we    defer      resolution        of    his    habeas        appeal,

designate     his   current     counsel        to   be    “Martinez         counsel,”     and

remand   this    case    to   the     district      court       to    allow    counsel     to

investigate      whether      there      are     any     substantial          ineffective-

assistance-of-trial-counsel              claims          that        were     not      timely

presented to the North Carolina state court.                          For the following

reasons, we deny the motion.



                                           24
                                        A.

                                        1.

      Ordinarily, a habeas petitioner is procedurally barred from

obtaining federal habeas review of a claim if he failed to raise

and exhaust the claim in state court.                See Coleman v. Thompson,

501 U.S. 722, 750 (1991); Wainwright v. Sykes, 433 U.S. 72, 84-

85   (1977).      Under   this      procedural     default    doctrine,    habeas

review of the claim will only be permitted if the petitioner can

demonstrate (1) cause for the default and prejudice resulting

therefrom or (2) that the failure to consider the claim will

result in a fundamental miscarriage of justice.                    See Coleman,

501 U.S. at 750.

      In some circumstances, a defendant may establish cause if

he    was      represented     by     counsel       whose     performance     was

constitutionally ineffective under the standards established in

Strickland v. Washington, 466 U.S. 668 (1984).                See Coleman, 501

U.S. at 752; Murray v. Carrier, 477 U.S. 478, 488 (1986).                      In

Coleman, however, the Supreme Court held that because “[t]here

is   no     constitutional   right     to     an   attorney   in   state    post-

conviction     proceedings,”     a    federal      habeas   “petitioner    cannot

claim constitutionally ineffective assistance of counsel in such

proceedings” to establish cause.             Coleman, 501 U.S. at 752.




                                        25
      In Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012), the

Supreme    Court    first    announced          a   “narrow      exception”      to   the

Coleman rule.      Specifically, the Court held that:

           Where, under state law, claims of ineffective
      assistance of trial counsel must be raised in an
      initial-review collateral proceeding, a procedural
      default will not bar a federal habeas court from
      hearing a substantial claim of ineffective assistance
      at   trial  if,   in   the  initial-review   collateral
      proceeding, there was no counsel or counsel in that
      proceeding was [constitutionally] ineffective.

Id. at 1320 (emphasis added).              This limited qualification of the

Coleman rule was based on the fact that when an “initial-review

collateral proceeding is the first designated proceeding for a

prisoner to raise a claim of ineffective assistance at trial,

the collateral proceeding is in many ways the equivalent of a

prisoner’s    direct       appeal     as    to        the     ineffective-assistance

claim.”    Id. at 1317.      Thus,

      [W]hen a State requires a prisoner to raise an
      ineffective-assistance-of-trial-counsel   claim  in   a
      collateral proceeding, a prisoner may establish cause
      for a default of an ineffective-assistance claim . . .
      where   appointed   counsel   in   the   initial-review
      collateral proceeding, where the claim should have
      been raised, was ineffective under the standards of
      Strickland v. Washington, 466 U.S. 668 (1984).

Id.   at   1318    (citation   omitted).              Not     long   thereafter,      the

Supreme Court held that the Martinez exception also applies to

ineffective-assistance-of-trial-counsel                     claims   that   state     law

might, on its face, permit to be brought on direct appeal, if

the   “structure     and    design”    of       the    state     “system    in    actual

                                           26
operation    .    .    .    make   it   ‘virtually        impossible’”       to    do   so.

Trevino v. Thaler, 133 S. Ct. 1911, 1915 (2013).                              Where the

“state   procedural          framework,    by    reason       of    its      design     and

operation, makes it highly unlikely in a typical case that a

defendant will have a meaningful opportunity to raise a claim of

ineffective assistance of trial counsel on direct appeal, [the]

holding in Martinez applies.”             Id. at 1921.

     To summarize, then, Martinez held that a federal habeas

petitioner       who       seeks   to   raise        an    otherwise        procedurally

defaulted        claim       of    ineffective-assistance-of-trial-counsel

before   the      federal      court    may     do    so    only    if:           (1)   the

ineffective-assistance-of-trial-counsel                   claim    is   a    substantial

one; (2) the “cause” for default “consist[s] of there being no

counsel or only ineffective counsel during the state collateral

review proceeding”; (3) “the state collateral review proceeding

was the initial review proceeding in respect to the ineffective-

assistance-of-trial-counsel claim”; and (4) state law “requires

that an ineffective-assistance-of-trial-counsel claim                          be raised

in an initial-review collateral proceeding.”                        Trevino, 133 S.

Ct. at 1918 (internal quotation marks, alterations, and emphasis

omitted); see also Martinez, 132 S. Ct. at 1318.                            Trevino held

that the Martinez exception would also apply in states that have

procedures which “make[] it highly unlikely in a typical case

that a defendant will have a meaningful opportunity to raise

                                          27
[the] claim on direct appeal.”                  Id. at 1921.            Absent these

“limited circumstances,” “[t]he rule of Coleman [continues] to

govern[].”        Martinez,      132   S.      Ct.   at   1320.         The   Martinez

exception “does not concern attorney errors in other kinds of

proceedings,      including     appeals     from     initial-review       collateral

proceedings,      second   or    successive      collateral       proceedings,     and

petitions      for   discretionary        review     in    a    State’s       appellate

courts.       It does not extend to attorney errors in any proceeding

beyond the first occasion the State allows a prisoner to raise a

claim    of    ineffective      assistance      at   trial,     even     though    that

initial-review collateral proceeding may be deficient for other

reasons.”      Id. (emphasis added) (citations omitted).

                                          2.

     In Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013), we held

that a habeas petitioner, who has been sentenced to death and

appointed counsel pursuant to 18 U.S.C. § 3599(a)(2) to pursue

federal postconviction relief, is entitled to the appointment of

qualified,       independent      legal     counsel       for     the    purpose    of

investigating whether he has any Martinez-based claims if his §

3599 counsel also represented him in the state postconviction

proceedings. 6


     6
       Pursuant to 18 U.S.C. § 3599, “[i]n any post conviction
proceeding under section 2254 or 2255 of title 28, United States
Code, seeking to vacate or set aside a death sentence, any
(Continued)
                                          28
       In Virginia, where Juniper was convicted, state prisoners

cannot    raise     ineffective-assistance-of-trial-counsel            claims   on

direct appeal and, therefore, the state fell plainly within the

Martinez exception.           See Johnson v. Commonwealth, 529 S.E.2d

769,   781   (Va.    2000).     Upon   the   filing   of     the    petition    for

federal habeas relief, the district court appointed Juniper’s

state postconviction counsel to continue representation of him

in the federal habeas proceedings.                However, when the Supreme

Court issued its decision in Martinez, Juniper moved to have new

counsel   appointed     under   §   3599,    in   addition    to    his   existing

counsel, for the purpose of investigating and presenting any

substantial, ineffective-assistance-of-trial-counsel claims that

had been procedurally defaulted in state court.                    In particular,

Juniper argued that he was entitled to such new counsel because

his existing counsel would otherwise be required to investigate

his own ineffectiveness in the state court proceedings.                         The

district court denied the motion, but granted a certificate of

appealability.

       On appeal, we held that “if a federal habeas petitioner is

represented by the same counsel as in state habeas proceedings,




defendant who is or becomes financially unable to obtain
adequate [legal] representation . . . shall be entitled to the
appointment of one or more attorneys” meeting the practice
qualifications set forth in subsections (b) through (d).


                                       29
and    the    petitioner       requests       independent         counsel    in     order     to

investigate and pursue claims under Martinez in a state where

the petitioner may only raise ineffective assistance claims in

an     ‘initial-review            collateral        proceeding,’           qualified         and

independent counsel is ethically required.”                          Juniper, 737 F.3d

at    290    (emphasis       in    original).        This     is    because       “‘a     clear

conflict of interest exists in requiring [petitioner’s] counsel

to    identify        and     investigate          potential        errors       that        they

themselves may have made in failing to uncover ineffectiveness

of    trial   counsel        while    they    represented         [petitioner]          in   his

state post-conviction proceedings.”                   Id. at 289-90 (quoting Gray

v. Pearson, 526 Fed. Appx. 331, 334 (4th Cir. 2013)); see also

id. at 290 (noting that it would be “ethically untenable to

require       counsel        to     assert     claims        of     his     or      her      own

ineffectiveness         in    the    state     habeas    proceedings         in     order     to

adequately      present           defaulted     ineffective-assistance-of-trial-

counsel       claims         under     Martinez         in    the         federal       habeas

proceedings”).

       We further held that, while Martinez requires that any such

claim be ultimately deemed substantial, the “district court must

grant the motion for appointment of counsel” for purposes of

investigation “without regard to whether the underlying motion

identifies      a   ‘substantial’        ineffective         assistance       claim       under

Martinez.”      Id.

                                              30
                                                B.

       The       state    of    North     Carolina     argues      that       the    Martinez

exception does not apply in North Carolina because its laws and

procedures neither prohibit nor make it “virtually impossible”

for    a    defendant      to    raise     an    ineffective–assistance-of-trial-

counsel claim on direct appeal.                       Fowler, on the other hand,

argues that Martinez does apply in North Carolina because, as in

Trevino, defendants are ordinarily required to raise claims of

ineffective         assistance       of    trial      counsel      in     a    motion      for

appropriate relief.             We disagree with both assertions.

       Under North Carolina law, “a motion for appropriate relief,

including motions filed in capital cases,” must be denied if

“[u]pon a previous appeal the defendant was in a position to

adequately raise the ground or issue underlying the . . . motion

but did not do so.”              N.C.G.S. § 15A-1419(a)(3), (b).                     However,

the statute “is not a general rule that any claim not brought on

direct appeal is forfeited on state collateral review.                               Instead,

the rule requires North Carolina courts to determine whether the

particular        claim    at    issue    could      have   been   brought          on   direct

review.”         McCarver v. Lee, 221 F.3d 583, 589 (4th Cir. 2000).

       Ineffective-assistance-of-trial-counsel                     “claims      brought      on

direct review will be decided on the merits when the cold record

reveals that no further investigation is required, i.e., claims

that       may    be     developed      and     argued      without     such        ancillary

                                                31
procedures as the appointment of investigators or an evidentiary

hearing.”        State   v.      Fair,   557    S.E.2d      500,    524    (N.C.    2001).

Otherwise, the claims “should be considered through motions for

appropriate relief and not on direct appeal.”                       State v. Stroud,

557 S.E.2d 544, 547 (N.C. Ct. App. 2001).                     “Thus, while in some

situations a defendant may be required to raise an [ineffective-

assistance-of-trial-counsel] claim on direct appeal, a defendant

will not be required to do so in all situations.”                              State v.

Long, 557 S.E.2d 89, 93 (N.C. 2001).                        Accordingly, “to avoid

procedural default under N.C.G.S. § 15A-1419(a)(3), defendants

should necessarily raise those [ineffective-assistance-of-trial-

counsel]    claims    on    direct       appeal    that     are    apparent    from    the

record.”      Fair, 557 S.E.2d at 525 (“commend[ing]” counsel “for

properly    raising      [five]     claims      [of    ineffective        assistance    of

counsel]    on    direct      appeal”).         “[S]hould     the    reviewing       court

determine     that   [ineffective-assistance-of-trial-counsel]                      claims

have   been      prematurely       asserted       on   direct      appeal,     it   shall

dismiss those claims without prejudice to the defendant’s right

to reassert them during a subsequent MAR proceeding.”                         Id.

       In sum, North Carolina does not fall neatly within Martinez

or Trevino.       Ineffective-assistance-of-trial-counsel claims that

are apparent from the record must be brought by the prisoner on

direct appeal and, as to those claims, “the state collateral

review   proceeding        [is    not]    the     initial    review       proceeding    in

                                           32
respect       to    the   .   .     .     claim.”          Trevino,         133    S.    Ct     at    1918

(internal          quotation        marks         omitted).           Accordingly,            they    are

subject to procedural default under N.C.G.S. § 15A-1419, and the

Martinez       exception         to     Coleman          will    provide          the    prisoner       no

relief     on       federal       habeas.             Ineffective-assistance-of-trial-

counsel       claims      that      are      not    so    apparent,          however,         will   fall

within the Martinez exception.

     In Juniper and Gray, we held that qualified, independent

counsel must be appointed in a Martinez state for the purpose of

determining         whether       any        additional,         ineffective-assistance-of-

trial-counsel          claims         exist       which        were    not    brought         on     state

habeas.            Because    some        claims         may    fall       within       the    Martinez

exception to Coleman, North Carolina petitioners are therefore

entitled        upon      request            to     the        appointment          of    qualified,

independent counsel for the purposes of investigating whether

any such claims exist.                    However, the federal habeas court will

still    be     called       upon       to    determine,         on    a    case-by-case           basis,

whether       the     particular             ineffective-assistance-of-trial-counsel

claim     identified,          regardless            of        its    merit,       is    nonetheless

procedurally defaulted because it could have been and should

have been raised on direct appeal.

                                                    C.

     That said, Fowler is not entitled to the relief he seeks

before this court.                Unlike the petitioners in Juniper and Gray,

                                                    33
Fowler had the benefit of qualified, independent counsel during

the pendency of his federal habeas petition below who had ample

opportunity     to    pursue      any     Martinez-based       arguments      on   his

behalf.

     During the various stages of Fowler’s trial and collateral

proceedings, he has had the benefit of at least nine death-

penalty qualified attorneys.              At trial, Fowler was represented

by Kevin Barnett and Harold Bender.                  On direct appeal, he was

appointed new counsel, James Glover, to review the trial court

record    and   pursue    appropriate          claims,     including    ineffective-

assistance-of-counsel claims.

     After      his   conviction         and     sentence     were     affirmed    and

certiorari      review    denied,         Fowler     was     appointed      qualified

postconviction counsel, Zephyr Teachout and Stephen Greenwald,

to pursue postconviction relief.                  Fowler’s original Motion for

Appropriate Relief was filed on November 12, 2002, and amended

on August 12, 2004.         During the pendency of his MAR proceeding,

however, Fowler’s postconviction counsel were relieved and he

was appointed a second set of qualified postconviction counsel,

Faith Bushnaq and Reita Pendry, who also reviewed the matter and

filed    an   amendment   to   the      MAR,     which   included      an   additional

ineffective-assistance-of-trial counsel claim.

     After      relief      was         denied     in      state     postconviction

proceedings,      Bushnaq      and       Pendry     sought     and      received    an

                                           34
appointment          to     represent          Fowler        in      his     federal      habeas

proceedings.          Pendry filed an affidavit attesting to both her

and Bushnaq’s qualifications to represent Fowler under § 3599(c)

and (d).         On February 12, 2009, Pendry and Bushnaq filed a

Petition       for    Writ       of     Habeas   Corpus.          The       state      filed   its

response in May 2009, and Fowler filed a reply to the response

in August 2009.

       On   October        11,     2011,     however,        Fowler’s       current     counsel,

Shelagh Kenney with the Center for Death Penalty Litigation,

successfully moved on Fowler’s behalf for an order appointing

her to replace Pendry.                  In conjunction with this motion, Kenney

also     represented         to        the   district        court     that      she    met    the

qualifications to undertake representation under § 3599(c) and

(d),    and    additionally             asserted      that    her     entire      practice     is

devoted to the representation of indigent defendants who have

been sentenced to death.                     The district court also granted, at

Kenney’s request, “a sixty (60) day abeyance of any rulings” on

the federal habeas petition, “without prejudice to [Fowler’s]

requesting additional time, if necessary,” Docket Entry No. 21,

Fowler v. Branker, No. 3:09-cv-00051 (W.D.N.C. Oct. 19, 2013),

in     order    to        give     newly      appointed       federal         habeas     counsel

“sufficient time to inform herself about Mr. Fowler’s case,”

Docket      Entry     No.        20,    Fowler     v.   Branker,           No.   3:09-cv-00051

(W.D.N.C. Oct. 11, 2011).

                                                 35
     Martinez,          which    had     been      fully        briefed         and    was       pending

argument     in     the        Supreme     Court           at       the    time        of       Kenney’s

appointment,       was    decided        on    March          20,    2012.         Moreover,           the

district   court         did    not    issue        its       decision       denying            Fowler’s

federal habeas petition until March 27, 2013, a year after the

decision in Martinez was issued.                        However, at no time during the

pendency   of     her     representation             did      Kenney       seek       to       amend   the

federal    habeas        petition        to        assert        additional            ineffective-

assistance-of-trial-counsel                   claims,           or        request          a     further

abeyance of the case to allow for any additional investigation

of any potential new claims.

     Thus,      although        styled        as    a    “Motion          for     Appointment           of

Qualified and Independent Counsel in Light of Juniper,” it turns

out that Fowler’s motion, filed before this court for the first

time,   does      not    seek    appointment             of     new,      independent            counsel

pursuant   to      Juniper       at    all.          Although         Fowler       was         initially

represented in his federal habeas proceedings by his second set

of state postconviction counsel, he was appointed and had the

benefit of qualified, independent counsel pursuant to § 3599 for

a substantial period of time during the pendency of his federal

habeas petition in the district court.                               Our holding in Juniper

was limited and explicit:

          To be clear, if a federal habeas petitioner is
     represented by the same counsel as in state habeas
     proceedings, and the petitioner requests independent

                                                36
     counsel in order to investigate and pursue claims
     under Martinez in a state where the petitioner may
     only   raise  ineffective   assistance  claims in  an
     ‘initial review collateral proceeding,” qualified and
     independent counsel is ethically required.

Juniper, 737 F.3d at 290 (third emphasis in original).                 However,

where, as here, counsel who represents the petitioner in federal

habeas proceedings “undertook representation after the initial-

review collateral proceeding concluded, that counsel cannot be

found ineffective before or after Martinez.                Ethically, this

means there is no potential conflict of interest in light of

Martinez because there is no chance that the attorney would have

to argue his or her own ineffectiveness or forego a potentially

valid   ineffective     assistance     of   counsel    claim.”        David   M.

Barron, Martinez Casts Doubt on State PostConviction and Federal

Habeas Representation, 27-Fall Crim. Just. 42 (2012) (emphasis

added).

     Kenney    is    without   doubt   well   qualified   and    informed     in

death penalty matters.         She represented Fowler for a year and a

half during the pendency of the district court proceedings, and

she did not represent Fowler at any stage of the state MAR

proceedings.        Thus, she did not labor under any conflict of

interest that would have hindered her ability to investigate

whether there were any Martinez-based ineffective-assistance-of-

trial-counsel claims that had not already been ferreted out by

Fowler’s   prior     trial   and   postconviction     counsel,   or    entitled

                                       37
Fowler to the appointment of new, “conflict-free” counsel under

§ 3599. 7

      We are also unpersuaded by Fowler’s half-hearted argument

that a special designation of “Martinez counsel” and remand for

further investigation is warranted because the Juniper decision

was   not      issued     until       after    Fowler        filed    his     appeal.       The

decisions      in    both    Juniper         and    Gray     addressed       a    conflict-of-

interest argument that was timely made before the district court

immediately after the Martinez decision was handed down by the

Supreme Court, and were based upon its reasoning and holding.

See e.g. Juniper, 737 F.3d at 289 (“In accordance with Martinez,

the     Gray    panel     held     that       the     petitioner        was      entitled    to

independent         counsel      in     his        federal     habeas       proceedings     to

investigate         and   pursue       the    ineffectiveness           of       state   habeas

counsel.”); Gray, 526 Fed. Appx at 332 (“[U]nder the reasoning

and holding of Martinez, [petitioner] is entitled to counsel who

could     vigorously        examine     and        present    if     available       potential

claims of ineffective assistance by [his] counsel in his state

habeas proceedings.”).             Juniper’s counsel was qualified, but not


      7
       In Juniper, the petitioner had a second appointed counsel
who had not represented him in the state postconviction
proceedings, but this counsel was not qualified under 18 U.S.C.
§ 3599(c) to represent him independently.     Here, in contrast,
Kenney   was  qualified   and,   therefore,  “serve[d]   as  the
independent counsel called for in” Juniper.    Juniper v. Davis,
737 F.3d 288, 290 n.2 (4th Cir. 2013).


                                               38
independent, and therefore Juniper was in a position to argue

that his appointed counsel operated under a conflict of interest

entitling him to new counsel under § 3599.                      Kenney, in contrast,

has at all times been independent and conflict-free.                           Moreover,

there is no magic to the term “Martinez counsel,” which does not

appear   in    Juniper     or     Gray.       The   term    is     but    a    shorthand

reference     to   the    qualified,      independent      counsel        that   Juniper

held was ethically required under § 3599 in the narrow set of

circumstances presented.              Juniper did not grant a federal habeas

petitioner and his independent counsel any right, on appeal, to

return to the district court and conduct additional Martinez

investigations       or    to     otherwise      vary     our    normal       rule   that

arguments such as these, including a petitioner’s motion for new

counsel in light of Martinez, should have been made in the first

instance to the district court.

      In sum, Martinez provided Fowler’s counsel with all the

authority necessary to request an additional abeyance of the

district court’s ruling and, if appropriate, to file an amended

habeas   petition.          No    explanation       for    this     delay      has   been

offered.      Unlike the petitioners in Juniper and Gray, Fowler did

not   seek    appointment        of   independent,      qualified        counsel     under

Martinez      in   the    district      court.       Kenney       already      met   that

criteria.      Nor did Fowler or Kenney, upon her appointment, seek

additional time to investigate whether there were any additional

                                           39
ineffective-assistance-of-trial-counsel                claims     which   Martinez

might allow the district court to consider, leaving us with the

unmistakable impression that there was nothing of substance left

to    investigate.     Counsel       may   or    may   not   have    investigated

whether   Fowler’s    two    sets    of    qualified,    state     postconviction

counsel were constitutionally ineffective in failing to identify

and    present   an   ineffective-assistance-of-trial-counsel              claim.

But even if such Martinez-based claims existed, they have been

waived by Fowler’s failure to raise the issue below, and any

ineffectiveness on Kenney’s part provides Fowler with no relief

here.

                                          V.

       For the foregoing reasons, we affirm the judgment of the

district court denying Fowler’s petition for habeas relief.                      We

also    deny   Fowler’s     motion   for       appointment   of     qualified   and

independent counsel under Martinez and Juniper.

                                                             JUDGMENT AFFIRMED;
                                                                  MOTION DENIED




                                          40
DAVIS, Senior Circuit Judge, concurring in the judgment in part
and dissenting in part:

       I strongly disagree with the weathered notion that when it

comes to eyewitness identification evidence, “[c]ourts should be

‘content to rely upon the good sense and judgment of American

juries, for evidence with some element of untrustworthiness is

customary grist for the jury mill,’” and that “‘[j]uries are not

so susceptible that they cannot measure intelligently the weight

of     identification        testimony        that       has    some        questionable

feature.’” See maj. op. at 10 (quoting Manson v. Brathwaite, 432

U.S.   98,    116    (1977)).       The    hundreds   of    exonerations        splashed

across the headlines of popular and legal media over the last

decade put the lie to the Supreme Court’s outworn hope that

juries      can     be    counted     on    routinely      to      reject     unreliable

eyewitness identification evidence without special guidance from

courts. See generally Laura Sullivan, Exonerations On The Rise,

And Not Just Because Of DNA, National Public Radio (Feb. 4,

2014, 3:47 AM) (saved as ECF Opinion Attachment). Nevertheless,

largely     for    reasons    set    forth    in   the     Chief    Judge’s     thorough

opinion, I concur in the judgment that Fowler is not entitled to

relief under 28 U.S.C. § 2254.

       As    for    the   motion     to    appoint    counsel       pursuant     to   the

teachings of Juniper v. Davis, 737 F.3d 288 (4th Cir. 2013), I

would remand determination of the issue to the district court


                                            41
for its examination in the first instance. If the district court

denied the motion, then Fowler would be free to seek from the

district court or this Court a certificate of appealability.

Accordingly, I dissent from the panel’s denial of the motion.




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